ILLINOIS POLLUTION CONTROL BOARD
August 7, 2008
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
THEODORE & ELIZABETH
HOLLEMBEAK and HOLLEMBEAK
CONCRETE, INC.,
Respondents.
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AC 09-2
(IEPA No. 85-08-AC)
(Administrative Citation)
ORDER OF THE BOARD (by G.T. Girard):
On July 11, 2008, the Illinois Environmental Protection Agency (Agency) timely filed an
administrative citation against Theodore and Elizabeth Hollembeak and Hollembeak Concrete,
Inc..
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 402 Pittsfield Road, Mt. Sterling, Brown
County, designated with Site Code No. 0090105033, and commonly known to the Agency as
“Mt. Sterling/Hollembeak Concrete.” The Board accepts as timely filed Theodore Hollembeak’s
petition to contest the administrative citation, but directs Elizabeth Hollembeak and Hollembeak
Concrete, Inc., to file an amended petition to cure the deficiencies identified below.
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.
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), (p)(3), and
(p)(7) of the Act (415 ILCS 5/21(p)(1), (p)(3), (p)(7) (2006)) on May 30, 2008, by causing or
allowing the open dumping of waste in a manner resulting in litter, open burning, and the
deposition of general or clean construction or demolition debris at Hollembeak Concrete, Inc.’s
Brown County facility. According to the administrative citation, Theodore and Elizabeth
Hollembeak are the present owners and Hollembeak Concrete, Inc. is the present operator of the
facility. The Agency asks the Board to impose on respondents the statutory $1,500 civil penalty
per violation for a total civil penalty of $4,500.
The Agency is required to serve 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). Theodore Hollembeak filed a petition to contest the administrative
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citation (Pet.) with the Board on July 21, 2008. In the petition for review, Theodore Hollembeak
denies the allegations and states, “there were uncontrollable circumstances pertaining to the
alleged violation(s).” Pet. at 1;
see
35 Ill. Adm. Code 108.206. The Board has not yet received
proof of service from the Agency, but because Theodore Hollembeak filed his petition within 60
days of the observed violation, the Board accepts the petition as timely filed.
The Board finds, however, that the petition reflects deficiencies that must be remedied
before this case can be accepted for hearing with respect to respondents Elizabeth Hollembeak
and Hollembeak Concrete, Inc. Though an individual may represent himself or herself, a non-
attorney cannot represent another person in a Board adjudicatory proceeding, such as an
administrative citation action.
See
35 Ill. Adm. Code 101.400(a). Additionally, any person other
than individuals must appear through an attorney-at-law licensed and registered to practice law.
See id.
The petition was brought on behalf of and signed by Thomas Hollembeak. Pet. at 1-2.
The petition fails to identify Thomas Hollembeak as an attorney. If Elizabeth Hollembeak and
Hollembeak Concrete, Inc. continue to contest the administrative citation, they must do so by
filing an amended petition through an attorney-at-law.
Additionally, in the petition for review, Thomas Hollembeak alleges that “the respondent
is now in compliance of all three alleged violations.” Pet. at 2. The Board notes that voluntary
clean up actions performed by a respondent after an Agency site inspection are generally neither
a defense to the violations nor relevant to determining the civil penalty amount.
See
IEPA v.
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”).
The Board therefore directs that Elizabeth Hollembeak and Hollembeak Concrete, Inc.
file an amended petition through an attorney-at-law.
See e.g.
, IEPA v. Ray Logsdon Estate, AC
05-54 (Mar. 3, 2005) (accepting as timely filed a petition that did not indicate whether it was
filed by an attorney but requiring an amended petition to cure the deficiency). If Elizabeth
Hollembeak and Hollembeak Concrete, Inc. fail to file an amended petition in a timely manner,
the Board will enter default order against the remaining respondents, imposing the $4,500
penalty.
See
Ray Logsdon Estate
, AC 05-54 (Apr. 21, 2005) (finding respondent defaulted by
not filing amended petition as directed to cure efficiency in original petition).
If respondents proceed to contest the administrative citation and do not prevail on the
merits of the case, respondents will have to pay not only the $4,500 civil penalty but also any
hearing costs of the Board and the Agency.
See
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.
See
35 Ill. Adm. Code 108.504.
IT IS SO ORDERED.
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I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on August 7, 2008, by a vote of 4-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
