ILLINOIS POLLUTION CONTROL BOARD

April 19, 2007

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v.

HAROLD TOMLINSON, LARRY

TOMLINSON, and JERRY TOMLINSON,

Respondents.

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AC 07-44

(IEPA No. 51-07-AC)

(Administrative Citation)

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

On February 20, 2007, the Illinois Environmental Protection Agency (Agency) timely

filed an administrative citation against Harold, Larry, and Jerry Tomlinson (respondents).

See

415 ILCS 5/31.1(c) (2004); 35 Ill. Adm. Code 108.202(c). The administrative citation concerns

respondents’ facility located at 140 Wilbern Road in Wilbern, Marshall County. The facility is

designated with Site Code No. 1238070002. For the reasons below, the Board: (1) grants the

Agency’s motion to dismiss the administrative citation as to Jerry Tomlinson; and (2) finds that

Harold and Larry Tomlinson violated the Environmental Protection Act (Act) (415 ILCS 5

(2004)) and orders them to pay $4,500 in civil penalties.

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

open dumps.

See

415 ILCS 5/3.305, 3.445, 21(o), (p), 31.1(c), 42(b)(4), (4-5) (2004); 35 Ill.

Adm. Code 108.

In this case, the Agency alleges that respondents violated Sections 21(p)(1), (3), and (7)

of the Act (415 ILCS 5/21(p)(1), (3), (7) (2004)) by causing or allowing the open dumping of

waste in a manner resulting in litter, open burning, and the deposition of general or clean

construction or demolition debris. The administrative citation asks the Board to impose a $1,500

civil penalty on respondents for each of the three alleged violations, for a total civil penalty of

$4,500. According to the administrative citation, respondents are the present owners of the

Wilbern facility and Harold Tomlinson d/b/a Tomlinson Disposal Service is the facility’s current

operator.

However, on March 15, 2007, the Agency filed a motion to dismiss this administrative

citation as to Jerry Tomlinson. In the motion, the Agency states that it failed to serve the

administrative citation on Jerry Tomlinson within 60 days of the observed violation as required

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by the Act.

See

415 ILCS 5/31.1(b) (2004). The Board grants the Agency’s motion and

dismisses the administrative citation as to Jerry Tomlinson.

See

35 Ill. Adm. Code 108.402.

As required, the Agency did serve the administrative citation on Harold and Larry

Tomlinson within “60 days after the date of the observed violation.” 415 ILCS 5/31.1(b) (2004);

see also

35 Ill. Adm. Code 108.202(b). 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

violations alleged and impose the corresponding civil penalty.

See

415 ILCS 31.1(d)(1) (2004);

35 Ill. Adm. Code 108.204(b), 108.406. Here, any petition for review was due on

March 23, 2007. Harold and Larry Tomlinson failed to timely file a petition. Accordingly, the

Board finds that Harold and Larry Tomlinson violated Sections 21(p)(1), (3), and (7) of the Act.

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.

See

415 ILCS 5/42(b)(4-5) (2004);

35 Ill. Adm. Code 108.500(a). Because there are three violations and no indication in the record

that these are second or subsequent adjudicated violations, 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.

ORDER

1.

The Board dismisses the administrative citation as to Jerry Tomlinson.

2.

Harold and Larry Tomlinson must pay a civil penalty of $4,500 no later than

May 21, 2007, which is the first business day following the 30th day after the date

of this order.

3.

Harold and Larry Tomlinson 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 Harold and Larry Tomlinson’s social security

numbers must be included on the certified check or money order.

4.

Harold and Larry Tomlinson must send the certified check or money order and

the remittance form to:

Illinois Environmental Protection Agency

Fiscal Services Division

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

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5.

Penalties unpaid within the time prescribed will accrue interest under Section

42(g) of the Environmental Protection Act (415 ILCS 5/42(g) (2004)) at the rate

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

(2004)).

6.

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

continue.

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) (2004);

see also

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

101.520;

see also

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

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on April 19, 2007, by a vote of 3-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board