ILLINOIS POLLUTION CONTROL BOARD
December 4, 2008
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
CHARLES KISSICK,
Respondent.
)
)
)
)
)
)
)
)
)
)
AC 09-20
(IEPA No. 298-08-AC)
(Administrative Citation)
OPINION AND ORDER OF THE BOARD (by G.T. Girard):
On October 20, 2008, the Illinois Environmental Protection Agency (Agency) timely
filed an administrative citation against Charles Kissick (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 391 West Tanner in Waverly, Morgan County. The property is commonly known to
the Agency as the “Waverly/Kissick #2” site and is designated with Site Code No. 1370455012.
For the reasons below, the Board finds that respondent violated the Environmental Protection
Act (Act) (415 ILCS 5 (2006)) and orders respondent to pay $3,000 in civil penalties.
Under the Act, 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) and (p)(7) of
the Act (415 ILCS 5/21(p)(1), (p)(7) (2006)) on September 9, 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 at the Waverly site. The Agency asks the Board to impose on
respondent the statutory civil penalty of $1,500 for each of the two alleged violations, for a total
of $3,000. 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 101.300(c), 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. 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 November 21, 2008. Respondent
2
failed to timely file a petition. Accordingly, the Board finds that respondent 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 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 finding of fact and conclusions of law.
ORDER
1.
The Board finds that respondent violated Sections 21(p)(1) and (p)(7) of the
Environmental Protection Act (415 ILCS 5/21(p)(1), (p)(7) (2006)).
2.
Respondent 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.
Respondent 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 respondent’s social security number or federal employer
identification number must be included on the certified check or money order.
3.
Respondent 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
4.
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)).
5.
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.
3
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
CEOVED
CLERK’S OFFICE
BEFORE
THE
ILLINOIS
POLLUTION CONTROL
BOARD
OCT
20
2OO
ADMINISTRATIVE
CITATION
Control
Board
ILLINOIS ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
Complainant,
)
AC
I
V.
)
(IEPA
No.
298-08-AC)
)
CHARLES
KISSICK
)
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
Charles
Kissick
is
the current
owner
(“Respondent”)
of
a
facility
located
at
391
West
Tanner,
Waverly,
Morgan
County,
Illinois.
The
property
is
commonly
known
to
the
Illinois
Environmental Protection
Agency
as
Waverly/Kissick
#2.
2.
That
said
facility
is
an
open
dump
operating
without
an
Illinois
Environmental
Protection Agency
Operating
Permit
and
is
designated with
Site
Code
No. 1370455012.
3.
That
Respondent
has
owned
said
facility
at all
times
pertinent
hereto.
4.
That
on
September
9,
2008,
Mark
Weber
of
the
Illinois
Environmental
Protection
Agency’s
(“Illinois
EPA”)
Springfield
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.
5.
That
on
/1)
,i
.
t92
, Illinois
EPA
sent this
Administrative
Citation
via
Certified
MailNo.
‘7O9s
70
poOl
2i
7IS.
VIOLATIONS
Based
upon
direct
observations
made
by Garrison
Gross
during
the
course
of his
September
10, 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
S/
2
1(p)(1)
(2006).
(2)
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).
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,
fora
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 November
30, 2008,
unless
otherwise
provided
by
order of
the
Illinois
Pollution
Control
Board.
2
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
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.
3
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.
D-_L
P.
Date:
ioJi1o
DougIas.
Scott,
Director
‘)
k---,
Illinois
Environmental
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
REMITTANCE
FORM
OCT
20
2008
STATE
OF
ILLINO,
ILLINOIS
ENVIRONMENTAL
)
iOlIUtjon
Control
8oad
PROTECTION
AGENCY,
)
Complainant,
)
AC
V.
)
(IEPA
No. 298-08-AC)
CHARLES
KISSICK,
)
Respondent.
FACILITY:
Waverly/Kissick
#2
SITE
CODE
NO.:
1370455012
COUNTY:
Morgan
CIVIL PENALTY:
$3,000.00
DATE
OF
INSPECTION:
September
9,
2008
DATE
REMITTED:
55/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.
5
