ILLINOIS POLLUTION CONTROL BOARD
August 24,
1995
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
AC 96—2
V.
)
(IEPA No.
405—95—AC)
(Administrative Citation)
WILLIAM E.
HANNA,
)
Respondent.
Order of the Board
(by J. Yi):
On June 28,
1995 the Illinois Environmental Protection
Agency
(Agency)
filed an administrative citation pursuant to
Section 31.1 of the Act.
(415 ILCS 5/31.1
(1994).)
The
administrative citation alleges that Mr. William Hanna violated
Section 21(o) (1)
of the Act by causing or allowing the occurrence
of litter at an open dump on his property located in Carroll
County,
Illinois.
(415
ILCS 5/2l(o)(l)
(1994).)
The Clerk of
the Board received a letter from Mr. Hanna on July 20,
1995.
On
August
2,
1995 the Agency filed a motion to dismiss this matter
pursuant to Section 31.1 of the Act and 35 Ill. Adm. Code 101.103
and 101.243.
In support of its motion to dismiss the Agency states that
Mr.
Hanna was served with the administrative citation on July
3,
1995.
Furthermore the Agency states that pursuant to Section
31.1(d) (1)
if the respondent, Mr.
Hanna,
fails to petition the
Board for review within 35 days from the date of service, the
Board shall adopt a final order,
finding a violation and impose
the civil penalty as set forth in Section 42(b)(4) of the Act.
(415 ILCS 5/42(b)(4)
(1994).)
The Agency argues that the letter
from Mr. Hanna,
filed on July 20,
1995, does not properly
characterize itself as a petition for review and fails to meet
the requirements of Section 31.1(d) (1)
of the Act and 35 Ill.
Adm. Code 101.103(a).
The Agency concludes that Mr. Hanna has
failed to petition for review within 35 days of service of the
administrative citation.
Therefore the Agency moves the Board to
dismiss the above captioned matter based on Mr. Hanna’s failure
to file a petition for review which conforms with Section
31.1(d) (1)
of the Act.
The Board will construe the Agency’s
request to be a request for the Board to enter a default order
against Mr.
Hanna.
Mr. Hanna had seven
(7) days from service of the motion to
respond to the motion to dismiss pursuant to 35 Ill. Adm Code
101.241.
On August 11,
1995,
Mr. Hanna filed a response to the
Agency’s motion to dismiss.
In the response Mr. Hanna explains
2
that he did not know the proper procedure because he did not
receive the material explaining the proper procedure until he
received the motion to dismiss.
Mr. Manna also states in his
response that he did respond in writing explaining the efforts
that were done to come in compliance.
Although not captioned pursuant to 35 Ill.
Adm. Code
101.103(a), the letter filed July 20,
1995 does contain all the
necessary information.
In addition Mr. Manna’s letter starts out
by stating “I am complying in writing regarding the violations
that have been brought against me from the Environmental
Protection Agency.”
The Board will construe this statement to be
that Mr. Manna is complying in writing with the requirements of
Section 31.1 of the Act and is seeking review of the
administrative citation.
The Board has construed letters such as
this as petitions for review.
(See Montc~omeryCounty v. Rita
Hefley,
(October 21,
1993), AC 93-45 and Illinois Environmental
Protection Agency v. Gary W. Jacobs,
(December 6,
1989), AC 89-
237.)
Therefore the Board denies the Agency’s motion.
The Board
will allow Mr. Manna to either pursue this matter at hearing or
withdraw the petition for review.
In this type of proceeding before the Board, the respondent
has the burden to establish at a formal hearing,
by oral
testimony under oath or by properly submitted written documents,
that the violation did not occur or was the result of
uncontrollable circumstances, under the terms of the Act
(415
ILCS 5/1 et.
seq.
(1994)), and applicable regulations.
The Board
hearing is not an informal informational hearing at which the
Agency will explain its actions.
The hearing is more in the
nature of a court proceeding with testimony under oath and
questions of the witnesses.
This Board cannot provide legal
advice or legal assistance to the respondent.
The initial burden at hearing to explain why the violation
should be upheld is upon the Agency pursuant to Section 31.1
(d)(2)
of the Act.
(415 ILCS 5/31.1(d)(2)
(1994).)
At hearing,
the Agency will provide testimony in support of the alleged
violation detailed in the administrative citation.
For the Board
to uphold the administrative citation, the Agency must show that
the alleged facts represent a violation of the provisions
of the
Act
*
In order for the Board to dismiss the administrative
citation, the respondent
(William Manna) must present facts and
arguments to show that the facts alleged in the administrative
citation are inaccurate or that the allegations do not constitute
a violation of the provisions of the Act or that the violation
resulted from uncontrollable circumstances.
A representation
that compliance has been achieved
(i.e., removal of litter)
subsequent to the issuance of the administrative citation is not
a defense to a finding of violation.
(415 ILCS 5/33
(1992).)
The
3
respondent bears the burden of providing information in an
acceptable form to support its position.
To avoid any confusion about what could happen in this case,
the Board wishes to make it clear that if a petition for review
is allowed to be filed,
Sections 31.1 and 42(b)(4)
of the Act
provide for only two outcomes:
1.
The Board can find that there was no violation of
Section 21(p) or
(q), or that the violation resulted from
uncontrolled circumstances.
Then,
the person filing the
petition pays nothing.
2.
If the Board finds that a violation did occur,
and that
there were no uncontrollable circumstances, the person
filing the petition pays the fine, plus hearing costs which
may accrue in an dollar amount as much as the civil penalty.
If respondent, Mr. Hanna,
does not wish to proceed with this
matter he may file a motion to dismiss
(reference Sections
101.241 and 101.242 of the Board’s rules and regulations for
filing procedures.)
If a motion to dismiss is not received by
the Board by October
13,
1995,
this matter will be set for
hearing.
IT IS SO ORDERED.
Board Member
J. Theodore Meyer dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby cert~ythat the above order was adopted on the
~ç/~’
day of
__________________,
1995, by a vote of
~—/
of
Dorothy M.
G~tin, Clerk
Illinois Pd~1utionControl Board