1
st
Draft—GTG/MET/MGH
ILLINOIS POLLUTION CONTROL BOARD
September 3, 2009
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
FLOYD BURNS,
Respondent.
)
)
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)
)
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)
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AC 09-50
(IEPA No. 104-09-AC)
(Administrative Citation)
OPINION AND ORDER OF THE BOARD (by G. T. Girard):
On June 1, 2009, the Illinois Environmental Protection Agency (Agency) timely filed an
administrative citation against Floyd Burns.
See
415 ILCS 5/31.1(c) (2008)
1
; 35 Ill. Adm. Code
101.300(b), 108.202(c). The administrative citation concerns Mr. Burn’s facility located at 6115
Hill City Road, Benton, Franklin County. The property is commonly known to the Agency as
the “Benton/Burns” site and is designated with Site Code No. 0558025006. For the reasons
below, the Board finds that Mr. Burns violated the Environmental Protection Act (Act) (415
ILCS 5 (2008)) and orders Mr. Burns 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) (2008); 35 Ill.
Adm. Code 108.
In this case, the Agency alleges that on April 16, 2009, Mr. Burns violated Sections
21(p)(1) and (p)(7), of the Act (415 ILCS 5/21(p)(1), (p)(7) (2008)) by causing or allowing the
open dumping of waste in a manner resulting in (a) litter, and (b) deposition of general
construction or demolition debris, respectively. The Agency asks the Board to impose the
statutory $3,000 civil penalty on Floyd Burns. As required, the Agency served the
administrative citation on Mr. Burns 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).
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
1
All citations to the Act will be to the 2008 compiled statutes because the provisions at issue
have not been substantively amended in the 2008 compiled statutes.
2
corresponding civil penalty.
See
415 ILCS 31.1(d)(1) (2008); 35 Ill. Adm. Code 101.300(b),
108.204(b), 108.406. Here, any petition for review was due by July 20, 2009. Mr. Burns failed
to timely file a petition. Accordingly, the Board finds that Mr. Burns 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) (2008);
35 Ill. Adm. Code 108.500(a). Because there are two violations of Section 21(p) and no
indication in the record that any of these are a 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 Floyd Burns violated Sections 21(p)(1) and (p)(7) of the
Environmental Protection Act (415 ILCS 5/21(p)(1), (p)(7) (2008)).
2.
Floyd Burns must pay a civil penalty of $3,000 no later than October 5, 2009,
which is the first business day following the 30th day after the date of this order.
Floyd Burns 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 Floyd Burns’ social security number or federal employer
identification number must be included on the certified check or money order.
3.
Floyd Burns 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) (2008)) at the rate
set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/1003(a)
(2008)).
5.
Payment of this penalty does not prevent future prosecution if the violations
continue.
IT IS SO ORDERED.
3
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) (2008);
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
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 September 3, 2009, by a vote of 4-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
OED
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
JUN
j
12009
ADMINISTRATIVE
CITATION
u
on
Control
Board
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
)
Complainant,
)
AC
0q
V.
)
(IEPA
No. 104-09-AC)
FLOYD
BURNS,
)
)
)
/
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 Floyd
Burns is the
current owner and
operator
(“Respondent”)
of
a facility
located att6l 1 5HilI
City
Road south
of Benton,
Franklin County, Illinois.
The property
is commonly
known
to the Illinois Environmental
Protection
Agency
as Benton/Burns.
2.
That said facility is
an open dump
operating
without
an
Illinois
Environmental
Protection
Agency
Operating
Permit and is
designated with
Site
Code
No.
0558025006.
3.
That
Respondent
has owned
and operated said
facility at all times
pertinent hereto.
4.
That on April
16,
2009, Phillip
Fatka
of
the Illinois Environmental
Protection
Agency’s
(“Illinois EPA”)
Marion 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
D
13
— C)
, Illinois
EPA
sent
this
Administrative Citation
via Certified
MailNo.
7r7
o;-O
ôo
VIOLATIONS
Based
upon
direct
observations
made
by
Phillip
Fatka
during
the
course
of
his April
16,
2009
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)(l)
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
5!21(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,
for a 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
July
15,
2009,
unless
otherwise
provided
by order
of
the
Illinois
Pollution
Control
Board.
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
2
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.
Pursuantto
Section
31.1(d)(1)
of
theAct,
415
ILCS
5/31.l(d)(l)
(2006),
if
Respondentfails
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
byorderofthe
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.
Date:
j2co
9
Dougls
P. Scott,
Director
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
CLERKS
OFFICE
ILLINOIS ENVIRONMENTAL
)
JUN
012009
PROTECTION AGENCY,
)
r(ATEOFILLINOIS
Complainant,
)
AC
LYt
-tPóllution
Control
Board
V.
)
(IEPA
No. 104-09-AC)
FLOYD BURNS,
)
Respondent.
FACILITY:
Benton/Burns
SITE CODE NO.:
0558025006
COUNTY:
Franklin
CIVIL
PENALTY:
$3,000.00
DATE OF INSPECTION:
April
16, 2009
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
