ILLINOIS POLLUTION CONTROL BOARD
March 11,
1993
COUNTY
OF
CHRISTIAN,
Complainant,
AC
92—55
v.
)
DocketA&B
(Administrative Citation)
MAX
WAYMA.N
and CARLOTTA J.
)
(SCN 02180100002)
WAYMAN,
Respondents.
MR. DAVID H.
MARTIN APPEARED ON BEHALF OF COMPLAINANT,
MR.
MAX WAYNAN AND CARLOTTA
J.
WAYMAN
APPEARED
PRO
SE.
OPINION
AND
ORDER OF THE
BOARD
(by 3.
C. Marlin):
This matter comes before the Board on an Administrative
Citation filed on July 15,
1992 and an Amended Administrative
Citation filed on August
28,
1992 by the County of Christian
(County) pursuant to Section 31.1 of the Illinois Environmental
Protection Act
(Act)
(415 ILCS 5/31.1.).
The citations allege
that respondents, Max and Carlotta J. Wayman
(Waymans), violated
Sections 21(p)(1),
21(p)(3),
21(p)(6), and 21(p)(4)
of the Act by
causing or allowing open dumping of waste resulting in litter,
open burning, standing or flowing liquid discharge from the
disposal site,
and deposition of waste in standing or flowing
waters.
The Waymans filed a request for hearing with the Board on
August 10,
1992.
Hearing was held October
2,
1992,
in
Taylorville, Illinois.
Several members of the public attended
the hearing.
No briefs were filed.
BACKGROUND
On July 2,
1992,
Joe Stepping, Christian County Solid Waste
Inspector, conducted an investigation of the Waymans’ property
located in Bear Creek Township at the intersections of 800 East
and 1000 North.
(Tr. at
8,
16, 23.)
Stepping testified that he
verified that the Waymans were the owners of the property by
examining the deed to the property which indicated that the
property was transferred to the Waymans on April
9,
1991.
(Tr.
at 16.)
Stepping testified that the vast majority of refuse
previously observed at the site on February 5,
1992 remained at
the site on July
2,
1992.
(Tr. at 24; Exh.
10.)
The waste
consisted bf metals
(TR. at 25—26; Exh.
10—A,
10—B,
10—E,
10—F),
white goods
(Tr. at 25—26; Exh.
10-C),
an abandoned vehicle
(Tr.
at 26; Exh.
10-D),
and refuse
(Tr.
at 27; Exh.
lO—G.)
Stepping
also testified that he observed waste on the property in standing
0 L~Q-QQ97
2
or flowing water.
(Pr.
at 28.)
Stepping testified that his July
2,
1992 inspection revealed white goods located in a stream on
the Waymans’ property.
(Tr.
at 28,
32.)
An October 19,1992
inspection revealed that the refuse in the stream had been
removed.
(Pr. at 29.)
Brett A. Rahar,
Christian County Zoning Consultant,
testified that he was present on the July
2 inspection and that
he observed, white goods,
metals, household debris, automotive
parts,
and automobiles on the property.
(Tr. at 42-43.)
He also
observed such waste in the creek.
(Tr. at 44-47.)
Max Wayman testified that he inspected the property before
he purchased it and knew there was considerable debris on the
property.
(Tr. 49.)
He testified that he called the Illinois
Environmental Protection Agency and was informed that there was
nothing that was of immediate concern, there was no hazardous
waste on the property that needed to be cleaned up.
(Pr.
at 49)
Wayman determined it would take a substantial period of time to
clean up the property,
again called the Agency and was assured
that there was no problem with beginning clean up before the
property was transferred.
(Tr.
50.)
Wayman testified that he
began the clean up, but did not get any receipts from the
landfill where the waste was disposed.
(Tr.
50—51.)
There was
considerable clean up before February of 1992,
but no clean up
during February through April.
(Tr.
at 51,
56.)
Wayman
testified that he requested more time to comply with the
administrative warning notice issued March 23,
1992,
but this
letter apparently was never received by the County.
(Tr.
52-53,
63,
65.)
Wayinan testified that because a neighbor to the rear
must have access to his field, there is no way to deny access to
his property.
(Tr. at 53.)
He also testified that there has
been nothing deposited on the property since he purchased it
except a few beer bottles.
(Tr.
at 54,
60.)
Wayman testified
that he had receipts for the clean up performed since issuance of
the administrative warning notice, but he had not turned them in
to the County because the work was not yet completed.
(Tr. at
54—55.)
DISCUSSION
Because of the unusual procedural facts surrounding this
case,
the procedural history must be discussed.
The County
allegedly observed violations on February
5,
1992.
On March 23,
1992,
the County issued an administrative warning notice.
The
violations were allegedly again observed on July 2,
1992.
On
July 15,
1992, the County filed an administrative citation
(hereafter the “first citation”) with the Board alleging
violations observed on February 5,
1992.
The “first citation”
was served on the Waymans on July 7,
1992.
On August 10,
1992,
the Waymans filed a petition for review.
On
August
28,
1992, the
County filed an “Amended Administrative Citation” with the Board
0
IL~0-oog8
3
based upon violations which allegedly occurred July 2,
1992.
The
Waymans did not file a second petition for review.
Initially,
the Board addresses whether the “first citation”
was timely served as required by the Act.
Pursuant to Sections
31.1(b)
of the Act, the County had 60 days from the date of the
observed violations,
February 5,
1992, to serve the “first
citation” on the Waynians.
(415 ILCS 5/31/1(b)
(1992).)
The
Board failed to recognize this jurisdictional defect before this
matter proceeded to hearing.
Because this citation was not
served until well after the 60-day deadline, the “first citation”
was clearly not timely served and, therefore,
the Board does not
have jurisdiction over the February
5,
1992 violations alleged in
the “first citation”.
The Board must now address the effect of the “Amended
Administrative Citation”.
The County captioned the July
15,
1992
filing as an “Amended Administrative Citation”.
However, this
citation alleges different violations, which occurred July 2,
1992,
than those earlier alleged violations in the “first
citation” which occurred February 5,
1992.
Because the “amended
citation” is based upon a different date of alleged violation
than the “first citation”,
it cannot be an amendment to the
“first citation”.
The County cannot amend a citation over which
the Board never had proper jurisdiction.
The alleged violations
of July 2,
1992 should have been the subject of a separate
administrative citation.
The failure to file the “Amended
Administrative Citation” as
a separate citation is a fatal flaw
requiring that the “amended citation” also be dismissed.
Although this matter should have been dismissed prior to hearing,
the Board will not compound the error by proceeding to a decision
on the merits simply because this jurisdictional defect was not
noticed at an earlier stage in this proceeding.
For the reasons given, the Board dismisses both the
administrative citation filed July 15,
1992 alleging violations
on February 5,
1992 and the “Amended Administrative Citation”
filed on August 28,
1992 alleging violations on July 2,
1992.
Because no administrative citation has been properly filed
against the Waymans, no civil penalty can be imposed on the
Waymans.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board dismisses both the administrative citation and the
amended administrative citation filed by the County.
This matter
is dismissed and the docket is closed.
01 LiO-0099
4
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(415 ILCS
5/41
(1992)) provides for appeal of final orders of the Board
within 35 days.
The Rules of the Supreme Court of Illinois
establish filing requirements.
(But see also 35 Ill. Adm. Code
101.246, Motions for Reconsideration,
and Castenada v.
Illinois
Human Rights Commission
(1989),
132 Ill.
2d 304,
547 N.E.2d 437.)
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi~Lthatthe above opinion and order was
adopted on the
/7
L~
day of
~Y77
—c)
,
1993, by a
vote of
~,-C
Control Board
01!40-0IOO