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
