ILLINOIS POLLUTION CONTROL BOARD
March 19, 2009
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
DAVID SWEARINGEN,
Respondent.
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)
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)
)
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AC 09-33
IEPA No. 4-09-AC
OPINION AND ORDER OF THE BOARD (by G.T. Girard):
On February 02, 2009, the Illinois Environmental Protection Agency (Agency) timely filed an
administrative citation against David Swearingen (Swearingen).
See
415 ILCS 5/31.1(c) (2006);
35 Ill. Adm. Code 108.202(c). The administrative citation concerns Swearingen’s facility
located in the northeast corner of the intersection of 200 E CR and Illinois Route 16, on a rural,
five acre lot, in Coles County, Mattoon Township, in the City of Mattoon. The property is
commonly known to the Agency as Mattoon/Swearingen, David.
The administrative citation meets
the content requirements of 35 Ill. Adm. Code 108.202(b). For the reasons below, the Board
finds that the respondents violated the Environmental Protection Act (Act) (415 ILCS 5/ 21(p)(1)
and (p)(7) (2006)), and orders the Swearingen 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 Swearingen violated Sections 21(p)(1) and 21(p)(7)
of the Environmental Protection Act (Act) (415 ILCS 5/21 (2006)). The Agency alleges that
Swearingen violated these provisions by dumping waste in a manner resulting in litter and
construction demolition debris. The Agency asks the Board to impose a $3,000 civil penalty on
Swearingen. As required, the Agency served the administrative citation on Swearingen 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. If the respondent fails to do
so, the Board must find that the respondent committed the violation[s] alleged and impose the
corresponding civil penalty. 415 ILCS 31.1(d)(1) (2006); 35 Ill. Adm. Code 108.204(b),
108.406. Here, Swearingen any petition for review was due March 11, 2009. Swearingen failed
2
to timely file a petition. Accordingly, the Board finds that Swearingen violated Sections
21(p)(1) and 2(p)(7) of the Act.
The civil penalty for violating 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(a). Because
there are two violations of Section 21(p) and these violations are a first offense, 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.
David Swearingen must pay a civil penalty of $3,000 no later than April 20, 2009,
which is the first business day following the 30th day after the date of this order.
2.
Swearingen 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 Swearingens’s social security number or federal employer
identification number must be included on the certified check or money order.
3.
Swearingen 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 violation
continues.
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
3
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 March 19, 2009, by a vote of 5-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
ECEVED
BEFORE
THE ILLINOIS
POLLUTION
CONTROL
BOARD
CLERK’S
0
ADMINISTRATIVE
CITATION
FEB
022009
STATE
OF
ILLINOIS
PoUuton
Control
Board
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
Complainant,
)
AC
V.
)
(IEPA
No. 4-09-AC)
)
DAVID
SWEARINGEN,
)
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 David
Swearingen
is the current
owner and operator
(“Respondent”)
ofa facility
located in the
northeast corner
of the intersection
of 200 E
CR
and Illinois
Route
16, on
a
rural,
five
acre
lot, Mattoon Township
in the
City
of Mattoon, Coles County,
Illinois.
The
property
is commonly
known to
the Illinois En’vironmental
Protection
Agency
as
Mattoon/Swearingen,
David.
2.
That
said
facility
is an open dump
operating
without
an Illinois
Environmental
Protection
Agency Operating
Permit and
is
designated
with Site
Code
No. 0298065002.
3.
That
Respondent
has owned
and operated said
facility at all
times
pertinent
hereto.
4.
That
on December
11,
2008, Jennifer O’Hearn
of the
Illinois
Environmental
Protection Agency’s
(“Illinois
EPA”) Champaign
Regional
Office
inspected
the
above-described
facility.
A copy of her
inspection
report setting
forth
the results
of said
inspection
is attached
hereto
and
made a
part
hereof.
5.
That
on
Illinois
EPA sent this
Administrative
Citation
via
Certified
Mail
No.
‘7oo7
3oô
opOj_
3-
VIOLATIONS
Based
upon
direct
observations
made
by Jennifer
O’Hearn
during
the
course
of her
December
11,
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
isuIting
in
litter, a
violation
of Section
21(p)(1) of
the
Act, 415
ILCS 5121(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 5142(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).
IfRespondentelects
not
to
petition
the
Illinois
Pollution
Control
Board, the
statutory
civil penalty
specified
above
shall
be
due
and
payable
no
later
than
March 2,
2009,
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
elect
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).
IfRespondentelects
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.
1
P
Date:
?Z9)Oq
Douglas
.
Scott,
Director
J
(—
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
RECEVED
CLERK’S
OFFICE
FEB
022009
REMITTANCE
FORM
STATE
OF
ILLINOIS
O!Iution
Control
Board
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
Complainant,
)
AC
V.
)
(IEPA
No. 4-09-AC)
DAVID
SWEARINGEN,
)
Respondent.
FACILITY:
Mattoon/Swearingen
SITE
CODE
NO.:
0298065002
COUNTY:
Coles
CIVIL PENALTY:
$3,000.00
DATE
OF INSPECTION:
December
11, 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.
5
