ILLINOIS POLLUTION CONTROL BOARD
February 21, 2002
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
TERRY and LITISHA SPRINGER,
Respondents.
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AC 02-7
(IEPA No. 390-01-AC)
(Administrative Citation)
ORDER OF THE BOARD (by N.J. Melas):
On September 4, 2001, the Illinois Environmental Protection Agency (Agency) timely
filed an administrative citation against Terry and Litisha Springer (Springers).
See
415 ILCS
5/31.1(c) (2000); 35 Ill. Adm. Code 108.202(c). The Agency alleged that the Springers violated
Section 21(p)(1) of the Environmental Protection Act (Act) (415 ILCS 5/21(p)(1) (2000)). The
Agency further alleged that the Springers violated this provision by causing or allowing open
dumping at a facility in Godfrey, Jersey County.
PROCEDURAL HISTORY
The Springers timely filed a petition on October 11, 2001 which was postmarked October
9, 2001. On October 18, 2001, the Board issued an order in which it found that the Springers’
petition failed to meet several of the requirements of Parts 101 and 108 of the Board’s procedural
regulations. 35 Ill. Adm. Code 101, 108. Specifically, the Springers failed to include a notice of
filing and certificate of service in their petition. The Springers also failed to sign their petition.
The Board gave the Springers until November 22, 2001 to file an amended petition correcting
these deficiencies. The Board held that it would issue a default order if the Springers failed to
file a timely amended petition.
The Springers failed to file an amended petition by the deadline. On December 6, 2001
the Board issued a default order finding the Springers in violation of Section 21(p)(1) of the Act
and assessing a $1,500 fine.
See
415 ILCS 5/42(b)(4-5) (2000); 35 Ill. Adm. Code 108.500(a).
On January 8, 2002, the Springers’ attorney filed an appearance, a motion to vacate
default judgement, motion for reconsideration, and motion to dismiss (mot.) On January
24, 2002, the Agency’s attorney filed an appearance and complainant’s response to respondents’
motion to vacate default judgment, motion for reconsideration, and motion to dismiss (resp.). On
February 7, 2002, the Springers filed a motion for leave to file affidavit and respondents’ reply to
claimant’s (sic) response to motion to vacate, motion for reconsideration, and motion to dismiss
(reply).
2
MOTION TO DISMISS/SERVICE OF THE COMPLAINT
The Agency is required to serve an administrative citation within “60 days after the date
of the observed violation.” 415 ILCS 5/31.1(b) (2000);
see also
35 Ill. Adm. Code 108.202(b).
The Springers dispute the Board’s finding in its December 6, 2001 order that the Agency
timely served the Springers with the administrative citation
.
The Agency admits that, at the
latest, it served the administrative citation on the Springers on September 4, 2001. Resp. at 2.
September 4, 2001 was 61 days after the Agency inspection on July 5, 2001. The Springers cite
Section 31.1 of the Act which states that the Agency must serve the administrative citation
“within not more than 60 days after the date of the observed violation”.
However, the Agency points out that the Board’s regulations at 35 Ill. Adm. Code
101.300(a) allow deadlines to be extended to the next business day if the deadline falls on a
weekend or holiday. Resp. at 4. The Springers claim that the Board regulation at 35 Ill. Adm.
Code 101.300(a) allowing exceptions to the 60-day rule is inconsistent with the Act. The
Springers ask that that the administrative citation be dismissed because the Agency served it on
the Springers 61 days after the inspection. Mot. at 2-3; Reply at 2.
The Agency argues that September 3, 2001 (60 days after July 5, 2001) was Labor Day, a
legal holiday. The Agency states that Section 101.300(a) of the Board’s regulations extended the
deadline for service to September 4, 2001 and that the Springers’ motion to dismiss should
therefore be denied. The Agency also cites a similar provision to Section 101.300(a) at 5 ILCS
70/1.11 (2000). Resp. at 4.
The Springers also claim that the administrative citation could not have been served on
September 4, 2001 because it was served on their child and their child would have been in school
that day. They also allege that an Agency inspector hand delivered the administrative citation to
Terry Springer at least a week after September 4, 2001 but provide no oath or affidavit to back
up this allegation. The Springers request that the Agency provide the proof of service to
determine the exact date of service. Mot. at 3-4; Reply at 2.
On October 15, 2001, the Agency sent the Board a copy of the proof of service by mail
and an affidavit to the Board in October 2001. Resp. at 3. The copy of the proof of service by
mail was dated September 1, 2001 and was signed by Sarah Springer. The Agency also
submitted an affidavit from Agency field inspector Charlie King in which he stated that he
personally hand-delivered a copy of the administrative citation to Terry Springer on September
4, 2001.
Even assuming that the Springers were served on September 4, 2001 as opposed to
September 1, 2001, the Board finds that service of the administrative citation on the Springers
was timely. Section 101.300(a) of the Board’s procedural regulations clearly extends the service
deadline to September 4, 2001 given that September 3, 2001 was a holiday. The Board therefore
denies the Springers’ motion to dismiss.
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MOTION FOR RECONSIDERATION/MOTION TO VACATE DEFAULT
JUDGEMENT
The Springers also claim that they never received the October 18, 2001 Board order
directing the Springers to file an amended administrative citation. The Springers did receive the
Board’s December 6, 2001 default judgment. Mot. at 2.
The Board sent the October 18, 2001 order to the Springers via first class U.S. Mail. The
Board has no record of the October 18, 2001 order being returned.
The Springers request that the Board reconsider and vacate the December 6, 2001 default
judgment. The Springers also request that the Board dismiss the administrative citation or, in the
alternative set the matter for hearing. Mot. at 2; Reply at 2.
The Agency claims that the Springers’ motion for reconsideration does not cite newly-
discovered evidence, changes in the law, or any Board error in application of existing law.
See
35 Ill. Adm. Code 101.902; Citizens Against Regional Landfill v. County Board of Whiteside
(PCB 92-156), March 11, 1993, slip op. at 2. The Agency also states that facts which the
Springers are attempting to introduce are not supported by oath, affidavit, or certification as
required by the Board’s procedural regulations at 35 Ill. Adm. Code 101.504. As a result, the
Agency claims that the Board should deny the motion for reconsideration. Resp. at 3-4. The
Springers subsequently filed an affidavit in which they asserted that they never received the
Board’s October 18, 2001 order.
The Board grants the Springers’ motion for leave to file the affidavit. In the interest of
fairness to the Springers, the Board grants the Springers’ motion for reconsideration. The Board
vacates its default judgement and sets the matter for hearing.
DUMPING ON THE PROPERTY
The Springers claim that they had cleaned up their property prior to being served with the
administrative citation and also denied that they were responsible for the dumping on their
property. They claim that they should be allowed to present this defense. Mot. at 2. The Board
agrees. This argument relates to an issue of fact and should be made at hearing.
ORDER
The Board denies the Springers’ motion to dismiss the administrative citation. However,
the Board grants the Springers’ motion for reconsideration and vacates the December 6, 2001
default judgement.
The Board sets this matter 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) (2000). By
contesting the administrative citation, the Springers may have to pay the hearing costs of the
4
Board and the Agency.
See
415 ILCS 5/42(b)(4-5) (2000); 35 Ill. Adm. Code 108.500. A
schedule of the Board’s hearing costs is available at the Board’s offices.
The Springers may withdraw its petition to contest the administrative citation at any time
before the Board enters its final decision. If the Springers choose to withdraw its petition, they
must do so in writing, unless they do so orally at hearing.
See
35 Ill. Adm. Code 108.208. If the
Springers withdraw their petition after the hearing starts, the Board will require the Springers 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) (2000); 35 Ill.
Adm. Code 108.400. If the Board finds that the Springers violated Section 21(p)(1) of the Act,
the Board will impose civil penalties on the Springers. The civil penalty for violating Section
21(p)(1) is $1,500 for a first offense and $3,000 for a second or subsequent offense. 415 ILCS
5/42(b)(4-5) (2000); 35 Ill. Adm. Code 108.500. However, if the Board finds that the Springers
have “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) (2000);
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 February 21, 2002, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
