ILLINOIS POLLUTION CONTROL BOARD
August 5, 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)
OPINION AND ORDER OF THE BOARD (by G.T. Girard):
This matter is before the Board on a July 7, 2004 motion by the Illinois Environmental
Protection Agency (Agency) to dismiss respondent Tom Romero (Romero) and to find
respondent Robert J. Adams in default. On June 17, 2004, the Board issued an order that found
Rita Adams and Arlyn Ray d/b/a Arlyn Ray Construction (Ray) in violation of Sections
21(p)(1),(3),(4) and (7) of the Illinois Environmental Protection Act (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. The order also accepted the petition to review filed by
Romero and directed the Agency to provide information showing effective service on Robert
Adams by July 1, 2004. The administrative citation involves 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.
For the reasons set forth below, the Board dismisses the administrative citation as to
Romero and finds Robert Adams in default. The Board imposes the statutory penalty of $6,000
on Robert Adams, Rita Adams and Ray.
The Agency attached an affidavit by Agency inspector Robert J. Wagner (Wagner) to the
motion. Wagner swears that he personally hand-delivered the instant administrative citation on
April 8, 2004, to Rita Adams at their residence, and informed her of the contents therein.
Because Robert Adams lives with Rita Adams, proper service was achieved when Wagner
served Rita Adams at their shared abode via hand-delivery.
The Agency also asserts that it has no evidence that Romero was involved in this matter
other than as a representative of Arlyn Ray Exteriors, L.L.C., and asks that he be dismissed from
the administrative citation.
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To date, the Board has not received any response to the Agency’s motion. If a party fails
to file a response to a motion within 14 days the party will be deemed to have waived objection
to the granting of the motion.
See
35 Ill. Adm. Code 101.500(d).
The Board grants the Agency’s motion and dismisses the administrative citation against
Romero.
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). Based on the additional information supplied by the Agency in its motion, the
Board finds that proper service was achieved on Robert Adams. Robert 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, he has not filed a petition for review. Thus, Robert Adams has
failed to timely file a petition within the 35 days allowed by the law. Accordingly, the Board
finds that Robert Adams has 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 found Rita Adams and Ray had violated those same
sections of the Act on June 17, 2004.
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 are four violations of Section 21(p) and these violations are first offenses, the total
civil penalty is $6,000. Under Section 31.1(d)(1) of the Act, the Board attaches the
administrative citation and makes it a part of the order below.
This opinion constitutes the Board’s finding of fact and conclusions of law.
ORDER
1. Respondents Robert J. Adams, Rita M. Adams and Arlyn Ray d/b/a Arlyn Ray
Construction must pay a civil penalty of $6,000 no later than September 6, 2004.
2. The 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 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:
Illinois Environmental Protection Agency
Fiscal Services Division
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
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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 opinion and order on August 5, 2004, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
