ILLINOIS POLLUTION CONTROL BOARD
    November 15, 2001
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
    Complainant,
     
    v.
     
    NORDEAN and SUSAN SIMON d/b/a
    BERMAN’S AUTO PARTS,
     
    Respondents.
     
      
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    AC 02-2
    (IEPA No. 292-01-AC)
    (Administrative Citation)
    ORDER OF THE BOARD (by C.A. Manning):
    On September 24, 2001, the Illinois Environmental Protection Agency (Agency) filed a
    motion to strike affirmative defenses. On October 9, 2001, respondents filed a response. For the
    reasons below, the Board denies the motion to strike.
    BACKGROUND
     
    Nordean and Susan Simon d/b/a Berman’s Auto Parts (respondents) own and operate a
    site in Belvidere, Boone County at which used or waste tires were allegedly disposed. On July
    16, 2001, the Agency filed this administrative citation alleging that respondents violated Section
    21(p)(1) of the Environmental Protection Act (Act) by causing or allowing open dumping of
    waste in a manner that results in litter (415 ILCS 5/21(p)(1) (2000)).
     
    On August 17, 2001, respondents filed a petition for review of the administrative citation
    pursuant to Section 31.1 of the Act (415 ILCS 5/31.1 (2000)). In the petition for review,
    respondents raised several defenses. Among other things, respondents assert that the Agency
    accepted an action plan pursuant to Section 55.3(d) of Act.
    See
    415 ILCS 5/55.3(d) (2000).
    Respondents argue that they were implementing the action plan in good faith and the Agency
    should be barred from seeking further civil remedies.
     
    On September 24, 2001, the Agency filed a motion to strike affirmative defenses. The
    Agency’s motion primarily argued that its authority to issue notice and take remedial action
    pursuant to Section 55.3 of the Act is not related to its authority to issue and pursue
    administrative citations under Section 31.1 of the Act.
    See generally
    415 ILCS 5/31.1, 55.3
    (2000). Furthermore, the Agency contends, an action plan is not one of the specifically
    enumerated defenses to an administrative citation set forth in Section 108.206 of the Board’s
    procedural rules, and is not relevant to the administrative citation proceeding.
    See
    35 Ill. Adm.
    Code 108.206.
     
     
    2
    On October 9, 2001, respondents filed a response to the motion to strike. Respondents
    assert that the Agency has not presented any citation or case law to support the premise that an
    action plan executed under Section 55.3 of the Act is not relevant to an administrative citation
    proceeding. Furthermore, respondents claim, having accepted the petition for review, the Board
    should allow respondents to address this issue at hearing.
     
    DISCUSSION
     
    The Board denies the Agency’s motion to strike respondents’ defense that compliance
    with Section 55.3 of the Act precludes the Agency from pursuing additional penalties. The
    Agency has not demonstrated sufficient reason to persuade the Board to prohibit respondents
    from asserting this argument at hearing. The Agency may present further argument or evidence
    at hearing, and in post-hearing briefs, that compliance with Section 55.3 of the Act is irrelevant
    to the alleged violation under Section 21(p) of the Act. The Board will consider these arguments
    when making its final decision in this matter.
     
    IT IS SO ORDERED.
     
    Board Member E.Z. Kezelis dissented.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on November 15, 2001, by a vote of 6-1.
     
     
     
      
      
      
      
      
      
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     
     

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