ILLINOIS POLLUTION CONTROL BOARD

PROCEDURAL HISTORY
CIVIL PENALTY DUE DATE

ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

KEN and ELLA COOK,

(IEPA No. 336-07-AC)

(Administrative Citation)

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

On April 22, 2008, respondents Ken and Ella Cook (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 1607 North Park in Herrin, Williamson

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

Agency (Agency), as “Herrin/Cook” and is designated with Site Code No. 1990405076.

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

ruling on respondents’ motion. The Board concludes with a discussion of the date on which

payment of the $3,000 civil penalty is due.

PROCEDURAL HISTORY

On December 14, 2007, the Agency filed an administrative citation against respondents.

The citation was based on a November 15, 2007 Agency inspection of respondents’ site.

Respondents were served with the administrative citation on December 14, 2007. 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 Sections

21(p)(1) and (p)(7) of the Environmental Protection Act (Act) (415 ILCS 5/21(p)(1), (p)(7)

(2006)) as alleged and imposing the statutory civil penalty of $1,500 per violation, for a total

civil penalty of $3,000. 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 22, 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 22, 2008, respondents state that they have removed various

items from the site, including metal and “vegetative waste,” and “cleaned up” certain areas.

Letter at 1. Respondents maintain that they have made “significant progress” since the Agency’s

site inspection, while acknowledging that they “have more that needs to be done.”

Respondents conclude:

With reference to the civil penalty, we do not have $3,000.00, nor will money be

available by the April 21, 2008, date. Any alternatives, e.g., extended compliance

dates would be appreciated.

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’ letter,

filed April 22, 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 violations alleged by the Agency. Having found the violations, the

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

Respondents’ subsequent cleanup is not a defense, and the Act affords the Board no discretion to

take any potentially mitigating circumstances into account to reduce an administrative citation

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 Sections 21(p)(1) and (p)(7) of

the Act (415 ILCS 5/21(p)(1), (p)(7) (2006)) by causing or allowing the open dumping of waste

in a manner resulting in litter and the deposition of general or clean construction or demolition

debris. Any petition for review was due by January 18, 2008. Respondents failed to timely file a

petition. The Board therefore found in its March 20, 2008 order that respondents violated

Sections 21(p)(1) and (p)(7) of the Act on November 15, 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 were two violations of Section 21(p) and no allegations of any second or subsequent

adjudicated violations, the Board was required by the Act to impose a total civil penalty of

$3,000 on respondents.

A cleanup performed by a respondent after the Agency site inspection is generally

without legal significance in an administrative citation action for open dumping.

Jack Wright, AC 89-227, slip op. at 7 (Aug. 30, 1990) (“The Act, by its terms, does not envision

a properly issued administrative citation being dismissed or mitigated because a person is

cooperative or voluntarily cleans-up the site”). In short, respondents’ subsequent cleanup,

however laudable, is neither a defense to these violations nor relevant to determining the civil

penalty amount.

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) (2006). 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, $3,000, 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.

CIVIL PENALTY DUE DATE

Under the Board’s procedural rules, a “timely-filed motion for reconsideration . . . stays

the effect of the final order until final disposition of the motion.” 35 Ill. Adm. Code 101.520(c).

Accordingly, the Board’s March 20, 2008 order was stayed with the timely filing of respondents’

motion to reconsider. By that same rule, today’s denial of the motion to reconsider lifts the stay.

Accordingly, to the extent respondents’ have not already paid the civil penalty, respondents’

must pay the civil penalty of $3,000 no later than June 16, 2008, which is the first business day

following the 30th day after the date of today’s order. The terms of the Board’s March 20, 2008

order are otherwise unchanged.

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

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

(IEPA No. 336-07-AC)

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ADMINISTRATIVE CITATION

CLERKS OFFICE

KEN and ELLA COOK,

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 (2006).

That Ken and Ella Cook are the present owners ("Respondents") of a facility

located at 1607 North Park in Herrin, Williamson County, Illinois. The property is commonly

known to the Illinois Environmental Protection Agency as Herrin/Cook.

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

Protection Agency Operating Permit and is designated with Site Code No. 1990405076.

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

That on November 15, 2007, Phillip Fatka of the Illinois Environmental Protection

Agency's Marion 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.

Based upon direct observations made by Phillip Fatka during the course of his November 15,

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

resulting in litter, a violation of Section 21(p)(1) of the Act, 415 ILCS 5121(p)(1)

That Respondents 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 5/210)(7) (2006).

Pursuant to Section 42(b)(4-5) of the Act, 415 ILCS 5/42(b)(4-5) (2006), 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 Three Thousand Dollars ($3,000.00). 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 January 31, 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

Control Board in accordance with Section 31.1 of the Act, 415 ILCS 5/31.1 (2006), 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 be assessed

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) (2006), 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.

When payment 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, 1021North 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 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 Respondents 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 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 (2006). If Respondents elect to contest

this Administrative Citation, then Respondents 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.

Illinois Environmental Protectioi'Agency

Douglas . Scott, Director

Susan E. Konzelmann, Legal Assistant

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY, ()

REMITTANCE FORM

Board

(IEPA No. 336-07-AC)

KEN and ELLA COOK,

DATE OF INSPECTION:

November 15, 2007

SS/FEIN NUMBER:

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.