ILLINOIS POLLUTION CONTROL BOARD
September 16, 2008
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
MYERS INDUSTRIES, INC.,
Respondent.
)
)
)
)
)
)
)
)
)
PCB 09-16
(Enforcement – Land, Noise)
ORDER OF THE BOARD (by G.T. Girard):
On September 12, 2008, the Office of the Attorney General, on behalf of the People of
the State of Illinois (People), filed a three-count complaint against Myers Industries, Inc.
(Myers). The complaint concerns Myers’ manufacturing facility located at 2200 West 5th Street
Road in Lincoln, Logan 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 Myers violated Sections 21(a), 21(d)(1), 21(e),
21(f)(1), 21(f)(2), 21(p), and 24 of the Act (415 ILCS 5/21(a), (d)(1), (e), (f)(1), (f)(2), (p), 24
(2006)), Section 812.101(a) of the Board’s waste disposal regulations (35 Ill. Adm. Code
812.101(a)), Sections 703.121(a) and (b) of the Board’s Resource Conservation and Recovery
Act (RCRA) permit program regulations (35 Ill. Adm. Code 703.121(a), (b)), Sections
722.134(a) and (c), and 725.273(a) of the Board’s hazardous waste regulations (35 Ill. Adm.
Code 722.134(a), (c), 725.273(a)), Section 812.101(a) of the Board’s waste disposal regulations
(35 Ill. Adm. Code 812.101(a)), and Sections 900.102, 901.102(a) and (b), and 901.106(a) of the
Board’s noise regulations (35 Ill. Adm. Code 901.102(a), 901.102(b), 901.106(a)).
The People further allege that Myers violated these provisions by (1) causing or allowing
the open dumping of refuse and waste, and disposing or abandoning wastes at a site that does not
meet the requirements of the Act and underlying regulations and standards; (2) conducting a
waste-storage or waste-disposal operation without a permit; (3) causing or allowing open
dumping in a manner resulting in litter; (4) storing hazardous wastes without a RCRA permit;
(5) storing hazardous wastes in unlabeled containers; (6) storing hazardous wastes in open
containers; (7) exceeding daytime and nighttime numeric sound limits for sound emitted from a
Class C Land to a Class A Land; and (8) emitting sound pressure levels constituting a prominent
discrete tone. The People ask the Board to order Myers to cease and desist from further
violations and impose a civil penalty of not more than the statutory maximum.
2
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.”
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
3
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 September 16, 2008, by a vote of 4-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
