ILLINOIS POLLUTION CONTROL BOARD
September 16, 2008
COUNTY OF JACKSON,
Complainant,
v.
LESTER JOHNSON and ARTHUR CROSS,
Respondents.
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AC 09-4
(Site Code No. 0778145021)
(Administrative Citation)
ORDER OF THE BOARD (by G.T. Girard):
On July 16, 2008, the County of Jackson (County) timely filed an administrative citation
against Lester Johnson (Johnson) and Arthur Cross (Cross) (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 property located at latitude 7.74701 and longitude -89.40784 in Jackson County,
designated with Site Code No. 0778145021, and commonly known to the Illinois Environmental
Protection Agency as the “Murphysboro/Lester Johnson” site. Today, for the reasons below, the
Board accepts for hearing the amended petitions of Johnson and Cross.
The County alleges that respondents violated Sections 21(p)(1), (p)(3), (p)(4), and (p)(7)
of the Environmental Protection Act (Act) (415 ILCS 5/21(p)(1), (p)(3), (p)(4), (p)(7) (2006)) on
June 5, 2008, by causing or allowing the open dumping of waste resulting in litter, open burning,
the deposition of waste in standing or flowing waters, and the deposition of general or clean
construction or demolition debris at the Jackson County site. According to the citation, Don
Terry (Terry), a Field Inspector with the Jackson County Health Department, inspected the site
on June 5, 2008. The County asks the Board to impose on respondents the statutory civil penalty
of $1,500 for each alleged violation, for a total civil penalty of $6,000.
On August 4, 2008, respondents filed a petition requesting a hearing to dispute the
administrative citation. On August 7, 2008, the Board issued an order accepting the petition as
timely filed, but finding the petition deficient because it did not provide grounds for contesting
the administrative citation.
See
35 Ill. Adm. Code 108.204(b), 108.206. The Board directed
respondents to file an amended petition remedying this deficiency by September 8, 2008, or the
Board would dismiss the petition and enter a default order against respondents.
See
35 Ill. Adm.
Code 108.404, 108.500(a).
On August 27, 2008, the Board received two amended petitions filed
pro se
, one from
Johnson (J. Am. Pet.) and one from Cross (C. Am. Pet.). Each amended petition maintains that
the site was “cleared and clean” within a few days after Terry inspected the site. J. Am. Pet. at 1;
C. Am. Pet. at 1. Both amended petitions further allege that at an August 20, 2008 re-inspection
by Terry, holes were dug on-site to make sure no materials had been buried, and the inspector
agreed the property was “clean.” J. Am. Pet. at 1; C. Am. Pet. at 1. The Board notes that
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voluntary clean up actions performed by a respondent after a 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 amended petitions, however, make further assertions. Johnson states that he sold the
property to Cross through a “contract for deed” and “had no part in the destruction of the mobile
home.” J. Am. Pet. at 1. Cross claims that he was “trying to do what was right” as “[t]he Health
Department” had suggested to him that he “get further away from the Creek.” C. Am. Pet. at 1.
The Board accepts the amended petitions for hearing. The Board 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.
See
35 Ill. Adm. Code 108.300; 415 ILCS 5/31.1(d)(2) (2006).
By contesting the administrative citation, respondents may have to pay the hearing costs
of the Board and the County.
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. Respondents may withdraw
their amended petitions at any time before the Board enters its final decision. If either Johnson
or Cross chooses to withdraw his amended petition, he must do so in writing, unless he does so
orally at hearing.
See
35 Ill. Adm. Code 108.208. If respondents withdraw their petitions after
the hearing starts, the Board will require respondents to pay the hearing costs of the Board and
the County.
See id.
at 108.500(c).
The County has the burden of proof at hearing.
See
415 ILCS 5/31.1(d)(2) (2006); 35 Ill.
Adm. Code 108.400. If the Board finds that either Johnson or Cross violated Section 21(p)(1),
(p)(3), (p)(4), or (p)(7) of the Act (415 ILCS 5/21(p)(1), (p)(3), (p)(4), (p)(7) (2006)), the Board
will impose civil penalties. Because the Act specifies the civil penalty for a violation in an
administrative citation action, the Board cannot consider mitigating or aggravating factors when
determining penalty amounts.
See
,
e.g.
, IEPA v. Stutsman, AC 05-70, slip op. at 2 (Sept. 21,
2006). The civil penalty for violating Section 21(p) 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
45 ILCS 5/42(b)(4-5) (2006); 35 Ill. Adm. Code 108.500(a).
However, if the Board finds that a respondent “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);
see also
35 Ill. Adm.
Code 108.500(b).
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 September 16, 2008, by a vote of 4-0.
__________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
