ILLINOIS POLLUTION CONTROL BOARD

ORDER

June 5, 2008

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

EDWARD W. FISHER, RHONDA L.

FISHER and DEM/EX GROUP, INC.,

Respondents.

)

AC 08-26

(IEPA No. 29-08-AC)

(Administrative Citation)

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

On March 21, 2008, the Illinois Environmental Protection Agency (Agency) timely filed

an administrative citation against Edward W. Fisher, Rhonda L. Fisher, and DEM/EX Group,

Inc. (collectively respondents).

See

415 ILCS 5/31.1(c) (2006); 35 Ill. Adm. Code 101.300(b),

108.202(c). The administrative citation concerns a facility located at the Northwest 1/4 of

Section 28, Township 23 North, Range 6 West, Third Meridian, Manito, Mason County,

designated with Site Code No. 1250305011, and commonly known to the Agency as

“Manito/DEM/EX Group, Inc.” For the reasons below, the Board finds that respondents violated

the Environmental Protection Act (Act) (415 ILCS 5 (2006)) and orders respondents to pay

$3,000 in civil penalties.

Under the Act, an administrative citation is an expedited enforcement action brought

before the Board seeking civil penalties that are fixed by statute. Administrative citations may

be filed only by the Agency or, if the Agency has delegated the authority, by a unit of local

government, and only for limited types of alleged violations at sanitary landfills or unpermitted

open dumps.

See

415 ILCS 5/3.305, 3.445, 21(o), (p), 31.1(c), 42(b)(4), (4-5) (2006); 35 Ill.

Adm. Code 108.

In this case, the Agency alleges 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. According to the administrative citation, Edward W. Fisher and Rhonda L. Fisher are the

current owners and DEM/EX Group, Inc. is the current operator of the facility. The Agency asks

the Board to impose a $3,000 civil penalty on respondents. As required, the Agency served the

administrative citation on respondents within “60 days after the date of the observed violation.”

415 ILCS 5/31.1(b) (2006);

see also

35 Ill. Adm. Code 101.300(c), 108.202(b).

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.

See

415 ILCS 31.1(d)(1) (2006); 35 Ill. Adm. Code 101.300(b),

108.204(b), 108.406. Here, any petition for review was due on April 24, 2008. All respondents

failed to timely file a petition. Accordingly, the Board finds that respondents violated Sections

21(p)(1) and (p) (7) of the Act.

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 provision.

See

415 ILCS 5/42(b)(4-5) (2006);

35 Ill. Adm. Code 108.500(a). Because there are two violations of Section 21(p) and no

allegations of any second or subsequent adjudicated violations, the total civil penalty is $3,000.

Under Section 31.1(d)(1) of the Act, the Board attaches the administrative citation and makes it

part of the order below.

This opinion constitutes the Board’s finding of fact and conclusions of law.

ORDER

The Board finds that respondents violated Sections 21(p)(1) and (p)(7) of the

Environmental Protection Act (415 ILCS 5/21(p)(1), (p)(7) (2006)).

Respondents must pay a civil penalty of $3,000 no later than July 7, 2008, which

is the first business day following the 30th day after the date of this order.

Respondents must pay the civil penalty by certified check or money order, made

payable to the Illinois Environmental Protection Agency, designated to the Illinois

Environmental Protection Trust Fund. The case number, case name, and each

respondent’s respective social security number or federal employer identification

number must be included on the certified check or money order.

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

Penalties unpaid within the time prescribed will accrue interest under Section

42(g) of the Environmental Protection Act (415 ILCS 5/42(g) (2006)) at the rate

set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/1003(a)

(2006)).

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) (2006);

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;

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

Board adopted the above order on June 5, 2008, by a vote of 4-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board

(IEPA No. 29-08-AC)

BEFORE THE ILLINOIS POLLUTION

CHIGINAL

CONTROL BOARD

ADMINISTRATIVE CITATION

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

EDWARD W. FISHER & RHONDA L.

FISHER and DEM/EX GROUP INC.,

Respondents.

NOTICE OF FILING

To: Edward W. Fisher & Rhonda L. Fisher

DEM/EX Group, Inc.

7841 Warner Road

805 South Adams Street

Manito, IL 61546

Manito, IL 61546-9300

PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution

Control Board of the State of Illinois the following instrument(s) entitled ADMINISTRATIVE

CITATION, AFFIDAVIT, and OPEN DUMP INSPECTION CHECKLIST.

Respectfully submitted,

Michel M. Ryan

Assistant Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

Dated: March 19, 2008

THIS FILING SUBMI1 1ED ON RECYCLED PAPER

BEFORE THE ILLINOIS POLLUTION

CONTROL

BOARD

N A L.

ADMINISTRATIVE CITATION

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

EDWARD W. FISHER & RHONDA L.

FISHER and DEM/EX GROUP INC.,

Respondents.

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 (2006).

FACTS

That Edward W. Fisher and Rhonda L. Fisher are the present owners and DEM/EX

Group Inc. is the current operator ("Respondents") of a facility located as follows: Part of the

Northwest % of Section 28, Township 23 North, Range 6 West, Third Meridian, Manito, Mason

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

Manito/DEM/EX Group, Inc.

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

Protection Agency Operating Permit and is designated with Site Code No. 1250305011.

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

That on February 7, 2008, Paul Eisenbrandt 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

hereof.

VIOLATIONS

Based upon direct observations made by Paul Eisenbrandt during the course of his February

7, 2008 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:

(1)

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 5/21(p)(1)

(2006).

(2)

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

5/21(p)(7) (2006).

CIVIL PENALTY

Pursuant to Section 42(b)(4-5) of the Act, 415 ILCS 5142(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 April 30, 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

violation.

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, 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 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

accrued.

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 Respondents.

LtyLt,

7°,

Date:

3119 tog

Dougla P. Scott, Director?

-3 6

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

REMITTANCE FORM

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

(IEPA No. 29-08-AC)

EDWARD W. FISHER & RHONDA L.

FISHER and DEM/EX GROUP INC.,

Respondents.

FACILITY:

Manito/DEM/EX Group, Inc.

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.