ILLINOIS POLLUTION CONTROL BOARD
    February 1, 2007
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    J.B. TIMMERMANN FARMS, LTD., an
    Illinois incorporated cooperative,
    Respondent.
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    PCB 07-70
    (Enforcement - Water)
    ORDER OF THE BOARD (by G.T. Girard):
    On January 25, 2007, the Office of the Attorney General, on behalf of the People of the
    State of Illinois (People), filed a three-count complaint against J.B. Timmermann Farms, Ltd.
    (Timmermann Farms).
    See
    415 ILCS 5/31(c)(1) (2004); 35 Ill. Adm. Code 103.204. The
    complaint concerns Timmermann Farms’ dairy operation located on the north side of Highline
    Road, in Section 28 of Breese Township, Clinton 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 Timmermann Farms violated Sections 12(a), (d),
    and (f) of the Act (415 ILCS 5/12(a), (d), (f) (2004)) and 35 Ill. Adm. Code 302.203, 302.206,
    and 309.102(a). The People further allege that Timmerman Farms violated these provisions (1)
    by causing or allowing the discharge of contaminants so as to cause or tend to cause water
    pollution and so as to violate the Board’s water quality standards for offensive conditions and
    dissolved oxygen; (2) by causing or allowing or threatening the discharge of contaminants into
    waters of the State without a National Pollutant Discharge Elimination System (NPDES) permit;
    and (3) by depositing contaminants upon the land in such a way as to create a water pollution
    hazard. The People ask the Board to order Timmermann Farms to cease and desist from further
    violations and pay a civil penalty.
    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 Timmermann Farms 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 Timmermann
    Farms to have admitted the allegation.
    See
    35 Ill. Adm. Code 103.204(d).
    2
    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.
    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
    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.
    3
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on February 1, 2007, by a vote of 4-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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