ILLINOIS POLLUTION CONTROL BOARD
    October 7, 2004
     
    PEOPLE OF THE STATE OF ILLINOIS,
     
    Complainant,
     
    v.
     
    OMRON AUTOMOTIVE ELECTRONICS,
    INC., a Delaware corporation,
     
    Respondent.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
     
     
     
     
    PCB 05-56
    (Enforcement - Air)
     
     
    ORDER OF THE BOARD (by T.E. Johnson):
     
    On September 21, 2004, the Office of the Attorney General, on behalf of the People of
    the State of Illinois (People), filed a four-count complaint against Omron Automotive
    Electronics, Inc. (Omron). The complaint concerns Omron’s automotive circuit board
    manufacturing facility located at 3790 Ohio Avenue, in St. Charles, Kane County. For the
    reasons below, the Board accepts the complaint for hearing.
     
    Under the Environmental Protection Act (Act) (415 ILCS 5 (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 Omron violated Sections 9(b) and 39.5(6)(b) of the
    Act (415 ILCS 5/9(b), 39.5(6)(b) (2002)), Sections 201.142 and 201.143 of the Board’s air
    pollution regulations (35 Ill. Adm. Code 201.142, 201.143), and conditions 3, 5, 7, and 9 of
    Omron’s Lifetime Operating Permit No. 95100061. According to the complaint, Omron violated
    these provisions by constructing new emission sources without obtaining a construction permit
    from the Illinois Environmental Protection Agency (Agency), by operating new emission sources
    without obtaining an operating permit from the Agency, by operating a facility regulated by the
    Clean Air Act Permit Program (CAAPP) without timely submitting a complete CAAPP permit
    application and obtaining a CAAPP permit, by exceeding monthly usage limits, by failing to
    keep required records, by failing to report exceedances, by failing to obtain a revised permit, and
    by operating equipment capable of causing or contributing to air pollution in violation of permit
    conditions. The People ask the Board to order Omron to pay a civil penalty, attorney fees, and
    costs.
     
    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 Omron 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 Omron to have admitted
    the allegation.
    See
    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.
     
    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, such as the duration and gravity of the violation,
    whether the respondent showed due diligence in attempting to comply, any economic benefit that
    the respondent accrued from delaying compliance, and the need to deter further violations by the
    respondent and others similarly situated.
     
    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 or 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 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.”
     
     
    3
    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 October 7, 2004, by a vote of 4-0.
     
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

    Back to top