ILLINOIS POLLUTION CONTROL BOARD

March

9, 1989

IN THE MATTER OF:

)

JOHN

R.

VANDER,

)

AC 88-99

Respondent.

ORDER OF THE BOARD

(by J.

Theodore Meyer):

On February 14, 1989,

the Illinois Environmental Protection

Agency (Agency)

filed

a Motion

to Amend

Citation and Board Order

of January

5,

1989.

John

R.

Vander did not

file

a response to

the motion.

The Board

received

a copy of the administrative citation

issued

to Vander

on November 21,

1988.

No petition

for review of

that citation was ever

filed by Vander.

Section

31.1(d) (1)

states:

If

the person named

in the

administrative citation

fails

to

petition the Board

for review within

35 days from the date of service,

the Board

shall

adopt

a final order,

which shall iñ~ludethe

administriEive citation

and findi~~

of violations as alleged

in the

citation and shall

impose the

p~nal~1specified

in subdivision

(b)(4)

of Section

42.

(emphasis added)

Ill.

Rev. Stat.

1987,

ch.

1111/2,

par.

1031.1.

In accordance with this Section,

the Board

issued

an order

on January

5,

1989

finding Vander

in violation of Sections

21(q)(1),

21(q)(2),

21(q)(3),

21(q)(4),

21(q)(5) and

2l(q)(6)

as

alleged

in

the Agency’s citation.

As required by the Act the

order

also set forth

a $3000.00 civil penalty.

The Agency’s

motion admits that all statutory time periods had lapsed

and

that

the Board correctly ‘issued

the default order.

In

its

motion,

the Agency states that as

a result of

discussion

between

the

Agency

and

Vander,

Vander

has

“commenced

a

clean—up program, future plan of corrective action and

is

considering

the feasibility of applying

to the Agency for

a

permit

to conduct a waste

transfer station.”

The Agency requests

97—143

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—2—

that “in furtherance of continued good faith

interaction to

resolve

the environmental concerns of the parties,”

the Board

strike

three of the counts of violation from the citation which

was issued

to Vander:

Sections 2l(q)(4),

21(q)(5)

and

21(q)(6).

Correspondingly,

the Agency asks

that the Board’s

January

5, 1989 order be amended concerning

finding of violation

and that the penalty be reduced from $3000.00

to $1500.00.

The words of

Section

31.1 are unambiguous.

If

a petition

for review

is not filed within 35 days of

service of

the

citation,

the Board must issue anorder

with

a finding of the

violation as alleged by the citation and

the imposition of

penalties as mandated by the Act.

In issuing such an order

the

Board does not substantively review the allegations of

the

Agency.

The Board views administrative citations as being analogous

to

a

traffic ticket.

The Agency or

unit of local government may

only issue citations based

on violations observed by an

inspector.

If

a petition

for review is filed,

the Board may then

review the Agency’s findings purusant

to

a hearing.

Specifically,

the Board must determine whether

the violation

occurred;

the

Agency

has

burden

of

proof

for

that

showing.

If

the

person

who

receives

the

citation

proves

that

the

violation

“resulted from uncontrollable circumstances”,

the Board must

issue an order which “makes no

finding

of violation

and imposes

no penalty”, pursuant to Section 31.1(d)

of the Act.

Ill.

Rev.

Stat.

1987,

ch.

1111/2,

par.

1031.1(d).

Alternatively,

if the citation recipient does not contest

the citation,

that person must pay the penalty prescribed by the

citation,

just

as one must pay an uncontested traffic ticket.

In

such

a

situation,

the

issues

of

whether

the

violations

occurred

or

whether

they

were

uncontrollable

are

not

substantively

explored.

Like

an uncontested

traffic ticket,

a promise of

future

good

behavior

is

irrelevant

to

the

legal

obligation

to

pay

the

penalty

prescribed

by

an

uncontested

citation.

Even

in

the

context of a contested violation,

post—citation activities

of

the

citation recipient are not material

to the Board’s review

pursuant

to Section 3l.l(d)(2)

of

the Act.

The Board understands that the Agency

is attempting

to

utilize

the

administrative

citation

process

as

a

negotiating

tool

to provide

an

incentive

for people

to comply with the

Act.

The

goal

of that activity

—

compliance with the Act

—

is admirable;

however,

the means by which

the Agency is seeking

to achieve

that

goal,

as

evidenced

by

the

Agency’s

instant

motion,

are

inconsistent

with

th’e

intent

behind

the

administrative

citation

process.

The

administrative

citation

procedure

is

not

structured

to

encourage

the

needless

expenditure

of

state

resources.

Under

the

statutory

scheme,

the

issuance

of

an

order

concerning

an

uncontested

administrative

citation

is

automatic.

The

Board

does

97—144

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—3—

not need

to expend its resources substantively reviewing

the

citation.

Similarly,

once

a citation

is issued by the Agency,

the Agency need not become further involved with that particular

citation unless the citation

is contested.

The administrative

citation process was designed

as providing

a fast and effective

means of enforcing of the Act at

a minimal cost to the state.

This view is further bolstered by the

fact that

a citation

recipient must pay hearing costs if that person unsucessfully

contests

a citation.

No other enforcement mechanism under

the

Act contains such

a provision.

Reconsidering a Board order which

was issued automatically under Section 31.1(d) (1)

for reasons

such as those stated by the Agency

in

its February 14th motion

is

not an efficient method of

implementing

the administrative

citation

system.1

Additionally, the administrative citation process

is

structured

to provide

an inherent

incentive

to people

to comply

with

the

Act,

without

the

need

for

the

Agency

to

negotiate

away

counts of previously issued citations.

It

is obvious

that

the

Agency has a certain degree of prosecutorial discretion when

it

issues

a citation.

It

is equally clear

that

if the recipient of

an administrative citation does not correct an on—going

violation,

the Agency can issue subsequent citations

to

that

person.

In

theory,

the

threat

of

swift

and

additional

penalties

prescribed

by

subsequent

citations

should

provide

sufficient

incentive

for

compliance.

As

a

result,

the

counts

and

penalties

of

past

citations

need

not

be

modified

to

prompt

future

compliance.

If

a

citation

recipient

violated

the

Act

as

alleged

in

a properly issued citation,

that person should pay the

appropriate civil penalty as mandated

by the Act.

The Board does

not believe

that

the State

should retreat

from that simple

proposition.

In

conclusion,

the

Board

finds

that

it

is

neither

proper

nor

consistent with the intent of the administrative citation process

to

grant

the

Agency’s

motion.

As

a

result,

the

motion

is

denied.

IT

IS SO ORDERED.

1 Of course

if the Agency improperly issued

a citation such

that the person complained

of has not had the opportunity

to

contest

the citation

to extent allowed

by the Act,

an Agency

motion

seeking the modification

of

a Section 31.l(d)(l)

order

might be warranted.

However,

that

is not the situation at hand.

97—145

---

—4—

R.

Flemal dissented

I, Dorothy M Gunn, Clerk of the Illinois Pollution Control

Board, hereby

~9~Z

certify that the above

day of

Order was adopted on the

1989,

by

a vote of

Dorothy

M.

~n,

Clerk,

Illinois

PoYlution

Control

Board

97—146