ILLINOIS POLLUTION CONTROL BOARD
    August 9, 2001
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
     
    Complainant,
     
     
    v.
     
    LEROY P. DAVID,
     
     
    Respondent.
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    AC 01-22
    (IEPA No. 547-00-AC)
    (Enforcement – Air)
     
    OPINION AND ORDER OF THE BOARD (by S.T. Lawton):
     
    On December 21, 2000, the Illinois Environmental Protection Agency (Agency) filed
    with the Board an administrative citation against respondent, Leroy David, pursuant to Section
    31.1 of the Environmental Protection Act (Act). See 415 ILCS 5/31.1 (2000). The Agency filed
    the administrative violation in response to an inspection conducted by Agency inspector Ron
    Mehalic at the facility owned and operated by David at 1713 North Oesterle Avenue, Norwood,
    Peoria County, Illinois. The Agency alleges that David violated Sections 21(p)(1) and (4) of the
    Act by causing or allowing open dumping at his facility on October 24, 2000, in a manner
    resulting in litter and waste deposited in standing or flowing waters. David filed a petition for
    review with the Board on January 16, 2001. The Board accepted this matter for hearing on
    February 1, 2001.
     
    On July 27, 2001, the Agency and David filed a Joint Stipulation and Settlement and
    Dismissal of Respondent’s Petition for Administrative Review. In the stipulation and proposed
    settlement, David admits that he caused or allowed open dumping resulting in litter, in violation
    of Section 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2000)). David agrees to pay a $1,500
    penalty and moves to dismiss the petition for review. The Board grants the stipulation and
    dismisses David’s petition for review.
     
     
    In consideration of David’s admission of litter and agreement to pay the penalty, the
    Agency dismisses the alleged violation of open dumping resulting in waste deposited in standing
    or flowing waters under Section 21(p)(4) of the Act. See 415 ILCS 5/21(p)(4) (2000). The
    parties also stipulate to the fact that David “has removed and properly disposed of the waste
    located at the site that was the subject of this administrative citation” in the conditions section of
    the proposed settlement. Stip. at 2.
    1
    David must cease and desist from further violations of the
    Act and the Board’s regulations. Both the Agency and David agree that, contingent upon the
    1
    The parties filed a joint stipulation and proposed settlement with the Board on July 27, 2001,
    which will be referred to as “Stip. at ___.”
     
    2
    acceptance and adoption of the terms and conditions of the stipulation, David’s petition for
    review will be dismissed.
     
    Section 31.1(d) of the Act (415 ILCS 5/31.1(d) (2000)) authorizes the Board to impose a
    civil penalty for a violation of the Act as alleged in an administrative citation. However, Section
    31.1(d) of the Act limits the relief that the Board can order in this type of action. The
    compliance conditions as outlined by the parties in the joint stipulation are not within the
    Board’s authority. See IEPA v. Gordon (January 18, 2001), AC 01-12, slip op. at 2.
     
    The Board therefore includes the part of the stipulation and settlement agreement that
    finds a violation of Section 21(p)(1) of the Act and imposes a $1,500 penalty in accordance with
    Section 42(b)(4-5) of the Act. 415 ILCS 5/42(b)(4-5) (2000). The Board does not include
    additional terms of the stipulation and settlement in the order below. Specifically, the Board
    does not include the statement that David has cleaned up the site. See Stip. at 2. The Board also
    excludes the condition in the joint stipulation that states “[t]he [Agency] agrees not to refer the
    violations that are the subject of this administrative citation to the Office of the Illinois Attorney
    General or any other prosecuting authority for the initiation of a criminal or civil enforcement
    action.” Stip. at 2. This agreement may be enforceable as a matter of contract law or be alleged
    as aggravating factors in any future enforcement action brought pursuant to Section 31 of the
    Act. See 415 ILCS 5/31 (2000). The Board notes that this settlement agreement in no way
    affects the respondent’s ability to comply with any federal, state, or local regulations, including
    the Act and Board’s regulations.
     
     
    This opinion constitutes the Board’s findings of fact and conclusions of law in this
    matter.
     
    ORDER
     
    1.
    The Board hereby accepts the stipulation and settlement agreement in part as
    executed by the Illinois Environmental Protection Agency (Agency) and Leroy
    David. The Board finds that David caused or allowed open dumping resulting in
    litter in violation of Section 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2000)).
    David caused this violation at a site that he owned and operated at 1713 North
    Oesterle Avenue, in Norwood, Peoria County, Illinois. The stipulation and
    settlement agreement is incorporated by reference as though fully set forth as
    modified herein.
     
    2.
    It is hereby ordered that David must, by certified check or money order, pay a
    penalty in the amount of $1,500, by no later than September 1, 2001. The
    certified check or money order must be payable to the Treasurer of the State of
    Illinois, designated to the Environmental Protection Trust Fund, and must be sent
    by first class mail to:
     
    Illinois Environmental Protection Agency
    Fiscal Services Division
    1021 North Grand Avenue East
     
    3
    P.O. Box 19276
    Springfield, Illinois 62794-9276
     
    A copy of the payment transmittal and check or money order must be
    simultaneously submitted to:
     
    Christopher Grant
    Assistant Attorney General
    Illinois Attorney General’s Office
    Environmental Bureau
    180 W. Randolph Street, 20th Floor
    Chicago, Illinois 60601
     
    3.
    The certified check or money order must clearly indicate on its face the case
    number, case name, the federal employer identification number, and that payment
    is directed to the Environmental Protection Trust Fund.
     
    4.
    Any such penalty not paid within the time prescribed shall incur interest at the
    rate set forth in subsection (a) of Section 1003 of the Illinois Income Tax Act, (35
    ILCS 5/1003 (2000)), as now or hereafter amended, from the date payment is due
    until the date payment is received. Interest shall not accrue during the pendency
    of an appeal during which payment of the penalty has been stayed.
     
    5.
    David shall cease and desist all future violations of any federal, State, or local
    statutes and regulations.
     
    6.
    The Board dismisses David’s petition for review.
     
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act (415 ILCS 5/41 (2000)) provides for the
    appeal of final Board orders to the Illinois Appellate Court within 35 days of the date of service
    of this order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill.
    2d R. 335; see also 35 Ill. Adm. Code 101.520, Motions for Reconsideration.
     
    4
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the
    above opinion and order was adopted on the 9th day of August 2001 by a vote of 6-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     
     

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