ILLINOIS POLLUTION CONTROL BOARD
    June 5, 2003
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
    Complainant,
     
    v.
     
    MARSHALL PEKARSKY,
     
    Respondent.
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    AC 01-37
    (IEPA No. 141-01-AC)
    (Administrative Citation)
     
    OPINION AND ORDER OF THE BOARD (by T.E. Johnson):
     
    This matter is before the Board on an April 18, 2003 mandate from the Illinois Appellate
    Court Second District (IEPA v. Marshall Pekarsky and IPCB, 2-02-0281, April 18, 2003),
    reversing and remanding the Board's February 7, 2002 order in this case. For the reasons
    discussed below, the Board finds that Marshall Pekarsky (Pekarsky) violated Section 21(p)(1) of
    the Act, and imposes a civil penalty of $1,500.
     
    Pekarsky is the operator of Kishwaukee Auto Parts, a salvage yard where automobiles are
    scrapped for parts to be sold to auto stores. IEPA v. Pekarsky, AC01-37 (Feb. 7, 2003), slip op.
    at 2. Pekarsky is also the co-executor of the estate that owns the site.
    Id
    . The site is located at
    601 Harrison Avenue, Rockford, Winnebago County.
    Id
    . On November 22, 2000, the Illinois
    Environmental Protection Agency (Agency) issued an administrative citation warning notice that
    stated Pekarsky could be subject to substantial civil penalties if he failed to comply with the
    terms of the warning notice and stated that Pekarsky had until February 20, 2001 to clean up the
    site.
     
    On March 7, 2001, the Agency again inspected the site and observed a number of
    violations. Following this inspection, the Agency issued the administrative citation. On May 18,
    2001, Pekarsky filed a petition contesting the administrative citation. The Board accepted the
    case for hearing on June 7, 2001. On October 18, 2001, the Board held a hearing in the matter.
     
    On February 7, 2003, the Board issued an order finding that Pekarsky allowed open
    dumping resulting in litter under the Illinois Environmental Protection Act (Act) (415 ILCS
    5/21(p)(1) (2002)). However, the Board found that Pekarsky was not in violation of the Act
    because the violation resulted from “uncontrollable circumstances” that estopped the Agency
    from bringing the administration citation. The Agency appealed the Boards decision to the
    Illinois Appellate Court’s Second District. The Appellate Court found that the Board erred in
    applying estoppel because the record does not contain evidence that Pekarsky detrimentally
    relied upon the administrative citation warning notice. The Appellate Court found that
    complying with a duty or satisfying an already existing obligation cannot constitute detrimental
     
    2
    reliance, and remanded the case for further proceedings consistent with the opinions expressed in
    the Appellate Court order.
     
    The Board has previously found that Pekarsky allowed open dumping resulting in litter
    under the Act. Pekarsky, AC01-37, slip op. at 1. As estoppel does not apply in this matter, the
    Board finds that Pekarsky violated Section 21(p)(1) 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) (2002); 35 Ill. Adm. Code 108.500(a).
    Because there is one violation of Section 21(p) and this violation is a first offense, the total civil
    penalty is $1,500. 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.
     
    ORDER
     
    1. Marshall Pekarsky must pay a civil penalty of $1,500 no later than July 7, 2003,
    which is the first business day after the 30th day following the date of this order.
     
    2. Marshall Pekarsky 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 Marshall Pekarsky’s social security number or federal
    employer identification number must be included on the certified check or money
    order.
     
    3. Marshall Pekarsky 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) (2002)) at the rate
    set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/1003(a)
    (2002)).
     
    5. Payment of this penalty does not prevent future prosecution if the violation
    continues.
     
    IT IS SO ORDERED.
     
     
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    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) (2002);
    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.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above opinion and order on June 5, 2003, by a vote of 6-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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