ILLINOIS POLLUTION CONTROL BOARD
    November 15, 2007
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    BARGER ENGINEERING, INC.,
    Respondent.
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    PCB 06-82
    (Enforcement - Water)
    ORDER OF THE BOARD (by G.T. Girard):
    On October 16, 2007, the Office of the Attorney General, on behalf of the People of the
    State of Illinois (People), filed an amended complaint (Am. Comp.) adding additional counts
    against Barger Engineering, Inc. (Barger). Along with the amended compliant, the People filed a
    motion to allow the filing. A party has 14 days to respond to a motion.
    See
    35 Ill. Adm. Code
    101.500(d). The Board has received no responses to the motion. Therefore, any objection to
    granting the motion is deemed waived.
    Id
    .
    The amended four-count complaint alleges that Barger violated Sections 12(a), (d) and (f)
    of Act (415 ILCS 5/12(a), (d) and (f) (2006)), and provisions of the Board’s rules at 35 Ill. Adm.
    Code 302.203 and 302.208(g) at a facility known as Phillipstown Unit Water Flood Plant (plant)
    located in White County. Am. Comp. at 1-8. The amended complaint alleges that on September
    23, 2005, a PVC transfer line ruptured and released approximately 1,000 to 1,500 barrels of salt
    water and 10 to 20 barrels of crude oil. Am. Comp. at 2. The release traveled into a
    drainageway and an unnamed stream to the Wabash River.
    Id
    . The crude oil and crude oil
    staining occurred approximately one mile downstream from the plant.
    Id
    .
    The amended complaint alleges that additional water pollution violations occurred on
    May 18, 2006, April 20, 2007, and August 2, 2007. Am. Comp. 3-8. The People allege in the
    complaint that all of these water pollution violations occurred as a result of equipment and
    pipeline failures.
    The Board grants the motion to file the amended complaint, finds that the amended
    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 Barger 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 Barger to have admitted the allegation. 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) (2006). Specifically, the Board considers the Section 33(c) factors in
    determining, first, what to order the respondent to do to correct an ongoing 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, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
    the Board adopted the above order on November 15, 2007, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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