ILLINOIS POLLUTION CONTROL BOARD

BACKGROUND
MOTION TO CLARIFY RECORD
Respondent’s Arguments
Agency’s Response
Discussion
DEFAULT
1. ORDER

ILLINOIS POLLUTION CONTROL BOARD

December 4, 2008

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

REYNOLDS SERVICE CO.,

(IEPA No. 214-08-AC)

(Administrative Citation)

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

On September 11, 2008, the Illinois Environmental Protection Agency (Agency) filed an

administrative citation against Reynolds Service Co. (respondent).

415 ILCS 5/31.1 (2006);

35 Ill. Adm. Code 108. Respondent filed a petition to contest the administrative citation on

October 30, 2008, a motion to clarify the record on November 5, 2008. For the reasons below,

the Board (1) finds that respondent’s petition was untimely; (2) denies respondent’s motion to

clarify; and (3) enters a default order against respondent, finding that respondent violated the

Environmental Protection Act (Act) (415 ILCS 5 (2006)) and ordering respondent to pay $4,500

in civil penalties. Below, the Board provides background before turning to the issues.

Under the Act, 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 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

415 ILCS 5/3.305, 3.445, 21(o), (p), 31.1(c), 42(b)(4), (4-5) (2006); 35 Ill.

Adm. Code 108. The Act requires the Agency to serve the administrative citation on the

respondent “within not more than 60 days after the date of the observed violation” and to file a

copy of the administrative citation with the Board “no later than 10 days after the date of

service.” 415 ILCS 5/31.1(b), (c) (2006). The respondent has “35 days from the date of service”

to file a petition with the Board to contest the administrative citation. 415 ILCS 5/31.1(d)(1)

The administrative citation in this case concerns a facility commonly known to the

Agency as the “Jonesboro/Reynolds Service Co., Inc.” site, designated with Site Code No.

1818565001, and located at Section 23, TWP 12, Rng 2W, Part of SE corner of NE, Union

County. The Agency alleges that respondent violated Sections 21(p)(1), (p)(5), and (p)(7) of the

Act (415 ILCS 5/21(p)(1), (p)(5), (p)(7) (2006)) on August 4, 2008, by causing or allowing the

open dumping of waste in a manner resulting in (1) litter, (2) the proliferation of disease vectors,

and (3) the deposition of general or clean construction or demolition debris. The Agency seeks

the statutory penalties of $1,500 for each of the three alleged violations, totaling $4,500.

ILCS 5/42(b)(4-5) (2006). The deadline for Agency service of the administrative citation on

respondent was October 3, 2008,

, the sixtieth day after the Agency’s August 4, 2008 site

On September 25, 2008, the Agency filed a certified mail receipt addressed to

respondent, which was signed and dated September 11, 2008. On October 30, 2008, respondent

filed a petition to contest the administrative citation. On November 5, 2008, respondent filed a

motion to clarify the record (Mot.). On November 17, 2008, the Agency filed a response (Resp.)

in opposition to respondent’s motion to clarify.

MOTION TO CLARIFY RECORD

The Board will summarize the parties’ arguments and then discuss the Board’s analysis.

Respondent’s Arguments

According to respondent’s motion to clarify the record:

it appears that the Respondent has received multiple documents from the

offices of Complainant via certified mail on various dates and that the instant

Citation was actually received by Respondent on September 29, 2008, not

September 11th, and that Respondent’s filing of a Petition for Review was due on

or before November 3, 2008. Mot. at 2 (emphasis in original).

Respondent therefore argues that its October 30, 2008 petition was timely filed and that

respondent “should not be subject to risk of a default order.”

. The motion asks that this

matter not be decided at the Board’s November 5, 2008 meeting “to permit a response to this

motion by Complainant, or, alternatively, that the matter be authorized for hearing.”

Agency’s Response

On November 17, 2008, the Agency filed a response to the motion to clarify. Attached to

the Agency’s response is the signed certified mail receipt addressed to respondent and filed on

September 25, 2008. The Agency notes that this “proof of service . . . indicates that the service

date on Respondent was September 11, 2008,” the date on which the administrative citation was

filed with the Board. Resp. at 1, Exh. 3. The Agency states that it sends all administrative

citations to respondents and the Board “at the same time, via certified mail, in the regular course

of its business.” Resp. at 1.

The Agency also provides photocopies of both of the unsigned and undated certified mail

return receipt cards, one addressed to respondent and one addressed to the Board. Resp. at 2,

Exh. 1. The Agency describes these return receipt cards:

The card addressed to the Board is marked toward the center with “Reynolds AC

214-08,” which is Illinois EPA’s file number for the instant case. *** The same

return receipt was received from the Board with an indicated service date of

September 11, 2008 (Exhibit 2). *** Likewise, the return receipt addressed to

Respondent as copied in Exhibit 1 was returned to Illinois EPA with an indicated

service date of September 11, 2008 (Exhibit 3). The same certified number

appears on both copies (#7004 2510 0001 8618 9101). Resp. at 2, Exhs. 1-3.

The Agency states that it can neither confirm nor deny that “one of the ‘offices of

Complainant’ may have sent additional material to Respondent ‘via certified mail on various

dates.’” Resp. at 2, quoting Mot. at 2. The Agency does confirm, however, that “the

Administrative Citation filed in the instant case is the only document related to

been sent via certified mail.” Resp. at 2 (emphasis in original). According to the Agency, the

only other document sent to respondent concerning this case was the proof of service, sent by

U.S. Mail on September 22, 2008, which “clearly indicated the Petition for Review deadline of

October 16, 2008.”

The Agency argues that the Board should deny respondent’s motion to clarify. In

addition, the Agency maintains that because respondent’s petition was untimely, this

administrative citation is non-contested and the Board should therefore issue a default order

against respondent. Resp.at 3.

The Board finds no lack of clarity in the record and denies respondent’s motion to clarify.

Respondent’s motion requests that the Board either (1) not decide this matter at the November 5,

2008 Board meeting, allowing time for the Agency to respond to the motion, or (2) accept the

matter for hearing. Respondent’s initial request is moot, as the Board took no action on this

matter at its November 5, 2008 meeting, permitting the Board to consider both respondent’s

motion and the Agency’s timely response. Nor can the Board accept this matter for hearing. As

discussed below, the Board finds that the Agency served respondent with the administrative

citation on September 11, 2008, making respondent’s October 30, 2008 petition untimely.

The Board’s procedural rules call for administrative citations to be served “personally, by

registered or certified mail, or by messenger service.” 35 Ill. Adm. Code 101.304(c). For

service by registered mail, certified mail, or messenger service, “service is deemed complete on

the date specified on the registered or certified mail receipt or the messenger service receipt.” 35

Ill. Adm. Code 101.300(c). The certificate of service attached to the administrative citation filed

with the Board on September 11, 2008, states that on September 9, 2008, the Agency sent the

administrative citation to respondent and the Board by certified mail, return receipt requested.

The certified mail receipt addressed to respondent is signed and dated September 11, 2008. The

certified mail receipt addressed to the Board and signed by the Clerk’s Office of the Board is

also dated September 11, 2008, and identifies the Agency’s file number for this case. The article

numbers on the two unsigned and undated return receipts match the corresponding article

numbers on the two signed and dated return receipts.

The Agency represents that in the regular course of business, the Agency sends all

administrative citations to respondents and the Board at the same time by certified mail. The

Agency’s attorney certifies that the statements made in the response are true and correct. Resp.,

Certification. Respondent has not sought leave to reply to the Agency’s response, and

respondent’s motion states only that “it appears” respondent was served on September 29, 2008,

rather than September 11th, 2008. Mot. at 2. Further, respondent’s motion is unsupported by

affidavit or certification.

Based on this record, the Board finds that the Agency served respondent in accordance

with the Act and the Board’s procedural rules. As stated above, based on the August 4, 2008

inspection date, the Agency was required to serve the administrative citation by October 3, 2008.

As documented by the signed and dated certified mail receipt, the Agency served respondent

with the administrative citation on September 11, 2008, which is within “60 days after the date of

the observed violation.” 415 ILCS 5/31.1(b) (2006);

35 Ill. Adm. Code 101.300(c),

101.304(c), 108.202(b). Further, the Agency’s September 11, 2008 filing of the administrative

citation was “no later than 10 days after the date of service.” 415 ILCS 5/31.1(c) (2006).

The Board finds that the Agency has satisfied the Act’s jurisdictional prerequisites of

timely service and filing of the administrative citation.

415 ILCS 5/31(b), (c) (2006)).

Because respondent failed to timely file a petition for review, as discussed below, the Board will

enter a default order against respondent.

To contest an administrative citation, a respondent must file a petition with the Board no

later than 35 days after being served with the administrative citation. If a respondent fails to do

so, the Board must find that the respondent committed the violation alleged and impose the

corresponding civil penalty.

415 ILCS 31.1(d)(1) (2006); 35 Ill. Adm. Code 108.204(b),

Here, because the Agency served respondent with the administrative citation on

September 11, 2008, any petition for review was due by October 16, 2008. The Board received

respondent’s petition on November 3, 2008, but because the petition was sent by U.S. Mail and

received after the October 16, 2008 filing deadline, the petition is deemed filed on its postmark

, October 30, 2008.

35 Ill. Adm. Code 101.300(b)(2). Respondent therefore failed

to timely file the petition. If a respondent fails to file within the statutory 35-day period, the

Board lacks jurisdiction to hear the petition.

, IEPA v. Jack Busby

, AC 01-6, slip op. at

1 (Dec. 7, 2000) (“Section 31.1(d)(1) neither grants the Board nor the Agency the authority to

waive the 35-day jurisdictional deadline.”). Accordingly, the Board finds that respondent

violated Sections 21(p)(1), (p)(5), and (p)(7) of the Act (415 ILCS 5/21(p)(1), (p)(5), (p)(7)

The civil penalty for violating any provision of subsection (p) of Section 21 is $1,500 for

each violation, except that the penalty amount is $3,000 for each violation that is the person’s

second or subsequent adjudicated violation of that provision.

415 ILCS 5/42(b)(4-5) (2006);

35 Ill. Adm. Code 108.500(a). Because there are three violations of Section 21(p) and no

allegation of any second or subsequent adjudicated violation, the total civil penalty is $4,500.

Under Section 31.1(d)(1) of the Act, the Board attaches the administrative citation and makes it

part of the order below.

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

The Board denies respondent’s motion to clarify the record.

The Board finds that respondent violated Sections 21(p)(1), (p)(5), and (p)(7) of

the Environmental Protection Act (415 ILCS 5/21(p)(1), (p)(5), (p)(7) (2006)).

Respondent must pay a civil penalty of $4,500 no later than January 5, 2009,

which is the 30th day after the date of this order. Respondent must pay the civil

penalty by certified check or money order, made payable to the Illinois

Environmental Protection Trust Fund. The case number, case name, and

respondent’s federal employer identification number must be included on the

certified check or money order.

Respondents must send the certified check or money order and the remittance

Fiscal Services

Illinois Environmental Protection Agency

1021 N. Grand Avenue East

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) (2006)) at the rate

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

Payment of this penalty does not prevent future prosecution if the violations

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2006);

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

35 Ill. Adm. Code 101.902, 102.700, 102.702.

IT IS SO ORDERED.

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

the Board adopted the above opinion and order on December 4, 2008, by a vote of 5-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board

PROTECTIONAGENCY,

Inc. (“Respondent”)

presentownerand

Jonesboro/Reynolds

Illinois Environmental

above-described

in proliferation

Remittance Form

against Respondent

the Respondent.

Douglas. Scott,

Jonesboro/Reynolds

Fiscal Services,