ILLINOIS POLLUTION CONTROL BOARD
    March 20, 2008
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    HIGHLAND BAKING COMPANY, INC., an
    ILLINOIS corporation,
    Respondent.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB 08-051
    (Enforcement – Air)
    ORDER OF THE BOARD (by G.T. Girard):
    On March 12, 2008, the Attorney General, on her own motion and at the request of
    Illinois Environmental Protection Agency (People), filed a six-count complaint against Highland
    Baking Company, Inc., an Illinois corporation (respondent).
    See
    415 ILCS 5/31(c)(1) (2006); 35
    Ill. Adm. Code 103.204. The complaint concerns respondent’s facility at 3665 West Lunt
    Avenue, Lincolnwood, Cook County. For the reasons below, the Board accepts the complaint
    for hearing.
    Under the Environmental Protection Act (Act) (415 ILCS 5/1
    et seq
    . (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 that respondent violated Sections 201.132(a),
    201.142, 201.143, 203.201, 203.203(a), 205.310(a)(3), (35 Ill. Adm. Code 201.132(a), 201.142,
    201.143, 203.201, 203.203(a), 205.310(a)(3)) of the Board Air Pollution Regulations, and
    Section 254.137(a) of the Illinois EPA Air Pollution Regulations, (35 Ill. Adm. Code
    254.137(a)), Sections 9(a), 9(b),
    39.5(6) (b), of the Act (415 ILCS 5/9(a), 9(b), 39.5(6) (b)
    (2006))
    .
    The People further allege that respondent violated these provisions by constructing and
    operating a new emission sources at the facility without first obtaining a permit, operating a major
    stationary source without timely applying for and obtaining a CAAPP permit, constructing a new
    major stationary source in a severe nonattainment area without a construction permit, failing to
    obtain a construction permit from the Illinois EPA prior to the construction of a major new source,
    failing
    to timely submit an ERMS application as required of a participating source, and failing to
    timely submit an AER for each of the calendar years from 1992 through and including 2005
    . The
    People ask the Board to order respondent to cease and desist from further violations of the Act
    and assessing a civil penalty of $50,000 for each violation and an additional $10,000 per day
    during which each violation 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 respondent fails within
    that timeframe to file an answer specifically denying, or asserting insufficient knowledge to form
    2
    a belief of, a material allegation in the complaint, the Board will consider respondent 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.
    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 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 (Section 42(h)(7)), as is whether a respondent has “voluntarily 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
    3
    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 T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
    the Board adopted the above order on March 20, 2008, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

    Back to top