ILLINOIS POLLUTION CONTROL BOARD
    March 26, 1992
    RONALD.
    E. TEX and SUSAN D.
    TEX,
    )
    )
    Petitioners,
    v.
    )
    PCB 90—182
    (Enforcement)
    S. SCOTT COGGESHALL and
    )
    COGGESHALL CONSTRUCTION CO.,
    )
    CHESTER BROSS,
    JEFF BROSS and
    )
    CHESTER ‘BROSS CONSTRUCTION CO.,
    )
    )
    Respondents.
    ORDER OF THE BOARD
    (by N. Nardulli):
    This matter
    is before the Board on the March 12,
    1992 motion
    for reconsideration filed by respondents Chester Bross, Mike
    Bross, Jeff Bross and Chester Bross Construction Company
    (collectively Bross).
    Bross seeks reconsideration of the Board’s
    February
    6,
    1992 order denying Bross’ motion to dismiss Bross as
    respondents.
    As noted in the Board’s February
    6,
    1992, the hearing
    officer granted respondent Coggeshall’s motion to add Brôss
    as
    respondents because Bross managed and controlled the asphalt
    plant which is the subject of this citizen enforcement action
    during period of the alleged violation.
    Bross sought dismissal
    on the basis that it is no longer in control of the propertyand,
    therefore,
    cannot cease and desist from any alleged violations or
    bring the plant intq compliance.
    The Board denied the motion to
    dismiss reasoning that while Bross may not be able to cease and
    desist from future violations,
    the Board could direct Bross to
    pay a penalty upon a finding of violation.
    The Board noted that
    it may impose a penalty even if none was requested by
    complainant.
    (See Ill. Rev.
    Stat.
    1989,
    ch.
    111 1/2, par.
    1042 (a)
    .)
    In its motion for reconsideration, Bross asserts that,
    in
    denying the motion to dismiss, the Board did not consider the
    questioning between the hearing officer and complainant
    concerning the scope of relief sought.
    Bross contends that the
    record establishes that complainant restricted its relief to a
    cease and desist order.
    Bross argues that they should be
    dismissed because “Bross was never given notice of the any
    potential imposition of penalties” and was “allowed to leave the
    hearings based on the fact that only cease and desist orders were
    requested and that those were the only issues before the hearing
    officer.”
    According to Bross, their -due process rights would be
    violated if the Board imposed a penalty against them because
    “they were not able to examine or cross—examine witnesses or
    131—46 1
    2
    submit other evidence at the hearing.”
    Bross also argues that
    the imposition of penalties in this case would be inappropriate.
    The record establishes that a discussion took place at the
    January 8, 1992 hearing concerning the type of relief sought by
    complainant.
    (Tr.
    8-12.)
    The hearing officer stated that
    because this was a citizen complaint, he was not aware that there
    could be any type of monetary damages or attorney fees awarded.
    (Tr.
    8,
    12.)
    Complainant stated that they wanted a cease and
    desist order and “would be asking
    ...
    that the Pollution Control
    Board gr’ant any and all relief that it had the authority to
    grant.
    So if it has any authority beyond that, we would not
    simply limit it to that.”
    (Tr. 11.)
    Again, the hearing officer
    asked if there was any authority for any relief beyond a cease
    and desist order or an order to bring respondent into compliance
    stating that he was not aware of any.
    (Tr.
    11.)
    Complainant
    again stated that they would want a cease and desist order and to
    achieve compliance.
    (Tr.
    12.)
    Bross then made an oral motion to,
    dismiss to which complainant and Coggeshall responded.
    The
    hearing officer stated that he did not have the authority to rule
    on Bross’ motion to dismiss.
    (Tr.
    13,
    16.)
    After a short
    recess, the hearing officer noted for the record that Bross’
    attorney had left the hearing and that Bross would not be
    represented for the remainder of the hearing.
    (Tr.
    20.)
    At he
    next day of hearing, the hearing officer stated:
    T)he
    Bross Group is represented in this proceeding by
    Mr.
    Charles
    R.) Svoboda and his firm were not
    dismissed by me.
    I did give Mr. Svoboda leave to
    file a motion to dismiss.
    However,
    off the record,
    I
    did explain to him before he decided to leave the
    proceeding that he is still a party to this proceeding
    and that his leaving was with whatever risk there may
    be to him as far as any possible fines or penalties
    that may be assessed against his client.
    (Tr.
    1/9/92
    at 190.)
    Based upon a review of the transcripts, the Board finds
    Bross’ statement that they were “allowed” to leave the hearing a
    gross misrepresentation of what actually occurred at hearing.
    Mr. Svoboda left the hearing choosing not to present testin~onyor
    cross—examine witnesses knowing full well that Bross’ motion to
    dismiss was not, and would not be, ruled on by the hearing
    officer.
    It is ludicrous for Bross
    to, now complain that they
    were denied due process because they did not participate at
    hearing when their attorney left a hearing at which Bross was
    still a party.
    Additionally, while the record reveals that the
    hearing officer did not advise the parties thatthe Board has the
    discretion to impose penalties, the Environmental Protection Act
    (Act) does so provide
    (Ill.
    Rev. Stat.
    1989,
    ch.
    11 1/2,
    par.
    1042(a))
    such that Bross’ counsel should.have been aware that the
    i~iipositionof a penalty could result from a finding of violation.
    131—462
    3
    The Board also notes that a finding of violation alone,
    absent
    any cease and desist order or penalty, has certain adverse
    ramifications for a respondent.
    (See ~.g., Ill.
    Rev. Stat.
    1989,’
    ch.
    111 1/2, par.
    1042(h) (5)..).
    Contrary to Bross’ contention,
    the Board is certainly under no obligation to advise each and
    every respondent of the provisions set forth in the Act.
    Bross voluntarily chose not to participate in the hearing
    based upon its mistaken belief that the only possible remedy
    would be a cease and desist order or directives aimed at
    achieving compliance.
    By doing so, Bross has taken the risk that
    the Board may find them in violation and impose a penalty in a
    case where they chose not to exercise their right to present
    evidence and conduct cross—examination.
    Bross’ remaining
    arguments regarding whether imposition of a penalty is
    appropriate in this case are irrelevant to determining whether
    the Board should reconsider its denial of Bross’ motion to
    dismiss.
    Whether or not complainant has established that Bross
    committed a violation of the Act and whether any remedy or
    penalty will be imposed against Bross will be determined by this
    Board after a complete review of the record.
    The Board has reconsidered its February
    6,
    1992 order
    denying Bross’ motion to dismiss and finds no basis upon which to
    reverse its denial.’
    The’Board again finds no basis to dismiss
    Bross as respondents
    in this action.
    IT IS SO ORDERED.
    I, Dorothy N. Gunn,
    Clerk of
    th,e Illinois Pollution Control
    Board, hereby certify that the above order was adopted on the
    ~(C~7~
    day of
    ~~j
    ,
    1992 by a vote of 7—c
    2
    ~/)~
    Dorothy M. /‘~unn, Clerk
    Illinois Pollution Control Board
    1
    Because the Board denies the motion to dismiss,
    it need
    not wait for the filing of a response.
    (35 Ill. Adm.
    Code 101.241(b).)
    131—463

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