COED
SEP
29
2009
OFFICE
OF THE
ATTORNEY GENERAL
1LLJNOi
S’TATE
OF
ILLINOIS
Ontrog
Board
Lisa
Madigan
ATTORNEY
GENERAL
September
25,
2009
.h
T
Thiut
AsSjSfr
Cl
Assistant
Clerk
of
the
Board
Illinois
Pollution
Control
Board
James
R.
Thompson
Center,
Ste.
11-500
100
West
Randolph
Chicago,
Illinois
60601
Re:
People
v. Gary
Simmons,
et a!.
PCB
No.
06-1 59
Dear
Clerk:
Enclosed
for
filing
please
find
the
original
and one
copy
of a
Notice
of Filing
and
Supplement
to
Complainant’s
Brief
Time Use
Value
of
$118,421.90
in
regard
to the
above-
captioned
matter.
Please
file
the originals
and return
file-stamped
copies
to me
in the
enclosed
envelope.
Thank
you for
your
cooperation
and consideration.
Very
truly yours,
Phillip
McQuillan
Environmental
Bureau
500 South
Second
Street
Springfield,
Illinois 62706
(217)
782-9031
PM/pj
k
Enclosures
500 South
Second
Street,
Springfield,
Illinois
62706
• (217)
782-1090
• TTY:
(877) 844-5461
•
Fax:
(217)
782-7046
100 West
Randolph
Street,
Chicago,
Illinois
60601
• (312)
814-3000
• TTY:
(800) 964-3013
• Fax:
(312)
814-3806
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BEFORE
THE ILLINOIS
POLLUTION
CONTROL BOARD
CLF
PEOPLE
OF
THE STATE
OF
ILLINOIS,
)
29
2009
Complainant,
)
PozLlNOi
v.
)
PCB NO. 06-1
59
°arci
(Enforcement)
GARY SIMMONS, individually,
and
)
LAWRENCE COUNTY
DISPOSAL
)
CENTRE,
INC.,
an Illinois
corporation,
Respondents.
NOTICE OF.FILING
To:
Gary
Siñ,mons
2101
South
Sievers
Road
Vincennes,
IN 47591
Lawrence County
Disposal Centre,
Inc.
C/o
National Registered
Agents, Inc.
200 West
Adams
Street
Chicago,
IL 60606
PLEASE TAKE NOTICE
that on this date
I
mailed
for
filing
with
the Clerk of the Pollution
Control
Board
of
the State
of Illinois, a
SUPPLEMENT
TO
COMPLAINANT’S BRIEF
TIME
USE
VALUE
OF
$118,421.90,
a
copy of which
is attached hereto
and herewith served
upon
you.
Respectfully submitted,
PEOPLE
OF
THE
STATE
OF ILLINOIS
LISA
MADIGAN
Attorney
General
of the
State
of
Illinois
MATTHEWJ. DUNN,
Chief
Environmental Enforcement/Asbestos
PhilliMcQu
han
Assistant
Attorney
General
Environmental
Bureau
500
South
Second
Street
Springfield,
Illinois 62706
217/782-9031
Dated: September
25, 2009
CERTIFICATE
OF SERVICE
I
hereby
certify that
I did
on
September
25,
2009,
send by
First
Class
Mail,
with
postage
thereon
fully prepaid,
by
depositing
in a United
States Post
Office Box
a true
and
correct
copy of the
following
instrument
entitled SUPPLEMENT
TO
COMPLAINANT’S
BRIEF
TIME
USE
VALUE
OF
$118,421.90
To:
Gary Simmons
2101 South
Sievers
Road
Vincennes,
IN
47591
weic
Co’ini
C/o
National
Registered
Agents,
Inc.
200
West Adams
Street
Chicago, IL
60606
and
the
original
and ten
copies
by
First
Class
Mail
with postage
thereon
fully prepaid
of the
same
foregoing
instrument:
To:
John
T.
Therriault,
Assistant Clerk
Illinois
Pollution Control
Board
State of
Illinois
Center
Suite 11-500
100 West
Randolph
Chicago,
IL
60601
A copy
was also sent
by
First Class
Mail with
postage
thereon
fully prepaid
To:
Carol Webb
Hearing
Officer
Illinois
Pollution
Control
Board
1021
North
Grand Avenue
East
Springfield,
IL
62794
—
Phillip
M
Quillary’
Sr. Assistant
Attorney
General
This filing
is submitted
on recycled
paper.
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
PEOPLE OF THE STATE
OF ILLINOIS,
)
SEp
29
cx rel. LISA MADIGAN,
Attorney General
)
S7>E.
of
the State of Illinois,
)
fluiim
0
fltroj
)
Orcj
Complainant,
)
vs.
)
No. 06-159
)
(Enforcement)
)
GARY SIMMONS, individually,
and
)
LAWRENCE COUNTY DISPOSAL CENTRE,)
INC..
an Illinois
eornoration,
I
y
Respondents.
)
SUPPLEMENT
TO COMPLAINANT’S BRIEF
TIME USE VALUE OF
$118,421.90
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN,
Attorney
General of the State of Illinois, respectfully tenders the following supplemental
arguments
in
support
of an award regarding the time use value of
$118,421.90:
I. Statutory Basis
Section 42(h) of the Act, 415 ILCS 5/42(h) provides, in part:
In determining the appropriate civil penalty to be imposed under
subdivisions
(a), (b)(1),
(b)(2),
(b)(3),
or (b)(5) of this Section, the Board is authorized
to
consider any matters of record
in
mitigation
or aggravation of penalty,
including
but
not limited
to
the following factors:
*
*
*
(3)
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;
1
At
page 45
of
Complainant’s Brief,
Complainant
stated:
The Respondents saved
approximately
$118,421.90
which are the
costs
incurred
by
the
Illinois EPA and
paid out of the
financial assurance
bond proceeds which were
collected
by
the Illinois
EPA. Complainant
submits
that Respondents savings
amount to the time
uses value
of
the money
over the approximate
six year time period.
The interest value
of
this money should
be assessed
against
Respondents
as a
penalty.
The interest should
be
computed by using the
maximum rate allowable
under Section 1003(a) of the Illinois
Income
Tax Act,
35 ILCS 5/1003.
This Board should find that
Respondents have saved
money as a result of their
noncompliance, and these savings
should be considered by
the
Board
in
reaching
its final
order
and
noininn.
In dealing with the
time use value of the economic
benefits to respondents, Complainant
originally believed that interest should
be computed by using the maximum rate allowable
under
Section
1003(a) of the Illinois Income
Tax Act,
35
ILCS 5/1003. Upon further reflection
Complainant believes that the time
use value of the money saved is more analogous to pre-.
judgment
interest. The Interest
Act, 815 ILCS 205/0.01 et seq., at Section 2 states:
Creditors shall
be
allowed
to
receive
at the rate of five (5) per
centum per annum
for
all monies after they become
due on
any
bond, bill,
promissory
note, or other instrument
of
writing; on money lent or advanced for the
use
of another;
on
money
due
on
the
settlement of account from the
day of liquidating accounts between the
parties
and
ascertaining
the balance; on
money received to the use of another and retained
without the
owner’s
knowledge;
and
on
money withheld
by
an unreasonable and vexatious delay of
payment.
In
the absence of an agreement between the creditor and debtor governing
interest
charges,
upon 30 day’s written notice to the debtor, an assignee or
agent
of the
creditor may charge and collect interest
as
provided in this Section on behalf of
a
creditor.
ARGUMENT
Section
42(h)(3)
of the
Act,
415 JLCS 5/42(h)(3), provides
a
statutory basis for assessing
the time
use value
of money
not
expended
for required maintenance work at Respondent’s closed
sanitary
landfill. The most objective measure
of the time use
value
of the money not expended
2
($1
18,421.90)
is
simple
interest.
Section
2
of the Interest
Act,
815
ILCS
205/2,
provides
that
the
rate
of
pre-judgment
interest
is five
(5) percent.
Although
prejudgment
interest
could
not
be
awarded
at
common
law,
and can
only be awarded
if there
is
a statutory
basis for
such award,
see
Wilson v.
Cherry,
244
Ill.App.3d
632, 612
N.E.
2d
953(1993),
Section
42(h)(3)
of the
Act,
415
ILCS
5/42(h)(3)
provides
a statutory
basis for
an award herein.
Because there
was
a closure
permit
and
because
Respondents
received numerous
written
inspection
reports
and
letters
constituting
notices
of violations,
Respondents’
failure
to perform
the
maintenance
work
was
unreasonubie’
and
vcxaiious.
fhe Ceuris
grarft
feuriy
vi’iatitude
in
classifying
what
consututes
unreasonable
and
vexatious
delay.
See Marcheschi
v.
Illinois Farmers
Insurance
Company,
298
Ill.App.3d
306,
698
N.E.2d
683
(1998).
Interest
Computation
On February
27,
2001, Bob
Gher,
Ambraw
Valley
Solid Waste
Management
Agency,
sent a
Violation
Notice,
L-2001-L
WOOl, to
Respondents.
Interest
computations
should
begin
30
days
thereafter.
By
allowing
seven
days
for delivery
of the notice,
interest
should begin
30
days
thereafter
on
April 7,
2001,
and should
continue
until
to March
20, 2007.
(Environmental
Restoration,
LLC
prepared
an invoice
with
a 30
day
net
payment
term
which
ended
on April
20,
2007.)
Interest from
April 7,
2001
to
December
31,
2001
Daily
interest, Step
I:
$118,421.90
times 0.05
= $5,921.10
per annum;
Step
2:
$5,921.10
divided
by
365
days=
$16.22
per
day.
April
7
to 30,
2001 =
23 times
$16.22
=
$373.06
May
1 to 31,
2001 =
31 times
$16.22
= 502.82
3
June ito
30,
2001
= 30 times
$16.22
=486.60
July ito
31, 2001
31 times
$16.22 = 502.82
August Ito
31,
2001
31 times
$
16.22= 502.82
Sept ito
30,
2001
= 30
times
$16.22
=486.60
Oct Ito 31, 2001
= 31 times
$16.22
= 502.82
Nov
ito 30, 2001
30 times
$16.22
= 486.60
Dec ito 31, 2001
= 31 times
$16.22 = 502.82
ititereSt for 2001
Interest
for 2002=
$1
18,421,90 times 0.05 =
Interest for 2003=
$118,421
.90
times
0.05=
Interest
for 2004=
$118,421
.90
times
0.05=
Interest
for
2005=
$118,421.90
times 0.05=
Interest for
2006$i
18,421.90 times 0.05=
Interest for 2007
Jan ito 31, 2007=3 1 times
$
16.22=502.82
Feb ito 28,
2007=28
times
$i6.22=454.16
Mar ito 31, 2007=3 1 times
$i6.22=502.82
April ito
20,
2007=20 times
$
16.22=324.40
Interest
for 2007
Interest
April 7, 2001
to
April 20, 2007
4346.96
5,921.
10
5,921.10
5,921.10
5,921,10
5,921.10
1,784.20
$35,736.66
4
CONCLUSION
Respondents owe the sum of
$35,736.66
for the time
use value on
$118,421.90 for
Respondents’ unreasonable and vexatious delay in performing
maintenance work
at
Respondents’ closed
sanitary landfill.
Claimant requests that ten percent of
this sum be
assessed
against Respondent Gary Simmons and ninety percent of this
sum be assessed against
Respondent Lawrence County Disposal
Centre,
Inc.
Respectfully
submitted,
•
c’’I,
A
._i.j/
jb,i
ex rel. LISA MADIGAN,
Attorney General of the
State
of Illinois,
MATTHEW J. DUNt’1, Chief
Environmental Enforcement/Asbestos
Litigation
Division
BY:
/7A
PHIL4IP
1v QUI
LAN
Assistant Attorney General
Environmental Bureau
500
South Second Street
Springfield, Illinois
62706
217/782-9031
Dated:
September
25, 2009
5