ILLINOIS POLLUTION CONTROL BOARD
December 4, 2008
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
JOSEPH FLICK,
Respondent.
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AC 08-32
(IEPA No. 73-08-AC)
(Administrative Citation)
ORDER OF THE BOARD (by G.T. Girard):
In a September 4, 2008 order, the Board dismissed an administrative citation filed by the
Illinois Environmental Protection Agency (Agency) on June 3, 2008, against Joseph Flick
(Flick). The Board dismissed the administrative citation because as of September 4, 2008, the
Agency had not filed proof with the Board that the Agency served the administrative citation on
Flick. On October 14, 2008, the Agency filed a motion asking the Board to reconsider the
September 4, 2008 order. Today the Board grants the Agency’s motion to reconsider and, based
on new evidence of service, vacates the September 4, 2008 order and enters a default order
against Flick. Below, the Board provides background before turning to the issues.
BACKGROUND
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. The Act requires the Agency to serve
the administrative citation on the respondent “within not more than 60 days after the date of the
observed violation” and to file a copy of the administrative citation with the Board “no later than
10 days after the date of service.” 415 ILCS 5/31.1(b), (c) (2006). The respondent has “35 days
from the date of service” to file a petition with the Board to contest the administrative citation.
415 ILCS 5/31.1(d)(1) (2006).
In this case, the administrative citation filed on June 3, 2008, concerns a facility located
at 280 Pine Tree Lane in Cobden, Union County. According to the citation, Flick is the present
owner and operator of the facility, which is commonly known to the Agency as the
“Cobden/Flick” site and is designated with Site Code No. 1818540002.
The Agency alleges in the administrative citation that Flick violated Sections 21(p)(1)
and (p)(7) of the (415 ILCS 5/21(p)(1), (p)(7) (2006)) at the site on May 5, 2008, by causing or
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allowing the open dumping of waste in a manner resulting in litter and the deposition of general
or clean construction or demolition debris. The Agency seeks the statutory civil penalty of
$1,500 for each alleged violation, totaling $3,000.
See
415 ILCS 5/42(b)(4-5) (2006). The
sixtieth day after May 5, 2008, was July 4, 2008, a national holiday. Accordingly, the deadline
for Agency service of the administrative citation was the next business day,
i.e.
, July 7, 2008.
See
35 Ill. Adm. Code 101.300(a).
On September 4, 2008, the Board dismissed the June 3, 2008 administrative citation
because the Agency had failed to file proof of service of the administrative citation on Flick.
Without proof of service, the Board was unable to determine whether it had jurisdiction over the
case.
See
415 ILCS 5/31.1(b), (c) (2006). As the Board noted, failure to serve the citation
within the 60-day period deprives the Board of jurisdiction. Likewise, compliance with the Act’s
10-day filing requirement is also a jurisdictional prerequisite for the Board to hear or enter a
default judgment on an administrative citation.
See
IEPA v. Joseph Flick
, AC 08-32, slip op. at
1-2 (Sept. 4, 2008).
MOTION TO RECONSIDER
On October 14, 2008, the Agency filed a motion for reconsideration (Mot.) of the
Board’s September 4, 2008 order.
See
35 Ill. Adm. Code 101.520. Any response from Flick was
due by October 28, 2008.
See
35 Ill. Adm. Code 101.520(b). The Board received no response
and Flick is therefore deemed to have waived any objection to the Board granting the motion.
See
35 Ill. Adm. Code 101.500(d).
A motion to reconsider may be brought “to bring to the [Board’s] attention newly
discovered evidence which was not available at the time of the hearing, changes in the law or
errors in the [Board’s] previous application of existing law.” Citizens Against Regional Landfill
v. County Board of Whiteside County, PCB 92-156, slip op. at 2 (Mar. 11, 1993), citing
Korogluyan v. Chicago Title & Trust Co., 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st
Dist. 1991);
see also
35 Ill. Adm. Code 101.902. In addition, a motion to reconsider may specify
“facts in the record which were overlooked.” Wei Enterprises v. IEPA
, PCB 04-23, slip op. at 3
(Feb. 19, 2004). The Agency’s motion “requests that the Board reconsider its September 4, 2008
order based on the new evidence herein contained.” Mot. at 1-2. As described below, the new
evidence concerns service of the administrative citation on Flick. The Board accordingly grants
the motion to reconsider.
In the motion, the Agency states that on May 28, 2008, the Agency issued the
administrative citation to Flick. Mot. at 1. The Agency asserts that Flick was served on May 31,
2008, attaching a copy of a certified mail receipt, which is signed and dated May 31, 2008. Mot.
at 1, Att. According to the Agency, service was timely as the site inspection took place on May
5, 2008. Mot. at 1. Based on this new evidence of service, coupled with Flick’s failure to
contest the administrative citation, the Agency asks that the Board issue a default order against
Flick.
Id
. at 1-2.
The Board’s procedural rules call for administrative citations to be served “personally,
by registered or certified mail, or by messenger service.” 35 Ill. Adm. Code 101.304(c). In
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addition, “[p]roof of service of . . . administrative citations must be filed with the Board upon
completion of service.”
Id
. For service by registered mail, certified mail, or messenger service,
“service is deemed complete on the date specified on the registered or certified mail receipt or
the messenger service receipt.” 35 Ill. Adm. Code 101.300(c).
As stated above, based on the May 5, 2008 inspection date, the Agency was required to
serve the administrative citation on Flick by July 7, 2008. The Agency has provided a signed
and dated certified mail receipt, demonstrating that Flick was timely served on May 31, 2008.
Further, the Agency’s June 3, 2008 filing of the administrative citation was no later than ten days
after the date of service. The Board finds that the Agency timely served and filed the
administrative citation. With the satisfaction of these jurisdictional prerequisites (415 ILCS
5/31(b), (c) (2006)), the Board will enter a default order against Flick. The Board therefore
vacates its September 4, 2008 order based on the new evidence of service presented by the
Agency.
DEFAULT
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 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 was due by July 7, 2008.
See
35 Ill. Adm.
Code 101.300(a). Flick has not filed any petition with the Board. The administrative citation is
therefore “non-contested.”
See
35 Ill. Adm. Code 108.406. 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, 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 reconsider and vacates the Board’s
September 4, 2008 order.
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 January 5, 2009, which is
the first business day following the 30th day after the date of this order. Flick
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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 or federal employer identification 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.
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 December 4, 2008, by a vote of 5-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
OMMIAL
RECEIVED
CLERK'S OFFICE
JUN 0 3 2008
STATE OF ILLINOIS
Pollution Control
Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ADMINISTRATIVE CITATION
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
JOSEPH FLICK,
AC 6%
(IEPA No. 73-08-AC)
Respondent.
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 Joseph Flick ("Respondent") is the present owner and operator of a facility
located at 280 Pine Tree Lane, Cobden, Union County, Illinois. The property is commonly known to
the Illinois Environmental Protection Agency as Cobden/Flick.
2.
That said facility is an open dump operating without an Illinois Environmental
Protection Agency Operating Permit and is designated with Site Code No. 1818540002.
3.
That Respondent has owned and operated said facility at all times pertinent hereto.
4.
That on May 5, 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 May 5, 2008
inspection of the above-named facility, the Illinois Environmental Protection Agency has determined
that Respondent has violated the Illinois Environmental Protection Act (hereinafter, the "Act") as
follows:
(1)
That Respondent 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 Respondent caused or allowed the open dumping of waste in a manner
resulting in the 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), Respondent is
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 Respondent elects
not to petition the Illinois Pollution Control Board, the statutory civil penalty specified above shall be
due and payable no later than July 30, 2008, unless otherwise provided by order of the Illinois
Pollution Control Board.
If Respondent elects 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,
Respondent shall be assessed the associated hearing costs incurred by the Illinois Environmental
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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 Respondent fails
to petition or elects 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, Respondent's 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, Respondent 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 Respondent 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 Respondent in Circuit Court to collect said penalty and/or hearing costs, plus any interest
accrued.
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KL ?
Date:
SI
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210g
Dougla
?
. Scott, Director
Illinois Environmental Protection Agency
PROCEDURE FOR CONTESTING THIS
ADMINISTRATIVE CITATION
Respondent has 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 Respondent elects to contest
this Administrative Citation, then Respondent 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.
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
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ORIGINAL
giECEIVED
CLERK'S OFFICE
JUN 0 3 2008
STATE OF ILLINOIS
Pollution Control Board
REMITTANCE FORM
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
JOSEPH FLICK,
AC 0 ;)-).>".
(IEPA No. 73-08-AC)
Respondent.
FACILITY:
?
Cobden/Flick?
SITE CODE NO.:?
181850002
COUNTY:?
Union?
CIVIL PENALTY:
?
$3,000.00
DATE OF INSPECTION:
?
May 5, 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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