ILLINOIS POLLUTION CONTROL BOARD
    August 5, 2004
     
     
    PEOPLE OF THE STATE OF ILLINOIS,
     
    Complainant,
     
    v.
     
    PAUL DIFRANCO, SR., an Illinois resident,
    and MARK’S CONSTRUCTION, INC., an
    Illinois corporation,
     
    Respondents.
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    PCB 05-13
    (Enforcement - Air)
     
    ORDER OF THE BOARD (by J.P. Novak):
     
    On July 29, 2004, the Office of the Attorney General, on behalf of the People of the State
    of Illinois (People), filed a complaint against Paul DiFranco, Sr. and Mark’s Construction, Inc.
    (respondents).
    See
    415 ILCS 5/31(c)(1) (2002); 35 Ill. Adm. Code 103.204. The complaint
    concerns the removal of asbestos during the respondents’ renovation work at a two-story
    commercial building at 911 West Busse Avenue, Park Ridge, Cook 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 9(a) and
    9.1(d)(1), of the Environmental Protection Act (415 ILCS 5/9(a) and 9.1(d)(1) (2002)); 35 Ill.
    Adm. Code 201.141; and 40 C.F.R. 61.145(b)(1), (c)(1), (c)(6), and (d)(1) and 61.150(b) by
    causing or allowing the discharge or emission of asbestos into the environment, failing to submit
    written notification of renovation or demolition activity involving asbestos at least 10 days prior
    to commencing the work, failing to follow proper emission control procedures during asbestos
    removal, failure to adequately wet all removed asbestos-containing material during removal, and
    failure to follow proper disposal procedures. 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).
     
     
    2
    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.
     
     
    3
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on August 5, 2004, by a vote of 4-0.
     
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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