ILLINOIS POLLUTION CONTROL BOARD

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September 4, 2008

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

UPPER ROCK ISLAND COUNTY

LANDFILL and DAVE GEIER,

Respondents.

)

AC 08-31

(IEPA No. 71-08-AC)

(Administrative Citation)

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

On June 3, 2008, the Illinois Environmental Protection Agency (Agency) filed an

administrative citation against Upper Rock Island County Landfill and Dave Geier (respondents).

See

415 ILCS 5/31.1 (2006); 35 Ill. Adm. Code 108. In today’s order, the Board dismisses this

case because the Agency has failed to file proof of service of the administrative citation on

respondents.

The administrative citation concerns a sanitary landfill facility located at 17201 20th

Avenue, North, Rock Island, Rock Island County. The property is commonly known to the

Agency as “Upper Rock Island County Landfill” and is designated with Site Code No.

1618100014. The Agency alleges that respondents violated Sections 21(o)(5) and (o)(12) of the

Environmental Protection Act (Act) (415 ILCS 5/21(o)(5), (o)(12) (2006)) at the site by

conducting a sanitary landfill in a manner resulting in (1) uncovered refuse remaining from the

previous operating day or at the conclusion of any operating day, and (2) the failure to collect

and contain litter by the end of each operating day. The Agency seeks the fixed statutory

penalties of $500 for each alleged violation, totaling $1,000.

See

415 ILCS 5/42(b)(4) (2006).

Section 31.1(b) of the Act requires the Agency to serve an administrative citation on a

respondent “within not more than 60 days after the observed violation.” 415 ILCS 5/31.1(b)

(2006);

see also

35 Ill. Adm. Code 108.202(b). Failure to timely serve the citation deprives the

Board of jurisdiction.

See, e.g.

, County of LaSalle v. Harriet and John Baugher, AC 05-73, slip.

op. at 1 (June 16, 2005) (dismissal for lack of jurisdiction after citation served on 64th day after

site inspection). Additionally, the Agency is required 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(c) (2006);

see

also

35 Ill. Adm. Code 108.202(c). Compliance with the Act’s 10-day filing requirement is also

a jurisdictional prerequisite for the Board to hear or enter a default judgment on an

administrative citation.

See, e.g.

, County of Perry v. Mike Tilley, AC 07-3, slip. op. at 1 (Aug.

17, 2006) (dismissal for lack of jurisdiction after citation was filed with the Board more than 10

days after date of service).

Here, the administrative citation filed by the Agency on June 3, 2008, did not include the

requisite proof of service. The Board has received no petition from respondents contesting the

administrative citation. Despite repeated requests by the Clerk’s Office over the last three

months, the Agency has not yet filed proof that the administrative citation was served on

respondents. Further, over 60 days has passed since the filing of the citation, thus, timely service

and the timely requisite proof of service are unlikely to be had.

See

415 ILCS 5/31.1(b), (c)

(2006);

see also

35 Ill. Adm. Code 108.202(b), (c). Due to the Agency’s failure to file proof of

service, the Board cannot determine whether it has jurisdiction over this case.

See

415 ILCS

5/31.1(b), (c) (2006). Under these circumstances, the Board dismisses the administrative citation

and closes the docket.

See

35 Ill. Adm. Code 108.402.

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);

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

Board adopted the above order on September 4, 2008, by a vote of 4-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board

HECEIVED

ILLINOIS ENVIRONMENTAL

STATE OF ILLINOIS

PROTECTION AGENCY,

Pollution Control Board

UPPER ROCK ISLAND COUNTY

LANDFILL, INC. and DAVE GEIER,

Respondents.

JURISDICTION

This Administrative Citation is issued pursuant to the authority vested in the Illinois

Environmental Protection Agency by Section 31.1 of the Illinois Environmental Protection Act , 415

ILCS 5/31.1 (2006).

FACTS

That Upper Rock Island County Landfill, Inc. is the permitted owner and operator,

and Dave Geier is the certified operator in responsible charge (collectively "Respondents") of a

facility located at 17201 20" Avenue, North, Rock Island, Rock Island County Illinois.

That said facility is a sanitary landfill, operating under Illinois Environmental

Protection Agency Permit No. 1995-008-LF, and is designated with Site Code No. 1618100014.

The facility is commonly known to the Illinois Environmental Protection Agency as

Upper Rock Island County Landfill.

That Respondents have owned/operated said facility at all times pertinent hereto.

4. That on April 22, 2008, Ronald E. Mehalic of the Illinois Environmental Protection

Agency's Peoria Regional Office inspected the above-referenced facility. A copy of his inspection

report setting forth the results of said inspection is attached hereto and made a part hereof.

VIOLATIONS

Based upon direct observations made by Ronald E. Mehalic during the course of his April

22, 2008 inspection of the above-referenced facility, the Illinois Environmental Protection Agency

has determined that Respondents violated the Illinois Environmental Protection Act (hereinafter, the

"Act") as follows:

(1)

That Respondents conducted a sanitary landfill in a manner which resulted in uncovered

refuse remaining from the previous operating day or at the conclusion of any operating

day, a violation of Section 21(o)(5) of the Act, 415 ILCS 5/21 (o)(5) (2006).

(2)

That Respondents conducted a sanitary landfill in a manner which resulted in failure to

collect and contain litter by the end of each operating day, a violation of Section

21(o)(12) of the Act, 415 ILCS 5/21 (o)(12) (2006).

CIVIL PENALTY

Pursuant to Section 42(b)(4) of the Act, 415 ILCS 5/42(b)(4) (2006), Respondents are

subject to a civil penalty of Five Hundred Dollars ($500.00) for each of the violations identified

above, for a total of One Thousand Dollars ($1,000.00). If Respondents elect not to petition the

Illinois Pollution Control Board, the statutory civil penalty specified above shall be due and payable

no later than July 15, 2008, unless otherwise provided by order of the Illinois Pollution Control

Board.

If Respondents elect to contest this Administrative Citation by petitioning the Illinois Pollution

Control Board in accordance with Section 31.1 of the Act, 415 ILCS 5/31.1 (2006), and if the Illinois

Pollution Control Board issues a finding of violation as alleged herein, after an adjudicatory hearing,

Respondents shall be assessed the associated hearing costs incurred by the Illinois Environmental

Protection Agency and the Illinois Pollution Control Board. Those hearing costs shall be assessed

in addition to the statutory civil penalty.

Pursuant to Section 31.1(d)(1) of the Act, 415 ILCS 5/31.1(d)(1) (2006), if Respondents fail

to petition or elect not to petition the Illinois Pollution Control Board for review of this Administrative

Citation within thirty-five (35) days of the date of service, the Illinois Pollution Control Board shall

adopt a final order, which shall include this Administrative Citation and a finding of violation as

alleged herein, and shall impose the statutory civil penalty specified above.

When payment is made, Respondents' check shall be made payable to the Illinois

Environmental Protection Trust Fund and mailed to the attention of Fiscal Services, Illinois

Environmental Protection Agency, 1021 North Grand Avenue East, P.O. Box 19276, Springfield,

Illinois 62794-9276. Along with payment, Respondents shall complete and retum the enclosed

Remittance Form to ensure proper documentation of payment.

If any civil penalty and/or hearing costs are not paid within the time prescribed by order of

the Illinois Pollution Control Board, interest on said penalty and/or hearing costs shall be assessed

against the Respondents from the date payment is due up to and including the date that payment is

received. The Office of the Illinois Attorney General may be requested to initiate proceedings

against Respondents in Circuit Court to collect said penalty and/or hearing costs, plus any interest

accrued.

PROCEDURE FOR CONTESTING THIS

ADMINISTRATIVE CITATION

Respondents have the right to contest this Administrative Citation pursuant to and in

accordance with Section 31.1 of the Act, 415 ILCS 5/31/1 (2006). If Respondents elect to contest

this Administrative Citation, then Respondents shall file a signed Petition for Review, including a

Notice of Filing, Certificate of Service, and Notice of Appearance, with the Clerk of the Illinois

Pollution Control Board, State of Illinois Center, 100 West Randolph, Suite 11-500, Chicago, Illinois

60601. A copy of said Petition for Review shall be filed with the Illinois Environmental Protection

Agency's Division of Legal Counsel at 1021 North Grand Avenue East, P.O. Box 19276, Springfield,

Illinois 62794-9276. Section 31.1 of the Act provides that any Petition for Review shall be filed

within thirty-five (35) days of the date of service of this Administrative Citation or the Illinois Pollution

Control Board shall enter a default judgment against the Respondents.

Douglas Scott, Director?6. Kr

Illinois Environmental Protection Agency

Date

Sizglos

Prepared by:

Susan E. Konzelmann, Legal Assistant

Division of Legal Counsel

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

RECEIVED

JUN 0 3 2008

Pollution Control Board

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

UPPER ROCK ISLAND COUNTY

LANDFILL, INC. and DAVE GEIER,

Upper Rock Island County LF?

Please enter the date of your remittance, your Social Security number (SS) if an individual or

Federal Employer Identification Number (FEIN) if a corporation, and sign this Remittance Form. Be

sure your check is enclosed and mail, along with Remittance Form, to Illinois Environmental

Protection Agency, Attn.: Fiscal Services, P.O. Box 19276, Springfield, Illinois 62794-9276.