ILLINOIS POLLUTION CONTROL BOARD
July 23, 2009
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
STANLEY MOUSER,
Respondent.
)
)
)
)
)
)
)
)
)
)
AC 09-45
(IEPA No. 81-09-AC)
(Administrative Citation)
OPINION AND ORDER OF THE BOARD (by G.T. Girard):
On May 13, 2009, the Illinois Environmental Protection Agency (Agency) timely filed an
administrative citation against Stanley Mouser (Mouser).
See
415 ILCS 5/31.1(c) (2008); 35 Ill.
Adm. Code 101.300(b), 108.202(c). The administrative citation concerns Mouser’s disposal site
located at TWP 14, RNG 3, SEC 12, PART OF SW SW NE & PT OF BW SE NE in McClure,
Alexander County. The property is commonly known to the Agency as the “McClure/Mouser”
site and is designated with Site Code No. 0038545012. For the reasons below, the Board
dismisses Mouser’s petition, finds that Mouser violated the Environmental Protection Act (Act)
(415 ILCS 5 (2008)), and orders Mouser to pay $3,000 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) (2008); 35 Ill.
Adm. Code 108.
In this case, the Agency alleges that on April 7, 2009, Mouser violated Sections 21(p)(1)
and (p)(7) of the Act (415 ILCS 5/21(p)(1), (p)(7) (2008)) by causing or allowing the open
dumping of waste in a manner resulting in litter and the deposition of general or clean
construction or demolition debris. The Agency asks the Board to impose the statutory $3,000
civil penalty on Mouser. As required, the Agency served the administrative citation on Mouser
within “60 days after the date of the observed violation.” 415 ILCS 5/31.1(b) (2008);
see also
35
Ill. Adm. Code 101.300(c), 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 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) (2008); 35 Ill. Adm. Code 101.300(b),
108.204(b), 108.406. Here, any petition for review was due by June 17, 2009. The Board
received Mouser’s petition on July 1, 2009, two weeks after the filing deadline. Mouser
2
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.
See
,
e.g.
, 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”); County of Macon v. Tim Walker AC 07-
21 slip op. at 1-2 (May 3, 2007) (upholding dismissal of untimely petition). Accordingly, the
Board dismisses Mouser’s petition and finds that Mouser violated Section 21(p)(1) and (p)(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) or (4-5)]
(2008); 35 Ill. Adm. Code 108.500(a). Because there are two violation(s) of Section 21(p) and
no indication in the record that any of these are a second or subsequent adjudicated violation, the
total civil penalty is $3,000. 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 finds that Stanley Mouser (Mouser) violated 21(p)(1) and (p)(7) of the
Environmental Protection Act (415 ILCS 5/21(p)(1), (p)(7) (2008)).
2.
Mouser must pay a civil penalty of $3,000 no later than August 24, 2009, which is
the first business day following the 30th day after the date of this order. Mouser
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
Mouser’s social security number or federal employer identification number must
be included on the certified check or money order.
3.
Mouser 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
4.
Penalties unpaid within the time prescribed will accrue interest under Section
42(g) of the Environmental Protection Act (415 ILCS 5/42(g) (2008)) at the rate
set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/1003(a)
(2008)).
5.
Payment of this penalty does not prevent future prosecution if the violations
continue.
3
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) (2008);
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 opinion and order on July 23, 2009 by a vote of 5-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
OF19C
ADMINISTRATIVE
CITATION
?y
PoJIut,o
STATE
OF
Contr
ILjj
‘‘U’ IS
ILLINOIS
ENVIRONMENTAL
)
°IzOard
PROTECTION
AGENCY,
)
Complainant,
)
AC
(
V.
)
(IEPA No.
81-09-AC)
STANLEY
MOUSER,
)
Respondent.
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
1.
That
Stanley
Mouser
is the current
owner
and
operator
(“Respondent”)
of
a facility
located
at the following
legal
description:
TWP
14,
RNG 3, SEC
12, PART
OF SW SW
NE
& PT OF
NW SE
NE.
The
subject
property
is located
in
Alexander
County, Illinois.
The
property is
commonly
known
to the Illinois
Environmental
Protection
Agency
as McClure/Mouser.
2.
That
said
facility
is an open
dump
operating
without an
Illinois Environmental
Protection
Agency
Operating
Permit
and is
designated
with Site
Code
No. 0038545012.
3.
That Respondent
has owned
and operated
said facility
at
all times
pertinent
hereto.
4.
That
on April
7, 2009,
Sheila Williams
of
the Illinois
Environmental
Protection
Agency’s
(“Illinois
EPA”)
Marion
Regional
Office
inspected
the above-described
facility.
A
copy
of
her inspection
report
setting
forth the
results
of
said
inspection
is attached
hereto
and made
a
part
hereof.
5.
That on
5-
/7
- 0 ‘
, Illinois
EPA
sent this
Administrative
Citation
via Certified
MailNo.
7CD73Oio
poOLfgL
33c
VIOLATIONS
Based
upon
direct observations
made
by
Sheila
Williams
during
the
course of
her April
7,
2009
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 litter,
a violation
of
Section
21(p)(1)
of
the Act,
415 ILCS
5121(p)(1)
(2006).
(2)
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) (2006).
CIVIL
PENALTY
Pursuant
to
Section
42(b)(4-5)
of the Act,
415 ILCS
5/42(b)(4-5)
(2006),
Respondent
is
subject
to a civil
penalty
of One
Thousand
Five Hundred
Dollars
($1,500.00)
for
each
of the
violations
identified
above,
fora total
of
Three Thousand
Dollars
($3,000.00).
IfRespondentelects
not
to petition
the
Illinois
Pollution
Control
Board, the
statutory
civil
penalty
specified
above
shall
be
due
and
payable
no
later
than June
30,
2009,
unless
otherwise
provided by
order of
the
Illinois
Pollution
Control
Board.
2
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(2006),
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.
Pursuant
to
Section
31.1
(d)(1)
of the Act,
415 ILCS
5/31.1
(d)(1)
(2006),
if Respondent
fails
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 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
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.
3
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
5/3 1/1
(2006).
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.
Douglas
P’Scott,
Director
-‘
Date:
5/
LO
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
4
ECEVE,
CLERK’S
OFFICE
REMITTANCE
FORM
MAY
j
2eoq
STATE
OF
ILLINOIS
Pollution
Control
Board
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
Complainant,
)
AC
S
V.
)
(IEPA
No.
81-09-AC)
STANLEY
MOUSER,
Respondent.
FACILITY:
McClure/Mouser
SITE
CODE
NO.:
0038545012
COUNTY:
Alexander
CIVIL
PENALTY:
$3,000.00
DATE
OF
INSPECTION:
April
7,
2009
DATE
REMITTED:
SS/FEIN
NUMBER:
SIGNATURE:
NOTE
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.
5
