ILLINOIS POLLUTION CONTROL BOARD
July 23, 2009
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
MARK A. LEWIS,
Respondent.
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AC 09-41
(IEPA No. 65-09-AC)
(Administrative Citation)
ORDER OF THE BOARD (by G.T. Girard):
On May 6, 2009, the Illinois Environmental Protection Agency (Agency) timely filed an
administrative citation against Mark A. Lewis.
See
415 ILCS 5/31.1(c) (2008); 35 Ill. Adm.
Code 101.300(b), 108.202(c). The administrative citation concerns Mr. Lewis’s residential
property located at 1835 Bunnyville Drive in Clay City, Clay County. The property is
commonly known to the Agency as the “Clay City/Lewis, Mark A.” site and is designated with
Site Code No. 0258025002. For the reasons below, the Board accepts Mr. Lewis’s amended
petition as timely filed, but directs Mr. Lewis to file a second amended petition.
Under the Environmental Protection Act (Act)
1
(415 ILCS 5 (2008)), 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) (2008); 35 Ill. Adm. Code 108.
In this case, the Agency alleges that Mr. Lewis violated Section 21(p)(1) of the Act (415
ILCS 5/21(p)(1) (2006)) by causing or allowing the open dumping of waste in a manner resulting
in litter at his Clay County site. The Agency further alleges that this violation is Mr. Lewis’s
second or subsequent violation of Section 21(p)(1) and therefore asks the Board to impose a
$3,000 civil penalty on Mr. Lewis.
As required, the Agency served the administrative citation on Mr. Lewis within “60 days
after the date of the observed violation.” 415 ILCS 5/31.1(b) (2008);
see also
35 Ill. Adm. Code
101.300(c), 108.202(b). Any petition to contest the administrative citation was due by June 5,
2009. On June 8, 2009, the Board received Mr. Lewis’s petition to contest the administrative
citation. The petition is considered timely filed because it was postmarked on or before the filing
deadline.
See
35 Ill. Adm. Code 101.300(b)(2) (“mailbox rule”).
On June 18, 2009, the Board
accepted Mr. Lewis’s petition as timely filed. However, the Board identified two deficiencies
1
All citations to the Act will be to the 2008 compiled statutes, unless the section at issue has
been substantively amended in the 2008 compiled statutes.
2
which must be remedied before the Board can accept this case for hearing. First, the Board
found that the petition was deficient under the Board’s procedural rules because the petition
failed to state Mr. Lewis’ grounds for appeal.
See
35 Ill. Adm. Code 108.206. Second, there
was no indication that Mr. Lewis had served a copy of the petition on the Agency.
See
35 Ill.
Adm. Code 101.304. On June 18, 2009, the Board issued an order directing Mr. Lewis to correct
these deficiencies by filing an amended petition on or before July 6, 2009.
On July 8, 2009, Mr. Lewis filed an amended petition (Am. Pet.) contesting the
administrative citation. The petition is considered timely filed because it was postmarked on or
before the filing deadline.
See
35 Ill. Adm. Code 101.300(b)(2) (“mailbox rule”). In the
amended petition, Mr. Lewis alleges that he is “willing to work with the [Agency] to get all
matters resolved.” Am. Pet. at 1. The Board notes, however, that in an administrative citation
proceeding, voluntary clean up acts performed by a respondent after a site inspection are
generally neither a defense to the alleged violation nor relevant in determining the civil penalty
amount.
See
,
e.g.
, IEPA v. Jack Wright, AC 89-227, slip op. at 7 (Aug. 30, 1990). Mr. Lewis
also maintains that he “did not understand that there was still a violation on [his] property. Am.
Pet. at 1. However, one may “cause or allow” a violation of the Act without knowledge or
intent.
See
,
e.g.
, People v. Fiorini,
143 Ill. 2d 318, 336, 574 N.E.2d 612, 621 (1991).
The Board finds that the amended petition filed by Mr. Lewis cures the petition’s
deficiency with respect to service on the Agency.
See
35 Ill. Adm. Code 101.304. However, the
Board finds that Mr. Lewis’s amended petition fails to adequately state the grounds for appeal.
See
35 Ill. Adm. Code 108.206. In order for the Board to accept this case for hearing, Mr.
Lewis’s petition must allege grounds for contesting the administrative citation, which are
contained in Section 108.206 of the Board’s procedural rules.
See
35 Ill. Adm. Code 108.206.
The Board therefore directs Mr. Lewis to file a second amended petition for review
correcting this deficiency. The Board also directs the clerk to enclose a copy of the Board’s
procedural rules with this order. If Mr. Lewis fails to file a second amended petition by August
24, 2009, the Board will enter a default order against Mr. Lewis, imposing the $3,000.00 penalty.
If Mr. Lewis proceeds to contest the administrative citation but does not prevail on the
merits of the case, Mr. Lewis will have to pay not only the $3,000 penalty but also any hearing
costs of the Board and the Agency.
See
415 ILCS 5/42(b)(4-5) (2008); 35 Ill. Adm. Code
108.500 (2008). A schedule of the Board’s hearing costs is available from the Clerk of the
Board and on the Board’s website at www.ipcb.state.il.us
.
See
35 Ill. Adm. Code 108.504.
IT IS SO ORDERED.
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I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on July 23, 2009, by a vote of 5-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
