ILLINOIS POLLUTION CONTROL BOARD
August
30, 1990
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Complainant,
V.
)
AC 90—27
IEPA No.147—90—AC
(Administrative Citation)
JOHNSON
BLACKWELL,
)
Respondent.
ORDER
OF
THE
BOARD
(by
3.
C.
Marlin):
This matter
is
before
the
Board
on
the
June
27,
1990
Motion
to Reconsider or Vacate the Default Order of May 24,
1990 filed
by the respondent,
Johnson Blackwell.
The administrative
citation against the respondent was filed by the Agency on April
9,
1990.
In support of his motion,
respondent states that after
the inspection of his property he “was lead to believe that no
action would be taken against me until after June
1,
1990,
because
I agreed to comply.”
Respondent agreed to comply at an Agency initiated “Pre-
Enforcement Conference”
(conference)
.
The letter from the Agency
establishing the date and time of the conference stated that the
Agency’s intent was to “refer this matter to the Attorney
General’s Office for the filing of a formal complaint.
Prior to
taking such action, however, you are requested to attend a Pre—
Enforcement Conference”.
This letter did not mention the
administrative citation enforcement mechanism under which this
matter was brought.
At the conference the respondent and the
Agency discussed and agreed to a compliance program for clean up
of the site by June
1,
1990.
The compliance program was detailed
in
a letter from the Agency to the respondent.
The Illinois Environmental Protection Agency
(Agency)
filed
a response to the motion to vacate on July
12,
1990.
The Agency
contends that it agreed not to file any “formal enforcement”
action but that there were no agreement concerning any
administrative enforcement action.
The respondent filed a response to the Agency’s response on
July 25,
1990.
Pursuant to the Board’s Procedural Rules,
35 Iii.
Adm.
Code
101.241(c),
a moving person shall not have the right to
reply except
if permitted to prevent material prejudice.
Th~
Board does not find that material prejudice will result and will
not consider this response in
its opinion.
I ~
According to the two pleadings before the Board, the
sequence of events leading up to the motion for reconsideration
are as follows:
March
6,
1990
Inspection by Agency personnel.
April
3,
1990
Respondent receives “Pre—Enforcement
Conference Letter” from Agency.
Letter
establishes meeting date of April
16,
1990,
states Agency’s intent to file with the
Attorney General and does not mention the
administrative citation enforcement
mechanism.
April
9,
1990
Respondent receives Administrative Citation
in mail.
April
13,
1990
Agency files Administrative Citation with
Pollution Control Board.
April
16,
1990
Respondent attends pre-enforcement
conference with Agency personnel to “discuss
the validity of the apparent violation(s)
and to arrive at a program to eliminate
existing and/or future violation(s)”.
April
17,
1990
Agency writes a letter, addressed to
respondent and stating the “terms of the
compliance program” which were “discussed
and agreed to at the conference”.
These
terms
include a final date of June
1,
1990
for clean up.
May 13, 1990
Final date for filing an appeal of the
administrative citation with the Board.
May 24,
1990
Board meeting in Chicago.
Default Order
issued against respondent.
Fine of
$1,500.00.
June
1,
1990
Agreed upon final date for clean up of site.
June 13,
1990
Reinspection of site.
June 27,
1990
Respondent files timely motion of
reconsideration with the Board.
July 12, 1990
Agency response to respondent’s motion filed
with the Board.
Section
31.1(a)
of the Environmental Protection Act
(Act)
states that violations of Section 21(p)
or 21(q)
“shall be
enforceable either by an administrative citation under this
Section or as otherwise provided by this Act.”
(emphasis added)
The Agency has several methods for handling an alleged violation:
file an administrative citation
(Section 31.1),
or seek voluntary
compliance
formally (per Section 31(d))
or informally
(through
agreement)
.
Failure to achieve voluntary compliance under the
pre—enforcement process of Section 31(d)
of the Act
is normally
followed by a formal enforcement action under Section 31(a)
of
the Act. A plain reading of the statute indicates that the
General Assembly did not intend that a citizen be charged for the
same violation under both the administrative citation provisions
and the formal enforcement provisions of the Act.
11
!~-~(~fl
The administrative citation process is designed for prompt
and efficient enforcement of a limited number of the Act’s
provisions as compared to the more lengthy and widely used formal
enforcement process provided by the Act.
The Board has found in
previous cases that the expeditious nature of the administrative
enforcement process is greatly slowed by the simultaneous use of
different methods for handling an alleged violation.
This
simultaneous use causes confusion with citizens unfamiliar with
the Act and its enforcement mechanisms.
IEPA v.
Adolph La, AC
89—191,
December 6,
1989;
IEPA v. Gary W. Jacobs,
AC 89—237,
December
6,
1989; IEPA v. James Lauranzana, AC 89-202,
December
20,
1989.
The citizen respondents
in those cases believed that
the clean up agreements with the Agency removed the threat of an
enforcement action and relieved them of the duty to respond to
the administrative citation.
Simultaneous use also affects the efficiency of the
administrative citation enforcement when the Agency files with
the Board and then is prompted to move to dismiss because
informal pre—enforcentent action has resulted in clean up of the
site.
IEPA v. Kissner Company, AC 89-247,
February
8,
1990; IEPA
v.
City of Freeport, AC 89-153, January 11,
1990; IEPA v. John
Buns,
Jr.,
AC 89—147,
November 2,
1989;
IEPA v. Raymond Tanqman,
AC 89—210, November
2,
1989.
In this matter, the April
3,
1990 letter from the Agency
expressly stated the Agency’s intention to file a formal
complaint with the Attorney General and includes a statement that
the letter constitutes the notice required under Section 31(d)
of
the Act for filing a formal complaint.
The same letter also
begins an informal pre-enforcement action.
On April
9,
1990 the
Agency filed with the Board and served upon the respondent the
administrative citation for the same violations referred to in
the April
3,
1990 letter.
The Board finds that in light of the
Agency’s stated intention and notification to the respondent to
pursue formal enforcement, the administrative citation in this
matter was issued improperly.
The Default Order of May 24,
1990
is vacated and this matter is dismissed.
IT IS SO ORDERED.
Board members
3.
Theodore Meyer and B. Forcade dissented.
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify t~atthe above Order was adopted on the
5o’~
day of
_______________,
1990, by a vote of
(7
Dorothy
M.
Gt)z~n, Clerk
Illinois Pollution Control Board
114—391