ILLINOIS POLLUTION CONTROL BOARD
October 6, 2005
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
WASTE MANAGEMENT OF ILLINOIS,
INC., a Delaware corporation,
Respondent.
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PCB 06-42
(RCRA Enforcement)
ORDER OF THE BOARD (by A.S. Moore):
On September 13, 2005, the Office of the Attorney General, on behalf of the People of
the State of Illinois (People), filed a complaint against Waste Management of Illinois, Inc.
(WMI). The complaint concerns Prairie Hill Recycling and Disposal facility, a municipal solid
waste sanitary landfill operated by WMI and located in Morrison, Whiteside County.
Under the Environmental Protection Act (Act) (415 ILCS 5 (2004)), 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 (2004); 35 Ill. Adm.
Code 103. In this case, the People have brought a three-count complaint against WMI. In count
I, the People allege that WMI violated its permit and Section 21(d)(1) of the Act (415 ILCS
5/21(d)(1) (2004)) by accepting and disposing of hazardous waste in the form of Styrofoam at
the Prairie Hill landfill. The People allege that the Styrofoam contained toxic levels of benzene
and came from repairing or rehabilitating petroleum product storage tanks at the distribution
terminal of Magellan Pipeline Company, L.P. in Amboy, Lee County.
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In count II of the complaint, the People allege that WMI violated Sections 21(o)(7),
21(f)(1), and 21(f)(2) of the Act (415 ILCS 5/21(o)(7), 21(f)(1), 21(f)(2) (2004)) and Section
703.121(a) of the Board’s waste disposal regulations (35 Ill. Adm. Code 703.121(a)) by
accepting hazardous waste and conducting a hazardous waste disposal operation without a
Resource Conservation and Recovery Act (RCRA) permit. Count III of the complaint alleges
that WMI violated Section 21(f)(2) of the Act (415 ILCS 5/21(f)(2) (2004)) and Sections
723.111 and 723.120(a) of the Board’s waste disposal regulations (35 Ill. Adm. Code 723.111,
723.120(a)) by accepting and transporting hazardous waste without a hazardous waste manifest
and without first obtaining a United States Environmental Protection Agency (USEPA)
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The People have filed a separate complaint against Magellan Pipeline Company, L.P.
(Magellan), which the Board accepted for hearing in a September 15, 2005 order.
See
People v.
Magellan Pipeline Company, L.P., PCB 06-36 (Sept. 15, 2005). That complaint alleges that
Magellan’s handling and disposal of the Styrofoam violated hazardous waste requirements.
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identification number. As relief for the three counts of alleged violations, the People ask the
Board to order WMI to cease and desist from further violations and to pay civil penalties.
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 WMI 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 WMI to have admitted
the allegation.
See
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.
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) (2004). 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 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
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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.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on October 6, 2005, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
