ILLINOIS POLLUTION CONTROL BOARD
October 3, 2002
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
HERB FLANNEL and WALLACE
EXCAVATING COMPANY, an Illinois
corporation,
Respondents.
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AC 03-7
(IEPA No. 310-02-AC)
(Administrative Citation)
OPINION AND ORDER OF THE BOARD (by C.A. Manning):
On August 14, 2002, the Illinois Environmental Protection Agency (Agency) timely filed
an administrative citation against Herb Flannel and Wallace Excavating Company (respondents).
See
415 ILCS 5/31.1(c) (2000); 35 Ill. Adm. Code 108.202(c). The Agency alleges that
respondents violated Sections 21(p)(1), (p)(3), and (p)(7) of the Environmental Protection Act
(Act) (415 ILCS 5/21(p)(1), (p)(3), (p)(7) (2000)
as amended by
P.A. 92-0574, eff. June 26,
2002). The Agency further alleges that respondents violated these provisions by causing or
allowing the open dumping of waste in a manner resulting in litter, open burning, and deposition
of construction or demolition debris at a facility located at the southwest corner of county roads
1175E and 1125N in Sullivan Township, Moultrie County. The administrative citation meets the
content requirements of 35 Ill. Adm. Code 108.202(b).
As required, the Agency served the administrative citation on respondents within “60
days after the date of the observed violation.” 415 ILCS 5/31.1(b) (2000);
see also
35 Ill. Adm.
Code 108.202(b). To contest an administrative citation, a respondent must file a petition with the
Board no later than 35 days after being served with the administrative citation. If the respondent
fails to do so, the Board must find that the respondent committed the violations alleged and
impose the corresponding civil penalty. 415 ILCS 31.1(d)(1) (2000); 35 Ill. Adm. Code
108.204(b), 108.406. Here, respondents failed to timely file a petition. Accordingly, the Board
finds that respondents violated Sections 21(p)(1), (p)(3), and (p)(7) of the Act.
The civil penalty for violating Section 21(p) is $1,500 for a first offense and $3,000 for a
second or subsequent offense. 415 ILCS 5/42(b) (4-5) (2000); 35 Ill. Adm. Code 108.500(a).
Because there are three violations of Section 21(p) and these violations are a first offense, the
total civil penalty is $4,500. Under Section 31.1(d)(1) of the Act, the Board attaches the
administrative citation and makes it part of the order below.
This opinion constitutes the Board’s finding of fact and conclusions of law.
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ORDER
1. Herb Flannel and Wallace Excavating Company (respondents) must pay a civil
penalty of $4,500 no later than November 3, 2002.
2. Respondents must pay the civil penalty by certified check or money order, made
payable to the Illinois Environmental Protection Trust Fund. The case number,
case name, and respondents’ social security number or federal employer
identification number must be included on the certified check or money order.
3. Respondents must send the certified check or money order and the remittance
form to:
Illinois Environmental Protection Agency
Fiscal Services Division
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
4. Penalties unpaid within the time prescribed will accrue interest under Section
42(g) of the Environmental Protection Act (415 ILCS 5/42(g) (2000)) at the rate
set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/1003(a)
(2000)).
5. Payment of this penalty does not prevent future prosecution if the violations
continue.
IT IS SO ORDERED.
Board Member G.T. Girard dissented.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2000);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on October 3, 2002, by a vote of 4-1.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
