ILLINOIS POLLUTION CONTROL BOARD
    July 10, 2008
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    CENTERPOINT PROPERTIES TRUST, a
    real estate investment trust, and FCL
    INVESTORS, INC., an Illinois corporation
    formerly known as FCL BUILDERS, INC.,
    Respondents.
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    PCB 09-2
    (Enforcement – Water)
    ORDER OF THE BOARD (by G.T. Girard):
    On July 3, 2008, the Office of the Attorney General, on behalf of the People of the State
    of Illinois (People), filed an eight-count complaint against CenterPoint Properties Trust, a real
    estate investment trust, and FCL Investors, Inc., an Illinois corporation formerly known as FCL
    Builders, Inc. (respondents). The complaint concerns respondents’ construction activities at a
    134-acre parcel of land known as the Center Point Business Center, located on the northwest
    corner of the intersection of Interstate 94 and Washington Street in the Village of Gurnee, Lake
    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 that respondents violated Sections 12(a), (d), and (f) of
    the Act (415 ILCS 5/12(a), (d), (f) (2006)), Sections 302.203 and 309.102(a) of the Board’s
    water pollution regulations (35 Ill. Adm. Code 302.203, 309.102(a)), and numerous conditions of
    the National Pollutant Discharge Elimination System (NPDES) general stormwater permit.
    The People allege that respondents violated these provisions by (1) causing or tending to
    cause water pollution by failing to install adequate erosion and stormwater runoff control
    measures, causing or allowing the discharge of excessive soil- and sediment-laden stormwater
    runoff into waters of the State, including wetlands and an unnamed tributary of the Des Plaines
    River; (2) causing or allowing the discharge of soil- and sediment-laden stormwater, causing
    unnatural turbidity and color in waters of the State; (3) creating a water pollution hazard by
    depositing soil upon land without implementing adequate erosion and runoff control measures;
    (4) failing to sign the “storm water pollution prevention plan” (SWPPP); (5) failing to commence
    stabilization measures as soon as practicable after the temporary or permanent cessation of
    construction activities; (6) failing to submit “Incidence of Noncompliance” reports after
    observing violations of the SWPPP; (7) failing to include contractor or subcontractor
    certification in the SWPPP; and (8) discharging stormwater that caused or contributed to a
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    violation of an applicable water quality standard. The People ask the Board to order respondents
    to cease and desist from further violations and pay, for counts I through III, a civil penalty of
    $50,000 per violation and $10,000 for each day of violation and, for counts IV through VIII
    (NPDES violations), a civil penalty of $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 a respondent 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 the respondent 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 July 10, 2008, by a vote of 4-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

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