ILLINOIS POLLUTION CONTROL BOARD

On May 20, 2009, the Office of the Attorney General, on behalf of the People of the State of Illinois (People), filed a five-count complaint against E.F. Heil, LLC, an Illinois limited liability company (Heil). See 415 ILCS 5/31(c)(1) (2006); 35 Ill. ...

June 04, 2009

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

E.F. HEIL, LLC, an Illinois limited liability

ORDER OF THE BOARD (by G.T. Girard):

On May 20, 2009, the Office of the Attorney General, on behalf of the People of the State

of Illinois (People), filed a five-count complaint against E.F. Heil, LLC, an Illinois limited

liability company (Heil).

See

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

complaint concerns Heil’s 93 acre clean construction and demolition debris (CCDD) facility,

located at CR 089SE, in Kankakee, Kankakee County.

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)(1) and (e), and

21.51(a) and (c) of the Act (415 ILCS 5/21(d)(1), 21(e), 22.51(a), 22.51(c) (2006)), and Sections

722.11 and 808.121(a) of the Board’s Waste Disposal Regulations (35 Ill. Adm. Code 722.11,

808.121(a)). The People also allege that respondent violated Sections 1100.201(a) and

1100.205(a)(1), (b)(1), (c)(2), (c)(3), (f) and (g) of the Board’s CCDD Regulations (35 Ill. Adm.

Code 1100.201(a), 1100.205(a)(1), (c)(2), (f), (g) (2006)).

The People further allege that Heil violated these provisions by (1) conducting a waste

disposal operation without a permit, by causing or allowing the disposal of a pile of painted brick

and concrete blocks with protruding metal onto his Kankakee site, (2) failing to determine if the

waste accepted onto his site was hazardous or special, (3) disposing of non-clean construction or

demolition debris, (4) failing to use a photo ionization detector or other equivalent device to

check all incoming loads, and (5) failing to conduct daily discharge inspections. The People ask

the Board to order Heil to cease and desist from further violations and pay, for each count, a civil

penalty of $50,000 per violation and $10,000 for each day of violation, as well as any costs

expended by the State in pursuit of this action.

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 the 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 the 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

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)

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 June 4, 2009, by a vote of 5-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board