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part (Resp.). For the reasons set forth below, the Board grants the People’s motion for leave and

accepts the second amended complaint for hearing.

 

MOTION FOR LEAVE TO AMEND COMPLAINT

 

The People move to amend the original six-count complaint filed in this proceeding to

make corrections, add factual information to count V, and add seven additional counts. Mot. at

1. The People assert that Section 2-616 of the Code of Civil Procedure states in pertinent part:

 

Amendments. (A) At any time before final judgment, amendments may be

allowed on just and reasonable terms, introducing any party who ought to have

been joined as plaintiff or defendant, dismissing any party, changing the cause of

action or defense or adding new cause of action or defenses, and in any matter,

either of form or substance, in any process, pleading, bill of particulars or

proceedings, which may enable the plaintiff to sustain the claim for which it was

intended to be brought or the defendant to make a defense or assert a cross claim.

735 ILCS 5/2-616(a).

 

Corrections and Newly Alleged Facts

 

In the amended complaint, the People change the alleged violation of Section 302.203 of

the Board’s rules to Section 302.208(g) in paragraph 22 of count II, and paragraph 21 of counts

IV and VI.

 

In count V, the People add that in addition to field samples, the Agency also collected

samples for laboratory analysis for chlorides at two locations downstream of the discharge into

the stream. Am. Comp. at 11.

 

New Counts VII, VIII, IX, X, XI, XII, and XIII

 

In the original complaint, the People assert facts related to three distinct events, out of

which arose multiple causes of action. The releases allegedly occurred on May 24, 2004,

August 21, 2004, and October 4, 2004. In the amended complaint, the People allege facts related

to four additional releases. The four newly alleged releases occurred on May 31, 2004,

November 8, 2004, December 2, 2004, and February 15, 2005. The People state that the Agency

did not provide the People with information regarding the May 31, 2004 release until subsequent

to the initial filing. The other three releases, state the People, had not yet occurred as of the date

of filing. Mot. at 2.

 

Counts VII and VIII allege that on May 31, 2004, Petco caused a release of

approximately 10-15 barrels of crude oil from the Ada Clow Sump near St. Elmo, Fayette

County. Am. Comp. at 13-16. The People allege the release caused water pollution and created

a water pollution hazard as a result of the crude oil flowing approximately one-third of a mile

over the ground before discharging into Wolf Creek. Am. Pet. at 14. According to the People,

the release caused offensive conditions in Wolf Creek because the waters contained visible oil.

Am. Comp. at 16.

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3

 

Counts IX and X describe a release of approximately 100 barrels of salt water and 1

barrel of crude oil on November 8, 2004 from the Mary Scott Disposal Line near St. Elmo,

Fayette County. Am. Comp. 17-20. The People state the release contained chlorides and

petroleum constituents and discharged directly into a tributary of Big Creek. The People allege

the release caused water pollution, offensive conditions, and exceedences of the Board’s general

use water quality standard for chlorides. Am. Comp. at 18-19.

 

The People allege in counts XI and XII that on December 2, 2004, Petco released about 1

barrel of crude oil from the Mabel Durbin #1 well near St. Elmo in Fayette County. According

to the People, the release flowed above ground before discharging into a tributary of South Fork

Creek. Am. Comp. at 20. The People state the release caused water pollution, offensive

conditions in the tributary of South Fork Creek, and created a water pollution hazard. Am.

Comp. at 20-22.

 

Finally, in the newly alleged count XIII, the People state that on February 15, 2005, Petco

caused a release of approximately 20 barrels of salt water and 3 barrels of crude oil from a

pipeline near St. Elmo in Fayette County. The People assert that the release, which came from a

pig trap in the pipeline, contained chlorides and petroleum constituents. The People also contend

the release created a water pollution hazard. Am. Comp. at 23.

 

Petco’s Objection

 

Petco objects to two aspects regarding the amended complaint: (1) the newly alleged

violations resulting from the May 31, 2004 release incident; and (2) the correction of regulatory

violations alleged in “paragraph 22 of Count I.” According to Petco, the complainant’s right to

amend its complaint is not absolute. Obj. at 2; citing Hadley v. Ryan, 345 Ill. App. 3d 297, 280

Ill. Dec. 818 (4th Dist. 2003). Petco asserts that the Board has discretion to allow an

amendment. Obj. at 2. Petco further contends that, while liberally allowed, amendments should

not be allowed where the moving party knew of the matters asserted at the time the original

pleading was drafted, yet offered no excuse to explain the initial failure. Obj. at 2; citing Trans

World Airlines, Inc. v. Martin Automatic, Inc., 215 Ill. App. 3d 622, 159 Ill. Dec. 94 (2nd Dist.

1991).

 

First, Petco argues that the May 31, 2004 incident occurred five months before the People

filed the original complaint. Further, Petco notes that the People’s own motion states the

Agency, on whose behalf the People brought this action, knew of the release. Accordingly,

argues Petco, the Board should not allow the newly alleged violations regarding the May 31,

2004 incident. Obj. at 2.

 

Second, Petco objects to the People’s correction of regulatory violations “alleged in

paragraph 22 of Count I.” Obj. at 2; citing Mot. par. 4. Petco asserts paragraph 22 of count I

does not exist.

 

Petco states it does not object to the remaining proposed amendments to the complaint.

 

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BOARD DISCUSSION

 

The Board grants the People’s motion for leave to amend and accepts the People’s

amended complaint for hearing. In addressing the amendment of complaints in the past, the

Board has specifically declined to apply Section 2-616 of the Illinois Code of Civil Procedure

finding that the Board’s own procedural rules addressed amending pleadings in general: “Proof

may depart from pleadings and pleadings may be amended to conform to proof, so long as no

undue surprise results that cannot be remedied by a continuance.” 35 Ill. Adm. Code 103.210(a)

(2000). However, the Board’s procedural rules, as amended and effective as of January 1, 2000,

are currently silent regarding amending a complaint to make corrections or add violations.

 

The Board’s procedural rules generally provide: “The Board may look to the Code of

Civil Procedure and the Supreme Court Rules for guidance where the Board’s procedural rules

are silent.” 35 Ill. Adm. Code 101.100(b). Therefore, the Board looks to Section 2-616 of the

Code of Civil Procedure for guidance on amending the complaint.

 

Regarding the May 31, 2004 allegations, the Board finds the People have presented just

and reasonable cause for the amendments. The People clearly state they did not yet have

information regarding the release at the date the original complaint was filed. Mot. at 2. Further,

the People bring these new allegations against the same party, regarding the same facility that

was the focus of the original complaint. Therefore, the Board does not strike the newly alleged

May 31, 2004 violations.

 

The Board also allows the correction of an alleged regulatory violation in count II. The

People state in the motion for leave that the amended complaint “corrects the regulatory violation

alleged in paragraph 22 of Count I.” In response, Petco states that “[n]o paragraph 22 of count I

exists.” In the original complaint, paragraph 22 of count II and paragraph 21 of counts IV and

VI alleged violations of the Board’s prohibition against causing or allowing offensive conditions

in waters of the State.

See

35 Ill. Adm. Code 302.203. The amended complaint changes

allegations of the offensive conditions prohibition in those three paragraphs to violations of the

Board’s general use water quality standard for chlorides.

See

35 Ill. Adm. Code 302.208(g).

The Board finds that because the People changed the regulatory violation alleged in paragraph 22

of

count II

in the actual amended complaint filed simultaneously with the motion, and the

amendment conforms with the amendments made to paragraph 21 of both counts IV and VI, the

amendment is reasonable.

 

ACCEPT FOR HEARING

 

The Board finds that the complaint meets the content requirements of the Board's

procedural rules and accepts the the amended complaint for hearing.

See

415 ILCS 5/31(d)

(2002); 35 Ill. Adm. Code 103.212(a), (c).

 

A respondent's failure to file an amended answer to an amended complaint within 60

days after receiving the complaint may have severe consequences. Generally, if Petco fails

within that timeframe to file an amended answer specifically denying, or asserting insufficient

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knowledge to form a belief of a material allegation in the amended complaint, the Board will

consider Petco to have admitted the allegation. 35 Ill. Adm. Code 103.204(d), (f).

 

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

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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 May 19, 2005, by a vote of 5-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board