ILLINOIS POLLUTION CONTROL BOARD
    October 18, 2007
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    GATEWAY BOBCAT OF HERBERER
    EQUIPMENT CO., INC. d/b/a BOBCAT OF
    ST. LOUIS, a Missouri corporation,
    Respondent.
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    PCB 08-29
    (Enforcement – Water, Land, Air)
    ORDER OF THE BOARD (by A.S. Moore):
    On October 3, 2007, the Office of the Attorney General, on behalf of the People of the
    State of Illinois (People), filed a five-count complaint against the Gateway Bobcat of Herberer
    Equipment Co., Inc. d/b/a Bobcat of St. Louis (Gateway Bobcat). The complaint concerns the
    wash bay at Gateway Bobcat’s facility located at 9801 W. State Route 161 in Fairview Heights,
    St. Clair County. For the reasons below, the Board accepts the complaint for hearing.
    Under the Environmental Protection Act (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 this case, the People allege in counts I and II of the complaint that Gateway Bobcat
    violated Sections 12(a), (b), (d), and (f) of the Act (415 ILCS 5/12(a), (b), (d), (f) (2006)) and
    Sections 302.203, 309.102(a), 309.243, and 304.106 of the Board’s water pollution regulations
    (35 Ill. Adm. Code 302.203, 209.102(a), 309.243, 304.106) as follows: (1) by discharging
    untreated wastewater into waters of the State, causing, threatening or allowing water pollution;
    (2) by causing, allowing, or threatening the discharge of wastewater from its wash bay into
    waters of the State so as to cause or tend to cause offensive conditions in the unnamed tributary
    of Schoenberger Creek; (3) by violating water quality standards; (4) by operating equipment
    capable of contributing to water pollution without a permit granted by the Illinois Environmental
    Protection Agency (Agency); (5) by depositing a contaminant upon the land in such place and
    manner so as to create a water pollution hazard; (6) by causing, allowing, or threatening the
    discharge of contaminants into waters of the State without a National Pollutant Discharge
    Elimination System (NPDES) permit; (7) by failing to apply for an NPDES permit; and (8) by
    discharging effluent that contained settleable solids and turbidity.
    In counts III and IV of the complaint, the People allege that Gateway Bobcat violated
    Sections 21(a), (e), (p)(1), (p)(3), and 9(c) of the Act (415 ILCS 5/21(a), (e), (p)(1), 9(c) (2006))
    as follows: (1) by causing or allowing the open dumping of waste; (2) by disposing, abandoning,
    storing, or transporting waste at or to a site that does not meet the requirements of the Act and of
    the standards and regulations promulgated under the Act; (3) by causing or allowing the open
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    dumping of waste in a manner that resulted in litter at or from the dumpsite; (4) by causing or
    allowing the open burning of refuse on its property; and (5) by causing or allowing the open
    dumping of waste in a manner that resulted in open burning.
    Count V of the complaint alleges that Gateway Bobcat violated Section 21(d)(2) of the
    Act (415 ILCS 5/21(d)(2) (2006)) and Sections 739.122(d), 722.111, and 808.121 of the Board’s
    waste disposal and used oil management regulations (35 Ill. Adm. Code 739.122(d), 722.111,
    808.121) as follows: (1) by failing to make a hazardous waste determination; (2) by failing to
    make a special waste determination; and (3) by failing to perform proper cleanup after releasing
    used oil into the environment and causing or allowing used oil to remain on and in the soil at the
    facility.
    The People ask the Board to order Gateway Bobcat to cease and desist from further
    violations of the Act and Board regulations and pay a civil penalty of $50,000 for each violation
    and an additional $10,000 per day for each day the violations continued.
    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 Gateway Bobcat 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 Gateway
    Bobcat 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) (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 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
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    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 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 18, 2007, by a vote of 4-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

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