ILLINOIS POLLUTION CONTROL BOARD
May 21, 2009
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
R. A. CULLINAN & SONS, INC.,
a Delaware corporation,
Respondent.
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PCB 09-105
(Enforcement - Land)
ORDER OF THE BOARD (by S.D. Lin):
On May 5, 2009, the Office of the Attorney General, on behalf of the People of the State
of Illinois (People), filed a four-count complaint against the R. A. Cullinan & Sons, Inc., a
Delaware corporation (respondent).
See
415 ILCS 5/31(c)(1) (2006); 35 Ill. Adm. Code
103.204. The complaint concerns respondent’s clean construction and demolition debris
(CCDD) fill operation at the Farmdale Pit facility, located at 22493 Farmdale Road in East
Peoria, Tazewell County, Illinois.
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 respondent violated Sections 21(d)(2), 21(e),
22.51(a), 22.51(b)(3), and 22.51(c)(2)(A), 22(d)(1) of the Act, 415 ILCS 5/21 (d)(2), 21(e),
22.51(a), 22.51(b)(3), 22.51(c)(2)(A), and 22(d)(1) (2006), and Sections 1100.201(a),
1100.201(b), 1100.205(a)(1), 1100.205(b)(1), 1100.205(c)(1), 1100.205(h)(1) of the Board’s
CCDD regulations, 35 III. Adm. Code 1100.201 (a), 1100.201(b), 1100.205(a)(1),
1100.205(b)(1), 1100.205(c)(1), 1100.205(h)(1). The People further allege that respondent
violated these provisions by allowing waste material that does not meet the definition of CCDD
to commingle with the facility’s CCDD fill material, failing to inspect incoming loads of clean
construction and demolition debris at the site with a PID device, failing to maintain CCDD
records for the facility, and disposing of CCDD without a permit.
The Board accepts the complaint for hearing.
See
35 Ill. Adm. Code 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 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 respondent to have admitted the allegation.
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
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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
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)
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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 May 21, 2009, by a vote of 5-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
