ILLINOIS POLLUTION CONTROL BOARD
July 8, 2004
COUNTY OF VERMILION,
Complainant,
v.
JERRY HATHAWAY and DARRELL
CRIPE,
Respondents.
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AC 04-56
(County No. 04-01)
(Administrative Citation)
ORDER OF THE BOARD (by J.P. Novak):
This order denies respondent Jerry Hathaway’s June 18, 2004 motion asking the Board to
reconsider or to vacate the Board’s May 6, 2004 default order finding him and respondent Darrel
Cripe in violation as charged in the County of Vermilion’s administrative citation and assessing
the statutory penalty of $1,500 against respondents. Neither respondent Cripe nor the County
has filed a reply to the Hathaway motion.
THE MAY 6, 2004 DEFAULT ORDER
On March 17, 2004, the County of Vermilion timely filed an administrative citation
against Jerry Hathaway and Darrell Cripe (respondents).
See
415 ILCS 5/31.1(c) (2002); 35 Ill.
Adm. Code 108.202(c). The County of Vermilion alleged that the respondents violated Section
21(p)(7) of the Environmental Protection Act (Act) (415 ILCS 5/21(p)(7) (2002)). The County
of Vermilion further alleged that the respondents violated this provision by causing or allowing
the open dumping of waste in a manner that resulted in deposition of general construction or
demolition debris or clean construction or demolition debris at 1617 Perrysville Road, Danville,
Vermilion County.
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 violation alleged and impose the
corresponding civil penalty. 415 ILCS 5/31.1(d)(1) (2002); 35 Ill. Adm. Code 108.204(b),
108.406. Neither respondent filed a petition for review. Accordingly, the Board found that the
respondents violated Section 21(p) 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 assessed was $1,500, payable no later than
June 5, 2004, which is the 30th day after the date of this order.
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THE MOTION
In his motion, counsel for respondent Hathaway asserts that Mr. Hathaway is the site
owner, and that respondent Cripe is a contract purchaser. Respondent Hathaway asserts that the
only “petition” he received was “neither file marked nor contained a case number upon which to
respond.” He states that he had previously been unaware of any allegations, and that he “has a
viable defense and would have responded to said action had he been provided proper notice of
the proceeding, been aware that the action had been filed or been provided a case number upon
which to respond to said Petition.” Motion at 1.
The motion is denied. The record is clear that Mr. Hathaway received service of the
administrative citation on March 8, 2004. The procedure for contesting the administrative
citation is clearly set forth at page 2 of the administrative citation, and states that any petition for
review
must
be filed with the Board within 35 days (emphasis in original). Had Mr. Hathaway
contacted the Clerk of the Board, he would have received the filing date of the citation and the
docket number. Indeed, had Mr. Hathaway filed a petition for review without a number, the
Clerk would have filed the petition and contacted him for any additional information.
As a creature of statute, the Board cannot extend the time for filing of petitions for review
without explicit statutory authorization to do so. The Board has been given no authority to
extend the time for filing of petitions for review of administrative citations. Such authority has
been given, under specific enumerated circumstances, only for the filing of permit appeals.
Compare the permit appeal procedures of Section 40(a)(1) of the Act, 415 ILCS
5/40(a)(1)(2002), with those for the appeal of administrative citations under Section 31.1(d)
(415 ILCS 5/31.1(d)(1) (2002)).
The Board will, however, grant respondents an additional 30 days in which to pay the
penalty. The Board also takes this opportunity to correct paragraph 2 of the original order, to
clarify that respondents’ check or money order must be payable to the County of Vermilion,
Illinois. For the convenience of the parties, the order as amended today is set out in its entirety
below:
1. The respondents must pay a civil penalty of $1,500 no later than August 7, 2004,
which is the 30th day after the date of this order.
2. The respondents must pay the civil penalty by certified check or money order,
made payable to the County of Vermilion, Illinois. The case number, case name,
and the respondents’ social security number or federal employer identification
number must be included on the certified check or money order.
3. The respondents must send the certified check or money order and the remittance
form to:
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Vermilion County Health Department
200 South College Street
Danville, Illinois 61832
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.
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 order on July 8, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
