ILLINOIS POLLUTION CONTROL BOARD
April 3, 2008
COUNTY OF DUPAGE,
Complainant,
v.
NICOLAS CRUZ,
Respondent.
)
)
)
)
)
)
)
)
)
AC 08-14
(County No. DP-AC-08-02)
(Administrative Citation)
ORDER OF THE BOARD (by G.T. Girard):
On February 8, 2008, the County of DuPage (County) timely filed an administrative
citation against Nicolas Cruz (Cruz).
See
415 ILCS 5/31.1(c) (2006); 35 Ill. Adm. Code
101.300(b), 108.202(c). The administrative citation concerns Cruz’s property located at 1N570
Mac Queen Drive in West Chicago, DuPage County. The property is designated with Site Code
No. 0438075019. The Board accepts as timely filed Cruz’s petition to contest the administrative
citation, but directs Cruz to file an amended petition to cure the deficiencies identified below.
Under the Environmental Protection Act (Act) (415 ILCS 5 (2006)), an administrative
citation is an expedited enforcement action brought before the Board seeking civil penalties that
are fixed by statute. Administrative citations may be filed only by the Illinois Environmental
Protection Agency (Agency) or, if the Agency has delegated the authority, by a unit of local
government, and only for limited types of alleged violations at sanitary landfills or unpermitted
open dumps.
See
415 ILCS 5/3.305, 3.445, 21(o), (p), 31.1(c), 42(b)(4), (4-5) (2006); 35 Ill.
Adm. Code 108.
In this case, the County alleges that Cruz violated Section 21(p)(1) of the Act (415 ILCS
5/21(p)(1) (2006)) by causing or allowing the open dumping of waste resulting in litter at his
West Chicago property. The County asks the Board to impose the statutory $1,500 civil penalty
on Cruz.
As required, the County served the administrative citation on Cruz within “60 days after
the date of the observed violation.” 415 ILCS 5/31.1(b) (2006);
see also
35 Ill. Adm. Code
101.300(c), 108.202(b). Any petition to contest the administrative citation was due within 35
days after the date of service,
i.e.
, by March 7, 2008.
See
415 ILCS 5/31.1(d) (2006); 35 Ill.
Adm. Code 101.300(b), 108.204(b). On March 7, 2008, the Board received by U.S. Mail an
envelope directed to the attention of the Board Clerk. The envelope displayed Cruz’s return
mailing address, the same address at which the alleged violation took place, and identified the
docket number for this case, AC 08-14. The envelope, however, was empty. After inquiries by
the Board Clerk, the Board on March 26, 2008, received by facsimile from the County a copy of
Cruz’s petition, which had been served on the County.
2
The County’s administrative citation includes instructions on how Cruz could either pay
the civil penalty or file with the Board a petition to contest. The instructions for contesting the
citation (1) describe the 35-day period within which to file the petition, (2) provide the mailing
address of the Board Clerk for filing the petition, and (3) direct that a copy of the petition be
served on the County. Citation at 2-3. Plainly through an oversight, Cruz’s petition was not
placed inside the envelope that the Board received on the petition filing due date of March 7,
2008. The copy of Cruz’s petition that was served on the County makes clear that Cruz wishes
to contest the alleged violation of Section 21(p)(1). Under these specific circumstances, the
Board treats Cruz’s petition as having been filed on March 7, 2008, the date on which the Board
received Cruz’ envelope. The Board accordingly accepts Cruz’ petition as timely filed.
The Board finds, however, that the petition reflects deficiencies that must be remedied
before this case can go forward. First, the petition provides no grounds for contesting the
administrative citation. A petition must set forth the reasons why the respondent believes the
citation was improperly issued.
See
35 Ill. Adm. Code 108.206. Second, though an individual
may represent himself or herself, a non-attorney cannot represent another person in a Board
adjudicatory proceeding, such as an administrative citation action.
See
35 Ill. Adm. Code
101.400(a). Cruz’s petition states “we wish to contest” and concludes with the names Brad
Nielsen and Nicolas Cruz. Petition at 1. The petition fails to identify Brad Nielsen as an
attorney.
The Board therefore directs that Cruz, either himself or through an attorney, file an
amended petition stating the grounds on which Cruz contests the administrative citation.
See
,
e.g.
, County of Jackson v. Dan Kimmel, AC 06-21 (Feb. 16, 2006) (accepting as timely filed a
petition that failed to include grounds for appeal but requiring an amended petition to cure the
deficiency); IEPA v. Ray Logsdon Estate, AC 05-54 (Mar. 3, 2005) (accepting as timely filed a
petition that did not indicate whether it was filed by an attorney but requiring an amended
petition to cure the deficiency). If Cruz fails to file an amended petition by May 5, 2008, which
is the first business day following the 30th day after the date of this order, Cruz’s petition will be
dismissed and a default order will be entered against him, imposing the $1,500 civil penalty.
See
Ray Logsdon Estate
, AC 05-54 (Apr. 21, 2005) (finding respondent defaulted by not filing
amended petition as directed to cure deficiency in original petition).
If Cruz files an amended petition pursuant to this order and does not prevail on the merits
of the case, Cruz will have to pay not only the $1,500 civil penalty but also any hearing costs of
the Board and the County.
See
415 ILCS 5/42(b)(4-5) (2006); 35 Ill. Adm. Code 108.500. A
schedule of the Board’s hearing costs is available from the Clerk of the Board and on the Board’s
Web site at www.ipcb.state.il.us.
See
35 Ill. Adm. Code 108.504.
IT IS SO ORDERED.
3
I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on April 3, 2008, by a vote of 4-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
