ILLINOIS POLLUTION CONTROL BOARD
    December 5, 2002
     
     
    PEOPLE OF THE STATE OF ILLINOIS,
     
    Complainant,
     
    v.
     
    CITY OF GEORGETOWN, an Illinois
    municipal corporation, and T.K FLEMING
    CONSTRUCTION, INC., an Illinois
    corporation,
     
    Respondent.
     
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    PCB 03-74
    (Enforcement – Public Water Supply)
     
    ORDER OF THE BOARD (by M.E. Tristano):
     
    On November 20, 2002, the Office of the Attorney General, on behalf of the People of
    the State of Illinois (People), filed a five-count complaint against the City of Georgetown and
    T.K. Fleming Construction, Inc. (respondents).
    See
    415 ILCS 5/31(c)(1) (2000)
    as amended by
     
    P.A. 92-0574, eff. June 26, 2002; 35 Ill. Adm. Code 103.204. The People allege that
    respondents violated Sections 12(b), 15, and 18(a) of the Environmental Protection Act (Act)
    (415 ILCS 5/12(b), 15, 18(a) (2000) as amended by P.A. 9209574, eff. June 26, 2002), and
    various regulations pertaining to public water supplies. The People further allege that
    respondents violated these provisions by failing to submit construction permit applications for a
    water main extension and a sewer main; failing to submit a permit application for operating the
    water main; constructing the water and sewer mains on a vertical plane less that 18 inches apart;
    failing to implement the cross-connection ordinance by conducting a survey; and failing to
    maintain data on inspections, repairs, and tests. The complaint concerns the City of
    Georgetown’s annexation of the Woodland Estates Subdivision, located in Georgetown,
    Vermillion County.
     
    The Board accepts the complaint for hearing.
    See
    35 Ill. Adm. Code 103.212(c). A
    respondent’s failure to file an answer to a complaint within 60 days after receiving the complaint
    may have severe consequences. Generally, if respondents fail 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 respondents 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.
     
     
    2
    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.
       
    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 December 5, 2002, by a vote of 6-0.
     
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

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