ILLINOIS POLLUTION CONTROL BOARD
February 19, 2004
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
MILLENIUM RECYCLING & SOLID
WASTE CONSULTANTS, INC., SHERRI
CLEMENTI, individually and as president of
MILLENIUM RECYCLING & SOLID
WASTE CONSULTANTS, INC., and
MICHAEL LORENCE, individually,
Respondents.
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(Enforcement - Land)
OPINION AND ORDER OF THE BOARD (by T.E. Johnson):
On December 15, 2003, the Office of the Attorney General, on behalf of the People of the
State of Illinois (People), filed a motion to deem facts admitted and for summary judgment
against Millenium Recycling & So
lid Waste Consultants, Inc. (Millenium), Sherri Clementi
(Clementi), and Michael Lorence (Lorence) (collectively respondents) on all counts of the
amended complaint filed in this matter. To date, no respondent has filed any response to the
motion.
For the reasons set forth below, the Board grants the People’s motion. The Board finds
that the respondents have violated the Environmental Protection Act (Act) as alleged in the
amended complaint, and imposes a $25,000 penalty on the respondents.
BACKGROUND
On December 12, 2001, the People filed a complaint against Millenium alleging
violations of Sections 21(a), 21 (d)(1), 21(e), and 21(p)(1) of the Act. 415 ILCS 5/21(a), (d)(1),
(e), and (p)(1) (2002). The People alleged that Millenium violated these provisions by
conducting a waste disposal operation without a permit, and causing or allowing litter. The
complaint concerns Millenium’s facility at 31W620 Spaulding Road, Elgin, Cook County.
On January 23, 2003, the Board granted Millenium’s attorney motion to withdraw. In
order to avoid any undue delay in the resolution of this case, the Board ordered Millenium to
retain an attorney who was directed to file an appearance on or before February 24, 2003, and an
answer to the complaint on or before March 24, 2003. At a telephonic status conference held on
March 4, 2003, Clementi, not a licensed attorney, attempted to appear on behalf of respondent
Millenium in her capacity as registered agent. Clementi represented that the respondent
corporation is dissolved and bankrupt and lacked the funds to retain an attorney. By order dated
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March 4, 2003, the hearing officer gave Clementi until March 19, 2003, to respond to the
January 23, 2003 Board order. No response was received by the Board.
On April 10, 2003, the People filed an amended complaint that added Sherri Clementi
and Michael Lorence as respondents. The Board accepted the amended complaint on May 15,
2003, advising Sherri Clementi and Michael Lorence that their time to file any answer or
responsive motion to the complaint would begin to run from their respective receipt of the order.
On August 21, 2003, the Board ordered respondent Millenium to show cause why a default order
in this case should not be entered for failure to appear at numerous status conferences. The
Board allowed Millenium until September 4, 2003, to respond to this order.
On September 17, 2003 the Board received a Discharge of Debtor Order dated September
8, 2003 issued by the U. S. Bankruptcy Court (N.D. Ill.) regarding “Sherri Lynn Clementi AKA:
Millenium Recycling.”
In re
Sherri Lynn Clementi, No. 03-20318 (Bankr. N.D. Ill. Sept. 8,
2003).
On October 2, 2003, the Board issued an order finding Millenium in default for repeated
failure to comply with Board and hearing officer orders to appear and proceed with this case.
The Board found Millenium had violated Section 21(a), 21(d)(1), 21(e), and 21(p)(1) of the Act,
as alleged, by conducting a waste disposal operation without a permit, and causing or allowing
litter. The order also addressed an alleged deficiency in service by allowing Lorence until
December 1, 2003, to answer the amended complaint; and directed the People to file a motion or
other appropriate pleading regarding the appropriate remedy or penalty.
On November 3, 2003, the People filed proofs of service showing that service of the
amended complaint on Clementi and Lorence was achieved on April 12, 2003. The instant
motion was, as stated, filed on December 15, 2003. No hearing has been held in this matter.
FACTUAL SUMMARY
At all times pertaining to the violations alleged in the complaint, Millenium was an
Illinois corporation operating at 31W620 Spaulding Road, Elgin, Cook County. Am. Com. at 2.
Clementi is the president and registered agent for Millenium, and communicated directly with
the Agency regarding the environmental issues alleged in the amended complaint.
Id
. Lorence
is the operations manager responsible for day-to-day operations.
Id
.
As part of the business, Millenium regularly accepted various types of waste and refuse
such as wood, construction debris and garbage at the site. Am. Com. at 3. The majority of the
waste was wood that was ground and shred to produce animal bedding and compost for
landscaping.
Id
. Millenium also separated construction and demolition debris, cardboard and
metal for offsite recycling.
Id
. The site at which these activities occurred was never permitted
by the Agency for the disposal of waste. Am. Com. at 5,7.
In a letter dated February 13, 2001, Clementi stated that Millenium has removed all the
garbage, except “daily activity,” from the site and is in the process of moving from the site. Am.
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Com. Ex. B. Clementi asserts in that letter that the new owner of the property has been dumping
mixed debris on the site.
Id
.
MOTION TO DEEM FACTS ADMITTED
The People contend that the Board’s October 2, 2003 order required Lorence to answer
the amended complaint on or before December 1, 2003, and that Lorence has not yet filed an
answer or other pleading in response to the amended complaint. Mot. at 2. The People assert
that by failing to answer the amended complaint by December 1, 2003, or by failing to file a
motion staying the 60-day period in which to file an answer, Lorence has admitted the material
allegations asserted in the amended complaint. Mot. at 4.
The People contend that the amended complaint was served on Cleminti by certified mail
on April 12, 2003, that Clementi has appeared before the Board, and has not filed any answer or
other pleading in response to the amended complaint. Mot. at 3. The People assert that by
failing to answer the amended complaint by June 11, 2003, or by failing to file a motion staying
the 60-day period in which to file an answer, Clementi has admitted the material allegations
asserted in the amended complaint. Mot. at 4.
The People request that that pursuant to Section 103.204(d) and (e) of the Board’s
procedural rules, the Board find Lorence and Clementi have admitted all material allegations
asserted in the amended complaint. Mot. at 4.
The Board’s Procedural Rules
Section 103.204 of the Board’s procedural rules for enforcement actions provides in
part:
Except as provided in subsection (e) of this Section, the respondent may file an
answer within 60 days after receipt of the complaint if respondent wants to deny
any allegations in the complaint. All material allegations of the complaint will be
taken as admitted if no answer is filed or if not specifically denied by the answer,
unless respondent asserts a lack of knowledge sufficient to form a belief. 35 Ill.
Adm. Code 103.204(d).
Subsection (e) indicates that the 60-day period to file an answer will be stayed if a
respondent timely files a motion attacking the sufficiency of the complaint under Section
101.506 of the Board rules, or claiming the complaint is duplicative or frivolous under Section
103.212(b). 35 Ill. Adm. Code 103.202(e);
see also
35 Ill. Adm. Code 101.506, 103.212(b).
Subsection (f) provides:
Any party serving a complaint upon another party must include the following
language in the notice: “Failure to file an answer to this complaint within 60
days may have severe consequences. Failure to answer will mean that all
allegations in the complaint will be taken as if admitted for purposes of this
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proceeding. If you have any questions about this procedure, you should
contact the hearing officer assigned to this proceeding, the Clerk's Office or an
attorney.” 35 Ill. Adm. Code 103.204(f).
Discussion
To date, neither Lorence nor Clementi have filed any response to the motion to deem
facts admitted. If a party files no response to a motion within 14 days the party will be deemed
to have waived objection to the granting of the motion.
See
35 Ill. Adm. Code 101.500(d).
The Board grants the People’s motion to deem facts admitted. The notice of filing
attached to the amended complaint contained language regarding failure to answer the complaint,
as required by Section 103.204(f) of the Board rules. 35 Ill. Adm. Code 103.204(f). The Board
deems admitted the material allegations alleged in the People’s amended complaint against
Lorence and Clementi.
MOTION FOR SUMMARY JUDGMENT
Section 101.516(b) of the Board’s procedural rules for enforcement actions provides:
If the record, including pleadings, depositions and admissions on file,
together with any affidavits, shows that there is no genuine issue of
material fact, and that the moving party is entitled to judgment as a matter
of law, the Board will enter summary judgment. 35 Ill. Adm. Code
101.516(b).
Summary judgment is appropriate when the pleadings and depositions, together with any
affidavits and other items in the record, show that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
See
Dowd & Dowd, Ltd. v.
Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998). In ruling on a motion for summary judgment,
the Board “must consider the pleadings, depositions, and affidavits strictly against the movant
and in favor of the opposing party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.
Summary judgment is a drastic means of disposing of litigation, and therefore it should
only be granted when the movant’s right to the relief is clear and free from doubt.” Dowd, 181,
Ill. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489. N.E.2d 867,
871 (1986). However, a party opposing a motion for summary judgment may not rest on its
pleadings, but must “present a factual basis, which would arguably entitle [it] to a judgment.”
Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).
The People’s Arguments
The People argue that if the Board finds that Lorence and Clementi have admitted all
material allegations asserted in the amended complaint then the record shows there is no genuine
issue of material fact left for review. Mot. at 5. Accordingly, the People contend, summary
judgment in the People’s favor as a matter of law is appropriate.
Id
. The People request that the
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Board grant summary judgment in favor of the People and against the respondents on counts I
through IV of the amended complaint. Mot. at 6. Further, the People ask the Board to find
Lorence and Clementi have violated Sections 21(a), (d)(1), (e) and (p)(1) of the Act.
Id
.
The People request that a civil penalty of $50,000 be assessed against the respondents for
the violations, and further ask the Board to order respondents to cease and desist from further
violations of the Act and Board regulations. Mot. at 8. As previously noted, the respondents did
not respond to the motion.
Alleged Violations
The amended complaint contains four counts alleging violations of Section 21 of the Act.
415 ILCS 5/21 (2002). Section 21(a) of the Act is a prohibition against open dumping of waste.
415 ILCS 5/21(a) (2002). Open dumping’ is defined as the consolidation of refuse from one or
more sources at a disposal site that does not fulfill the requirements of a sanitary landfill. 415
ILCS 5/3.24 (2002). ‘Sanitary landfill’ is defined, in part, as a facility permitted by the Agency
for the disposal of waste. 415 ILCS 5/3.41 (2002). ‘Refuse’ is defined as waste, and ‘waste’ is
defined, in part, as any garbage or other discarded material. 415 ILCS 5/3.31 and 3.53 (2002).
Section 21(d)(1) prohibits the operation of a waste disposal operation without a permit issued by
the Agency. 415 ILCS 5/21(d)(1) (2002). Section 21(e) of the Act provides, in pertinent part,
that no person may dispose, treat, store or abandon any waste except at a site meeting the
requirements of the Act and regulations. Section 21(p)(1) prohibits the open dumping of any
waste in a manner resulting in litter. 415 ILCS 5/21(p)(1) (2002).
The Board will first address each of the four counts in turn, with the Board's analysis
following each count. Once all four counts have been analyzed, the Board will turn to a penalty
determination.
DISCUSSION
The Board finds that the allegations deemed admitted pursuant to 35 Ill. Adm. Code
103.204(d) are sufficient to prove that the People are entitled to a judgment as a matter of law
against Lorence and Clementi under 35 Ill. Adm. Code 101.516(b). Below the Board discusses
how the admitted facts support each of the four counts of the complaint in turn.
Count I – Open Dumping
In count I, the People contend that the respondents violated Section 21(a) of the Act (415
ILCS 5/21(a) (2002)) by causing or allowing waste consisting of wood, garbage, construction
and demolition debris, cardboard, metal and other unidentifiable items to be discharged,
deposited, dumped, spilled or leaked onto a disposal site which does not fulfill the requirements
of a sanitary landfill, and therefore engaged in open dumping as that term is defined in the Act.
Am. Com. at 5-6.
The People state that on April 20, 2000 and continuing through May, 2001 there were
various types of waste and refuse (wood, construction debris and garbage) piled on the site, and
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that respondents did not demonstrate to the Agency that the waste was properly disposed of at a
permitted facility. Am. Com. at 3. The People assert that the wood, garbage and other items
were and are waste and refuse as defined by the Act. Am. Com. at 4. Further, the People
contend that the site were the waste and refuse was placed is and was a disposal site as defined in
the Act. Am. Com. at 5.
Count II – Conducting a Waste Disposal Operation Without a Permit
The People contend in count II that the respondents violated Section 21(d) of the Act
(415 ILCS 5/21(d) (2002)) by causing or allowing the disposal of waste and refuse on their site
from at least April 26, 2000 through May, 2001 without having an Agency permit to conduct a
waste disposal operation at the site. Am. Com. at 7-8. The People assert that by accepting and
piling waste on the site without a permit, respondents operated a waste disposal operation in
violation of Section 21(d) of the Act. Am. Com. at 8.
Count III – Disposal of Waste at an Unpermitted Facility
The People state in count III that respondents Section 21(e) of the Act (415 ILCS 5/21(e))
by causing or allowing waste to be disposed of at an unpermitted site. Am. Com. at 9-10. The
People assert that from at least April 26, 2000 and continuing through May, 2001 the site was
never permitted by the Agency for the disposal of waste, and that such disposal did occur.
Id
.
Count IV – Causing or Allowing Litter
The People contend that the respondents violated Section 21(p)(1) of the Act (415 ILCS
5/21(p)(1) (2002)) by causing or allowing the open dumping of waste resulting in litter at the
site. Am. Com. at 11. The People argue that the wood, garbage, construction and demolition
debris, cardboard, metal and other unidentifiable items constitute littler as contemplated in the
Act.
Id
.
Board Analysis
As previously stated, the Board deems all of the facts contained in the People’s second
amended complaint admitted by Lorence and Clementi. Accordingly, the Board finds that
Lorence and Clementi violated Section 21(a), 21(d)(1), 21(e), and 21(p)(1) as alleged in the
amended complaint. Further, in the October 2, 2003 Board order, the Board found Millenium
had violated Section 21(a), 21(d)(1), 21(e), and 21(p)(1) as alleged in the amended complaint.
No party has filed a response to the motion. Once again, if a party files no response to a
motion within 14 days the party will be deemed to have waived objection to the granting of the
motion.
See
35 Ill. Adm. Code 101.500(d). The Board finds that no genuine issue of material
fact remains and that the People are entitled to judgment as a matter of law. The Board grants
the People’s motion for summary judgment on all four counts.
REMEDY
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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) (2002). 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.
The People provided information regarding an appropriate remedy, including a civil
penalty, in their motion. The only remedy sought by the People is the imposition of a civil
penalty. The People noted that $50,000 is the amount of civil penalty authorized by the Act for
one violation, and that respondents committed four violations over a period of one year. Mot. at
7. The People recommend that a $50,000 penalty be imposed. Mot. at 8.
Statutory Background
Section 33(c) of the Act states: “In making its orders and determinations, the Board shall
take into consideration all the facts and circumstances bearing upon the reasonableness of the
emissions, discharges or deposits involved including, but not limited to:
(i) the character and degree of injury to, or interference with the protection of the
health, general welfare and physical property of the people;
(ii) the social and economic value of the pollution source;
(iii) the suitability or unsuitability of the pollution source to the area in which it is
located, including the question of priority of location in the area involved;
(iv) the technical practicability and economic reasonableness of reducing or
eliminating the emissions, discharges or deposits resulting from such pollution
source; and
(v) any subsequent compliance.” 415 ILCS 5/33(c) (2002).
According to Section 42(h) of the Act, in determining the appropriate civil penalty, the
Board considers any matters of record in mitigation or aggravation of penalty, including “the
following factors:
(1) the duration and gravity of the violation;
(2) the presence or absence of due diligence on the part of the violator in
attempting to comply with requirements of this Act and regulations thereunder
or to secure relief therefrom as provided by this Act;
(3) any economic benefits accrued by the violator because of delay in compliance
with requirements;
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(4) the amount of monetary penalty which will serve to deter further violations by
the violator and to otherwise aid in enhancing voluntary compliance with this
Act by the violator and other persons similarly subject to the Act; and
(5) the number, proximity in time, and gravity of previously adjudicated
violations of this Act by the violator.” 415 ILCS 5/42(h) (2002).
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Discussion
In determining what remedy is appropriate, the Board considers all facts and
circumstances of record that bear upon the reasonableness of the respondents’ violations of the
Act. 415 ILCS 5/33(c) (2002).
Section 33(c)
Section 33(c) lists five factors the Board considers in making orders and determinations.
First, the facts and circumstances of this case show that the violations in question interfered with
the protection of the health, general welfare and physical property in an area around the site. The
waste and refuse was dumped, and not properly stored or disposed.
See
415 ILCS 5/33(c)(i)
(2002). Second, there is no evidence in the record showing that respondents’ operation, as
conducted, had a social or economic value.
See
415 ILCS 5/33(c)(ii) (2002). Third, the waste or
refuse was in an area that would have been suitable were it disposed of or stored properly. The
People did not provide any evidence indicating that the location was not suitable.
See
415 ILCS
5/33(c)(iii) (2002). Fourth, the record does not contain evidence concerning the technical
practicability and economic reasonableness of reducing or eliminating the emissions, discharges
or deposits resulting from such pollution source, but it is evident that the waste and refuse was
eliminated.
See
415 ILCS 5/33(c)(iv) (2002). Finally, the respondents did not comply with the
Act and left the waste and refuse for over a year.
See
415 ILCS 5/33(c)(v) (2002).
After considering the Section 33(c) factors, the Board finds that a civil penalty is proper
in this instance. To determine the proper penalty, the Board considers factors listed in Section
42(h) of the Act.
Section 42(h)
In determining the appropriate civil penalty, the Board considers any matters
of record in mitigation or aggravation of penalty. 415 ILCS 42(h) (2002). The
Board’s determination is aided by the five factors listed in Section 42(h) of the Act.
The People’s Arguments Concerning 42(h) Factors.
In its motion, the People address
each of the 42(h) factors. The People assert that in considering the duration and gravity of the
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Section 42(h) of the Act (415 ILCS 5/42(h) (2002)) was substantially amended by P.A. 93-575,
effective January 1, 2004. The amendments include establishing that the economic benefit from
delayed compliance is a minimum penalty. Because the complaint in this proceeding was filed
prior to January 1, 2004, the Board did not use the amendments to Section 42(h) of the Act in
determining the appropriate penalty in this proceeding.
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violations, the respondents’ site was in violation of the Act for over a year – from at least April
20, 2000 through May, 2001. Mot. at 7.
The People argue that the respondents exhibited no diligence whatsoever as is evidenced
by the length of time they left the site in an offensive condition and failed to answer the amended
complaint or otherwise comply with the Act. Mot. at 7. The People assert that respondents
avoided the cost of cleaning the site for over one year and avoided the costs of getting the proper
permits from the Agency.
Id
.
The People suggest that $50,000 will deter further violations of the Act by these
respondents and others similarly subject to the Act. Mot. at 7-8. Finally, the People note that
they are unaware of any previously adjudicated violations against any of the respondents. Mot.
at 8.
Board Analysis of 42(h) Factors.
The record in this case clearly shows that the
violations in this matter lasted for over a one-year period of time. The respondents committed
serious violations that can lead to damage to the environment and human health and welfare.
Accordingly, the duration and gravity of the violations are weighed against the respondents.
See
415 ILCS 5/42(h)(1) (2002). The respondents did not exhibit due diligence in attempting to
comply with requirements of this Act and regulations. The waste and refuse remained on site for
over one year after respondents were made aware of the violation. This factor, too, is weighed in
aggravation of the civil penalty.
See
415 ILCS 5/42(h)(2) (2002). The record shows that
respondents benefited from avoiding the cost of cleaning the site for over one year and, and
further never incurred the costs of getting the proper permits from the Agency. This factor is
weighed in aggravation of the penalty.
See
415 ILCS 5/42(h)(3) (2002). The respondents did
not promptly remediate the site, and have not been responsive during the proceeding before the
Board. Accordingly, the amount of monetary penalty which will serve to deter further violations
by the violator and other persons similarly subject to the Act must be substantial, and this factor
is aggravates the penalty.
See
415 ILCS 5/42(h)(4) (2002). The record does not indicate that
any respondent has any previously adjudicated violations. Accordingly, this factor serves to
mitigate the civil penalty.
See
415 ILCS 5/42(h)(5) (2002).
Penalty Determination
The Board finds that the nature of the violations in this matter posed potential risks to the
environment of the State as well as to the people living near the site, for 13 months.
Accordingly, the Board finds that a substantial penalty is necessary. However, any risk has
ended and the likelihood of the offense being repeated is minimal. Respondents no longer own
the site, and the corporation is no longer in existence. After consideration of the 33(c) and 42(h)
factors, the Board finds that a penalty of $25,000 is warranted in this case.
CONCLUSION
The Board grants the People’s motion for summary judgment as to all counts in the
amended complaint. The Board finds that all the respondents have violated Section 21(a),
21(d)(1), 21(e), and 21(p)(1) of the Act. 415 ILCS 5/21(a), (d)(1), (e) and (p)(1) (2002). The
Board imposes a civil penalty of $25,000 on the respondents.
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This opinion constitutes the Board’s findings of fact and conclusions of law.
ORDER
1. The Board finds that Millenium Recycling & Solid Waste Consultants, Inc.
(Millenium), Sherri Clementi (Clementi) and Michael Lorence (Lorence)
(collectively respondents) have violated 415 ILCS 21(a),(d)(1), (e) and (p)(1)
(2002);
2. The respondents must pay a penalty of $25,000 for violating Sections 21(a),
(d)(1), (e) and (p)(1) of the Act. 415 ILCS 5/21(a), (d)(1), (e) and (p)(1) (2002).
3. The respondents must pay $25,000 within 60 days of the date of this order. Such
payment must be made by certified check or money order payable to the
Treasurer of the State of Illinois, designated to the Environmental Protection Trust
Fund, and must be sent by first class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, IL 62702
Respondents must write their federal employer identification number or social
security number on the certified check or money order. Any such penalty not
paid within the time prescribed will incur interest at the rate set forth in subsection
(a) of Section 1003 of the Illinois Income Tax Act (35 ILCS 5/1003) as now or
hereafter amended, from the date payment is due until the date payment is
received. Interest will not accrue during the pendency of an appeal during which
payment of the penalty has been stayed.
4. The respondents must cease and desist from any further violations of the Act, and
associated regulations.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2002);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on February 19, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
