ILLINOIS POLLUTION CONTROL BOARD
May 18, 2006
JAMES CHEW and LYNN CHEW,
Complainants,
v.
DIRK F. BORGSMILLER and SPORTS
BLAST, L.L.C.,
Respondents.
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PCB 06-152
(Citizens Enforcement - Noise)
ORDER OF THE BOARD (by N.J. Melas):
On March 30, 2006, James Chew and Lynn Chew (complainants) filed a complaint
against Dirk F. Borgsmiller and Sports Blast, L.L.C. (respondents). Mr. Borgsmiller is allegedly
the owner of Sports Blast, L.L.C. The complaint concerns respondents’ multi-sport, recreation,
and entertainment facility located at 1215 E. Walnut Street in Carbondale, Jackson County. For
the reasons below, the Board accepts the complaint for hearing.
Under the Environmental Protection Act (Act) (415 ILCS 5 (2004)), any person may
bring an action before the Board to enforce Illinois’ environmental requirements.
See
415 ILCS
5/3.315, 31(d)(1) (2004); 35 Ill. Adm. Code 103. In this case, complainants allege that
respondents violated 415 ILCS 5/9(a), 24 (2004) and 35 Ill. Adm. Code 900.102, 901.104
through sound emissions from the facility. Complainants seek civil penalties and ask the Board
to order respondents to cease and desist from further violations and specifically to either change
operations or construct sound-proofing structures. The Board finds that the complaint meets the
content requirements of the Board’s procedural rules.
See
35 Ill. Adm. Code 103.204(c), (f).
Section 31(d)(1) of the Act provides that “[u]nless the Board determines that [the]
complaint is duplicative or frivolous, it shall schedule a hearing.” 415 ILCS 5/31(d)(1) (2004);
see also
35 Ill. Adm. Code 103.212(a). A complaint is duplicative if it is “identical or
substantially similar to one brought before the Board or another forum.” 35 Ill. Adm. Code
101.202. A complaint is frivolous if it requests “relief that the Board does not have the authority
to grant” or “fails to state a cause of action upon which the Board can grant relief.”
Id.
Within
30 days after being served with a complaint, a respondent may file a motion alleging that the
complaint is duplicative or frivolous. 35 Ill. Adm. Code 103.212(b). Respondents have filed no
motion. No evidence before the Board indicates that the complaint is duplicative or frivolous.
The Board accepts the complaint for hearing.
See
415 ILCS 5/31(d)(1) (2004); 35 Ill.
Adm. Code 103.212(a). A respondent’s failure to file an answer to a complaint within 60 days
after receiving the complaint may have severe consequences. Generally, if respondents fail
within that timeframe to file an answer specifically denying, or asserting insufficient knowledge
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to form a belief of, a material allegation in the complaint, the Board will consider respondents to
have admitted the allegation.
See
35 Ill. Adm. Code 103.204(d).
On April 17, 2006, respondents filed an answer denying the alleged violations. The
answer was filed by Mr. Borgsmiller, who is not identified as an attorney. Though an individual,
whether or not an attorney, may represent himself or herself, a non-attorney cannot represent a
company or other persons in an adjudicatory proceeding before the Board.
See
35 Ill. Adm.
Code 101.400(a). Therefore, a person who is not an attorney cannot file an answer on behalf of a
company or others. To participate in this enforcement action, Sports Blast, L.L.C. must be
represented by an attorney. The Board grants Sports Blast, L.L.C. leave to have an attorney file
an appearance and an amended answer on its behalf by July 3, 2006.
Consistent with the Board’s grant of leave to Sports Blast, L.L.C., 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.”
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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.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on May 18, 2006, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
