ILLINOIS POLLUTION CONTROL BOARD
May 15, 2008
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
GELCO MANAGEMENT & DEVELOPERS,
LLC, an Illinois limited liability corporation,
Respondent.
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PCB 08-89
(Enforcement – Air)
ORDER OF THE BOARD (by G.T. Girard):
On May 13, 2008, the Office of the Attorney General, on behalf of the People of the State
of Illinois (People), filed a three-count complaint against Gelco Management & Developers,
LLC (Gelco). The complaint concerns demolition work involving allegedly asbestos-containing
materials at Gelco’s property, which is located at 350 Fifth Street in Benton, Franklin 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 count I of the complaint that Gelco violated Section
9.1(d) of the Act (415 ILCS 9.1(d) (2006)) and 40 C.F.R. §§61.145(b)(1), 61.145(c)(6),
61.145(c)(8), and 61.150(b) by (1) failing to provide written notification to the Illinois
Environmental Protection Agency prior to commencing demolition; (2) failing to remove all
regulated asbestos-containing materials prior to commencing the demolition operation; (3)
failing to utilize equipment or methods to properly control the emission of asbestos; (4) failing to
adequately wet and keep wet all regulated asbestos-containing materials removed or disturbed
during the demolition; (5) failing to have at least one representative trained in the provisions of
the National Emissions Standards for Hazardous Air Pollutants (NESHAP) and the means of
compliance with NESHAP; and (6) failing to deposit asbestos-containing waste material as soon
as practical in an appropriate waste disposal site.
Count II of the complaint alleges that Gelco threatened the emission of contaminants into
the environment so as to tend to cause air pollution, in violation of Section 9(a) of the Act (415
ILCS 5/9(a) (2006)) and 35 Ill. Adm. Code 201.141, by (1) failing to remove all regulated
asbestos-containing material prior to the demolition; (2) failing to utilize equipment or methods
to properly control the emission of asbestos; and (3) failing to collect and contain all regulated
asbestos-containing waste material in leak-tight wrapping in preparation for disposal as soon as
practicable at a site permitted to accept such waste. According to count III, Gelco violated
Section 9.13 of the Act (415 ILCS 5/9.13 (2006)) by failing to pay the statutorily required fee.
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The People ask that the Board order Gelco to cease and desist from any further violations
and pay a civil penalty of not more than the maximum under Section 42(a) of the Act (415 ILCS
5/42(a) (2006)).
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). Gelco’s failure to file an answer to a complaint within 60 days after receiving the
complaint may have severe consequences. Generally, if Gelco 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 Gelco 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 respondents to do to correct an on-going violation, if any,
and, second, whether to order the respondents 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 respondents have
subsequently eliminated the violation.
If, after considering the Section 33(c) factors, the Board decides to impose a civil penalty
on the respondents, 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 respondents showed due diligence in attempting to comply, any economic benefit
that the respondents accrued from delaying compliance, and the need to deter further violations
by the respondents 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 respondents 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 respondents as a result of the violation, unless the
Board finds that imposition of such penalty would result in an arbitrary or unreasonable financial
hardship.”
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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 May 15, 2008, by a vote of 4-0.
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John Therriault, Assistant Clerk
Illinois Pollution Control Board
