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:
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: PLEASE READ
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.
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.S
. Postal Service . Thank you
.
RECEIVEDCLERK'S
OFFICE
FAX TRANSMISSION
Pollution
MAR 0 8 2007
Board
LEWIS B
. KAPLAN
ATTORNEY AT LAW
P .O
. Box 1254
Rockford, IL
61105-1254
(815) 963-3090
Fax : (815) 964-3813
LBKLWFM@aol
.com
To:
Honorable Dorothy Gunn
Clerk of the Illinois Pollution
Control Board
Date:
March 8, 2007
Fax # :
1-312-814-3669
Pages :
13, including this cover sheet .
From :
Subject :
Lewis B
. Kaplan
ILLINOIS ENVIROMENTAL PROTECTION
AGENCY V. NORTHERN
ILLINOIS SERVICE COMPANY
AC 05-40
; IEPA No . 567-04-AC
FACSIMILE
(015) 964-3813
L BKLWFM@aol .co m
LBK:Imh
Enclosures
cc : Michelle M . Ryan
Special Assistant Attorney General
LEWIS B . KAPLAN
838
Attorney
North main
at Lawstreet
P
. O
. Box 1264
Rockford, IL 61105-1254
March 8 . 2007
FAXED 1-312-814-3669 AND CERTIFIED-RETURN RECEIPT REQUESTED MAIL
Honorable Dorothy Gunn
Clerk of the Illinois Pollution Control Board
James R- Thompson
Center
100 West Randolph Street, Suite 11-500
Chicago . IL 60601
RE : ILLINOIS ENVIRONMENTAL PROTECTION AGENCY VS
.
NORTHERN ILLINOIS SERVICE COMPANY
AC 05-40 ; IEPA
No
. 567-04-AC
Dear Ms. Gunn :
I am writing to you in follow-up to my March 8, 2007 discussion with Attorney Richard
McGill, Jr. of your
office . I am enclosing for consideration by the Illinois Pollution Control
Board a Motion for Modification of Administrative Order
. Attorney McGill advised me that he
was authorized to tell me that your office had authorized filing the Motion by facsimile pursuant
to Rule 101 .302(d) of the Rules of the Illinois Pollution Control Board
. It is my understanding
that filing of this Motion automatically stays the January 26, 2007 Order of the Illinois Pollution
Contra] Board until a decision has been made on the Motion. I understand that the next time this
could occur would be at the March 15
. 2007 meeting of the Illinois Pollution Control Board .
Thank you for your consideration in this matter
.
r
RECEIVED
CLERK'S OFFICE
MAR 0 8 2007
STATE OF ILLINOIS
pittosortaontrol
Board
(015) 963
.3090
PLEASE REPLY TO :
P
.0 . BOX 1264
ROCKFORD, It 61105-1254
RECEIVEDCLERK'S
OFFICE
MAR 0 8 2007
LLINOIS ENVIRONMENTAL
STATE OF ILLINOIS
)
PROTECTION
AGENCY,
Pollution Control Board
)
Complainit,
)
AC 05-40
vs.
) (IEPA No . 567-04-AC)
NORTHERN ILLINOIS SERVICE
) (Administrative Citation
COMPANY,
)
Respondent .
)
TO :
ILLINOIS POLLUTION CONTROL BOARD
January 26, 2007
MOTION FOR MODIFICATION OF ADMINISTRATIVE ORDER
Dorothy Gunn, Clerk
- Certified Mail and facsimile
Illinois Pollution Control Board
James R
. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
Michelle M
. Ryan - Regular Mail
Special Assistant Attorney General
Illinois Environmental Protection Agency
Division of Legal Counsel
1021 North Grand Avenue East
P.O . Box 19276
Springfield, IL 62794-9276
NOW COMES respondent NORTHERN ILLINOIS SERVICE COMPANY by
PETER DeBRUYNE, P .C
. and Lewis B . Kaplan, its attorneys, and pursuant to the
applicable rules of the Illinois Pollution Control Board moves that the Illinois Pollution
Control Board modify its Order which it adopted on January 26, 2007, a copy of which is
attached hereto marked Exhibit "A" and made a part hereof, which requires payment by
respondent NORTHERN ILLINOIS SERVICE COMPANY of a Civil Penalty and costs
in the total amount of $3,672.25 no later than March 12, 2007 by requiring the payment
1
of only the sum of 51,500 for violation of Section 21(p)(7) of the Environmental
Protection Act as the alleged violation of Section 21(p)(1) of the Environmental
Protection Act is the subject of the appeal of the aforesaid January 26
. 2007 Order of the
Illinois Pollution Control Board to the Appellate Court of Illinois, Second Judicial
District in its case No . 02-07-0213
.
NORTHERN ILLINOIS SERVICE
COMPANY, Respondent,
By PETER DeBRUYNE, P
.C .
Peter DeBruyne
Attorney for Respondent
Peter DeBruyne
Peter DeBruyne, P.C .
838 North Main Street
Rockford, IL 61103
Telephone (815) 964-3810
Lewis B
. Kaplan
Attorney at Law
838 North Main Street
P.O
. Box 1254
Rockford, IL 61105-1254
Telephone (815) 963-3090
Attorneys for Respondent, NORTHERN ILLINOIS SERVICE COMPANY
2
AFFIDAVIT OF SERVICE
3
RECEIVED
CLERK'S OFFICE
MAR 0 8 2007
Lewis B
. Kaplan on oath states : On the S th day of March. 2007,
kSOUfidhtd5ntrol
LLINOIS
Motion for Modification of Administrative Order by mailing a copy to each person to
Board
whom it is directed and pursuant to Rule 101 .302(d) of the Rules of the Illinois Pollution
Control Board faxed a copy of the Motion for Modification of Administrative Order to
Dorothy Gunn, Clerk of the Illinois Pollution Control Board
- fax number 1-312-814-
3669 from 1-815-964-3813 .
SUBSCRIBED and sworn to before me
this 8`h day of March, 2007
.
ILLINOIS POLLUTION CONTROL BOARD
January 26, 2007
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
)
v .
)
AC 05-40
(IEPA No
. 567-04-AC)
NORTHERN ILLINOIS SERVICE
)
(Administrative Citation)
COMPANY,
)
Respondent.
)
MICHELLE M
. RYAN, SPECIAL ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF COMPLAINANT; and
LEWIS B
. KAPLAN AND PETER D. DeBRUYNE APPEARED ON BEHALF OF THE
RESPONDENT
.
FINAL OPINION AND ORDER OF THE BOARD (by N .J. Melas) :
On September 21, 2006, the Board issued an interim opinion and order, finding that
respondent Northern Illinois Service Company (NISC) violated two open dumping provisions of
the Environmental Protection Act (Act) (415 ILCS 5 (2004)) at a site in Roscoe, Winnebago
County
. Having received documentation of hearing costs in this administrative citation
enforcement action, the Board today issues its final opinion and order .
BACKGROUND
In the interim opinion and order of September 21, 2006, the Board found that NISC
violated Sections 21(p)(1) and (7) of the Act by causing the open dumping of waste resulting in
litter and the deposition of general construction or demolition debris at 4690 Rockton Road,
Roscoe, Winnebago County (Roscoe Quarry) . 415 ILCS 5121(p)(1), (7) (2004) . The Illinois
Environmental Protection Agency (Agency) filed this administrative citation with the Board on
November 22, 2004, based an October 4, 2004 inspection by the Agency of the Roscoe Quarry .
Because there were two violations of Section 21(p) and the violations are first offenses,
the Board found that under Section 42(b)(4-5) of the Act, the total civil penalty is $3,000 . 415
ILCS 5/42(b)(4-5) (2004)
. The Board also found that because Northern did not succeed at
hearing, it must pay the hearing costs of both the Agency and the Board . 35 Ill . Adm. Code
108.502, 108.504,
The Board ordered the Agency and the Clerk of the Board to submit hearing
costs by October 11, 2006 and gave NISC time to respond to costs
. On September 25, 2006, the
Clerk of the Board submitted an affidavit of the Board's hearing costs totaling $406 .50 . NISC
did not file a response
.
On November 16, 2006, the Board issued a final opinion and order finding that NISC had
violated Sections 21(p)(1) and (p)(7) of the Act (415 ILCS 5/21(p)(1), (p)(7)
(2004)), imposing
the corresponding statutory civil penalty of $3,000, and assessing the Board's hearing costs
.
On December 1, 2006, the Board received the Agency's statement of hearing costs in the
amount of $265 .75. The proof of service showed that the Agency timely mailed the statement by
U
.S. mail on October 11, 2006 . Because of the seven-week delay between the time it was mailed
and the statement's arrival in the Board's office, the Board on its own motion reconsidered the
final decision of November 16, 2006, and vacated that order on December 7, 2006
. The Board
allowed NISC time to respond to the Agency's claimed costs . See 35 111 . Aden . Code 108
.506(a) .
NISC did not file a response .
On December 8, 2006, NISC filed a petition for review of the November 16, 2006 order
with the Second District Appellate Court, docketed as case No
. 02-06-1237 .
On
December 18,
2006, NISC moved the Board to stay enforcement of the Board's November 16, 2006 order
.
NISC requested that the Board stay the assessed civil penalty and costs pending review by the
appellate Court .
On January 19, 2007, the Second District Appellate Court granted the Board's motion to
dismiss NISC's appeal for lack of jurisdiction . The appellate court granted the motion because
there was no final appealable Board order.
DISCUSSION
Within its motion for stay, NISC seeks to stay a Board order that has been vacated and
asks that the stay be in effect during an appeal that has been dismissed . The Board denies
NTSC's motion to stay as moot .
The Board finds the hearing costs of the Board and the Agency reasonable and orders
Northern to pay those costs under Section 42(b)(4-5) of the Act
. 415 ILCS 5/42(b)(4-5) (2004) .
The Board incorporates by reference the findings of fact and conclusions of law from its
September 21, 2006 interim opinion and order, Under Section 31 .1(d)(2) of the Act, the Board
attaches the administrative citation and makes it part of the Board's final order .
This opinion and order constitutes the Board's findings of fact and conclusions of law .
O ER
1 .
The Board finds that respondent Northern Illinois Service Company (Northern)
violated Section 21(p)(1) and (7) of the Environmental Protection Act at its
property in Roscoe, Winnebago County. 415 ILCS 5/21(p)(1), (7) (2004) .
2.
The Board assesses the civil penalty of $3,000 for the violations, as well as
hearing costs totaling $672 .25, for a total amount due of $3,672
.25
. Northern
must pay $3,672 .25 no later than March 12, 2007, which is the first business day
3
following the 45th day after the date of this order
. Northern must pay this amount
by certified check, money order or electronic funds transfer, made payable to the
Environmental Protection Trust Fund
. The case numbers, case name, and
Northern's federal employer identification number must be included on the
certified check, money order or electronic funds transfer.
3.
Northern must send the certified check, money order or electronic funds transfer
to:
Illinois Environmental Protection Agency
Fiscal Services
1020 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 Act (415 JLCS 5/42(g) (2004)) at the rate set forth in Section 1003(a)
of the Illinois Income Tax Act (35 ILCS 5/1003(a) (2004)),
Payment of this penalty does not prevent future prosecution if the violations
continue.
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) (2004) ; see also 35111, 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 .
172 111 .
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 . 35 111. Adm . Code
101 .520
; see also 35 111 . 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 January 26, 2007, by a vote of 4-0
.
Dorothy M, Gunn, Clerk
Illinois Pollution Control Board
CL--
` 'CFtC
._
JURISDICTION
This Administrative Citation is issued pursuant to the authority vested in the Illinois
Environmental Protection Agency by Section 31 .1 of the Illinois Environmental Protection Act, 415
ILCS 5/31 .1 (2002) .
FACTS
1 .
That Northern Illinois Service Company ("Respondent") is the present owner of a
facility located at 4960 Rockton Road, Roscoe, Winnebago County, Illinois . The property is
commonly known to the Illinois Environmental Protection Agency as Roscoe/Northern Illinois Service
Company (Roscoe Quarry) .
2.
That said facility is an open dump operating without an Illinois Environmental
Protection Agency Operating Permit and is designated with Site Code No . 2010405051 .
3.
That Respondent has owned said facility at all times pertinent hereto .
4.
That on October 4, 2004, Kaare Jacobsen of the Illinois Environmental Protection
Agency's Rockford Regional office inspected the above-described facility . A copy of his Inspection
report setting forth the results of said inspection is attached hereto and made a part hereof
.
u
I -i
U!l
BEFO~ETHE'IIL~L!NOIS
I~II~I~
POLLUTION CONTROL BOARD i„_1 /
J ~RQ~ NISTRATIVE CITATION
c-=i c
G : IL_:, .iC
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
AC
V .
NORTHERN ILLINOIS SERVICE
COMPANY,
Respondent
.
(]EPA No . 567-04-AC)
VIOLATIONS
Based upon direct observations made by Kaare Jacobsen during the course of his October
4, 2004 inspection of the above-named facility, the Illinois Environmental Protection Agency has
determined that Respondent has violated the Illinois Environmental Protection Act (hereinafter, the
"Act") as follows :
(1)
That Respondent caused or allowed the open dumping of waste in a manner
resulting in litter, a violation of Section 21(p)(1) of the Act, 415 ILLS 5/21(p)(1)
(2002) .
(2) That Respondent caused or allowed the open dumping of waste in a manner
resulting in deposition of general construction or demolition debris or clean
construction or demolition debris, a violation of Section 21(p)(7) of the Act, 415 ILCS
512l(p)(7) (2002) .
CIVIL PENALTY
Pursuant to Section 42(b)(4-5) of the Act, 415 ILLS 5/42(b)(4-5) (2002), Respondent is
subject to a civil penalty of One Thousand Five Hundred Dollars ($1,500 .00) for each of
the
violations identified above, for a total of Three Thousand Dollars j$3,000 .00).
If Respondent elects
not to petition the Illinois Pollution Control Board, the statutory civil penalty specified above shall be
due and payable no later than
December 15, 2004
unless otherwise provided by order of the Illinois
Pollution Control Board
.
If Respondent elects to contest this Administrative Citation by petitioning the Illinois Pollution
Control Board in accordance with Section 31
.1 of the Act, 415 ILCS 5/31 .1 (2002), and if the Illinois
Pollution Control Board issues a finding of violation as alleged herein, after an adjudicatory hearing,
2
Respondent shall be assessed the associated hearing costs incurred by the Illinois Environmental
Protection Agency and the Illinois Pollution Control Board . Those hearing costs shall be assessed
in addition to the One Thousand Five Hundred Dollar ($1,500 .00) statutory civil penalty for each
violation .
Pursuant to Section 31 .1(d)(1) of the Act, 415 ILCS 5/31 .1(d)(1) (2002), if Respondent fails
to petition or elects not to petition the Illinois Pollution Control Board for review of this Administrative
Citation within thirty-five (35) days of the date of service, the Illinois Pollution Control Board shall
adopt a final order, which shall include this Administrative Citation and findings of violation as
alleged herein, and shall impose the statutory civil penalty specified above .
When payment is made, Respondent's check shall be made payable to the Illinois
Environmental Protection Trust Fund and mailed to the attention of Fiscal Services, Illinois
Environmental Protection Agency, 1021 North Grand Avenue East, P .O . Box
19276,
Springfield,
Illinois 62794-9276,
Along with payment, Respondent shall complete and return the enclosed
Remittance Form to ensure proper documentation of payment .
If any civil penalty and/or hearing costs are not paid within the time prescribed by order of the
Illinois Pollution Control Board, interest on said penalty and/or hearing costs shall be assessed
against the Respondent from the date payment is due up to and including the date that payment is
received
. The Office of the Illinois Attorney General may be requested to initiate proceedings
against Respondent in Circuit Court to collect said penalty and/or hearing costs, plus any interest
accrued .
3
PROCEDURE FOP CONTESTING THIS
ADMINISTRATIVE CITATION
Respondent has the right to contest this Administrative Citation pursuant to and in
accordance with Section 31 .1 of the Act, 415 ILCS 5/31/1 (2002) . If Respondent elects to contest
this Administrative Citation, then Respondent shall file a signed Petition for Review, including a
Notice of Filing, Certificate of Service, and Notice of Appearance, with the Clerk of the Illinois
Pollution Control Board, State of Illinois Center, 100 West Randolph, Suite 11-500
. Chicago, Illinois
60601
. A copy of said Petition for Review shall be filed with the Illinois Environmental Protection
Agency's Division of Legal Counsel at 1021 North Grand Avenue East, P .O. Box 19276, Springfield,
Illinois 62794-9276 . Section 31 .1 of the Act provides that any Petition for Review shall be filed within
thirty-five (35) days of the date of service of this Administrative Citation or the Illinois Pollution
Control Board shall enter a default judgment against the Respondent .
Renee Cipriano, Director /.~
Illinois Environmental Protection Agency
Prepared by ,
Susan E
. Konzelmann, Legal Assistant
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
4
Date:
litt
gI0 4
CLERK'S OFF C~
E"TTANCE FORM
NOY 22 =rob
S TAT
O- `!
Pollution Controi Eca
;
5
FACILITY : Northern IL
.Service Co- (Roscoe Quarry)
SITE CODE NO
. :
2010405051
COUNTY:
Winnebago
CIVIL PENALTY .
53,000 .00
DATE OF INSPECTION :
October 4, 2004
DATE
REMITTED-
SS/FEIN NUMBER
:
SIGNATURE
:
NOTE
Please enter the date of your remittance,
your
Social Security number (SS) if an individual or
Federal Employer Identification Number (FEIN) if a corporation, and sign this Remittance Form
. Be
sure your check is enclosed and mail, along with Remittance Form, to Illinois Environmental
Protection Agency, Attn
.
: Fiscal Services, P.O . Box 19276,
Springfield, Illinois 62794-9276 .
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
AC
!
~J
V .
(IEPA No 567-04-AC)
NORTHERN ILLINOIS SERVICE
COMPANY,
Respondent_
