ILLINOIS POLLUTION CONTROL BOARD
April 7, 2005
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
HOME DEPOT U.S.A., INC., a Delaware
corporation,
Respondent.
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PCB 05-168
(Enforcement - Public Water Supply)
ORDER OF THE BOARD (by J.P. Novak):
On March 15, 2005, the Office of the Attorney General, on behalf of the People of the
State of Illinois (People), filed a complaint against Home Depot U.S.A., Inc. (Home Depot).
See
415 ILCS 5/31(c)(1) (2002); 35 Ill. Adm. Code 103.204. The complaint concerns Home Depot’s
construction of a water main during construction of retail store number 1989 at 143rd and Bell
Road, Homer Township, Will 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 Home Depot violated Section 15(a) of the
Act (415 ILCS 5/15(a) (2002)) and 35 Ill. Adm. Code 602.101(a). The People further allege that
Home Depot violated these provisions by failing to obtain a construction permit prior to
construction of a water main. The People ask the Board to order Home Depot 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 Home Depot 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 Home Depot 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.
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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 ongoing 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.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on April 7, 2005, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
