ILLINOIS POLLUTION CONTROL BOARD
    July 8, 2004
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
    Complainant,
     
    v.
     
    FRANK BENCIE,
     
    Respondent.
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    AC 04-77
    (IEPA No. 265-04-AC)
    (Administrative Citation)
     
    ORDER OF THE BOARD (by G.T. Girard):
     
    On May 14, 2004, the Illinois Environmental Protection Agency (Agency) timely filed an
    administrative citation against Frank Bencie.
    See
    415 ILCS 5/31.1(c) (2002); 35 Ill. Adm. Code
    108.202(c). The Agency alleges that Frank Bencie violated Section 21(p)(1) and (p)(4) of the
    Environmental Protection Act (415 ILCS 5/21(p)(1) and (p)(4) (2002)). The Agency further
    alleges that Frank Bencie violated these provisions by causing or allowing the open dumping of
    waste in a manner that resulted in (1) litter and (2) deposition of waste in standing or flowing
    waters at 10220 Bencie Land south of West Frankfort, Franklin County.
     
    As required, the Agency served the administrative citation on Frank Bencie within “60
    days after the date of the observed violation.” 415 ILCS 5/31.1(b) (2002);
    see also
    35 Ill. Adm.
    Code 108.202(b). On June 15, 2004, Frank Bencie timely filed a petition to contest the
    administrative citation.
    See
    415 ILCS 5/31.1(d) (2002); 35 Ill. Adm. Code 108.204(b). Frank
    Bencie alleges that he is cleaning the site, but that ongoing mine subsidence on the property,
    which is beyond his control, is the cause of waste standing in water, and the subsidence makes it
    impossible to remove all the waste from the site.
    See
    35 Ill. Adm. Code 108.206. The Board
    accepts the petition for hearing.
     
    The Board directs the hearing officer to proceed expeditiously to hearing. The hearing
    officer will give the parties at least 21 days written notice of the hearing. 35 Ill. Adm. Code
    108.300;
    see also
    415 ILCS 5/31.1(d)(2) (2002). By contesting the administrative citation, Frank
    Bencie may have to pay the hearing costs of the Board and the Agency.
    See
    415 ILCS
    5/42(b)(4-5) (2002); 35 Ill. Adm. Code 108.500. A schedule of the Board’s hearing costs is
    available at the Board’s offices and on the Board’s Web site at www.ipcb.state.il.us. 35 Ill.
    Adm. Code 504.
     
    Frank Bencie may withdraw his petition to contest the administrative citation at any time
    before the Board enters its final decision. If Frank Bencie chooses to withdraw his petition, he
    must do so in writing, unless he does so orally at hearing.
    See
    35 Ill. Adm. Code 108.208. If
    Frank Bencie withdraws his petition after the hearing starts, the Board will require Frank Bencie
    to pay the hearing costs of the Board and the Agency.
    See id.
    at 108.500(c).
     
    2
    The Agency has the burden of proof at hearing.
    See
    415 ILCS 5/31.1(d)(2) (2002); 35 Ill.
    Adm. Code 108.400. If the Board finds that Frank Bencie violated Section 21(p)(1) and (p)(4),
    the Board will impose civil penalties on Frank Bencie. The civil penalty for violating Section
    Section 21(p) is $1,500 for a first offense and $3,000 for a second or subsequent offense. 415
    ILCS 5/42(b)(4-5) (2002); 35 Ill. Adm. Code 108.500. However, if the Board finds that Frank
    Bencie “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) (2002);
    see also
    35 Ill. Adm. Code 108.500(b).
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on July 8, 2004, by a vote of 5-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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