ILLINOIS POLLUTION CONTROL BOARD

MOTION TO DISMISS
PETITION TO CONTEST THE ADMINISTRATIVE CITATION
CONCLUSION

ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

JOSEPH COSENTINO and ROB PINSKI,

(IEPA No. 52-08-AC)

(Administrative Citation)

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

On April 11, 2008, the Illinois Environmental Protection Agency (Agency) timely filed

an administrative citation against Joseph Cosentino (Cosentino) and Rob Pinski (Pinski).

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 1043 N. Walnut Street, St. Johns, Perry County, designated

with Site Code No. 1450200009, and commonly known to the Agency as “St.Johns/Cosentino-P.

and E. Construction, Pinski.” On May 12, 2008, Pinski filed a timely petition to contest the

administrative citation. On June 2, 2008, the Agency filed a motion to dismiss Cosentino. For

the reasons below, the Board grants the Agency’s motion to dismiss Cosentino and accepts

Pinski’s petition to contest the administrative citation.

MOTION TO DISMISS

The Agency requests that the Board dismiss Cosentino from this administrative citation

action, leaving Pinski as the only respondent. According to the motion, the Agency has

determined, based upon information and belief, that Cosentino “has been deceased for several

years.” Motion at 1. The Board grants the Agency’s motion.

PETITION TO CONTEST THE ADMINISTRATIVE CITATION

Under the Environmental Protection Act (Act) (415 ILCS 5 (2006)), 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.

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 on February 29, 2008, Pinski violated Sections

21(p)(1), (p)(3), and (p)(4) of the Act (415 ILCS 5/21(p)(1), (p)(3), (p)(4) (2006)) by causing or

allowing the open dumping of waste in a manner resulting in litter, open burning, and the

deposition of waste in standing or flowing waters at the Perry County site. According to the

administrative citation, Pinski is the current operator of the site. The Agency asks the Board to

impose a $4,500 civil penalty on Pinski.

As required, the Agency served the administrative citation on Pinski within “60 days after

the date of the observed violation.” 415 ILCS 5/31.1(b) (2006);

35 Ill. Adm. Code

101.300(c), 108.202(b). Any petition to contest the administrative citation was due by May 29,

2008. On May 12, 2008, Pinski timely filed a petition to contest the administrative citation.

415 ILCS 5/31.1(d) (2006); 35 Ill. Adm. Code 101.300(b), 108.204(b), 108.206. According to

Pinski’s petition, he was unaware that he was “doing anything illegal by burning wood in the

country.” Petition at 3. Pinski further claims that he complied with the disposal and cleanup

requests of the Agency inspector, who allegedly informed him that he “was going to get 3

warning tickets most likely if [he] complied with this Agreement.”

The Board accepts Pinski’s petition and directs the hearing officer to proceed

expeditiously to hearing. The hearing officer will give the parties at least 21 days written notice

of the hearing.

35 Ill. Adm. Code 108.300; 415 ILCS 5/31.1(d)(2) (2006). By contesting the

administrative citation, Pinski may have to pay the hearing costs of the Board and the Agency.

415 ILCS 5/42(b)(4-5) (2006); 35 Ill. Adm. Code 108.500. A schedule of the Board’s

hearing costs is available from the Clerk of the Board and on the Board’s Web site at

www.ipcb.state.il.us.

35 Ill. Adm. Code 108.504.

Pinski may withdraw his petition to contest the administrative citation at any time before

the Board enters its final decision. If Pinski chooses to withdraw his petition, he must do so in

writing, unless he does so orally at hearing.

35 Ill. Adm. Code 108.208. If Pinski withdraws

his petition after the hearing starts, the Board will require Pinski to pay the hearing costs of the

Board and the Agency.

. at 108.500(c).

The Agency has the burden of proof at hearing.

415 ILCS 5/31.1(d)(2) (2006); 35 Ill.

Adm. Code 108.400. If the Board finds that Pinski violated Section 21(p)(1), (p)(3), or (p)(4) of

the Act (415 ILCS 5/21(p)(1), (p)(3), (p)(4) (2006)), the Board will impose civil penalties on

Pinski. 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.

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

35 Ill. Adm. Code 108.500(a). However, if the Board finds that Pinski “has shown that the

violation resulted from uncontrollable circumstances, the Board shall adopt a final order which

makes no finding of violation and which imposes no penalty.” 415 ILCS 5/31.1(d)(2) (2006);

35 Ill. Adm. Code 108.500(b).

For the reasons above, the Board grants the Agency’s motion to dismiss Cosentino and

accepts Pinksi’s petition to contest the administrative citation. Consistent with today’s order, the

caption of future pleadings in this case should reflect Pinski as the sole respondent.

IT IS SO ORDERED.

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

BEFORE THE ILLINOIS POLLUTION CONTROL BOAR

ADMINISTRATIVE CITATION

APR 1 1 2008

STATE OF ILLINOIS

Pollution Control Board

(IEPA No. 52-08-AC)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

JOSEPH COSENTINO and ROB PINSKI, )

NOTICE OF FILING

Joseph Cosentino

1043 N. Walnut Street

529 South Madison Street

St. Johns, IL 62832

DuQuoin, IL 62832

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,

Michelle . Ryan

Assistant Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

Dated: April 8, 2008

THIS FILING SUBMITTED ON RECYCLED PAPER

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

LERK'$ OFFICE

ADMINISTRATIVE CITATION

APR 1 1 2008

STATE OF ILLINOIS

Pollution Control Board

(IEPA No. 52-08-AC)

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 Joseph Cosentino is the present owner and Rob Pinski is the current operator

("Respondents") of a facility located at 1043 N. Walnut Street, St. Johns, Perry County, Illinois. The

property is commonly known to the Illinois Environmental Protection Agency as St. Johns/Cosentino-

P.and E. Construction, Pinski.

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

Protection Agency Operating Permit and is designated with Site Code No. 1450200009.

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

That on February 29, 2008, Sheila Williams of the Illinois Environmental Protection

Agency's Marion Regional Office inspected the above-described facility. A copy of

report setting forth the results of said inspection is attached hereto and made a part hereof.

PROTECTION AGENCY,

ILLINOIS ENVIRONMENTAL

JOSEPH COSENTINO and ROB PINSKI,

Based upon direct observations made by Sheila Williams during the course of her February

29, 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:

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)

That Respondents caused or allowed the open dumping of waste in a manner

resulting in open burning, a violation of Section 21(p)(3) of the Act, 415 ILCS

5/21(p)(3) (2006).

That Respondents caused or allowed the open dumping of waste in a manner

resulting in deposition of waste in standing or flowing waters, a violation of Section

21(p)(4) of the Act, 415 ILCS 5/21(9)(4)(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 Four Thousand Five Hundred Dollars ($4,500.00). 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 May 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

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, 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

Dougla P. Scott, Director

Illinois Environmental Protection Agency

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.

Susan E. Konzelmann, Legal Assistant

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

REMITTANCE FORM

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

JOSEPH COSENTINO and ROB PINSKI,

CLERK'S OFFICE

APR 1 1 2008

STATE OF ILLINOIS

Pollution Control Board

(IEPA No. 52-08-AC)

St. Johns/Cosentino- P&E Construction, Pinski

CIVIL PENALTY:?

DATE OF INSPECTION:

February 29, 2008

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.