ILLINOIS POLLUTION CONTROL BOARD
June 17, 2004
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
ARLYN RAY d/b/a ARLYN RAY
CONSTRUCTION, TOM ROMERO d/b/a
ARYLYN RAY EXTERIORS, ROBERT J.
ADAMS and RITA M. ADAMS,
Respondents.
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AC 04-57
(IEPA No. 109-04-AC)
(Administrative Citation)
ORDER OF THE BOARD (by T.E. Johnson):
On March 24, 2004, the Agency timely filed an administrative citation against Arlyn Ray
d/b/a Arlyn Ray Construction (Ray), Tom Romero d/b/a Aryln Ray Exteriors (Romero), Robert
J. Adams and Rita M. Adams.
See
415 ILCS 5/31.1(c) (2002); 35 Ill. Adm. Code 108.202(c).
The Illinois Environmental Protection Agency (agency) alleges that respondents violated
Sections 21(p)(1),(3),(4) and (7) of the Environmental Protection Act. 415 ILCS
5/21(p)(1),(3),(4) and (7) (2002). The Agency further alleges that respondents violated this
provision by causing or allowing the open dumping of waste in a manner that resulted in litter,
open burning, deposition of waste in standing or flowing waters, and deposition of construction
or demolition debris at the a property located at 1776 County Road 850 E, Metamora in
Woodford County.
SERVICE ISSUES
The Agency is required to serve the administrative citation on the respondents within “60
days after the date of the observed violation.” 415 ILCS 5/31.1(b) (2002);
see also
35 Ill. Adm.
Code 108.202(b). On March 25, 2004, the Agency filed a proof of service indicating that Ray
was served on March 18, 2004. On April 2, 2004, the Agency filed a proof of service showing
service on Romero was achieved on March 18, 2004. On April 26, 2004, the Agency filed a
proof of service indicating that service on Rita Adams was achieved on April 8, 2004.
After considering the proofs of service, the Board finds that proper service was achieved
on Romero, Ray, and Rita Adams. However, whether service on Robert Adams was achieved is
in question. Personal service was achieved on Rita Adams on April 8, 2004, but the record is
unclear as to whether this is effective service on Robert Adams as well. The Agency is directed
to address this service issue on or before July 1, 2004.
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ROMERO’S PETITION FOR REVIEW
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 a respondent fails to do
so, the Board must find that he committed the violation alleged and impose the corresponding
civil penalty. 415 ILCS 31.1(d)(1) (2002); 35 Ill. Adm. Code 108.204(b), 108.406.
On April 19, 2004, Romero filed a petition for review of the administrative citation.
See
415 ILCS 5/31.1(d) (2002); 35 Ill. Adm. Code 108.204(b). In the petition, Romero asserts he has
been improperly named as a party in this proceeding and did not cause or allow the open
dumping of waste at the site as alleged in the citation. Romero contends that no one employed
by him caused or allowed the open dumping of waste and that he does not own the subject
property. The Board accepts Romero’s petition for hearing.
The Board directs the hearing officer to proceed expeditiously to hearing on Romero’s
petition. The hearing officer will give the parties at least 21 days written notice of the hearing.
35 Ill. Adm. Code 108.300;
see also
415 ILCS 5/31.1(d)(2) (2002). By contesting the
administrative citation, Romero may have to pay the hearing costs of the Board and the Agency.
See
415 ILCS 5/42(b)(4-5) (2002); 35 Ill. Adm. Code 108.500. A schedule of the Board’s
hearing costs is available at the Board’s offices and on the Board’s Web site at
www.ipcb.state.il.us/. 35 Ill. Adm. Code 504.
Romero may withdraw the petition to contest the administrative citation at any time
before the Board enters its final decision. If Romero chooses to withdraw the petition, he must
do so in writing, unless he does so orally at hearing.
See
35 Ill. Adm. Code 108.208. If Romero
withdraws the petition after the hearing starts, the Board will require him to pay the hearing costs
of the Board and the Agency.
See id.
at 108.500(c).
The Agency has the burden of proof at hearing.
See
415 ILCS 5/31.1(d)(2) (2002); 35 Ill.
Adm. Code 108.400. If the Board finds that Romero violated Sections 21(p)(1),(3),(4) and (7) of
the Act (415 ILCS 5/21(p)(1),(3),(4) and (7) (2002)) the Board will impose civil penalties. 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. However, if the
Board finds that Romero “has shown that the violation resulted from uncontrollable
circumstances, the Board shall adopt a final order which makes no finding of violation and which
imposes no penalty.” 415 ILCS 5/31.1(d)(2) (2002);
see also
35 Ill. Adm. Code 108.500(b).
DEFAULT OF RITA ADAMS AND RAY
Ray was served on March 18, 2004, consequently any timely petition for review would
have to be postmarked on or before April 22, 2004. Rita Adams was served on April 8, 2004,
consequently any timely petition for review would have to be postmarked on or before May 13,
2004. To date neither Rita Adams nor Ray has filed a petition for review. Thus, Rita Adams and
Ray have failed to timely file a petition within the 35 days allowed by the law. Accordingly, the
Board finds that Rita Adams and Ray have violated Sections 21(p)(1),(3),(4) and (7) of the Act.
415 ILCS 5/21(p)(1),(3),(4) and (7) (2002). However, the Board will withhold issuing a final
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order concerning Rita Adams and Ray until a determination on respondents Robert Adams and
Romero is made.
CONCLUSION
The Board accepts Romero’s petition for review and directs the hearing officer to
proceed to hearing on his petition. The Board finds Rita Adams and Ray in violation of Sections
21(p)(1),(3),(4) and (7) of the Act (415 ILCS 5/21(p)(1),(3),(4) and (7) (2002)) for failing to file
a petition to review within 35 days after being served with the administrative citations.
However, the Board will not issue a final order regarding Rita Adams and Ray until
determinations have been made on Robert Adams and Romero. The Agency is directed to
provide information showing effective service on Robert Adams on or before July 1, 2004.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on June 17, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
