ILLINOIS POLLUTION CONTROL BOARD

BACKGROUND
MOTION TO RECONSIDER

ILLINOIS POLLUTION CONTROL BOARD

December 4, 2008

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

CHARLES F. KINSEL,

(IEPA No. 78-08-AC)

(Administrative Citation)

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

In a September 16, 2008 order, the Board dismissed an administrative citation filed by the

Illinois Environmental Protection Agency (Agency) on June 19, 2008, against Charles F. Kinsel

(Kinsel). The Board dismissed the administrative citation because as of September 16, 2008, the

Agency had not filed proof with the Board that the Agency served the administrative citation on

Kinsel. On October 22, 2008, the Agency filed a motion asking the Board to reconsider the

September 16, 2008 order. Today the Board grants the Agency’s motion to reconsider and,

based on new evidence of service, vacates the September 16, 2008 order and enters a default

order against Kinsel. Below, the Board provides background before turning to the issues.

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. 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 19, 2008, concerns a facility located

at 14998 N. Shelby Road in Lewistown, Fulton County. According to the citation, Kinsel is the

present operator of the facility, which is commonly known to the Agency as “Kinsel Property”

and is designated with Site Code No. 0578170001.

The Agency alleges in the administrative citation that Kinsel violated Sections 21(p)(1)

and (p)(7) of the (415 ILCS 5/21(p)(1), (p)(7) (2006)) at the site on May 13, 2008, by causing or

allowing the open dumping of waste in a manner resulting in litter and the deposition of general

or clean construction or demolition debris. Because the administrative citation addresses an

allegedly second or subsequent violation of Section 21(p)(1) by Kinsel, the Agency seeks the

statutory civil penalty of $3,000 for this alleged violation, as well as the statutory civil penalty of

$1,500 for the alleged violation of Section 21(p)(7), totaling $4,500.

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

(2006). The sixtieth day after May 13, 2008, was July 12, 2008, a Saturday. Accordingly, the

deadline for Agency service of the administrative citation was the next business day,

35 Ill. Adm. Code 101.300(a).

On September 16, 2008, the Board dismissed the June 19, 2008 administrative citation

because the Agency had failed to file proof of service of the administrative citation on Kinsel.

Without proof of service, the Board was unable to determine whether it had jurisdiction over the

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.

IEPA v. Charles F. Kinsel, AC 08-36, slip

op. at 1-2 (Sept. 16, 2008).

MOTION TO RECONSIDER

On October 22, 2008, the Agency filed a motion for reconsideration (Mot.) of the

Board’s September 16, 2008 order.

35 Ill. Adm. Code 101.520. Any response from Kinsel

was due by November 5, 2008.

35 Ill. Adm. Code 101.520(b). The Board received no

response and Kinsel is therefore deemed to have waived any objection to the Board granting the

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

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 16,

2008 order based on the new evidence herein contained.” Mot. at 2. As described below, the

new evidence concerns service of the administrative citation on Kinsel. The Board accordingly

grants the motion to reconsider.

In the motion, the Agency states that on June 16, 2008, the Agency issued the

administrative citation to Kinsel. Mot.at 1. The Agency asserts that Kinsel was served on June

28, 2008, attaching a copy of a certified mail receipt, which is signed and dated June 28, 2008.

Mot. at 1, Att. According to the Agency, service was timely as the site inspection took place on

May 13, 2008. Mot. at 1. Based on this new evidence of service, coupled with Kinsel’s failure

to contest the administrative citation, the Agency asks that the Board issue a default order against

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

addition, “[p]roof of service of . . . administrative citations must be filed with the Board upon

completion of service.”

. 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 13, 2008 inspection date, the Agency was required to

serve the administrative citation on Kinsel by July 14, 2008. The Agency has provided a signed

and dated certified mail receipt, demonstrating that Kinsel was timely served on June 28, 2008.

Further, the Agency’s June 19, 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 Kinsel. The Board therefore

vacates its September 16, 2008 order based on the new evidence presented by the Agency.

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.

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 August 4, 2008.

Code 101.300(a). Kinsel has not filed any petition with the Board. The administrative citation is

therefore “non-contested.”

35 Ill. Adm. Code 108.406. Accordingly, the Board finds that

Kinsel 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.

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

35 Ill. Adm. Code 108.500(a). Because this administrative citation addresses a subsequent

adjudicated violation of Section 21(p)(1) by Kinsel, as well as a violation of Section 21(p)(7), the

total civil penalty is $4,500.

, IEPA v. Charles F. Kinsel, AC 07-9, slip op. at 2 (Oct. 5,

2006) (Kinsel violated 415 ILCS 5/21(p)(1), (p)(3)). 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.

The Board grants the Agency’s motion to reconsider and vacates the Board’s

September 16, 2008 order.

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

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

Kinsel must pay a civil penalty of $4,500 no later than January 5, 2009, which is

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

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

Kinsel’s social security number or federal employer identification number must

be included on the certified check or money order.

Kinsel 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

Springfield, Illinois 62794-9276

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)

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

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);

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

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

CLERK'S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ADMINISTRATIVE CITATION

ILLINOIS ENVIRONMENTAL

(4'

(IEPA No. 78-08-AC)

CHARLES F. KINSEL,?

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 Charles F. Kinsel ("Respondent") is the present operator of a facility located at

14998 N. Shelby Road, Lewistown, Fulton County, Illinois. The property is commonly known to the

Illinois Environmental Protection Agency as Kinsel Property.

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

Protection Agency Operating Permit and is designated with Site Code No. 0578170001.

That Respondent has operated said facility at all times pertinent hereto.

That on May 13, 2008, Robert Wagner of the Illinois Environmental Protection

Agency's Peoria 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.

Based upon direct observations made by Robert Wagner during the course of his May 13,

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).

That Respondent 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 5121(p)(7) (2006).

On October, 5, 2006 and on January 10, 2002, the Board found Charles F. Kinsel in violation

of Section 21(p)(1) of the Act in AC 07-09 and AC 02-22.

Because this Administrative Citation addresses a second or subsequent violation of Section

21(p)(1) of the Act, 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 Three Thousand Dollars ($3,000.00)and 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 the violation of Section 21(p)(7), for a total of

Four Thousand Five Hundred Dollars ($4,500.00). 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

Protection Agency and the Illinois Pollution Control Board. Those hearing costs shall be assessed

in addition to the 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

. 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.

Susan E. Konzelmann, Legal Assistant

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

REMITTANCE FORM

(IEPA No. 78-08-AC)

CHARLES F. KINSEL,

Kinsel Property

SITE CODE NO.:?

DATE OF INSPECTION:

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.