ILLINOIS POLLUTION CONTROL BOARD
March 4, 2004
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
HERBERT LUST d/b/a BEMENT
PLUMBING SUPPLY COMPANY and
FRANCIS ANN LUST,
Respondents.
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AC 04-45
(IEPA No. 34-04-AC)
(Administrative Citation)
ORDER OF THE BOARD (by J.P. Novak):
On January 30, 2004, the Illinois Environmental Protection Agency (Agency) timely filed
an administrative citation against Herbert Lust and Francis Ann Lust (Lusts).
See
415 ILCS
5/31.1(c) (2002); 35 Ill. Adm. Code 108.202(c). The Agency alleges that the Lusts violated
Section 21(p)(1) and (p)(3) of the Environmental Protection Act (415 ILCS 5/21(p)(1) and (p)(3)
(2002)). The Agency further alleges that the Lusts violated these provisions by causing or
allowing the open dumping of waste in a manner that resulted in (1) litter, and (2) open burning
at 200 W. Franklin Street, Bement, Piatt County.
As required, the Agency served the administrative citation on the Lusts 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 February 27, 2004, Herbert Lust timely filed a petition to contest the
administrative citation.
See
415 ILCS 5/31.1(d) (2002); 35 Ill. Adm. Code 108.204(b). Because
the postmark date of the petition is within the time for filing, the petition was timely filed. 35 Ill.
Adm. Code 101.300(b)(2). Herbert Lust alleges that the property was not fenced, he was not
present at the property to prevent any trespassers from depositing waste on the property, and he
obtained the prior approval of the Agency, the local fire chief, and the Mayor before burning cut
tree waste on 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, the
Lusts 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.
Herbert Lust may withdraw his petition to contest the administrative citation at any time
before the Board enters its final decision. If Herbert Lust chooses to withdraw his petition, he
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must do so in writing, unless he does so orally at hearing.
See
35 Ill. Adm. Code 108.208. If
Herbert Lust withdraws his petition after the hearing starts, the Board will require Herbert Lust
to pay the hearing costs of the Board and the Agency.
See id.
at 108.500(c).
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 the Lusts violated Section 21(p)(1) and (p)(3), the
Board will impose civil penalties on the Lusts. The civil penalty for violating 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 the Lusts “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 March 4, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
