ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS POLLUTION CONTROL BOARD
LEGAL BACKGROUND
1. PROCEDURAL BACKGROUND
  1. DISCUSSION
  2. CONCLUSION

December 4, 2008

ILLINOIS ENVIRONMENTAL

PROTECTION,

Complainant,

THEODORE & ELIZABETH

HOLLEMBEAK and HOLLEMBEAK

(Administrative Citation)

OPINION AND ORDER OF THE BOARD (by A.S. Moore):

This is an administrative citation enforcement action brought by the Illinois

Environmental Protection Agency (Agency) against three respondents: Theodore Hollembeak,

Elizabeth Hollembeak, and Hollembeak Concrete, Inc. (collectively, Respondents). The case

concerns a facility located at 403 Pittsfield Road, Mt. Sterling, Brown County. In an order dated

August 7, 2008, the Board accepted for hearing a petition for review filed by Theodore

Hollembeak and directed Elizabeth Hollembeak and Hollembeak Construction, Inc. to file an

amended petition in a timely manner.

In this order, the Board acknowledges that it has previously accepted a petition for review

filed by Theodore Hollembeak and directs the hearing officer to proceed expeditiously to hearing

on that petition. In addition, the Board finds that Elizabeth Hollembeak and Hollembeak

Concrete, Inc. have defaulted but withholds issuing its final order until the Board makes its final

determination regarding Mr. Hollembeak. Before doing so, the Board provides the legal and

procedural background for this case.

LEGAL 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),

21(p), 31.1(c), 42(b)(4), (4-5) (2006); 35 Ill. Adm. Code 108.

The Agency or delegated local authority must serve the administrative citation on the

respondent within “60 days after the date of the observed violation.” 415 ILCS 5/31.1(b)

(2006));

see also

35 Ill. Adm. Code 108.202(b). The Agency or delegated local authority must

also file a copy of the administrative citation with the Board no later than ten days after serving

the respondent.

See

415 ILCS 5/31.1(c) (2006).

To contest the administrative citation, the 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 108.204(b),

108.406.

If the respondent timely contests the administrative citation, but the complainant proves

the alleged violations at hearing, the respondent will be held liable not only for the civil penalty

but also for the hearing costs of the Board and the complainant.

See

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

(2006); 35 Ill. Adm. Code 108.500. However, if the Board finds that the 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).

PROCEDURAL BACKGROUND

On July 11, 2008, the Agency timely filed an administrative citation against the

Respondents.

See

415 ILCS 5/31.1(c) (2006); 35 Ill. Adm. Code 108.202(c). The Agency

alleges that Respondents violated Section 21(p)(1), (p)(3), and (p)(7) of the Environmental

Protection Act (Act) (415 ILCS 5/21(p)(1), (p)(3), (p)(7) (2006)). The Agency alleges that

Respondents violated these provisions by causing or allowing the open dumping of waste in a

manner resulting in litter, open burning, and the deposition of general construction or demolition

debris or clean construction or demolition debris at Hollembeak Concrete, Inc.’s Brown County

facility. The Agency states that the inspection on which the citation is based occurred on May

30, 2008. The Agency seeks from Respondents the statutory civil penalty of $1,500 per

violation, for a total civil penalty of $4,500.

On July 21, 2008, Mr. Hollembeak filed a petition for review (Pet.) denying the

allegations and stating that there were uncontrollable circumstances pertaining to the alleged

violations. Pet. at 1;

see

35 Ill. Adm. Code 108.206. In an order dated August 7, 2008, the

Board stated that, although it had not yet received proof of service from the Agency, it accepted

the petition as timely filed. In the same order, the Board noted that, although 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). The Board also noted that any person other than an individual must appear through

an attorney-at-law licensed and registered to practice law.

See id.

Because the petition was

signed by Theodore Hollembeak and failed to identify Theodore Hollembeak as an attorney, the

Board directed Elizabeth Hollembeak and Hollembeak Concrete, Inc. to file an amended petition

through an attorney-at-law if either of them wished to contest the citation. The Board’s order

stated that, if Elizabeth Hollembeak and Hollembeak Concrete, Inc. failed to file an amended

petition in a timely manner, it would enter a default order against them.

On September 25, 2008, the Agency filed proof that it had timely served the

administrative citation on Theodore and Elizabeth Hollembeak on July 10, 2008, and on

Hollembeak Concrete, Inc. on July 12, 2008. In an order dated November 5, 2008, the Board

noted that it had received the Agency’s proof of service, acknowledged accepting as timely a

petition filed by Theodore Hollembeak on behalf of the Respondents on July 21, 2008, and

directed Elizabeth Hollembeak and Hollembeak Concrete, Inc. to file an amended petition within

14 days of the date of the order. In the same order, the Board stated that, if it did not within 14

days receive an amended petition accompanied by an attorney’s appearance from Elizabeth

Hollembeak and Hollembeak Concrete, Inc., it would enter a default order against them and

proceed to hearing only as to Theodore Hollembeak. The Board has not received an amended

petition from either Elizabeth Hollembeak or from Hollembeak Concrete, Inc., and no attorney

had filed an appearance on behalf of either of the two of them.

DISCUSSION

As required, the Agency served the administrative citation on the Respondents within “60

days after the date of the observed violation.” 415 ILCS 5/31.1(b) (2006);

see also

35 Ill. Adm.

Code 108.202(b). 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. As noted above,

the Board has accepted as timely a petition for review filed by Theodore Hollembeak on behalf

of the Respondents. If a respondent fails to file a timely petition for review, the Board must find

that the respondent committed the violations alleged and impose the corresponding statutory civil

penalty. 415 ILCS 31.1(d)(1) (2006); 35 Ill. Adm. Code 108.204(b), 108.406. Here, both

Elizabeth Hollembeak and Hollembeak Concrete, Inc. failed to file a timely amended petition.

Accordingly, the Board finds that both Elizabeth Hollembeak and Hollembeak Concrete, Inc.

violated Section 21(p)(1), (p)(3), and (p)(7) of the Act. However, the Board will withhold a final

order concerning Elizabeth Hollembeak and Hollembeak Concrete, Inc. until the Board reaches a

final determination regarding Theodore Hollembeak.

See

Illinois Environmental Protection

Agency v. Ray Logsdon Estate, Logsdon Sand and Gravel, and M.K. O’Hara Construction, Inc.,

AC 05-54, slip op. at 3 (Apr. 21, 2005).

With regard to Mr. Hollembeak, 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. 35 Ill. Adm. Code 108.300;

see also

415 ILCS 5/31.1(d)(2) (2006). By

contesting the administrative citation, Mr. Hollembeak may have to pay the 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 at the Board’s offices and on the Board’s Web

site at www.ipcb.state.il.us. 35 Ill. Adm. Code 108.504.

Mr. Hollembeak may withdraw his petition to contest the administrative citation at any

time before the Board enters its final decision. If Mr. Hollembeak chooses to withdraw its

petition, he must do so in writing, unless he does so orally at hearing.

See

35 Ill. Adm. Code

108.208. If Mr. Hollembeak withdraws its petition after the hearing starts, the Board will require

Mr. Hollembeak to pay the hearing costs of the Board and the Agency.

See

35 Ill. Adm. Code

108.500(c).

Mr. Hollembeak 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 Mr. Hollembeak violated Section 21(p)(1),

(p)(3), and (p)(7) of the Act (415 ILCS 5/21(p)(1), (p)(3), (p)(7) (2006)), the Board will impose

civil penalties on Mr. Hollembeak. The civil penalty for violating Section 21(p) is $1,500 for a

first offense and $3,000 for a second or subsequent offense. 415 ILCS 5/42(b(4-5) (2006); 35 Ill.

Adm. Code 108.500. However, if the Board finds that Mr. Hollembeak “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).

CONCLUSION

In today’s order, the Board acknowledges that it has previously accepted as timely a

petition for review filed by Theodore Hollembeak on behalf of Respondents. Also in today’s

order, the Board finds that Elizabeth Hollembeak and Hollembeak Concrete, Inc. have defaulted

by failing to file an amended petition to contest the administrative citation. Accordingly, the

Board finds that Elizabeth Hollembeak and Hollembeak Concrete, Inc. violated the Act as

alleged. With regard to Theodore Hollembeak, the Board directs the hearing officer to proceed

expeditiously to hearing. The Board withholds issuing its final order regarding Elizabeth

Hollembeak and Hollembeak Concrete, Inc. until the Board makes its final decision regarding

Theodore Hollembeak.

IT IS SO ORDERED

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on December 4, 2008, by a vote of 5-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board