ILLINOIS POLLUTION CONTROL BOARD
    November 5, 2008
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    RICHARD KING, KAY KING, and ISAAC
    KING,
    Respondents.
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    PCB 09-27
    (Enforcement – Air)
    ORDER OF THE BOARD (by N.J. Melas):
    On October 22, 2008, the Office of the Attorney General, on behalf of the People of the
    State of Illinois (People), filed a four-count complaint against Richard King, Kay King, and Isaac
    King (respondents). The complaint concerns a vacant three-story building formerly known as
    the “Buck’s Building,” located at 527 East Washington Street in Springfield, Sangamon 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 9(a) and 9.1(d) of
    the Act (415 ILCS 5/9(a), 9.1(d) (2006)), Sections 61.145(a), (b), (c)(1), (2), (6), (8), and
    61.150(a)(1)(iii), (iv), (v), (b) of the federal regulations on National Emission Standards for
    Hazardous Air Pollutants (“NESHAP”) for asbestos (40 C.F.R. §§61.145(a), (b), (c)(1), (2), (6),
    (8), 61.150(a)(1)(iii), (iv), (v), (b)),
    1
    and Section 201.141 of the Board’s air pollution regulations
    (35 Ill. Adm. Code 201.141).
    According to the complaint, respondents violated these provisions by (1) causing or
    tending to cause air pollution; (2) failing to thoroughly inspect the Buck’s Building for the
    presence and location of asbestos-containing material (ACM) prior to commencing asbestos
    removal and disposal activities; (3) failing to notify the Illinois Environmental Protection
    Agency (Agency) of scheduled asbestos removal activities at the Buck’s Building at least 10
    working days prior to commencing such activities; (4) failing to properly remove all regulated
    ACM (RACM) from the Buck’s Building before commencing planned renovation activities,
    which broke up, dislodged, and similarly disturbed the RACM; (5) failing to adequately wet all
    RACM and prevent damage or disturbance to the RACM during cutting or disjoining operations
    1
    Section 9.1(d)(1) of the Act prohibits persons from violating any provisions of Section 111,
    112, 165 or 173 of the federal Clean Air Act (CAA) or federal regulations adopted thereunder.
    415 ILCS 5/9.1(d)(1) (2006). Under Section 112 of the CAA (42 U.S.C. §7412), the United
    States Environmental Protection Agency adopted NESHAP regulations for asbestos.
    2
    at the Buck’s Building; (6) failing to adequately wet and maintain wet all RACM and regulated
    asbestos-containing waste material at the Buck’s Building until collected and contained in
    preparation for disposal at a site permitted to accept such waste; (7) failing to have at least one
    representative at the Buck’s Building trained in the provisions of the NESHAP for asbestos and
    the means of complying with them; (8) failing to adequately wet and keep wet, containerize, and
    label all asbestos-containing waste material at the Buck’s Building, thereby causing or allowing
    the discharge of visible emissions to the outside air; and (9) failing to transport to a waste
    disposal site, or Agency-approved site that converts RACM and asbestos-containing waste
    material into nonasbestos material, and deposit as soon as practical all asbestos-containing waste
    material generated during asbestos removal activities at the Buck’s Building. The People ask the
    Board to issue an order requiring respondents to cease and desist from further violations and pay
    civil penalties of not more than the statutory maximum.
    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 respondent to do to correct an on-going 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.
    If, after considering the Section 33(c) factors, the Board decides to impose a civil penalty
    on the respondent, 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 respondent showed due diligence in attempting to comply, any economic benefit that
    the respondent accrued from delaying compliance, and the need to deter further violations by the
    respondent and others similarly situated.
    3
    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 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 November 5, 2008, by a vote of 4-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

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