ILLINOIS POLLUTION CONTROL BOARD

October 16, 2008

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v.

RUBY ACKLIN and JOSEPH FLICK,

Respondents.

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)

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)

AC 09-11

(IEPA No. 156-08-AC)

(Administrative Citation)

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

Today the Board grants the motion of complainant, the Illinois Environmental Protection

Agency (Agency), to voluntarily dismiss respondent Ruby Acklin (Acklin) and enters a default

order against respondent Joseph Flick (Flick). On August 25, 2008, the Agency filed an

administrative citation against Flick and Acklin (collectively, respondents).

See

415 ILCS

5/31.1(c) (2006); 35 Ill. Adm. Code 101.300(b), 108.202(c). The administrative citation

concerns respondents’ property located at 4155 Wing Hill Road in Cobden, Union County. The

property is commonly known to the Agency as the “Cobden/Acklin-Flick” site and is designated

with Site Code No. 1818545010.

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 alleged that

respondents violated Sections 21(p)(1) and (p)(7) of the Act (415 ILCS 5/21(p)(1), (p)(7) (2006))

on July 17, 2008, by causing or allowing the open dumping of waste resulting in litter and the

deposition of general or clean construction or demolition debris at the Union County site. The

Agency asked the Board to impose on respondents the statutory $1,500 civil penalty per

violation, for a total civil penalty of $3,000.

Under the Act, the Agency must 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). The Agency timely served Flick with the administrative

citation on August 25, 2008. However, on September 25, 2008, the Agency filed a motion to

voluntarily dismiss Acklin. In the motion, the Agency states that it failed to timely serve Acklin.

The Board therefore grants the Agency’s motion and dismisses Acklin from this proceeding.

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

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2

so, the Board must find that the respondent committed the violations 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 from Flick was due by September 29, 2008.

Flick failed to timely file a petition. Accordingly, the Board finds that Flick 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

allegation of any second or subsequent adjudicated violation by Flick, 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 findings of fact and conclusions of law.

ORDER

1.

The Board grants the Agency’s motion to voluntarily dismiss Acklin.

2.

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

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

3.

Flick must pay a civil penalty of $3,000 no later than November 17, 2008, which

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

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

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

Flick’s social security number must be included on the certified check or money

order.

4.

Flick 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

5.

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)).

6.

Payment of this penalty does not prevent future prosecution if the violations

continue.

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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);

see also

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

101.520;

see also

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 opinion and order on October 16, 2008, by a vote of 4-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board

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RECEVD

CLERK’S

OFFICE

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

AUG

2

52008

ADMINISTRATIVE

CITATION

STATE

OF

ILLINOIS

PoIluton

Control

Board

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

)

Complainant,

)

AC

I

I

V.

)

(IEPA

No.

156-08-AC)

RUBY

ACKLIN

and

JOSEPH

FLICK,

)

)

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

1.

That

Ruby

Acklin

is

the

current

owner

and

Joseph

Flick

is

purchasing

the

property,

Contract

for

Deed

(“Respondents”)

of

a

facility

located

at

4155

Wing

Hill

Road,

Cobden,

Union

County,

Illinois.

The

property

is

commonly

known

to

the

Illinois

Environmental

Protection

Agency

as

Cobden/Acklin-Flick.

2.

That

said

facility

is

an

open

dump

operating

without

an

Illinois

Environmental

Protection

AgencyOperating

Permit

and

is

designated

with

Site

Code

No.

1818545010.

3.

That

Respondents

have

owned

or

are

in

the

process

of

owning

said

facility

at

all

times

pertinent

hereto.

1

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4.

That on

July 17,

2008,

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.

VIOLATIONS

Based

upon

direct observations

made

by

Phillip Fatka

during

the

course

of his

July

17,

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

5121(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

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

September

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

2

---

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 statutoiy

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.

3

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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.

f

Date:

LZIO

Douglasiy.

Scott,

Director

)

‘t___._,

Illinois

EInvironmental

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

4

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CLERK’S

OFFICE

REMITTANCE

FORM

252008

STATE

OF

ILLINOIS

ILLINOIS ENVIRONMENTAL

)

Pollution

Control

Board

PROTECTION

AGENCY,

)

Complainant,

)

AC

Q

1

V.

)

(IEPA

No. 156-08-AC)

RUBY ACKLIN

and JOSEPH

FLICK,

)

)

L

Respondents.

FACILITY:

Cobden/Acklin-Flick

SITE

CODE

NO.:

1818545010

COUNTY:

Union

CIVIL PENALTY:

$3,000.00

DATE OF INSPECTION:

July

17, 2008

DATE REMITTED:

SS/FEIN

NUMBER:

SIGNATURE:

NOTE

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.

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