ILLINOIS POLLUTION CONTROL BOARD

The terms “general construction or demolition debris” and “clean construction or demolition debris,” which are referred to in Section 21(p)(7), are defined in the Act:
Civil Penalty

June 19, 2008

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

TIMOTHY PEARCE

Respondent.

)

AC 05-61

(IEPA No. 59-05-AC)

(Administrative Citation)

OPINION AND ORDER OF THE BOARD (by T.E. Johnson):

Today the Board finds that respondent, Timothy Pearce (Pearce), violated Section

21(p)(7) of the Environmental Protection Act (Act) (415 ILCS 5/21(p)(7) (2006)). An

administrative citation issued by complainant, the Illinois Environmental Protection Agency

(Agency), alleged that the violation took place on February 16, 2005, at 241 N. Willow Road in

Flora, Clay County. The site is known to the Agency as “Flora/Pearce, Timothy” and is

designated with Site Code No. 0258105003.

Pearce filed a petition to contest the administrative citation, but has stopped participating

in this proceeding. Since Pearce’s participation ceased, the Agency served Pearce with both a

request to admit facts and a motion for summary judgment. Pearce did not respond to either.

Based on this record, the Board finds that there are no genuine issues of material fact and that the

Agency is entitled to judgment as a matter of law. The Board grants the Agency’s unopposed

motion for summary judgment. Pearce violated Section 21(p)(7) the Act by causing or allowing

the opening dumping of waste in a manner resulting in the deposition of general or clean

construction or demolition debris. Pearce is therefore subject to the statutorily-mandated $1,500

civil penalty.

Below, the Board first provides the legal framework for administrative citations, followed

by the procedural history of this case. The Board then describes the Agency’s administrative

citation and Pearce’s petition. Next, the Board discusses the Agency’s request to admit facts and

sets forth the Board’s findings of fact. The Board then rules on the Agency’s motion for

summary judgment, rendering legal conclusions on the alleged violation and civil penalty.

LEGAL FRAMEWORK

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) (2006); 35 Ill.

Adm. Code 108.

The Agency or delegated local authority must serve the administrative citation on the

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

(2006));

see also

35 Ill. Adm. Code 108.202(b). The Agency or delegated local authority also

must file a copy of the administrative citation with the Board no later than ten days after serving

the respondent.

See

415 ILCS 5/31.1(c) (2006). To contest the administrative citation, the

respondent must file a petition with the Board no later than 35 days after being served with the

administrative citation. If the 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) (2006); 35 Ill. Adm. Code 108.204(b), 108.406.

If the respondent timely contests the administrative citation, but the complainant proves

the alleged violations at hearing, the respondent will be held liable not only for the civil penalty

but also for the hearing costs of the Board and the complainant.

See

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

(2006); 35 Ill. Adm. Code 108.500. However, if the Board finds that the respondent “has shown

that the violation resulted from uncontrollable circumstances, the Board shall adopt a final order

which makes no finding of violation and which imposes no penalty.” 415 ILCS 5/31.1(d)(2)

(2006);

see also

35 Ill. Adm. Code 108.500(b).

Because the Act (415 ILCS 5/42(b)(4-5) (2006)) specifies the civil penalty for a violation

in an administrative citation action, the Board cannot consider mitigating or aggravating factors

when determining penalty amounts.

See

e.g.

, IEPA v. Stutsman, AC 05-70, slip op. at 2 (Sept.

21, 2006). The appellate court in Miller v. PCB, 267 Ill. App. 3d 160, 642 N.E.2d 475 (4th Dist.

1994), described the Board’s administrative citation process as follows: “the administrative

citation proceeding is to the Act as traffic citations are to the body of criminal law.” Miller, 267

Ill. App. 3d at 167, 642 N.E.2d at 482.

PROCEDURAL HISTORY

On March 28, 2005, the Agency filed the administrative citation. The Agency site

inspection resulting in the citation took place on February 16, 2005. The Agency served Pearce

with the administrative citation on April 15, 2005. On May 19, 2005, Pearce filed with the

Board a petition to contest the administrative citation. In a June 2, 2005 order, the Board

accepted the petition for hearing.

Board Hearing Officer Carol Webb held telephonic status conferences on June 28, 2005;

August 30, 2005; November 8, 2005; January 4, 2006; March 9, 2006; April 24, 2006; May 18,

2006; June 29, 2006; August 1, 2006; September 5, 2006; October 3, 2006; November 1, 2006;

December 18, 2006; January 22, 2007; February 20, 2007; March 20, 2007; April 19, 2007; May

16, 2007; June 19, 2007; July 16, 2007; August 15, 2007; September 25, 2007; November 21,

2007; January 9, 2008; February 5, 2008; March 6, 2008; and April 7, 2008. Pearce last

participated in a status call on August 1, 2006.

See generally

Hearing Officer Orders dated Sept.

5, 2006 through May 5, 2008.

On August 15, 2007, the Agency filed a request to admit facts, which was mailed to

Pearce on the same date. Pearce has not responded to the request. On March 6, 2008, the

Agency filed a motion for summary judgment, which was mailed to Pearce on March 3, 2008.

Pearce has not responded to the motion. The case has not been to hearing.

ADMINISTRATIVE CITATION AND PETITION TO CONTEST

In the administrative citation, the Agency alleged that Pearce violated Section 21(p)(7) of

the Act (415 ILCS 5/21(p)(7) (2006)) by causing or allowing the open dumping of waste in a

manner resulting in the deposition of general construction or demolition debris or clean

construction or demolition debris at 241 North Willow Road, Flora, Clay County. The Agency

asked the Board to impose a $1,500 civil penalty on Pearce for the alleged violation. Attached to

the administrative citation is an inspection report (Narrative, Photos) supported by the affidavit

of Garrison Gross (Gross), a field inspector with the Agency’s Land Pollution Control Division.

In the petition to contest, Pearce denied the allegations of the citation. He maintained

that he did not cause or allow the open dumping of waste and that any materials observed at the

site constituted neither waste nor the deposition of general construction or demolition debris or

clean construction or demolition debris.

REQUEST TO ADMIT FACTS

The Board’s procedural rules provide that a “party may serve a written request for

admission of the truth of specific statements of fact on any other party.” 35 Ill. Adm. Code

101.618(d). The request must include in its first paragraph the following language:

Failure to respond to the following requests to admit within 28 days may have

severe consequences. Failure to respond to the following requests will result in

all the facts requested being deemed admitted as true for this proceeding. If you

have any questions about this procedure, you should contact the hearing officer

assigned to this proceeding or an attorney. 35 Ill. Adm. Code 101.618(c).

The Agency’s August 15, 2007 request to admit (Requ.) contained this notice. Requ. at 1.

The Agency’s request asked that Pearce admit the truth of numerous statements

concerning the site and Pearce’s relationship to the site. Requ. at 1-2. Under the Board’s

procedural rules:

Each of the matters of fact and the genuineness of each document of which

admission is requested is admitted unless, within 28 days after service thereof, the

party to whom the request is directed serves upon the party requesting the

admission either a sworn statement denying specifically the matters of which

admission is requested or setting forth in detail the reasons why the party cannot

truthfully admit or deny those matters, or written objections on the ground that

some or all of the requested admissions are privileged or irrelevant or that the

request is otherwise improper in whole or in part. 35 Ill. Adm. Code 101.618(f).

Pearce has not responded to the Agency’s request to admit of August 15, 2007. The Board

accordingly finds that under Section 101.618(f), Pearce is deemed to have admitted the factual

statements of the Agency’s request.

FACTS

On February 16, 2005, Pearce owned and operated the property at 241 North Willow

Road in Flora, Clay County. Requ. at 1, ¶¶ 1, 2. On that date, Gross, an Agency field inspector,

inspected Pearce’s site. Gross did so as a follow-up to a previous site inspection and a telephone

complaint about “additional open dumping” at the property. Narrative at 1. The most recent

prior inspection of the site by the Agency took place on October 19, 2004.

During the February 16, 2005 inspection, the site contained an approximately 515 cubic

yard pile of debris from construction or demolition activities. Narrative at 1; Requ. at 1-2, ¶¶ 3,

4. The debris was located in a field. Photos 001, 002. The pile was of varying heights and its

base was irregularly shaped. The material was not separated or processed. Photos 001-004.

Some of the concrete material contained protruding metal bars. Photo 004. Debris observed on

October 19, 2004 was still present. Narrative at 1, Photos 001, 002. Also, additional material,

primarily busted concrete, had been deposited on the site since the previous inspection.

Narrative at 1. Tire tracks led to the newer piles of debris.

., Photos 003, 004. Pearce does not

have a permit from the Agency to manage waste at the site. Requ. at 2, ¶ 9.

DISCUSSION

Motion for Summary Judgment

In it motion for summary judgment (Mot.), the Agency argues that it has demonstrated

Pearce’s violation of Section 21(p)(7) of the Act. The Agency bases its position on the

inspection report attached to the administrative citation and Pearce’s failure to respond to the

request to admit. Mot. at 3. According to the Agency, Pearce “was the owner and operator of

the site on which the open dumping was observed,” and he caused or allowed “waste to be open

dumped there.”

. at 2-3, citing Requ. at 1-2, ¶¶ 1-3, 5-8. The Agency further states that Pearce

“admitted that the open dumped waste included general or clean construction or demolition

debris.”

., citing Requ. at 2, ¶ 4.

Summary Judgment Standard of Review

Summary judgment is appropriate when the pleadings, depositions, admissions,

affidavits, and other items in the record, show that there is no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law.

See

Dowd & Dowd, Ltd. v.

Gleason, 181 Ill. 2d 460, 483, 693 N.E.2d 358, 370 (1998);

see also

35 Ill. Adm. Code

101.516(b). When ruling on a motion for summary judgment, the Board “must consider the

pleadings, depositions, and affidavits strictly against the movant and in favor of the opposing

party.” Dowd & Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.

Summary judgment “is a drastic means of disposing of litigation,” and therefore the

Board should grant it only when the movant’s right to the relief “is clear and free from doubt.”

Dowd & Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370, citing Putrill v. Hess, 111 Ill. 2d 229, 240,

489 N.E.2d 867, 871 (1986). “Even so, while the nonmoving party in a summary judgment

motion is not required to prove [its] case, [it] must nonetheless present a factual basis, which

would arguably entitle [it] to a judgment.” Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639

N.E.2d 994, 999 (2nd Dist. 1994).

Alleged Violation

The Agency’s administrative citation alleges that Pearce violated Section 21(p)(7) of the

Act (415 ILCS 5/21(p)(7) (2006)). Section 21(p)(7) provides:

No person shall: In violation of subdivision (a) of this Section, cause or allow the

open dumping of any waste in a manner which results in any of the following

occurrences at the dump site:

(7) deposition of:

(i) general construction or demolition debris as defined in Section 3.160(a)

of this Act; or

(ii) clean construction or demolition debris as defined in Section 3.160(b)

of this Act. 415 ILCS 5/21(p)(7) (2006).

Section 21(a) of the Act, which is referred to in Section 21(p), provides:

No person shall:

Cause or allow the open dumping of any waste. 415 ILCS 5/21(a) (2006).

“Open dumping” is defined as “the consolidation of refuse from one or more sources at a

disposal site that does not fulfill the requirements of a sanitary landfill.” 415 ILCS 5/3.305

(2006). “Refuse” means “waste” (415 ILCS 5/3.385 (2006)) and the Act defines “waste” as:

[A]ny garbage . . . or other discarded material, including solid . . . material

resulting from industrial, commercial, mining and agricultural operations, and

from community activities . . . . 415 ILCS 5/3.535 (2006).

The terms “general construction or demolition debris” and “clean construction or demolition

debris,” which are referred to in Section 21(p)(7), are defined in the Act:

(a) “General construction or demolition debris” means non-hazardous,

uncontaminated materials resulting from the construction, remodeling, repair, and

demolition of utilities, structures, and roads, limited to the following: bricks,

concrete, and other masonry materials; soil; rock; wood, including non-hazardous

painted, treated, and coated wood and wood products; wall coverings; plaster;

drywall; plumbing fixtures; non-asbestos insulation; roofing shingles and other

roof coverings; reclaimed or other asphalt pavement; glass; plastics that are not

sealed in a manner that conceals waste; electrical wiring and components

containing no hazardous substances; and piping or metals incidental to any of

those materials.

General construction or demolition debris does not include uncontaminated soil

generated during construction, remodeling, repair, and demolition of utilities,

structures, and roads provided the uncontaminated soil is not commingled with

any general construction or demolition debris or other waste.

***

(b) “Clean construction or demolition debris” means uncontaminated broken

concrete without protruding metal bars, bricks, rock, stone, reclaimed or other

asphalt pavement, or soil generated from construction or demolition activities.

Clean construction or demolition debris does not include uncontaminated soil

generated during construction, remodeling, repair, and demolition of utilities,

structures, and roads provided the uncontaminated soil is not commingled with

any clean construction or demolition debris or other waste.

***

415 ILCS 5/3.160(a), (b) (2006).

Pearce did not respond to the Agency’s motion for summary judgment and therefore is

deemed to have waived any objection to the Board granting the motion.

See

35 Ill. Adm. Code

101.500(d). Further, as explained above, Pearce has by rule admitted the truth of the facts set

forth in the Agency’s request to admit by not responding to the request.

See

35 Ill. Adm. Code

101.628(f).

The Board finds that there are no genuine issues of material fact and that the Agency is

entitled to judgment as a matter of law. Pearce owned and operated the site located at 241 N.

Willow Road in Flora, Clay County. The site was under Pearce’s control and unpermitted. As

of the February 16, 2005 inspection, approximately 515 cubic yards of debris from construction

or demolition activities had been accumulated on the site in a sprawling pile. The materials were

located in a field and not separated or processed. The debris included busted concrete, some of

which had protruding metal bars. Debris had been added to the pile since an Agency inspection

four months earlier. Narrative at 1, Photos 001, 002.

Even considering the record in the light most favorable to Pearce, the Board finds that

Pearce caused or allowed the opening dumping of waste in a manner resulting in the deposition

of general or clean construction or demolition debris. The Board therefore finds that Pearce

violated Section 21(p)(7) of the Act (415 ILCS 5/21(p)(7) (2006)) and grants the Agency’s

unopposed motion for summary judgment.

Civil Penalty

When the Board finds a violation in an administrative citation proceeding, the Board is

required to impose a civil penalty. Administrative citation penalties for violations of Section

21(p) of the Act are fixed by Section 42(b)(4-5) of the Act:

In an administrative citation action under Section 31.1 of this Act, any person

found to have violated any provision of subsection (p) of Section 21 of this Act

shall pay a civil penalty of $1,500 for each violation of each such provision, plus

any hearing costs incurred by the Board and the Agency, except that the civil

penalty amount shall be $3,000 for each violation of any provision of subsection

(p) of Section 21 that is the person’s second or subsequent adjudicated violation of

that provision. 415 ILCS 5/42(b)(4-5) (2006).

The Agency asks that the Board impose a $1,500 civil penalty for Pearce’s violation of

Section 21(p)(7). There is no indication in the record that this is a second or subsequent

adjudicated violation for Pearce. Therefore, the civil penalty is statutorily set at $1,500.

See

415

ILCS 5/42(b)(4-5) (2006). Below, the Board will order Pearce to pay the penalty. As this case is

being disposed of on a motion for summary judgment, there are no hearing costs to assess.

CONCLUSION

As described above, there are no genuine issues of material fact in this case and the

Agency is entitled to judgment as a matter of law. The Board grants the Agency’s unopposed

motion for summary judgment. The Board finds that Pearce violated Section 21(p)(7) of the Act

by causing or allowing the open dumping of waste in a manner resulting in the deposition of

general or clean construction or demolition debris. Having found the violation in this

administrative citation action, the Board requires Pearce to pay the statutory civil penalty of

$1,500.

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

ORDER

The Board grants the Agency’s motion for summary judgment.

The Board finds that Pearce violated Section 21(p)(7) of the Act (415 ILCS

5/21(p)(7) (2006)).

The Board assesses the statutory civil penalty of $1,500 for the violation. Pearce

must pay $1,500 no later than August 4, 2008, which is the first business day

following the 45th day after the date of this order. Pearce must pay this amount

by certified check or money order made payable to the Illinois Environmental

Protection Trust Fund. The case number, case name, and Pearce’s social security

number or federal employer identification number must be included on the

certified check or money order.

Pearce must send the certified check or money order to:

Illinois Environmental Protection Agency

Attn.: Fiscal Services

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 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) (2006)).

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

continues.

IT IS SO ORDERED.

Section 41(a) of the 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);

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 the Board’s 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 T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above opinion and order on June 19, 2008, by a vote of 4-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board

RE C~ Uv ED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ADMINISTRATIVE CITATION

LUU3

STATE OF ILLINOIS

Pollution Control

Board

ILLINOIS ENVIRONMENTAL

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 (2002).

FACTS

That Timothy Pearce (“RespondenV’) is the present owner and operator of a facility

located at 241 North Willow Road, Flora, Clay County, Illinois. The property is commonly known to

the Illinois Environmental Protection Agency as Flora/Pearce, Timothy.

That said facility is an open dump operating without an Illinois Environmental

Protection Agency Operating Permit and is designated with Site Code No. 0258105003.

That Respondent has owned and operated said facility at all times pertinent hereto.

That on February 16, 2005, Garrison Gross of the Illinois Environmental Protection

Agency’s Marion Regional Office inspected the above-described 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 Garrison Gross during the course of his February

16, 2005 inspection of the above-named facility, the Illinois Environmental Protection Agency has

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

“Act”) as follows:

—

(1)

That Respondent caused or allowed the open dumping of waste in a manner

resulting in deposition of general construction or demolition debris; or clean

construction or demolition debris, a violation of Section 21 (p)(7) of the Act, 415 ILCS

5/21 (p)(7) (2002).

CIVIL PENALTY

Pursuant to Section 42(b)(4-5) of the Act, 415 ILCS 5/42(b)(4-5) (2002), Respondent is

subject to a civil penalty of One Thousand Five Hundred Dollars ($1,500.00) for each of the

violations identified above, for a total of One Thousand Five Hundred Dollars ($1 ,500.00). If

Respondent elects not to petition the Illinois Pollution Control Board, the statutory civil penalty

specified above shall be due and payable no later than April 30,2005, unless otherwise provided by

order of the Illinois Pollution Control Board.

If Respondent elects 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(2002), and if the Illinois

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

Respondent 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 One Thousand Five Hundred Dollar ($1,500.00) statutory civil penalty for each

violation.

Pursuantto Section 31.1(d)(1)ofthe Act, 415 ILCS 5/31.1(d)(1)(2002), !fRespondentfails

to petition or elects 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 findings of violation as

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

When payment is made, Respondent’s 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, Respondent shall complete and return the enclosed

Remittance Form to ensure proper documentation of payment.

If any civil penaltyand/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 Respondent 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 Respondent in Circuit Court to collect said penalty and/or hearing costs, plus any interest

accrued.

PROCEDURE

FOR CONTESTING THIS

ADMINISTRATIVE CITATION

Respondent has the right to contest this Administrative Citation pursuant to and in

accordance with Section 31.1 of the Act, 415 ILCS 5/31/1 (2002). If Respondent elects to contest

this Administrative Citation, then Respondent 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 Respondent.

_______________________

Date: 3 p g )o

Renee Cipriano, Direc or

Illinois Environmental Protection Agency

Prepared by:

Susan E. Konzelmann, Legal Assistant

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O.

Box 19276

Springfield, Illinois 62794-9276

(217)782-5544

CLERK’S

EC E

OFF!OFU

V E D

REMITTANCE FORM

STATE~P

OF

Board

Flora/Pearce, Timothy

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.