ILLINOIS POLLUTION CONTROL BOARD
    January 22, 2009
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    BIRDS PINKSTAFF WATER DISTRICT,
    an Illinois Not-For-Profit Corporation
    Respondent.
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    PCB 09-47
    (Enforcement – Water)
    ORDER OF THE BOARD (by G.T. Girard):
    On January 9, 2009, the Office of the Attorney General, on behalf of the People of the
    State of Illinois (People), filed a one-count complaint against Birds Pinkstaff Water District
    (BPWD). The complaint concerns BPWD’s Public Water System
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    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
    located in Lawrence County,
    Illinois. 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 BPWD violated Section 18 of the Act ( 415 ILCS
    5/18 (2006)) and Sections 611.121, 611.301, and 611.325 of the Board’s Water Pollution
    Regulations (35 Ill. Adm. Code 611.121, 611.301, and 611.325) by exceeding the Maximum
    Contaminant Level (MCL) for arsenic from April 1, 2006 through September 2007. The People
    further allege that by having a presences of coliforms in the water supply, BPWD violated
    Section 18 of the Act (415 ILCS 5/18 (2006)).
    The People ask the Board to order BPWD to cease and desist from any further violations
    of the Act and associated regulations, and pay a civil penalty of $50,000 for each violation of the
    Act and pertinent Board regulations and an additional $10,000 for each day during which each
    violation has continued thereafter.
    1
    A Public Water System, as defined under Section 611.101 of the Board’s Public Water
    Supplies Regulations, is a system for the provision to the public of piped water for human
    consumption, if such system has at least fifteen service connections or regularly serves an
    average of at least 25 individuals daily at least 60 days out of the year. A PWS is either a
    community water system (CWS) or a non-community water system (non-CWS).
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    receiving the complaint may have severe consequences. Generally, if BPWD 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 BPWD 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.
    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). An 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
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    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 January 22, 2009, by a vote of 5-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

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