ILLINOIS POLLUTION CONTROL BOARD
    July 8, 2004
     
     
    PEOPLE OF THE STATE OF ILLINOIS,
     
    Complainant,
     
    v.
     
    HERITAGE FS, INC., an Illinois incorporated
    cooperative,
     
    Respondent.
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    PCB 04-224
    (Enforcement - Water)
     
    ORDER OF THE BOARD (by T.E. Johnson):
     
    On June 23, 2004, the Office of the Attorney General, on behalf of the People of the State
    of Illinois (People), filed a complaint against Heritage FS, Inc. (Heritage FS).
    See
    415 ILCS
    5/31(c)(1) (2002); 35 Ill. Adm. Code 103.204. The complaint concerns Heritage FS’s branch
    bulk fuel facility at 2201 Grinnel Road, Kankakee, Kankakee 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 Heritage FS violated Section 12(a), (d), and
    (f) of the Environmental Protection Act (415 ILCS 5/12(a), (d), and (f) (2002)) and 35 Ill. Adm.
    Code 304.105, 304.106, and 309.102(a) by releasing approximately 790 gallons of diesel fuel in
    July 2003. The People allege that approximately 540 of the 790 gallons were deposited on the
    ground, of which a portion flowed, aided by heavy rain, over land about 400 feet to a drainage
    ditch that leads to Soldier Creek, a tributary of the Kankakee River, and ultimately to the
    Kankakee River, where it was carried a mile downstream. The remaining 250 gallons were
    allegedly caught and retained by a recovery tank. The People ask the Board to order Heritage FS
    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 continue.
     
    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 Heritage FS fails within
    ting insufficient knowledge to form
     
    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

     
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    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.
     
     
     

     
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    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on July 8, 2004, by a vote of 5-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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