ILLINOIS

POLLUTION CONTROL BOARD

April

20, 2006

PEOPLE OF THE

STATE

OF

ILLINOIS,

)

)

Complainant,

)

)

v.

)

PCBO6-159

)

(Enforcement - Land, Air)

GARY

SIMMONS, individually, and

)

LAWRENCE

COUNTY DISPOSAL

)

CENTRE,

INC.,

and Illinois corporation,

)

)

Respondents.

)

ORDER OF THE BOARD (by

G.T. Girard):

On April 18, 2006, the Office

of the Attorney General, on her own motion and

at

the

request of the

People of the State of Illinois (People), filed a six-count complaint against Gary

Simmons and Lawrence County Disposal

Centre, Inc. (respondents).

See

415

ILCS

5/31 (c)( 1)

(2004); 35 Ill. Adm. Code

103.204. The complaint concerns respondents’ closed municipal solid

waste

landfill facility near Sumner, Lawrence County. For the reasons below, the Board accepts

the

complaint for hearing.

Under the Environmental

Protection Act (Act) (415 ILCS

5/1 et seq.

(2004)), 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(2004); 35 111.

Adm.

Code

103. In this case, the

People allege

that respondents violated Sections

9(a),

21(d)(1)

and (d)(2), and

22.17(a) and

(b)

of the Environmental Protection Act (415 ILCS 5/9(a), 21 (d)( 1)

and (d)(2),

and

22.17(a) and (b) (2004))

and 35 Ill. Adm.

Code

745.201(b); 811.109(a);

811.111(c)(1)(A),

(c)(2),

and (c)(5);

811.310(c); 811.312(c); 811.315(e)(1)(G); 811.319(a),

(a)(1), (a)(2),

and (a)(3); 811 .320(d)(1);

813.501;

813.502(a).

The

People further allege that

respondents violated

these provisions

by

(1) violating various post-closure care requirements; (2)

violating

site security and maintenance

requirements;

(3)

violating

closure permit

conditions; (4)

violating groundwater

monitoring requirements; (5) violating gas monitoring requirements; and

(6)

causing,

threatening, or allowing air

pollution.

The People ask the

Board

to order

respondents to cease and desist

from further violation and pay

a

civil penalty of

$50,000

per

violation and

$10,000

for each day the violations continued.

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 answerto

a

complaint within 60 days after

receiving

the complaint may have severe consequences. Generally, if respondents fail 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 respondents to have

admitted

the allegation. 35 Ill. Adm. Code

103.204(d).

---

2

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) (2004).

Specifically,

the

Board

considers the Section

3 3(c) factors in

determining,

first, what to

order the

respondent to do

to correct an ongoing

violation, if

any, and,

second, whether

to

order

the

respondent

to pay a civil penalty.

The

factors

provided in Section

3 3(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.

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 [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

3 3(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.

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3

IT IS SO

ORDERED.

I, Dorothy M.

Gurm, Clerk of the

Illinois Pollution

Control

Board,

certify

that

the Board

adopted the

above

order

on April 20,

2006, by a vote

of 4-0.

Dorothy M.

Gunn, Clerk

Illinois

Pollution Control

Board