ILLINOIS POLLUTION CONTROL BOARD
December 7, 2006
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
VILLAGE OF NEBO, an Illinois municipal
corporation,
Respondent.
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PCB 07-41
(Enforcement - Water)
ORDER OF THE BOARD (by A.S. Moore):
On November 20, 2006, the Office of the Attorney General, on behalf of the People of
the State of Illinois (People), filed a complaint against the Village of Nebo (the Village).
See
415 ILCS 5/31(c)(1) (2004); 35 Ill. Adm. Code 103.204. The People allege that the Village
violated Sections 15(a), 18(a)(1), 18(a)(2), and 18(a)(3) of the Environmental Protection Act
(Act) (415 ILCS 5/15(a), 18(a)(1), 18(a)(2), 18(a)(3) (2004)); Sections 370.1021, 601.101,
611.240(g), 611.521(a), 611.831, 653.601, and 653.605 of the Board’s regulations (35 Ill. Adm.
Code 370.1021, 601.101, 611.240(g), 611.521(a), 611.831, 653.601, 653.605); and a condition of
its operating permit No. 0994-FY1984.
The People further allege that the Village violated these provisions by failing to submit
results of coliform sampling, failing to submit required operating reports, failing to maintain
minimum chlorination, failing to meet disinfection requirements, preventing access to the
Village’s water plant by the Illinois Environmental Protection Agency, allowing the Village’s
water plant to exceed its permitted flow rate without obtaining approval, improper equipment
location, and improper chemical storage. The complaint concerns the Village’s public water
supply facility located in Pike County.
The Board accepts the complaint for hearing.
See
35 Ill. Adm. Code 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 the Village fails on or before that deadline 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 Village 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) (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.
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 or 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 (415 ILCS 5/ 2(h)(7) (2004)), as is whether a respondent has
“voluntary self-disclosed . . . the non-compliance to the [Illinois Environmental Protection]
Agency” (415 ILCS 5/42(h)(6) (2004)). 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.” 415 ILCS 5/42(i) (2004).
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 December 7, 2006, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
