ILLINOIS POLLUTION CONTROL BOARD

PROCEDURAL HISTORY

ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

NORMA EDDINGTON and CECIL

(IEPA No. 1-08-AC)

(Administrative Citation)

ORDER OF THE BOARD (by G.T. Girard):

On April 28, 2008, respondents Norma Eddington and Cecil Eddington (respondents)

filed a letter with the Board. For the reasons below, the Board construes the letter as a motion to

reconsider the Board’s final order of March 20, 2008, and denies the motion. This administrative

citation proceeding concerns respondents’ property located at 4954 U.S. Highway 67 in

Beardstown, Cass County. The property is commonly known to complainant, the Illinois

Environmental Protection Agency (Agency), as “Hagener Township/Eddington #2” and is

designated with Site Code No. 0178055002.

In this order, the Board sets forth the procedural history of this case before discussing and

ruling on respondents’ motion.

PROCEDURAL HISTORY

On January 18, 2008, the Agency filed an administrative citation against respondents.

The citation was based on a December 6, 2007 Agency inspection of respondents’ site.

Respondents were served with the administrative citation on January 18, 2008. Respondents did

not file a petition to contest the administrative citation. Accordingly, on March 20, 2008, the

Board entered a default order against respondents, finding that respondents violated Section

21(p)(1) of the Environmental Protection Act (Act) (415 ILCS 5/21(p)(1) (2006)) as alleged and

imposing the statutory civil penalty of $1,500 for the one violation. The order required payment

of the civil penalty by April 21, 2008, the first business day following the 30th day after the date

of the order. On April 28, 2008, respondents filed a letter with the Board. The Agency has not

filed any response to the letter.

MOTION TO RECONSIDER

In their letter filed on April 28, 2008, respondents assert that while they have already

“sent in two separate checks in the amount of $750.00 each,” their “rights” were violated when

they were “fined . . . that much money.” Letter at 1. Respondents maintain that their property is

“zoned farm” and that they grow trees, recycle, and “keep the environment as clean as [they]

. Respondents claim to “know that the state is broke,” but argue that “this is a poor way

of getting money.”

The Board construes respondents’ letter as a motion to reconsider the Board’s final order

of March 20, 2008. Any motion to reconsider was due to be filed within 35 days after receipt of

the Board’s March 20, 2008 final order.

35 Ill. Adm. Code 101.520(a). Respondents

received the Board’s order on March 27, 2008. Respondents’ letter, filed April 28, 2008, was

therefore timely filed.

A motion to reconsider may be brought “to bring to the [Board’s] attention newly

discovered evidence which was not available at the time of the hearing, changes in the law or

errors in the [Board’s] previous application of existing law.” Citizens Against Regional Landfill

v. County Board of Whiteside County, PCB 92-156, slip op. at 2 (Mar. 11, 1993), citing

Korogluyan v. Chicago Title & Trust Co.

, 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st

35 Ill. Adm. Code 101.902. In addition, a motion to reconsider may specify

“facts in the record which were overlooked.” Wei Enterprises v. IEPA, PCB 04-23, slip op. at 3

(Feb. 19, 2004).

As explained below, because respondents failed to timely contest the administrative

citation, the Board, in its order of March 20, 2008, was required by the Act to find that

respondents committed the violation alleged by the Agency. Having found the violation, the

Board was required by the Act to impose the corresponding statutory penalty on respondents.

The Act affords the Board no discretion to take any potentially mitigating circumstances into

account to reduce an administrative citation penalty.

The Board stated in its March 20, 2008 order that 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 Act requires the Board to find that

the respondent committed the violation alleged and impose the corresponding civil penalty. The

If the person named in the administrative citation fails to petition the Board for

review within 35 days from the date of service, the Board shall adopt a final

order, which shall include the administrative citation and findings of violation as

alleged in the citation, and shall impose the penalty specified in subdivision (b)(4)

or (b)(4-5) of Section 42. 415 ILCS 31.1(d)(1) (2006);

35 Ill. Adm. Code

101.300(b), 108.204(b), 108.406.

In this case, the Agency alleged that respondents violated Section 21(p)(1) of the Act

(415 ILCS 5/21(p)(1) (2006)) by causing or allowing the open dumping of waste in a manner

resulting in litter. Any petition for review was due by February 22, 2008. Respondents failed to

timely file a petition. The Board therefore found in its March 20, 2008 order that respondents

violated Section 21(p)(1) of the Act on December 6, 2007, the date of the Agency inspection of

respondents’ site.

Section 42(b)(4-5) of the Act states that the civil penalty for violating any provision of

subsection (p) of Section 21 is $1,500 for each violation, except that the penalty amount is

$3,000 for each violation that is the person’s second or subsequent adjudicated violation of that

415 ILCS 5/42(b)(4-5) (2006); 35 Ill. Adm. Code 108.500(a). Here, because

there was one violation of Section 21(p) and no allegations of any second or subsequent

adjudicated violation, the Board was required by the Act to impose a total civil penalty of $1,500

on respondents.

When the Board finds a violation in an enforcement action brought under Section 31 of

the Act, the Board has the discretion to impose a penalty and if the Board decides to impose one,

the Board may consider factors that mitigate the amount of penalty.

415 ILCS 5/31, 33(c),

42(h) (2002). The Board has no such discretion after finding a violation in an administrative

citation action brought under Section 31.1 of the Act.

Miller v. PCB, 267 Ill. App. 3d 160,

167, 642 N.E.2d 475, 482 (4th Dist. 1994). Accordingly, the Board was statutorily required to

impose a civil penalty on respondents and, further, the amount of that penalty, $1,500, is fixed by

The Board finds that respondents’ motion fails to identify any newly-discovered

evidence, changes in the law, errors in the Board’s application of the law, or overlooked facts in

the record. The Board therefore denies respondents’ motion to reconsider.

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) (2006);

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

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the

Board adopted the above order on May 15, 2008, by a vote of 4-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

NORMA EDDINGTON and CECIL

(IEPA No. 1-08 -AC)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

ADMINISTRATIVE CITATION

STATE OF ILLINOIS

Pollution Control Board

O?>

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 (2004).

That Norma Eddington is the present owner and Cecil Eddington is the operator

(collectively "Respondents")

of a facility located at 4954 U.S. Highway 67, Beardstown, Cass

County, Illinois. The property is commonly known to the Illinois Environmental Protection

Agency as Hagener Township/Eddington #2.

That said facility is an open dump operating without an Illinois Environmental

Protection Agency Operating Permit and is designated v.nth Site Code No. 0178055002.

That Respondents have owned/operated said facility at all times pertinent hereto.

That on December 6, 2007, Charles W. King, Jr.

of the Illinois Environmental

Protection Agency's Springfield 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

Based upon direct observations made by Charles King during the course

of his December 6,

2007 inspection of the above-named facility, the Illinois Environmental Protection Agency has

determined that Respondents have violated the Illinois Environmental Protection Act (hereinafter,

the "Act") as follows:

That Respondents caused

or allowed the open dumping of waste in a manner

in litter, a violation of Section 21(p)(1) of the Act, 415 ILCS 5/21(p)(1)

Pursuant to Section 42(b)(4-5)

of the Act, 415 ILCS 5/42(b)(4-5) (2004), Respondents are

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 One Thousand Five Hundred Dollars ($1,500.00). If

Respondents elect not to petition the Illinois Pollution Control Board, the statutory civil penalty

specified above shall be due and payable no later than February 15, 2008, unless otherwise

provided by order

of the Illinois Pollution Control Board.

If Respondents elect to contest this Administrative Citation by petitioning the Illinois Pollution

in accordance with Section 31.1 of the Act, 415 ILCS 5/31.1 (2004), and if the Illinois

Pollution Control Board issues a finding

of violation as alleged herein, after an adjudicatory hearing,

Respondents shall

be assessed the associated hearing costs incurred by the Illinois Environmental

Protection Agency and the Illinois Pollution Control Board. Those hearing costs shall

in addition to the One Thousand Five Hundred Dollar ($1,500.00) statutory civil penalty for each

Pursuant to Section

31.1 (d)(1) of the Act, 415 ILCS 5/31.1 (d)(1) (2004), if Respondents fail

to petition or elect 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.

is made, Respondents' 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, Respondents shall complete and return the enclosed

Remittance Form to ensure proper documentation

Ifany 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 Respondents from the date payment is due up to and including the date that payment

received. The Office of the Illinois Attorney General may be requested to initiate proceedings

against Respondents

in Circuit Court to collect said penalty and/or hearing costs, plus any interest

PROCEDURE FOR CONTESTING THIS

ADMINISTRATIVE CITATION

Respondents have the right to contest this Administrative Citation pursuant to and in

accordance with Section 31.1

of the Act, 415 ILCS 5/31/1 (2004). If Respondents elect to contest

this Administrative Citation, then Respondents shall file a signed Petition for Review, including a

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

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.

Susan E. Konzelmann, Legal Assistant

of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

REMITTANCE FORM

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

NORMA EDDINGTON and CECIL

(IEPA No. 1-Q8-AC)

Hagener Township/Eddington #2

DATE OF INSPECTION:

SS/FEIN NUMBER:

December 6, 2007

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.