ILLINOIS POLLUTION CONTROL BOARD
December 4, 2008
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
DONALD G. WILKEY,
Respondent.
)
)
)
)
)
)
)
)
)
)
AC 09-19
(IEPA No. 294-08-AC)
(Administrative Citation)
ORDER OF THE BOARD (by G.T. Girard):
On October 24, 2008, the Illinois Environmental Protection Agency (Agency) timely
filed an administrative citation against Donald G. Wilkey (respondent).
See
415 ILCS 5/31.1(c)
(2006); 35 Ill. Adm. Code 108.202(c). The administrative citation concerns respondent’s facility
located at 775 N 2200 E Road in Belle Rive, Jefferson County. The property is commonly
known to the Agency as the “Belle Rive/Wilkey, Donald G.” site and is designated with Site
Code No. 0810055008. For the reasons below, the Board accepts respondent’s petition to
contest the administrative citation.
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 alleges that respondent violated Sections 21(p)(1), (p)(3), and
(p)(7) of the Act (415 ILCS 5/21(p)(1), (p)(3), (p)(7) (2006)) on September 10, 2008, by causing
or allowing the open dumping of waste in a manner resulting in litter, open burning, and the
deposition of general or clean construction or demolition debris at the Belle Rive site. The
Agency asks the Board to impose on respondent the statutory civil penalty of $1,500 for each of
the three alleged violations, for a total of $4,500.
As required, the Agency served the administrative citation on 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). Any petition to contest the administrative citation was due by November 21, 2008.
On November 24, 2008, the Board received respondent’s
pro se
petition (Pet.). The petition was
timely filed because it was sent by U.S. Mail and postmarked on the filing deadline of November
21, 2008.
See
415 ILCS 5/31.1(d) (2006); 35 Ill. Adm. Code 101.300(b), 108.204(b).
2
Respondent, who is the Mayor of Belle Rive, denies that he created a “dumpsite.” Pet. at
1. Respondent asserts, among other things, that materials were taken to the site and placed there
“only temporarily because my house and property where my house sets was heavily damaged”
by a storm that occurred on February 5, 2008.
Id
. Respondent claims he does not know who set
some of the materials on fire.
Id
. at 2. According to the petition, respondent has “cleaned up all
the materials.”
Id
. The Board notes that under Illinois Supreme Court precedent, one may
“cause or allow” a violation of the Act without knowledge or intent.
See
People v. Fiorini, 143
Ill. 2d 318, 336, 574 N.E.2d 612, 621 (1991) (“knowledge or intent is not an element to be
proved for a violation of the Act. This interpretation of the Act . . . is the established rule in
Illinois.”). The Board further notes that in an administrative citation proceeding, 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 Board accepts the petition and 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, respondent 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 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.
Respondent may withdraw his petition to contest the administrative citation at any time
before the Board enters its final decision. If respondent chooses to withdraw his petition, he
must do so in writing, unless he does so orally at hearing.
See
35 Ill. Adm. Code 108.208. If
respondent withdraws his petition after the hearing starts, the Board will require respondent to
pay the hearing costs of the Board and the Agency.
See id.
at 108.500(c).
The Agency 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 respondent violated Section 21(p) of the Act, the
Board will impose civil penalties on respondent. 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). However, if the
Board finds that 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.
3
I, John 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 Therriault, Assistant Clerk
Illinois Pollution Control Board
