ILLINOIS POLLUTION CONTROL BOARD

November 5, 2009

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

GARY SIMMONS, individually, and

LAWRENCE COUNTY DISPOSAL

CENTRE, INC., an Illinois corporation,

Respondents.

)

PCB 06-159

(Enforcement - Land)

PHILLIP McQUILLAN, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF

OF COMPLAINANT; and

GARY SIMMONS APPEARED

PRO SE

OPINION AND ORDER OF THE BOARD (by S.D. Lin):

The Board today issues its final opinion and order in this matter, assessing penalties and

attorney fees for the violations found in the Board’s July 23, 2009 interim order.

On April 17, 2006, the People of the State of Illinois (People or complainant) filed a six-

count complaint against Gary Simmons and Lawrence County Disposal Centre, Inc. (Disposal

Centre) (collectively, respondents) for alleged violations of the Environmental Protection Act

(Act) (415 ILCS 5/1

et seq.

(2008))

and the Board’s non-hazardous waste landfill regulations

for operation, closure and post-closure care at the Lawrence County Disposal Facility (Landfill,

a/k/a “Dowty Landfill”), located near Sumner, Lawrence County, Illinois.

The Board’s July 23, 2009 an interim opinion and order in summarized the evidence in

the record in this matter as submitted at the October 29, 2008 hearing. People of the State of

Illinois v. Gary Simmons and Lawrence County Disposal Centre, Inc., PCB 06-159 (July 23,

2009). In that interim opinion and order, the Board made findings that the respondents violated

the Act, Board rules, and respondents’ permits as the People had alleged in the complaint.

Id,

slip op. at 1, 6-10. The Board determined the remedy for the found violations, after considering

and discussing the factors of Sections 33(c) and 42 (h) of the Act, 415 ILCS 5/33(c) and 42(h),

the Board assessed penalties against respondents.

Id,

slip op. at 11-16.

The pleadings in this case refer to both the 2004 and 2006 versions of the Illinois Complied

Statutes. As there is no difference in the relevant sections from the 2004 to the 2006 and to the

2008 compilation, the Board will consistently reference the 2008 edition.

The Board assessed civil penalties of $1,000 against Gary Simmons individually and

$10,000 against Lawrence County Disposal Centre, Inc., to penalize the respondents for

committing ongoing violations at the landfill, failing to exercise due diligence in curing the

problems, and causing the Illinois Environmental Protection Agency (IEPA) to take necessary

actions to remediate the site. People of the State of Illinois v. Gary Simmons and Lawrence

County Disposal Centre, Inc., PCB 06-159, slip op at 17-18 (July 23, 2009). The Board stated

that it would also assess the time use value of $118,421.90 against the Disposal Centre to recoup

the economic benefit earned through non-compliance, following receipt of the People’s

calculations on this issue.

Id.

The Board also found that awarding of attorney fees is appropriate, finding that

respondents violations are “willful, knowing or repeated” within the meaning of Section 42(f) of

the Act. 415 ILCS 5/42(f) (2008). People of the State of Illinois v. Gary Simmons and

Lawrence County Disposal Centre, Inc., PCB 06-159, slip op at 17-18 (July 23, 2009). The

Board stated that it would issue a final opinion and order following Board consideration of any

additional information filed on or before August 27, 2009 by complainant, and any responses

filed by respondents within 21 days of service of the information. People of the State of Illinois

v. Gary Simmons and Lawrence County Disposal Centre, Inc., PCB 06-159, slip op at 17-18

(July 23, 2009).

The People timely filed supplemental information, to which the respondents have made

no response. The Board accordingly issues its final determinations. For the reasons set forth

below, the total penalty assessed against the Disposal Center is $42,164 and against Simmons is

$4,573. The Board further orders the respondents to jointly and severally pay $1,540 in attorney

fees to the People.

SUMMARY OF VIOLATIONS

The Board found that the respondents committed all violations as alleged in the

complaint. Some violations began as early as 1999 and some continued through 2007. People of

the State of Illinois v. Gary Simmons and Lawrence County Disposal Centre, Inc., PCB 06-159,

slip op. at 1, 6-10 (July 23, 2009). In that interim opinion and order, the Board made findings

that the respondents violated the Act, Board rules, and respondents’ permits as the People had

alleged in the complaint. A short summary of the found violations follows:

Count I of the complaint alleges, and the Board found, various post-closure care

violations, and that the respondents violated Sections 22.17(a) and (b) of the Act, (415 ILCS

5/22.17(a) and (b) (2008)) and Section 811.312(c) of the Board’s landfill regulations (35 Ill.

Adm. Code 811.312(c)).

Count II alleges of the complaint alleges, and the Board found, various site security and

maintenance violations that the respondents violated Sections 811.109(a) and (b) of the Board’s

landfill regulations (35 Ill. Adm. Code 811.109(a) and (b)), and Sections 811.111(c)(1)(A),

(c)(2), and (c)(5) of the Board’s landfill regulations (35 Ill. Adm. Code 811.111(c)(1)(A), (c)(2),

and (c)(5)).

Count III alleges, and the Board found, that the respondents violated Section 21(d)(1) of

the Act (415 ILCS 5/21 (d)(1) (2008)) by violating a dozen various provisions of the Dowty

Landfill’s permit.

Count IV alleges, and the Board found, various groundwater monitoring violations, and

that the respondents violated Section 21(d)(1) of the Act (415 ILCS 5/21 (d)(1) (2008)), Section

811.320(d)(1) of the Board’s landfill regulations (35 Ill. Adm. Code 811.320(d)(1)), Section

813.502(a) of the Board’s landfill regulations (35 Ill. Adm. Code 813.502(a)), Section 22.17(a)

of the Act (415 ILCS 5/22.17(a) (2008)), and Section 21(d)(1) of the Act (415 ILCS 5/21 (d)(1)

(2008)).

Count V alleges, and the Board found, various landfill gas monitoring violations, that the

respondents violated Section 21(d)(2) of the Act (415 ILCS 5/21 (d)(2) (2008)), Section

811.312(c) of the Board’s landfill regulations (35 Ill. Adm. Code 811.312(c)), Section

811.310(c) of the Board’s landfill regulations (35 Ill. Adm. Code 811.310(c)), Section 21(d)(1)

of the Act (415 ILCS 5/21(d)(1) (2008), and Section 22.17(a) of the Act (415 ILCS 5/22.17(a)

(2008)).

Count VI alleges, and the Board found, air pollution violation through releases of landfill

gas, and that the respondents violated Section 811.312(c) of the Board’s landfill regulations (35

Ill. Adm. Code 811.312(c)), Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2008)), and

Section 9(a) of the Act (415 ILCS 5/9(a) (2008)).

ATTORNEY FEES

Legal Standard

Section 42(f) of the Act provides:

Without limiting any other authority which may exist for the awarding of

attorney’s fees and costs, the Board or a court of competent jurisdiction may

award costs and reasonable attorney’s fees, including the reasonable costs of

expert witnesses and consultants, to the State’s Attorney or the Attorney General

in a case where he has prevailed against a person who has committed a willful,

knowing or repeated violation of the Act. 415 ILCS 5/42(f) (2008).

Under the language of Section 42(f) (415 ILCS 5/42(f) (2006)) and long-standing court

precedent (Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d 978, 983, 518 N.E.2d

424, 427 (1st Dist. 1987), citing Fiorito v. Jones, 72 Ill. 2d 73, 377 N.E.2d 1019 (1978); Leader

v. Cullerton, 62 Ill. 2d 483, 343 N.E.2d 897 (1976);

In re

Estate of Healy, 137 Ill. App. 3d 406,

484 N.E.2d 890 (2nd Dist. 1985)), only “reasonable” fees are allowed. “The trial court will

award only those fees that are reasonable, consisting of reasonable charges for reasonable

services.” Mountbatten Surety Co., Inc. v. Szabo Contracting, Inc., 349 Ill. App. 3d 857, 873,

812 N.E.2d 90, 104 (2nd Dist. 2004), citing Kaiser, 164 Ill. App. 3d at 983. Determining the

reasonableness of the requested fees is “left to the sound discretion of the trial court.” Kaiser,

164 Ill. App. 3d at 983, 518 N.E.2d at 427, citing Fiorito; Leader; and Board of Education v.

County of Lake, 156 Ill. App. 3d 1064, 509 N.E.2d 1088 (2nd Dist. 1987);

see also

Mountbatten

Surety, 349 Ill. App. 3d at 873, 812 N.E.2d at 104; Pietrzyk v. Oak Lawn Pavilion, Inc.

, 329 Ill.

App. 3d 1043, 1046, 769 N.E.2d 134, 137 (1st Dist. 2002).

The courts lack the power, however, to simply award costs and attorney fees on equitable

grounds.

See

Vicencio v. Lincoln-Way Builders, Inc., 204 Ill. 2d 295, 300, 789 N.E.2d 290,

293-94 (2003); City of Springfield v. Beck, 34 Ill. App. 3d 784, 785, 340 N.E.2d 350, 351 (4th

Dist. 1976). Rather, the prevailing party must come within the terms of the fee-shifting statutory

provision, which must be narrowly construed, as statutes allowing such recovery are in

derogation of the common law.

See

Vicencio, 204 Ill. 2d at 300, 789 N.E.2d at 293-94;

see also

Carson Pirie Scott & Co. v. Illinois Dept. of Employment Security, 131 Ill. 2d 23, 49, 544

N.E.2d 772, 784 (1989) (“[S]ince the common law prohibits a prevailing party from recovering

attorney fees, statutes which allow for such awards must be strictly construed.”); Gonzales-

Blanco v. Clayton, 120 Ill. App. 3d 848, 850, 458 N.E.2d 1156, 1158 (1st Dist. 1983) (same

regarding attorney fees and costs); Helland v. Helland, 214 Ill. App. 3d 275, 277, 573 N.E. 2d

357, 359 (2nd Dist 1991) (“[c]ontractual provisions for attorney fees must be strictly

construed”); Negro Nest, LLC v. Mid-Northern Management, Inc.

, 362 Ill. App. 3d 640, 651,

839 N.E. 2d 1083, 1092 (4th Dist. 2005) (“Illinois law requires strict construction” of “statutory

and contractual cost and fee-shifting provisions”).

The party seeking the fees:

always bears the burden of presenting sufficient evidence from which the trial

court can render a decision as to their reasonableness. Kaiser, 164 Ill. App. 3d at

983, 518 N.E.2d at 427, citing Fiorito; Heckmann v. Hospital Service Corp., 104

Ill. App. 3d 728, 432 N.E.2d 891 (1st Dist. 1982);

Ealy v. Peddy, 138 Ill. App. 3d

397, 485 N.E.2d 1182 (5th Dist. 1985);

see also

Weidner v. Szostek, 245 Ill. App.

3d 487, 493, 614 N.E.2d 879, 883 (2nd Dist. 1993), citing Kaiser, 164 Ill. App. 3d

at 983; Fitzwilliam v. 1220 Iroquois Venture, 233 Ill. App. 3d 221, 235, 598

N.E.2d 1003, 1012 (2nd Dist. 1992), citing Kaiser

, 164 Ill. App. 3d at 983.

The reasonableness of fees “cannot be determined on the basis of conjecture or on the opinion or

conclusions of the attorney seeking the fees.”

Kaiser

, 164 Ill. App. 3d at 984, 518 N.E.2d at 427,

The People’s Affidavit Claiming Attorney Fees

On August 27, 2009, the People timely mailed an affidavit of attorney fees (Affid. Fees)

requesting $1,540.00 for 10 hours of work at a billing rate of $140.00. The Board received and

docketed the timely filing on August 31, 2009.

See

the Board’s “mailbox rule” at 35 Ill. Adm.

Code 101.300(b)(2). Any timely response was due to be filed on or before September 21, 2009.

Respondents have made no response.

See

35 Ill. Adm. Code 101.500(d).

In the affidavit (Affid. Fees, p.1, para.3), the Assistant Attorney General McQuillan

detailed the work for which fees are claimed as follows:

Date Description of Work Hours at $140.00/hr. Amount

02/08/06

Draft Complaint

3.5 hrs.

$490.00

08/03/07

Deposition of Mr. Simmons

1.0 hr.

$140.00

10/29/08

Hearing

2.0 hrs.

$280.00

12/04/08

Begin Complainant’s Brief

2.0 hrs.

$280.00

12/09/08

Complete Complainant’s Brief

2.5 hrs.

$350.00

Total $1,540.00

Mr. McQuillan further attested that “the work performed was necessary and reasonable.” Affid.

Fees, p.1, para.4.

Board Analysis and Ruling

As detailed in the Board’s interim opinion and order, People of the State of Illinois v.

Gary Simmons and Lawrence County Disposal Centre, Inc., PCB 06-159, slip op. at 1, 6-10,

(July 23, 2009), the People prevailed on all counts of a six-count complaint involving multi-year

violations of the Act and Board rules. The proven violations involve requirements for post

closure care, site security and maintenance, and groundwater and gas monitoring violations.

Respondents also violated various permit conditions imposing recordkeeping, reporting, and

operational requirements. Finally, the respondents also committed air pollution through failure

to correctly manage landfill case.

In its interim opinion and order, the Board also found that awarding of attorney fees is

appropriate, finding that respondents violations are “willful, knowing or repeated” within the

meaning of Section 42(f) of the Act.

People of the State of Illinois v. Gary Simmons and

Lawrence County Disposal Centre, Inc.

The questions remaining for disposition then are whether the work performed, and the hourly

rate requested, was necessary and reasonable.

, PCB 06-159, slip op. at 17-18 (July 23, 2009).

In a relatively and extensive recent opinion and order in an enforcement case

requiring respondents to pay the People $30,225 in attorney fees, the Board found that

some of the requested attorney fees were reasonable and that some were not. People of

the State of Illinois v. Skokie Valley Asphalt, Inc., Edwin L. Frederick, Jr., and Richard J.

Frederick, PCB 96-98 (November 7, 2008). The Board stated that:

In determining the reasonableness of the requested fees, the Board may consider a

number of factors: such as the skill and standing of the attorneys, the nature of the

case, the novelty and/or difficulty of the issues and work involved, the importance

of the matter, the degree of responsibility required, the usual and customary

charges for comparable services, the benefit to the client [Kaiser, 164 Ill. App. 3d

at 984, 518 N.E.2d at 428, citing Ashby], and whether there is a reasonable

connection between the fees and the amount involved in the litigation [Kaiser, 164

Ill. App. 3d at 984, 518 N.E.2d at 428, citing Estate of Healy;

In re

Marriage of

Ransom].

See also

First Midwest Bank, 289 Ill. App. 3d at 263, 682 N.E.2d at

381, citing Kaiser, 164 Ill. App. 3d at 984.

The Board again remarks that, by failing to file any response to the People’s

motion, the respondents have waived objection to the reasonableness of the requested

fees.

See

35 Ill. Adm. Code 101.500(d).

Based on the Board’s experience in attorney fee cases, as well as respondents’

waiver of objection the Board finds that the modest 11 hours claimed for the tasks

performed is reasonable. As to the hourly rate, the Board finds that the $140.00 figure

requested is also reasonable, noting that the Board has granted fee requests from the

People as low as $120.00, and as high as $150.00.

See

Skokie Valley, slip op. at 25-26

($150.00 hourly fee), citing, inter alia, People of the State of Illinois v. Panhandle Eastern

Pipe Line Company, PCB 99-191, slip op. at 35 (and cases cited therein) (Nov. 15, 2001)

($120.00 hourly fee)) and People v. J & F Hauling, Inc., PCB 02-21, slip op. at 2 (May 1,

2003), ($150.00 hourly fee).

The Board accordingly assesses attorney fees in the amount of $1,540, finding

respondents jointly and severally liable for their payment.

TIME USE VALUE OF $118, 421.90

The People’s Calculations

Contemporaneously with the filing of the attorney fees affidavit docketed August 31,

2007, the complainant moved for an extension of time to file calculations on the time use value

of $118,421.90. Noting that respondents had made no responses to the motion, by order of

September 15, 2009 the hearing officer granted the requested extension until September 26,

2009.

On September 25, 2009, the People timely mailed a supplement to its brief (Supp. Br.)

concerning the time use value of $118,421.90. The Board received and docketed the timely

filing on September 29, 2009.

See

the Board’s “mailbox rule” at 35 Ill. Adm. Code

101.300(b)(2). Any timely response was due to be filed on or before October 21, 2009.

Respondents have made no response. The Board again remarks that, by failing to file any

response to the People’s motion, the respondents have waived objection to the reasonableness of

the requested fees.

See

35 Ill. Adm. Code 101.500(d).

In its most recent filing, the People state that they had originally argued that respondents

saved approximately $118,421.90 which represents the costs for closure of the Dowty Landfill

that IEPA incurred and paid out of the financial assurance bond proceeds (paid for by

respondents, but collected from the surety by the IEPA). Supp. Br. at 2. Complainant argued

that respondents’ savings amount to the time uses value of the money over an approximate six

year time period, and that the interest value of this money should be assessed against respondents

as a penalty. The People originally suggested that 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.

Id.

The complainant now states that:

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.

[2008] (Interest Act), 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. Supp. Br. at 2.

The People argue that Section 42(h)(3) of the Act, 415 ILCS 5/42(h)(3), provides a

statutory basis for assessing the time use value of money not expended for required maintenance

work at the closed Dowty Landfill.

The People believe that the most objective measure of the

time use value of the $118,421.90 not expended is simple interest. Supp. Br. at 2-3. Supp. Br. at

3. The People urge that, 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 “unreasonable and vexatious” within the meaning

of the Interest Act, noting that there is wide latitude in classifying what constitutes “unreasonable

and vexatious” delay.

Id; see

Marcheschi v. Illinois Farmers Insurance Company

, 298 Ill.App.3d

306, 698 N.E.2d 683 (1998).

The People calculated interest, stating as follows:

On February 27, 2001, Bob Gher, Ambraw Valley Solid Waste Management

Agency, sent a Violation Notice, L-2001-LWOOl, 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.) Supp. Br. at 3.

The calculations follow. Calculation expressions were modified from those contained in the

People’s brief (Supp. Br. at 3-4), but there is no change in numerical values from those reached

by the People:

The People acknowledge that, prejudgment interest could not be awarded at common law, and

can only be awarded if there is a statutory basis for such award. Supp. Br. at 3, citing Wilson v.

Cherry, 244 Ill.App.3d 632, 612 N.E. 2d 953(1993).

Interest from April 7, 2001 to December 31, 2001

Step 1: Daily interest--Step I: $118,421.90 times 0.05= $5,921.10 per annum;

$5,921.10 divided by 365 days= $16.22 per day.

Step 2: April 7 to 30, 2001-- 23 times $16.22

= $373.06

May 1 to 31, 2001-- 31 times $16.22

= $502.82

June 1 to 30, 2001-- 30 times $16.22

=$486.60

July 1 to 31, 2001--31 times $16.22

=$ 502.82

August 1 to 31, 2001--31 times $16.22

=$502.82

Sept 1 to 30, 2001-- 30 times $16.22

=$486.60

Oct 1 to 31, 2001-- 31 times $16.22

= $502.82

Nov 1 to 30, 2001--30 times $16.22

= $486.60

Dec 1 to 31, 2001-- 31 times $16.22

= $502.82

Total interest for 2001

=$ 4,346.96

Interest for 2002=$118,421.90 times 0.05

=$ 5,921.10

Interest for 2003=$118,421.90 times 0.05

=$ 5,921.10

Interest for 2004=$118,421.90 times 0.05

=$ 5,921.10

Interest for 2005=$118,421.90 times 0.05

=$ 5,921.10

Interest for 2006=$118,421.90 times 0.05=

=$ 5,921.10

Interest for 2007

Jan 1 to 31, 2007--31 times $16.22=

=$502.82

Feb 1to 28, 2007--28 times $16.22=

=$454.16

Mar 1 to 31, 2007--3 1 times $16.22=

=$502.82

April 1to 20, 2007--20 times $ 16.22=

=$324.40

Total interest for 2007

=$ 1,784.20

Total interest April 7, 2001 to April 20, 2007

=$35,736.66

The People conclude that

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.

Supp. Br. at 5.

Board Analysis and Ruling

The Board has no reason to dispute the People’s reasoning or calculations, and

respondents have waived any right to do so.

See

35 Ill. Adm. Code 101.500(d).

While the Board notes that complainant had originally suggested that the entirety of the

time use value of $118,421.90 should be assessed against the corporate respondent alone, the

Board will accede to the People’s most recent request. Rounding $35,736.66 to the nearest

dollar ($35,737), the Board assesses $3,573 (10%) against Simmons, and $32,164 against the

Disposal Centre.

The total penalty assessed against the Disposal Center is accordingly $42,164 and against

Simmons is $4,573.

Finally, the Board further orders the respondents to jointly and severally pay $1,540 in

attorney fees to the People.

CONCLUSION

The Board finds that Gary Simmons and Lawrence County Disposal Centre, Inc. violated

numerous provisions of the Act, Board regulations, and permit terms before and after the

Landfill closed. The failure to properly close, care for, and monitor the Landfill was

unreasonable because the violations risked public health and welfare, and the closure and post-

closure procedures under the Act are technically feasibility and economically reasonable.

Further, the ongoing nature of the violations, the absence of due diligence on behalf of the

respondents, the economic benefits accrued by the respondents as a result of non-compliance,

and the need for deterrence support the imposition of a substantial penalty.

The Board assesses the requested civil penalties of $10,000 against Lawrence County

Disposal Centre, Inc., and $1,000 against Gary Simmons individually. The Board also orders the

Disposal Centre to pay an additional $32,164 which is the time use value of $118,421.90 to

recoup the economic benefit earned through non-compliance. The Board also orders the Gary

Simmons to pay an additional $3,573 which is the time use value of $118,421.90 to recoup the

economic benefit earned through non-compliance.

The total penalty assessed against the Disposal Center is accordingly $42,164 and against

Simmons is $4,573.

Finally, the Board further orders the respondents to jointly and severally pay $1,540 in

attorney fees to the People.

This opinion constitutes the Board’s interim findings of fact and conclusions of law.

ORDER

The Board finds that the respondents, Gary Simmons (Simmons) and Lawrence

County Disposal Centre, Inc. (Disposal Center), violated the Act, Board

regulations, and terms of its permit, as alleged in the complaint. The Board’s July

23, 2009 interim opinion and order is incorporated by reference herein as if fully

set forth.

The Board hereby assesses civil penalties of $10,000 against the Disposal Centre,

Inc., and $1,000 against Gary Simmons individually. The Board also orders the

Disposal Centre to pay an additional $32,164 which is the time use value of

$118,421.90 to recoup the economic benefit earned through non-compliance. The

Board also orders the Gary Simmons to pay an additional $3,573 which is the

time use value of $118,421.90 to recoup the economic benefit earned through

non-compliance. The Board assesses attorney fees of $1,540 against both

respondents, for which they are jointly and severally liable.

Respondent Disposal Centre must pay a total civil penalty of $42,164 no later than

Thursday, December 10, 2009, which is the first business day after 35 days from

the date of this order. Such payment must be made by certified check, money

order, or electronic transfer of funds, payable to the Environmental Protection

Trust Fund. The case number, case name, and Disposal Centre’s federal employer

identification number must be included on the certified check or money order.

Respondent Simmons must pay a civil penalty of $4,573 no later than Thursday,

December 10, 2009, which is the first business day after 35 days from the date of

this order. Such payment must be made by certified check, money order, or

electronic transfer of funds, payable to the Environmental Protection Trust Fund.

The case number, case name, and Simmons’ federal employer identification

number or Social Security number must be included on the certified check or

money order.

Respondents Disposal Centre and Simmons must jointly and severally pay a total

of $1,540 in attorney fees no later than Thursday, December 10, 2009, which is

the first business day after 35 days from the date of this order. Such payment

must be made by certified check, money order, or electronic transfer of funds,

payable to the Environmental Protection Trust Fund. The case number, case

name, and respondents’ federal employer identification number(s) or Social

Security number must be included on the certified check or money order.

Respondents must each send their certified checks, money orders, or

confirmation of electronic funds transfers to:

Illinois Environmental Protection Agency

Fiscal Services Division

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Penalties unpaid within the time prescribed will accrue interest under Section

42(g) of the Environmental Protection Act (415 ILCS 5/42(g) (2008)) at the rate

set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/1003(a)

(2008)).

Respondents must renew their closure permit for the Landfill, and perform post-

closure maintenance and monitoring of the facility as required by the closure

permit and Board rules.

The respondents must also cease and desist from violations of the Act and the

Board’s regulations.

IT IS SO ORDERED.

I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the

Board adopted the above opinion and order on November 5, 2009, by a vote of 5-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board