ILLINOIS POLLUTION CONTROL BOARD

June 3, 2004

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

EDWARD PRUIM, an individual, and

ROBERT PRUIM, an individual,

Respondents.

)

PCB 04-207

(Enforcement - Land)

ORDER OF THE BOARD (by G.T. Girard):

On May 21, 2004, the Office of the Attorney General, on behalf of the People of the State

of Illinois (People), filed a complaint against Edward Pruim and Robert Pruim (respondents).

See

415 ILCS 5/31(c)(1) (2002); 35 Ill. Adm. Code 103.204. The complaint concerns the

respondents’ Morris Community Landfill facility at 1501 Ashley Road, Morris, Grundy County.

For the reasons below, the Board accepts the complaint for hearing.

Under the Environmental Protection Act (Act) (415 ILCS 5/1

et seq

. (2002)), the

Attorney General and the State’s Attorneys may bring actions before the Board to enforce

Illinois’ environmental requirements on behalf of the People.

See

415 ILCS 5/31 (2002); 35 Ill.

Adm. Code 103. In this case, the People allege that the respondents violated Sections 12(a);

21(a), (d), (d)(1), (d)(2), (o)(1), (o)(2), (o)(3), (o)(5), (o)(9), and (o)(12); 21.1(a); 22.22(c); and

55(b-1) of the Environmental Protection Act (415 ILCS 5/12(a); 21(a), (d), (d)(1), (d)(2), (o)(1),

(o)(2), (o)(3), (o)(5), (o)(9), and (o)(12); 21.1(a); 22.22(c); and 55(b-1) (2002)); 35 Ill. Adm.

Code 807.301(B), 807.306, 807.313, 807.314(e), 807.401, 807.601(a), 807.603(b)(1),

807.623(a), and 814.104; and standard conditions 3 and 13 of supplemental development permit

number 1989-005-SP and conditions 1, 9, 11, 13, and 17 of supplemental permit number 1996-

240-SP.

The complaint alleges that the respondents committed these violations by (A) allowing

refuse to stand in standing or flowing water; (B) allowing refuse to remain at the end of an

operating day or from a operating business day; (C) failing to collect and contain litter by the end

of each operating day; (D) allowing leachate seeps to erode areas of the landfill and expose

refuse and to enter the waters of the State; (E) improperly disposing of landscape waste; (F)

failing to maintain adequate financial assurance; (G) failing to apply for a significant permit

application; (H) allowing leachate to flow into waters of the State; (I) depositing waste in an

unpermitted portion of a landfill; (J) conducting a waste disposal operation without a permit; (K)

open dumping; (L) failing to obtain a supplemental permit before increasing a permitted

elevation of a landfill and depositing waste in that area; (M) continuing to accept waste after

September 18, 1997 after failing to submit a request for significant permit modification; (N)

improper disposal of used tires; (O) failure to use movable fencing to contain waste; (P)

operating its gas collection system without first submitting required information to the Agency;

(Q) failing to undertake required corrective action or actions to prevent erosion when there was a

breach in the facility or there was no vegetative cover; (R) failing to remove contaminated

leachate from the landfill for appropriate disposal at a permitted facility; (S) failing to obtain an

engineer’s certification and Agency approval before introducing waste into a new area of the

landfill; (T) and failing to obtain a revised cost estimate for the facility. The People ask the

Board to order the respondents to cease and desist from further violation and pay a civil penalty

of $50,000 per violation and $10,000 for each day the violations continued.

The Board finds that the complaint meets the content requirements of the Board’s

procedural rules and accepts the complaint for hearing.

See

35 Ill. Adm. Code 103.204(c), (f),

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 the respondents 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 the

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.

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). 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.

With Public Act 93-575, effective January 1, 2004, the General Assembly changed the

Act’s civil penalty provisions, amending Section 42(h) and adding a new subsection (i) to

Section 42. Section 42(h)(3) now states that any economic benefit to respondent from delayed

compliance is to be determined by the “lowest cost alternative for achieving compliance.” The

amended Section 42(h) also requires the Board to ensure that the penalty is “at least as great as

the economic benefits, if any, accrued by the respondent as a result of the violation, unless the

Board finds that imposition of such penalty would result in an arbitrary of unreasonable financial

hardship.”

Under these amendments, the Board may also order a penalty lower than a respondent’s

economic benefit from delayed compliance if the respondent agrees to perform a supplemental

environmental project (SEP). A SEP is defined in Section 42(h)(7) as an “environmentally

beneficial project” that a respondent “agrees to undertake in settlement of an enforcement action

. . . but which the respondent is not otherwise legally required to perform.” SEPs are also added

as a new Section 42(h) factor (Section 42(h)(7)), as is whether a respondent has “voluntary self-

disclosed . . . the non-compliance to the [Illinois Environmental Protection] Agency” (Section

42(h)(6)). A new Section 42(i) lists nine criteria for establishing voluntary self-disclosure of

non-compliance. A respondent establishing these criteria is entitled to a “reduction in the portion

of the penalty that is not based on the economic benefit of non-compliance.”

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 total dollar amount and the

portion of that amount attributable to the respondent’s economic benefit, if any, from delayed

compliance), and supporting its position with facts and arguments that address any or all of the

Section 42(h) factors. The Board also directs the hearing officer to advise the parties to address

these issues in any stipulation and proposed settlement that may be filed with the Board.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on June 3, 2004, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board