ILLINOIS POLLUTION CONTROL BOARD
October 20,
1994
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
)
AC 94—42
)
(IEPA No.
352—94-AC)
(Administrative Citation)
WAYNE D. ALBERTS
AND
)
SHARON ALBERTS,
)
)
Respondents.
ORDER OF THE BOARD
(by M.
McFawn):
This matter is before the Board on an administrative
citation (AC) filed by the Illinois Environmental Protection
Agency
(Agency) pursuant Section 31.1 of the Environmental
Protection Act
(Act).
(415 ILCS 5/31.1
(1992)).
The citation
was filed with the Board on June 29,
1994.
Service of the
administrative citation was made upon the respondents Wayne
Alberts and Sharon Alberts on June 28,
1994.
Having not received
a petition for review within the 35 days from the date of service
pursuant to Section 31.1(d) (1)
of the Act (415 ILCS 55/31.1(d) (1)
(1992)), the Board entered a default order against respondents on
August 11,
1994.
On September 6,
1994,
the respondents filed a “Motion to
Vacate Order” and requested the Board to reconsider.
Respondents
state that repeated efforts to contact the Agency attorney who
prepared the administrative citation were made within the 35 days
allowed for “some response or review.”
Those attempts however
failed and the respondents were only subsequently advised that
the attorney had been on vacation.
Respondents also state that
they did not cause open dumping of any waste in any manner.
Finally, respondents assert that the Board’s default order
recites different violations than those alleged by the Agency in
the administrative citation.
The Agency,
also on September
6,
1994,
filed a “Response to
the Motion to Vacate Order” and a “Motion for Correction of
Order.”
The Agency states that the respondents did not file a
petition for review within the statutory period and that any
relief being sought should be based upon the provisions found at
35 Ill.
Adm. Code .103.240 and 103.241.
Furthermore, the Agency
concludes that respondents’ motion does not state any reasonable
grounds to vacate the Board’s August 11,
1994 order.
In addition to the response, the Agency also filed a motion
2
to correct the Board’s order pursuant to 35
Ill. Adm Code
103.240.
The Agency moves the Board to correct the August
11,
1994 order to reflect the proper alleged violations of the Act.
The Board’s order states that the Agency alleged that the
respondents violated Section 21(o) (1)
and
(3)
of the Act.
However, the Agency alleged that the respondents violated Section
21(p) (1)
and
(3) of the Act.
The Agency states that pursuant to
35 Ill. Adm. Code 103.241(a)
the Board may correct clerical
mistakes in orders of its own initiative or on the motion of any
party.
Section 31.1 of the Act describes the process and the
Agency’s,
local unit of government’s,
and Board’s authority
and/or role in the administrative citation process.
Section
31.1(b)
sets forth the Agency’s and unit of local government’s
authority and procedures to issue an administrative citation.
If
a person is properly issued an administrative citation Section
31.1(d) (1)
states that:
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 include the administrative citation
and findings of violation as alleged in the citation,
and shall impose the penalty specified in subdivision
(b)(4)
of Section 42.
The administrative citation issued to the respondents states the
following on page 4:
PROCEDURE FOR CONTESTING THIS
ADMINISTRATIVE CITATION
You have the right to contest this Administrative
Citation.
~
415 ILCS 5/31.1,
1992;
Ill. Rev.
Stat.
ch.
111 1/2, para.
1031.1.
If you elect to contest
this Administrative Citation, you must file a Petition
for Review with the Clerk of the Illinois Pollution
Control Board.
A copy of the Petition for Review
should be filed with the Illinois Environmental
Protection Agency.
Such Petition for Review must be
filed within thirty-five
(35) days of the date of
service of this Administrative Citation, or a default
judgment shall be entered by the Pollution Control
Board.
The Petition for Review may be filed with the
Clerk of the Illinois Pollution Control Board at the
State of Illinois Center,
100 West Randolph, Suite 11—
500, Chicago,
Illinois 60601;
and a copy of said
Petition for Review filed with the Illinois
Environmental Protection Agency at 2200 Churchill Road,
P0.
Box 19276,
Springfield, Illinois 62794—9276,
Attention:
Division of Legal Counsel.
3
The respondents’ attempts to contact the preparer of the
administrative citation is of no consequence pursuant to the
procedures that the Illinois legislature promulgated into law at
Section 31.1 of the Act.
If respondents wanted to properly
contest the issuance of the administrative citation they should
have filed a petition for review with the Board pursuant to
Section 31.1(d) (1) of the Act and as described in the
administrative citation itself.
The Board cannot now allow for
respondents to contest the administrative citation.
To do so
would circumvent the law as enacted by the legislature.
Therefore, the Board will not vacate its order of August 11,
1994.
The Board grants the Agency’s motion to correct the order.
The August 11,
1994 order inadvertently stated in the first
paragraph when discussing the Agency’s allegations “Section
21(o)(1) and 21(o)(3).”
The order should have referenced Section
21(p) (1) and
(p) (3)
of the Act which the Agency alleged in the
administrative citation.
However, when making a finding in the
Order the Board correctly states that the respondents have
violated the provisions alleged in the administrative citation.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, her~bycertify that the above order was adopted on the,—,?~5’~1
day of
~
,
1994, by a vote of
~‘i-~~
7
Dorothy M. G~n, Clerk
Illinois Pollution Control Board