ILLINOIS POLLUTION CONTROL BOARD

October 4, 2007

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

CITY OF HOMETOWN, a

municipal corporation,

Respondent.

)

PCB 08-27

(Enforcement - Water)

ORDER OF THE BOARD (by G.T. Girard):

On October 1, 2007, the Office of the Attorney General, on behalf of the People of the

State of Illinois (People), filed a two-count complaint against the City of Hometown

(Hometown). Hometown is located approximately eight miles southwest of downtown Chicago,

Cook County, and is a satellite water supply that purchases finished Lake Michigan water from

the City of Chicago. The complaint concerns Hometown’s two “meter vaults,” a primary meter

vault located at 87th Street and Kostner Avenue and another meter vault located at 87th Street

and Rumsey Avenue in Hometown, Cook County. According to the complaint, the water flows

from these two locations to Hometown’s residents. For the reasons below, the Board accepts the

complaint for hearing.

Section 23 of the Public Water Supply Operations Act provides:

Authority is hereby vested in the Illinois Pollution Control Board to conduct

hearings on complaints charging that any public water supply owner, owner’s

manager or agent, official custodian, municipal, state or other official has violated

or aided and abetted the violation of Section 1 of this Act, or has refused or

neglected to comply with any order issued by the Director, as herein provided for.

Based on the determinations of the Illinois Pollution Control Board, the violator

shall be penalized by the Illinois Pollution Control Board not less than $100.00

nor more than $1000.00 for each offense. 415 ILCS 45/23 (2006).

In count I of the complaint, the People allege that Hometown violated Section 1 of the Public

Water Supply Operations Act (415 ILCS 45/1 (2006)) by not having a certified operator

responsible for its public water supply over a period of time in 2005 and 2006. The People ask

the Board to order Hometown to cease and desist from further violations of Section 1 of the

Public Water Supply Operations Act and pay a civil penalty of not less than $100 or not more

than $1,000 for each offense of Section 1.

Under the Environmental Protection Act (415 ILCS 5 (2006)), 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 (2006); 35 Ill. Adm. Code 103. In

count II of the complaint, the People allege that Hometown violated Sections 603.102,

603.103(a), 603.105(b) of the Board’s public water supply regulations (35 Ill. Adm. Code

603.102, 603.103(a), 603.105(b)) by failing to have a certified operator responsible for the public

water supply and failing to notify the Illinois Environmental Protection Agency of the personnel

responsible for the public water supply. By violating these regulations, according to the

complaint, Hometown violated Section 18(a)(2) of the Environmental Protection Act (415 ILCS

5/18(a)(2) (2006)). The People ask the Board to order Hometown to cease and desist from

further violations of the Environmental Protection Act and Board regulations and pay a civil

penalty of $50,000 for each violation and an additional $10,000 for each day of violation.

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 Hometown 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 Hometown 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 of the Environmental Protection Act, the

Board considers the factors set forth in Sections 33(c) and 42(h) of the Environmental Protection

Act to fashion an appropriate remedy for the violation.

See

415 ILCS 5/33(c), 42(h) (2006).

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 Environmental Protection 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

Environmental Protection 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.

IT IS SO ORDERED.

I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the

Board adopted the above order on October 4, 2007, by a vote of 4-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board