ILLINOIS POLLUTION CONTROL BOARD
    March 5, 2009
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    STARK EXCAVATING, INC.,
    an Illinois corporation,
    Respondent.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB 09-65
    (Enforcement)
    ORDER OF THE BOARD (by G.T. Girard):
    On February 26, 2009, the Office of the Attorney General, on behalf of the People of the
    State of Illinois (People), filed a two-count complaint against Stark Excavating, Inc (respondent).
    The complaint concerns respondent’s construction and demolition debris disposal site which is
    located immediately north of Interstate 74, in Section 5 of Downs Township, McLean County.
    For the reasons below, the Board accepts the complaint for hearing.
    Under the Environmental Protection Act (Act) (415 ILCS 5/1
    et seq.
    (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 Stark Excavating violated Sections 21(d)(2),
    21(e), 22.51(a), and 22.51(c)(2)(A) of the Act (415 ILCS 5/21(d)(2), 21(e), 22.51(a), and
    22.51(c)(2)(A) (2006)), and Sections 1100.201(a), 1100.205(a)(1), 1100.205(b)(1),
    1100.205(c)(1), 1100.205(g), 1100.205(h), and 1100.210(b) of the Board’s Clean Construction
    or Demolition Debris Regulations (35 Ill. Adm. Code 1100.201(a), 1100.205(a)(1),
    1100.205(b)(1), 1100.205(c)(1), 1100.205(g), 1100.205(h), and 1100.210(b) (2006)).
    The People allege that respondent violated these provisions by allowing for the
    accumulation and use of clean construction or demolition debris on site without following the
    requisite inspection and record-keeping practices (Count I), and by failing to inspect incoming
    loads of clean construction or demolition debris with a photo ionization detector device (Count
    II). The People ask the Board to order respondent Start Excavating to cease and desist from
    further violations and to pay a civil penalty of not more than the statutory maximum plus costs,
    including reasonable attorney’s fees and costs, for each count.
    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 Stark Excavating fails
    within that timeframe to file an answer specifically denying, or asserting insufficient knowledge
    2
    to form a belief of, a material allegation in the complaint, the Board will consider Stark
    Excavating 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.
    In 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 “voluntarily 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.”
    3
    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 March 5, 2009, by a vote of 5-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

    Back to top