ILLINOIS POLLUTION CONTROL BOARD
    November 16, 2006
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    LAKE ARLANN DRAINAGE DISTRICT, an
    Illinois drainage district, COCHRAN &
    WILKEN INC., an Illinois corporation, and
    SOUTHWIND CONSTRUCTION CORP., an
    Indiana corporation,
    Respondents.
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    PCB 07-32
    (Enforcement -Water)
    ORDER OF THE BOARD (by G.T. Girard):
    On November 1, 2006, complainant, the Office of the Attorney General, on behalf of the
    People of the State of Illinois (People), filed a four-count complaint against respondents Lake
    Arlann Drainage District (District), Cochran & Wilken, Inc., (C & W), and Southwind
    Construction Corp., (Southwind) (collectively, respondents). The complaint concerns alleged
    violations resulting from a 2004 dredging operation to remove 330,000 cubic yards of
    accumulated sedimentation and siltation problems from Lake Arlann, Pekin, Tazewell County.
    For the reasons below, the Board accepts the complaint for hearing.
    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 allege that the District, its consulting engineer C & W, and its
    contractor Southwind did not properly conduct dredging or handle dredged materials as required
    by the Act, Board regulations, and the District’s dredging permit.
    According to the complaint, respondents violated Section 12(a) of the Act (415 ILCS
    5/12(a) (2004)) by causing or allowing water pollution; Section 12(f) of the Act (415 ILCS 5/12
    (f) (2004)) and 35 Ill. Adm. Code 304.124(a) and 309.120(a) by causing or allowing violation of
    various effluent standards; Section 12(f) of the Act (415 ILCS 5/12 (f) (2004)) and 35 Ill. Adm.
    Code 305.102(b), 309.102(a) and 309.146(a) by failing to timely submit sampling reports as
    required by the District’s dredging permit, and Section 21(a) of the Act (415 ILCS 5/21(a)
    (2004)) and 305.102(b) 309.102(a) and 309.146(a) by failing to by failing to maintain a storm
    water pollution prevention plan as required by the District’s storm water discharge permit. The
    People ask the Board to order respondent to cease and desist from further violations and to pay
    civil penalties and 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),
    2
    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 a respondent 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 the respondent 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
    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
    3
    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 November 16, 2006, by a vote of 4-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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