ILLINOIS POLLUTION CONTROL BOARD
November 7, 2002
CLEAN THE UNIFORM COMPANY-
HIGHLAND,
Complainant,
v.
ARAMARK UNIFORM & CAREER
APPAREL, INC.,
Respondent.
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PCB 03-21
(Citizens UST Enforcement)
ORDER OF THE BOARD (by G.T. Girard):
On August 23, 2002, Clean the Uniform Company- Highland (complainant) filed a
complaint against Aramark Uniform & Career Apparel, Inc. (respondent). The complaint alleges
that the respondent violated Sections 12 (a) and (d), 21 (a), 21(d)(2), 21(e) and 57 of the
Environmental Protection Act (Act) (415 ILCS 5/23, 24 (2000)
amended by
P.A. 92-0574, eff.
June 26, 2002). On September 26, 2002, respondent filed a motion to dismiss (Mot.) along with
a motion to appear
pro hac vice
. On October 7, 2002, complainants filed a response (Resp.) to
the motion to dismiss.
The Board denies the motion to dismiss and grants the motion to appear
pro hac vice
.
The Board finds that the alleged violations of the Act are neither duplicative nor frivolous for the
reasons discussed below. However, the request for injunctive relief is frivolous and the Board
will strike that portion of the complaint. This matter is accepted for hearing.
MOTION TO DISMISS
Arguments
Respondent argues that this complaint should be dismissed as the complaint does not
allege violations of the Board’s regulations contrary to the requirements of the Board’s
procedural rules at 35 Ill. Adm. Code 103.204(c). Respondent asserts that the Board’s
procedural rules require that the complaint allege violations of the Act
and regulations
. Mot. at
1. Respondent argues that because the complaint does not contain proper references to the
regulations that respondent is alleged to have violated, respondent cannot prepare a defense.
Mot. at 2.
Complainant maintains that there is no alleged violation of the Board’s regulations
because complainant is not asserting that respondent violated the Board’s regulations. Resp. at
1. Furthermore, complainant maintains that there is sufficient notice of the alleged violations in
the complaint to warrant proceeding with the complaint. Resp. at 3. Finally, complainant argues
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that the respondent is reading the Board’s procedural rules too narrowly and such a reading is
not supported by the Act. Resp. at 2-3.
Discussion and Conclusion
The Board’s procedural rules at 35 Ill. Adm. Code 103.204(c) provide:
c) The complaint must be captioned in accordance with 35 Ill. Adm. Code
101.Appendix A, Illustration A and contain:
1) A reference to the provision of the Act and regulations that the
respondents are alleged to be violating;
2) The dates, location, events, nature, extent, duration, and strength of
discharges or emissions and consequences alleged to constitute
violations of the Act and regulations. The complaint must advise
respondents of the extent and nature of the alleged violations to
reasonably allow preparation of a defense; and
3) A concise statement of the relief that the complainant seeks. 35 Ill.
Adm. Code 103.204(c)
Section 103.204(c) sets forth the information which must be contained in the complaint.
35 Ill. Adm. Code 103.204(c). However in these procedural rules, nothing requires that a
complainant allege both violations of the Act and the Board’s regulations in order to file a
complaint with the Board. Rather, if there are alleged violations to both the Act and the Board’s
regulations, the complaint must so state. In this case, the complainant makes no allegation that
the Board’s rules were violated so the complaint need not contain alleged violations of the
Board’s regulations. The motion to dismiss is accordingly denied.
DUPLICATIVE/FRIVOLOUS DETERMINATION
Discussion
Section 31(d) of the Environmental Protection Act (415 ILCS 5/31(d) (2000)
amended by
P.A. 92-0574, eff. June 26, 2002) allows any person to file a complaint with the Board. Section
31(d) further provides that “[u]nless the Board determines that such complaint is duplicative or
frivolous, it shall schedule a hearing.”
Id.
;
see also
35 Ill. Adm. Code 103.212(a). A complaint
is duplicative if it is “identical or substantially similar to one brought before the Board or another
forum.” 35 Ill. Adm. Code 101.202. A complaint is frivolous if it requests “relief that the Board
does not have the authority to grant” or “fails to state a cause of action upon which the Board can
grant relief.”
Id.
Within 30 days after being served with a complaint, a respondent may file a
motion alleging that the complaint is duplicative or frivolous. 35 Ill. Adm. Code 103.212(b).
The Board has not identified any other cases, identical or substantially similar to this,
pending in other forums. Therefore, based on the record before us, this matter is not duplicative.
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Furthermore, after careful consideration of the respondent’s arguments, the Board finds that the
complaint is not frivolous in that the complaint does state a cause of action. However, the
complaint seeks both cost recovery and “injunctive” relief. Comp. at 1. The Board is not
authorized to grant injunctive relief (415 ILCS 5/43 (2000)) and that portion of the complaint is
stricken.
Conclusion for Duplicative/Frivolous Determination
The Board finds that the alleged violations of Act are neither duplicative nor frivolous,
pursuant to Section 31(d) of the Act (415 ILCS 5/31(d) (2000)
amended by
P.A. 92-0574, eff.
June 26, 2002). However, the request for injunctive relief is frivolous and will be stricken.
ACCEPT FOR HEARING
The Board accepts the complaint for hearing.
See
415 ILCS 5/31(d) (2000); 35 Ill. Adm.
Code 103.212(a). A respondent’s failure to file an answer to a complaint within 60 days after
receiving the complaint may have severe consequences. Generally, if respondent fails within
that timeframe to file an answer specifically denying, or asserting insufficient knowledge to form
a belief of, a material allegation in the complaint, the Board will consider respondent to have
admitted the allegation. 35 Ill. Adm. Code 103.204(d).
The Board directs the hearing officer to proceed expeditiously to hearing. Among the
hearing officer’s responsibilities is the “duty . . . to ensure development of a clear, complete, and
concise record for timely transmission to the Board.” 35 Ill. Adm. Code 101.610. A complete
record in an enforcement case thoroughly addresses, among other things, the appropriate remedy,
if any, for the alleged violations, including any civil penalty.
If a complainant proves an alleged violation, the Board considers the factors set forth in
Sections 33(c) and 42(h) of the Act to fashion an appropriate remedy for the violation.
See
415
ILCS 5/33(c), 42(h) (2000). Specifically, the Board considers the Section 33(c) factors in
determining, first, what to order the respondent to do to correct an on-going violation, if any,
and, second, whether to order the respondent to pay a civil penalty. The factors provided in
Section 33(c) bear on the reasonableness of the circumstances surrounding the violation, such as
the character and degree of any resulting interference with protecting public health, the technical
practicability and economic reasonableness of compliance, and whether the respondent has
subsequently eliminated the violation.
If, after considering the Section 33(c) factors, the Board decides to impose a civil penalty
on the respondent, only then does the Board consider the Act’s Section 42(h) factors in
determining the appropriate amount of the civil penalty. Section 42(h) sets forth factors that may
mitigate or aggravate the civil penalty amount, such as the duration and gravity of the violation,
whether the respondent showed due diligence in attempting to comply, any economic benefit that
the respondent accrued from delaying compliance, and the need to deter further violations by the
respondent and others similarly situated.
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Accordingly, the Board further directs the hearing officer to advise the parties that in
summary judgment motions and responses, at hearing, and in briefs, each party should consider:
(1) proposing a remedy for a violation, if any, including whether to impose a civil penalty, and
supporting its position with facts and arguments that address any or all of the Section 33(c)
factors; and (2) proposing a civil penalty, if any, including a specific dollar amount, and
supporting its position with facts and arguments that address any or all of the Section 42(h)
factors.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on November 7, 2002, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
