ILLINOIS POLLUTION CONTROL BOARD

March 5, 2009

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

v.

STEVE SODERBERG d/b/a STEVE’S

CONCRETE AND EXCAVATING,

Respondent.

)

)

)

)

)

)

)

)

)

)

PCB 08-87

(Enforcement – Water)

OPINION AND ORDER OF THE BOARD (by A.S. Moore):

On May 7, 2008, the Office of the Attorney General, on behalf of the People of the State

of Illinois (People), filed a complaint against Steve Soderberg d/b/a Steve’s Concrete and

Excavating (respondent).

See

415 ILCS 5/31(c)(1) (2006); 35 Ill. Adm. Code 103.204. The

People allege that respondent violated Sections 12(a), 12(d), and 12(f) of the Environmental

Protection Act (Act) (415 ILCS 5/12(a), 12(d), 12(f) (2006)) and Sections 309.102(a) and

302.203 of the Board’s water pollution regulations (35 Ill. Adm. Code 309.102(a), 302.203).

The People allege that respondent violated these provisions by causing or threatening or allowing

the discharge of contaminants into the environment so as to cause or tend to cause water

pollution; by depositing contaminants upon the land in such as place and manner as to create a

water pollution hazard; by causing, threatening, or allowing the discharge of contaminants into

the waters of the State without a National Pollutant Discharge Elimination System (NPDES)

permit; and by causing or allowing the creation of an offensive condition. The complaint

concerns respondent’s removal of an aboveground fuel tank from a site at 2303 Charles Street,

Rockford, Winnebago County.

Today the Board decides an uncontested motion to deem facts admitted and for summary

judgment filed by the People on October 27, 2008. For the reasons discussed below, the Board

grants the People’s motion to deem facts admitted and for summary judgment, requires

respondent to pay a $12,000 civil penalty, and also requires respondent to cease and desist from

further violations.

This opinion and order first reviews the procedural history of this case. It then

summarizes the People’s complaint and addresses the People’s motion to deem facts admitted.

The opinion and order then sets forth the relevant statutory and regulatory provisions. The Board

next describes the standard of review applied by the Board in considering summary judgment

motions and then summarizes the People’s motion for summary judgment. Next, the order

provides the Board’s discussion of and ruling on that motion before issuing the Board’s final

order.

PROCEDURAL HISTORY

---

2

On May 7, 2008, the People filed a four-count complaint (Comp.) alleging that

respondent had committed water pollution violations. In an order dated May 15, 2008, the Board

accepted the complaint for hearing. During a telephonic status conference on September 25,

2008, the hearing officer noted that respondent’s answer had been due on September 19, 2008.

Respondent indicated that that answer had been mailed to the complainant on September 16 or

17, 2008. To date, however, the respondent has not filed an answer to the complaint with the

Board and has raised no affirmative defenses. On October 27, 2008, the People filed a motion to

deem facts admitted and for summary judgment (Mot.). Respondent has filed no response to the

People’s motion to deem facts admitted and for summary judgment. The respondent did not

appear for telephonic status conferences with the hearing officer scheduled for November 13,

2008, or January 15, 2009.

PEOPLE’S COMPLAINT

The People allege that respondent owns and operates Steve’s Concrete and Excavating,

which is located at 1720 Charles Street in Rockford. Comp. at 1 (¶3). The People further allege

that respondent is a “person” as that term is defined by the Act.

Id

. at 4 (¶¶14-15);

see

415 ILCS

5/3.315 (2006) (definition of “person”). The People also allege that respondent “is not registered

with the Illinois Secretary of State.” Comp. at 1 (¶3).

Count I

The People allege that, after persons at a local elementary school noticed an odor of

petroleum near Keith Creek on May 12, 2006, the Rockford Fire Department (RFD) reported a

diesel fuel spill in the creek to the Illinois Environmental Protection Agency (Agency). Comp. at

2 (¶4). The People also allege that Keith Creek and its surrounding area are “waters” under the

Act.

Id.

at 5 (¶¶18-19);

see

415 ILCS 5/3.550 (2006) (definition of “water”). The People further

allege that the Agency “determined that the source of the contamination was a spill area behind

2239 Charles Street.” Comp. at 2 (¶4).

The People allege that Agency personnel responded to RFD’s report of the spill by

inspecting the spill area. Comp. at 2 (¶5). The complaint characterizes the spill area as “a small

concrete landing above a storm water culvert discharging to Keith Creek.”

Id.

The People

further allege that “[f]uel had pooled on the concrete and flowed into the culvert, to the creek,

and onto a small area of surrounding ground surface.”

Id

. The People further allege that the

Agency “observed a sheen moving on top of the water and collecting in the curves and

vegetation along the creek.”

Id

.

The People allege that respondent had rented the rear of a building located at 2303

Charles Street, an address “which was part of the same property at which the spill occurred.”

Comp. at 2 (¶6). The complaint states that, when the spill was discovered, “[t]he property was

owned by the Rockford Local Development Corporation.”

Id.

The People further allege that, “at

the time the spill was discovered, Respondent had agreed to a termination of the lease and

removal of an above ground fuel tank from the site.”

Id

.

---

3

The People allege that a witness reported to RFD that he or she had observed a truck

marked with the name “Steve’s Concrete and Excavating” removing equipment including an

above ground fuel tank from the site. Comp. at 2 (¶7). The People also allege that respondent

“conceded that his employees had removed the fuel tank, but indicated that the tank did not

belong to him and that there had been no problems during removal.”

Id

. The People further

allege that “diesel fuel improperly emptied from the above ground fuel tank is a “contaminant’”

under the Act.

Id.

(¶¶16-17);

see

415 ILCS 5/3.165 (2006) (definition of “contaminant”).

The People allege that, in responding to the report of a fuel spill, RFD first constructed “a

small earthen dike to stop the flow of fuel to the culvert and creek.” Comp. at 2 (¶8). The

People further allege, soon after constructing the dike, RFD “placed a boom in the creek at the

mouth of the culvert to prevent further release and placed a pad on the area of the spill to absorb

the fuel.”

Id.

at 2-3 (¶8).

The People allege that respondent took over remedial efforts from the RFD by

contracting with Trans Environmental. Comp. at 3 (¶9). The People further allege that Trans

Environmental “estimated that the release was less than ten gallons of fuel based on the size of

the tank and the volume of fuel remaining.”

Id

. The complaint states that Trans Environmental

reported the release to the Illinois Emergency Management Agency (IEMA).

Id

.

The People allege that the Agency instructed Trans Environmental “to remove the soaked

pads from the culvert and replace them with new ones.” Comp. at 3 (¶10). The People further

allege that Trans Environmental agreed to place contaminated soil from the spill area into a

disposal drum and to notify the Agency upon completion of its cleanup.

Id.

The People also

allege that the Agency re-inspected the site on May 15, 2006.

Id.

The People further allege that,

during that inspection, the Agency “observed that the concrete above the culvert was clean and

that waste materials had been placed in a fifty-five gallon drum.”

Id

.

The People allege that, on or about June 20, 2006, the Agency informed the respondent

that the site required additional cleanup. Comp. at 3 (¶11). The People further allege that

respondent contacted Trans Environmental to consult with the Agency and remediate the area of

the release.

Id

. The People also allege that “[a]fter replacing absorbent materials and installing

additional booms and pads at the site, a steel drum of contaminated soils and absorbents was

disposed of at Orchard Hills Landfill on June 23, 2006.”

Id

.

The People allege that the Agency cited an “unpermitted discharge of contaminants and

water quality violations” in sending a violation notice letter to the respondent on July 18, 2006.

Comp. at 3 (¶12). The People further allege that, in a response dated September 29, 2006, Trans

Environmental stated that it “had taken immediate corrective actions following the release, and

minimized the impact to the environment.”

Id

. at 3-4 (¶12). The People also allege that the

Agency on October 16, 2006 rejected a proposed compliance agreement submitted on behalf of

respondent by Trans Environmental.

Id

. at 4 (¶12). The People also allege that, on March 21,

2007, the Agency sent a letter providing notice of intent to pursue legal action.

Id

.

The People allege that, “[b]y spilling diesel fuel which flowed to the culvert and creek,

Respondent caused, threatened, or allowed the discharge of contaminants into the environment

---

4

so as to cause or tend to cause water pollution in violation of Section 12(a) of the Act.” Comp. at

5 (¶21), citing 415 ILCS 5/12(a) (2006).

Count II

The People allege that, during Agency inspections at the site, “fuel was observed floating

on top of the water as well as on the soil leading from the culvert to the creek.” Comp. at 6

(¶16). The People further allege that, before the RFD placed absorbent materials on the spill,

“the fuel was uncovered and unprotected from exposure to the elements.”

Id

.

The People allege that, “[b]y spilling fuel which then flowed to the creek and surrounding

soil areas, Respondent deposited contaminants upon the land in such place and manner so as to

create a water pollution hazard, in violation of Section 12(d) of the Act.” Comp. at 6-7 (¶17),

citing 415 ILCS 5/12(d) (2006).

Count III

The People allege that “[t]he spilled fuel identified at the site are not covered by any

NPDES permit issued to, or held by, the Respondent.” Comp. at 8 (¶18). The People further

allege that, “[b]y discharging contaminants not covered by an NPDES permit, Respondent has

violated Section 12(f) of the Act . . . and Section 309.102(a) of the Board Water Pollution

Regulations.” Comp. at 8 (¶19), citing 415 ILCS 5/12(f) (2006), 35 Ill. Adm. Code 309.102(a).

Count IV

The People allege that, on the dates of Agency inspections, “[o]il sheens were visible on

the creek surface and petroleum odor in the area was evident.” Comp. at 10 (¶16). The People

further allege that, “[b]y causing and allowing the oil sheens which disturbed the natural

appearance of the creek, Respondent has created an offensive condition and violated Section

302.203 of the Board Water Pollution Regulations.”

Id

. at 10 (¶17), citing 35 Ill. Adm. Code

302.203.

PEOPLE’S MOTION TO DEEM FACTS ADMITTED

During a conference with the hearing officer on July 24, 2008, the People reported re-

serving the respondent with the complaint in response to issues raised by the respondent. People

v. Steve Soderberg d/b/a Steve’s Concrete and Excavating, PCB 08-87 (July 24, 2008) (hearing

officer order). Specifically, the People served the complaint upon respondent on July 16, 2008.

Mot., Exh. 1. Under Section 103.204(d) of the Board’s procedural rules, respondent had 60 days

after receipt of the People’s complaint to file an answer. 35 Ill. Adm. Code 103.204(d).

Accordingly, “it was agreed that respondent has until September 19, 2008, to answer the

complaint or otherwise plead.” People v. Steve Soderberg d/b/a Steve’s Concrete and

Excavating

During a conference on September 25, 2008, in which all parties participated, the hearing

officer noted the September 19, 2008, deadline to file respondent’s answer.

, PCB 08-87 (July 24, 2008).

People v. Steve

---

5

Soderberg d/b/a Steve’s Concrete and Excavating, PCB 08-87 (Sept. 25, 2008) (hearing officer

order). During the same conference, respondent stated that he had mailed an answer to the

People on September 16 or 17, 2008.

Id

. To date, however, neither the People nor the Board has

received from respondent an answer to the complaint or any other responsive pleading that

would stay the 60-day deadline.

See

35 Ill. Adm. Code 103.204(e).

On October 27, 2008, the People filed a motion to deem facts admitted. The People

argue that, under Section 103.204(d) of the Board’s procedural rules, “[a]ll material allegations

of the complaint will be taken as admitted if no answer is filed.” Mot. at 2, citing 35 Ill. Adm.

Code 103.204(d). In addition to filing no answer, respondent has filed no response to the

People’s motion to deem facts admitted. The Board’s procedural rules provide that “[w]thin 14

days after service of a motion, a party may file a response to the motion. If no response is filed,

the party will be deemed to have waived objection to the granting of the motion, but the waiver

of objection does not bind the Board or the hearing officer in its disposition of the motion.” 35

Ill. Adm. Code 101.500(d).

Under these provisions, the Board grants the People’s motion to deem facts admitted.

The Board finds that respondent’s failure to answer the complaint has caused the material

allegations of the complaint to be taken as admitted. In the following section, the Board

summarizes the factual record, including facts taken as admitted by respondent.

Responding to the spill, the RFD had constructed a small earthen dike to stop the flow of

fuel to the culvert and creek. Soon after constructing the dike, the RFD placed a boom in the

creek at the mouth of the culvert to prevent further release and placed a pad on the area of the

FACTUAL BACKGROUND

After persons at a local elementary school noticed an odor of petroleum near Keith Creek

on May 12, 2006, RFD reported a diesel fuel spill in the creek to the Agency. Keith Creek and

the area surrounding it are “waters.” The Agency determined that the contamination originated

from a spill area behind 2239 Charles Street. Agency personnel responded to RFD’s report by

inspecting the spill area, a small concrete landing above a storm water culvert discharging to

Keith Creek. The inspection revealed that fuel had pooled on the concrete and flowed into the

culvert, to the creek, and onto a small area of surrounding ground surface. During the course of

its inspection, the Agency observed fuel on the soil leading from the culvert to the creek and an

evident odor of petroleum in the area. The Agency also observed a sheen moving on top of the

water and collecting in the curves and vegetation along the creek.

Respondent had rented the rear of a building located at 2303 Charles Street, a part of the

property owned by the Rockford Local Development Corporation at which the spill occurred. At

the time the spill was discovered, respondent had agreed to terminate the lease and remove an

above ground fuel tank from the site. A witness had reported to the RFD that he or she had

observed a truck marked “Steve’s Concrete and Excavating” removing equipment including an

above ground fuel tank from the site. Respondent conceded that his employees had removed the

fuel tank, but indicted that the tank did not belong to him and that there had been no problems

during its removal.

---

6

spill to absorb the fuel. Before the RFD placed absorbent materials on the spill, the fuel was

uncovered and unprotected from exposure to the elements. The respondent took over remedial

efforts from RFD by contracting with Trans Environmental. Trans Environmental reported the

release to IEMA. Trans Environmental estimated that the release was less than ten gallons of

fuel based on the size of the tank and the volume of fuel remaining. The spilled fuel identified at

the site is not covered by an NPDES permit issued to, or held by, respondent.

The Agency instructed Trans Environmental to remove soaked pads from the culvert and

replace them with new ones. Trans Environmental agreed to place contaminated soil into a

disposal drum and to notify the Agency upon completion of its cleanup. The Agency re-

inspected the site on May 15, 2006. The Agency observed that the concrete above the culvert

was clean and that waste materials had been placed in a fifty-five gallon drum. The Agency

informed the respondent on or about June 20, 2006 that the site required additional cleanup. The

respondent contacted Trans Environmental to consult with the Agency on remediating the area of

the release. Following the replacement of absorbent materials and the installation of additional

booms and pads at the site, a steel drum of contaminated soils and absorbents was disposed of at

Orchard Hills Landfill on June 23, 2006.

In sending a violation notice to the respondent on July 18, 2006, the Agency cited an

“unpermitted discharge of contaminants and water quality violations.” In a response dated

September 29, 2006, Trans Environmental stated that it “had taken immediate corrective actions

following the release, and minimized the impact to the environment.” On October 16, 2006, the

Agency rejected a proposed compliance agreement submitted on behalf of respondent by Trans

Environmental. On March 21, 2007, the Agency sent a letter providing notice of intent to pursue

legal action.

STATUTORY AND REGULATORY PROVISIONS

Section 3.315 of the Act provides that a “‘[p]erson’ is any individual, partnership,

co-partnership, firm, company, limited liability company, corporation, association, joint stock

company, trust, estate, political subdivision, state agency, or any other legal entity, or their legal

representative, agent or assigns.” 415 ILCS 5/3.315 (2006).

Section 3.165 of the Act provides that a “‘[c]ontaminant’ is any solid, liquid, or gaseous

matter, any odor, or any form of energy, from whatever source.” 415 ILCS 5/3.165 (2006).

Section 3.545 of the Act provides that

“[w]ater pollution” is such alteration of the physical, thermal, chemical, biological

or radioactive properties of any waters of the State, or such discharge of any

contaminant into any waters of the State, as will or is likely to create a nuisance or

render such waters harmful or detrimental or injurious to public health, safety or

welfare, or to domestic, commercial, industrial, agricultural, recreational, or other

legitimate uses, or to livestock, wild animals, birds, fish, or other aquatic life. 415

ILCS 5/3.545 (2006).

---

7

Section 3.550 of the Act provides that “‘[w]aters’ means all accumulations of water,

surface and underground, natural, and artificial, public and private, or parts thereof, which are

wholly or partially within, flow through, or border upon this State.” 415 ILCS 5/3.550 (2006).

Section 12 of the Act provides in pertinent part that no person shall:

(a)

Cause or threaten or allow the discharge of any contaminants into the

environment in any State so as to cause or tend to cause water pollution in

Illinois, either alone or in combination with matter from other sources, or

so as to violate regulations or standards adopted by the Pollution Control

Board under this Act.

* * *

(d)

Deposit any contaminants upon the land in such place and manner so as to

create a water pollution hazard.

* * *

(f)

Cause, threaten or allow the discharge of any contaminant into the waters

of the State, as defined herein, including but not limited to, waters to any

sewage works, or into any well or from any point source within the State,

without an NPDES permit for point source discharges issued by the

Agency under Section 39(b) of this Act, or in violation of any term or

condition imposed by such permit, or in violation of any NPDES permit

filing requirement established under Section 39(b), or in violation of any

regulations adopted by the Board or of any order adopted by the Board

with respect to the NPDES program. 415 ILCS 5/12(a), 12(d), 12(f)

(2006).

Section 33(c) of the Act provides in its entirety that

(c)

In making its orders and determinations, the Board shall take into

consideration all the facts and circumstances bearing upon the

reasonableness of the emissions, discharges or deposits involved

including, but not limited to:

(i)

the character and degree of injury to, or interference with the

protection of the health, general welfare and physical property of

the people;

(ii)

the social and economic value of the pollution source;

(iii)

the suitability or unsuitability of the pollution source to the area in

which it is located, including the question of priority of location in

the area involved;

(iv)

the technical practicability and economic reasonableness of

reducing or eliminating the emissions, discharges or deposits

resulting from such pollution source; and

---

8

(v)

any subsequent compliance. 415 ILCS 5/33(c) (2006).

Section 42(h) of the Act provides that

In determining the appropriate penalty to be imposed . . . the Board is authorized

to consider any matters of record in mitigation or aggravation of penalty,

including but not limited to the following factors:

(i)

the duration and gravity of the violation;

(ii)

the presence or absence of due diligence on the part of the

respondent in attempting to comply with requirements of this Act

and regulations thereunder or to secure relief therefrom as

provided by this Act;

(iii)

any economic benefits accrued by the respondent because of delay

in compliance with requirements, in which case the economic

benefits shall be determined by the lowest cost alternative for

achieving compliance;

(iv)

the amount of monetary penalty which will serve to deter further

violations by the respondent and to otherwise aid in enhancing

voluntary compliance with this Act by the respondent and other

persons similarly subject to the Act;

(v)

the number, proximity in time, and gravity of previously

adjudicated violations of the Act by the respondent;

(vi)

whether the respondent voluntarily self-disclosed, in accordance

with subsection (i) of this Section, the non-compliance to the

Agency; and

(vii)

whether the respondent has agreed to undertake a “supplemental

environmental project,” which means an environmentally

beneficial project that a respondent agrees to undertake in

settlement of an enforcement action brought under this Act, but

which the respondent is not otherwise legally required to perform.

415 ILCS 5/42(h) (2006).

Section 302.203 of the Board’s water pollution regulations provides in its entirety that

“[w]aters of the State shall be free from sludge or bottom deposits, floating debris, visible oil,

odor, plant or algal growth, color or turbidity of other than natural origin. The allowed mixing

provisions of Section 302.102 shall not be used to comply with the provisions of this Section.”

35 Ill. Adm. Code 302.203.

---

9

Section 309.102(a) of the Board’s water pollution regulations provides in its entirety that

“[e]xcept as in compliance with the provisions of the Act, Board regulations, and the CWA, and

the provisions and conditions of the NPDES permit issued to the discharger, the discharge of any

contaminant or pollutant by any person into the waters of the State from a point source or into a

well shall be unlawful.” 35 Ill. Adm. Code 309.102(a).

STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is appropriate when the pleadings, depositions, admissions on file,

and affidavits disclose that there is no genuine issue as to any material fact and the moving party

is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483,

693 N.E. 2d 358, 370 (1998);

see

35 Ill. Adm. Code 101.516(b) (Motions for Summary

Judgment). In ruling on a motion for summary judgment, the Board “must consider the

pleadings, depositions, and affidavits strictly against the movant and in favor of the opposing

party.” Dowd & Dowd, 693 N.E.2d at 370 (1998).

Summary judgment “is a drastic means of disposing of litigation,” and therefore it should

be granted only when the movant’s right to relief “is clear and free from doubt.” Dowd & Dowd,

Ltd. v. Gleason, 181 Ill. 2d 460, 483, 693 N.E. 2d 358, 370 (1998), citing Purtill v. Hess, 111 Ill.

2d 299, 240, 489 N.E. 2d 867, 871 (1986). However, a party opposing a motion for summary

judgment may not rest on its pleadings, but must “present a factual basis which would arguably

entitle [it] to judgment.” Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999

(2nd Dist. 1994).

The Board’s procedural rules provide that, “[w]ithin 14 days after service of a motion, a

party may file a response to the motion. If no response is filed, the party will be deemed to have

PEOPLE’S MOTION FOR SUMMARY JUDGMENT

In their motion for summary judgment, the People argue that the respondent has not filed

an answer to the complaint or a motion that would stay the 60-day deadline to file an answer.

Mot. at 2-3 (¶¶4, 6), citing 35 Ill. Adm. Code 103.204(d), 103.204(e). The People further argue

that, by failing to do so, respondent “has admitted the material allegations asserted in the

Complaint.” Mot. at 3 (¶6). Specifically, the People seek a Board order finding that, pursuant to

the Board’s procedural rules, the respondent has admitted the material allegations asserted in the

complaint.

Id

. (¶7). Above, the Board granted the People’s motion to deem facts admitted and

found that respondent’s failure to answer the complaint had caused the material allegations of the

complaint to be taken as admitted.

The People argue that the complaint states facts sufficient to establish that respondent had

violated the Act and the Board’s regulations as alleged in the four counts of the complaint. Mot.

at 3 (¶8). The People further argue that, if the Board finds that respondent admitted the material

allegations in the complaint, “then the record shows that there is no issue of material fact

remaining for review.”

Id

. at 4 (¶10). The People claim that the Board’s procedural rules entitle

the People to summary judgment in their favor as a matter of law.

Id

., citing 35 Ill. Adm. Code

101.516(b)

---

10

waived objection to the granting of the motion, but the waiver of objection does not bind the

Board . . . in its disposition of the motion.” 35 Ill. Adm. Code 101.500(d). Respondent’s failure

to respond to the motion for summary judgment has resulted in his waiving any objection to the

Board granting the motion. Below, the Board reviews the motion and the evidence and

arguments offered in its support before making its findings and reaching its conclusions.

DISCUSSION

Count I

The record demonstrates that respondent allowed, caused, or threatened the discharge of

diesel fuel into a culvert and Keith Creek so as to cause or tend to cause waste pollution.

Specifically, the record shows that respondent rented the rear of a building located at 2303

Charles Street in Rockford. The record also shows that respondent had agreed to remove an

aboveground fuel tank from that location, that at a witness observed a truck marked as

respondent’s removing an above ground fuel tank from the site, and that respondent conceded his

employees had removed the tank.

The record further shows that RFD received a report of a diesel fuel spill in Keith Creek,

which it reported to the Agency on May 12, 2006. The Agency determined that the spill

originated from the area behind 2239 Charles Street, part of the same property at which

respondent rented the rear of a building. The Agency’s inspection determined that fuel had

pooled on a concrete landing and a small area of surrounding ground surface and then flowed

into a stormwater culvert and Keith Creek. The record also shows that the spill released less than

ten gallons of fuel.

The record also demonstrates that the spill of diesel fuel altered the physical and chemical

properties of Keith Creek. The Agency observed a sheen on top of the water and collecting in the

curves and vegetation along the creek. Also, individuals at a local elementary school detected an

odor of petroleum in the vicinity of the creek.

The Board finds that the allegations deemed admitted pursuant to Sections 103.204(d) of

the Board’s procedural rules (35 Ill. Adm. Code 103.204(d)) are sufficient to prove that there are

no genuine issues of material fact and that the People are entitled to judgment as a matter of law

on Count I.

See

35 Ill. Adm. Code 101.516(b). Consequently, the Board grants the People’s

motion for summary judgment as to Count I and finds that respondent violated Section 12(a) of

the Act. 415 ILCS 5/12(a) (2006).

The record demonstrates that respondent deposited contaminants upon the land in such a

place and manner as to create a water pollution hazard. Specifically, the record shows that

respondent allowed, caused, or threatened the discharge of diesel fuel into a culvert and Keith

Creek and that fuel had flowed onto the ground surface. The record also shows that, until the

RFD placed absorbent materials on the spilled fuel, it remained uncovered and unprotected from

Count II

---

11

the elements. Furthermore, the record demonstrates that the Agency observed a sheen on top of

the water and in the curves and vegetation along the creek.

The Board finds that the allegations deemed admitted pursuant to Sections 103.204(d) of

the Board’s procedural rules (35 Ill. Adm. Code 103.204(d)) are sufficient to prove that there are

no genuine issues of material fact and that the People are entitled to judgment as a matter of law

on Count II.

See

35 Ill. Adm. Code 101.516(b). Consequently, the Board grants the People’s

motion for summary judgment as to Count II and finds that respondent violated Section 12(d) of

the Act. 415 ILCS 5/12(d) (2006).

Count III

The record demonstrates that respondent has allowed, threatened, or caused the discharge

of contaminants into the waters of the State without an NPDES permit issued by the Agency.

Specifically, the record shows that no NPDES permit issued to or held by respondent covered or

allowed the diesel fuel that respondent allowed, threatened, or cause to be discharge at the site.

The Board finds that the allegations deemed admitted pursuant to Sections 103.204(d) of

the Board’s procedural rules (35 Ill. Adm. Code 103.204(d)) are sufficient to prove that there are

no genuine issues of material fact and that the People are entitled to judgment as a matter of law

on Count II.

See

35 Ill. Adm. Code 101.516(b). Consequently, the Board grants the People’s

motion for summary judgment as to Count III and finds that respondent violated Section 12(f) of

the Act. 415 ILCS 5/12(f) (2006) and Section 309.102(a) of the Board’s regulations (35 Ill. Adm.

Code 309.102(a)).

Count IV

The record demonstrates respondent created an offensive condition. Specifically, the

record shows that respondent allowed, caused, or threatened the discharge of diesel fuel into a

culvert and Keith Creek. The record further shows that the spill of diesel fuel resulted in oil

sheens visible on the creek surface and an evident odor of petroleum in the vicinity of the spill.

The Board finds that the allegations deemed admitted pursuant to Sections 103.204(d) of

the Board’s procedural rules (35 Ill. Adm. Code 103.204(d)) are sufficient to prove that there are

no genuine issues of material fact and that the People are entitled to judgment as a matter of law

on Count IV.

See

35 Ill. Adm. Code 101.516(b). Consequently, the Board grants the People’s

motion for summary judgment as to Count II and finds that respondent violated Section 302.203

of the Board’s regulations (35 Ill. Adm. Code 302.203)).

Remedies

Pursuant to the Board’s May 15, 2008 order accepting the complaint for hearing, the

People propose a remedy for respondent’s violations. Mot. at 5 (¶4).

Section 33(c)

---

12

Addressing the factors at Section 33(c) of the Act (415 ILCS 5/33(c) (2006)), the People

first state that “[t]he impact to the public resulting from Respondent’s removal of an above

ground fuel storage tank was that diesel fuel spilled on to the ground, and into a culvert, then

flowed into Keith Creek and collected in the curves and vegetation of the creek. Keith Creek

flows by an elementary school.” Mot. at 5. The Board finds that this spill of diesel fuel resulted

in a significant “injury to or interference with the protection of the health, general welfare and

physical property of the people” and weighs this factor in favor of imposing remedies sought by

the People.

See

415 ILCS 5/33(c)(1) (2006).

Regarding “the social and economic value of the pollution source,” the People claim that

“Keith Creek, which is the site of the spill, has social value.” Mot. at 5;

see

415 ILCS 5/33(c)(2)

(2006). On the issue of “the suitability or unsuitability of the pollution source to the area in

which it is located,” the People also claim that “[t]he creek is suitable to the area in which it is

located.” Mot. at 6;

see

415 ILCS 5/33(c)(3) (2006). These claims appear to merge the fuel tank

as the source of the spill and the creek as the site of the spill. As the record does not indicate the

value or suitability of either the fuel tank or respondent’s business, the Board declines to weigh

these two factors in favor of or against remedies sought by the People.

The People also argue that “[p]reventing a diesel spill from the above ground tank was

both technically practicable and economically reasonable.” Mot. at 6;

see

415 ILCS 5/33(c)(4)

(2006). Respondent has in no way opposed this argument, and the Board finds that this factor

weighs in favor of remedies sought by the People.

Addressing the final factor of any subsequent compliance, the People state that the site

has been completely remediated. Mot. at 6;

see

415 ILCS 5/33(c)(5) (2006). The Board finds

that this factor weighs in favor of respondent.

The Board finds on the basis of the record before it that the Section 33(c) factors weigh in

favor of granting relief requested by the People, including assessing a civil penalty. In reaching

this finding, the Board places considerable emphasis on the impact of this spill of diesel fuel

upon the people’s health, general welfare, and property. To determine the appropriate penalty

amount, the Board below considers factors listed in Section 42(h) of the Act.

See

415 ILCS

5/42(h) (2006).

Section 42

The People note that, under Section 42(a) of the Act, violators are liable for a civil

penalty of up to $50,000 for each violation and an additional penalty of $10,000 for each day that

the violations continue. Mot. at 7;

see

415 ILCS 5/42(a) (2006). The People argue that, if the

Board finds that respondent committed the four violations alleged in the complaint and that those

violations continued at least ten days to May 22, 2006, then the maximum penalty authorized by

Section 42(a) is $570,000, as follows:

Count I

1 violation of Section 12(a)

$50,000

1 violation continuing 10 days

$100,000

---

13

Count II

1 violation of Section 12(d)

$50,000

1 violation continuing 10 days

$100,000

Count III

1 violation of Section 12(d)

$10,000

1 violation of Section 309.102(a)

$10,000

1 violation continuing 10 days

$100,000

Count IV

1 violation of Section 302.203

$50,000

1 violation continuing 10 days

$100,000

Mot. at 7, citing 415 ILCS 5/42(a) (2006). With regard to Count III, however, the Board notes

that the maximum penalty for a violation of both Section 12(d) of the Act (415 ILSC 5/12(d)

(2006)) and Section 309.102(a) of the Board’s regulations (35 Ill. Adm. Code 309.102(a)) is not

$10,000 but $50,000. 415 ILCS 5/42(a) (2006). The Board further notes that, if these violations

continued for ten days as claimed, then the maximum penalty for the violation of Count III is

$300,000 and the maximum total penalty for the four violations would be $750,000.

Turning to the aggravating and mitigating factors that the Board weighs in determining

the amount of an appropriate civil penalty (

see

415 ILCS 5/42(h) (2006)), the People first allege

that the violations continued for ten days “and resulted in an estimated amount of approximately

10 gallons of diesel fuel to spill into Illinois waters and to cause water pollution.” Mot. at 9;

see

415 ILCS 5/42(h)(1) (2006). The Board notes that the Agency re-inspected the site of the spill

on or about June 20, 2006, approximately one month after the spill occurred, and determined that

the site required additional clean-up. As the record indicates that the violation persisted at least

until approximately June 20, 2006, the Board weighs this factor against respondent.

On the issue of respondent’s diligence, the People claim that “[r]espondent failed to act

diligently in this matter, as evidenced by his failure to report the spill, failure to take any

measures to prevent the spill from flowing into Keith Creek, and only hiring a clean-up crew

after he was notified of the spill.” Mot. at 9;

see

415 ILCS 5/42(h)(2) (2006). This claim finds

support in the record, and respondent has in no way opposed it. The Board finds that this factor

weighs against respondent.

The People acknowledge that “[r]espondent accrued no economic benefit as a result of

the violations.” Mot. at 9;

see

415 ILCS 5/42(h)(3) (2006). The record contains no evidence to

the contrary, and the Board weighs this factor in favor of respondent.

In addition, the People state that respondent “has no previously adjudicated violations” of

the Act. Mot. at 9;

see

415 ILCS 5/42(h)(5) (2006). The Board weighs this factor in favor of

respondent.

---