ILLINOIS POLLUTION CONTROL BOARD
August 30, 1990
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Complainant,
AC 89—224
v.
)
(IEPA no. 9951—AC)
(Administrative Citation)
JOHN VANDER,
)
Respondent.
WILLIAM SELTZER APPEARED
ON
BEHALF OF COMPLAINANT.
JOHN VANDER APPEARED PRO SE.
OPINION AND ORDER OF THE BOARD
(by M. Nardulli):
This
matter
comes
before
the
Board
on
an
administrative
citation
filed
by
the Illinois
Environmental Protection
Agency
(Agency)
on
October
16,
1990
against
respondent
John
Vander
(Vander)
pursuant to Section 31.1 of the Environmental Protection
Act
(Ill. Rev. Stat.
1989,
ch. 111 1/2, par. 1031.1).
The citation
alleges
that
on August
16,
1989,
Vander
caused or
allowed
open
dumping
in East Marion Township,
Williamson
County,
Illinois,
in
that Vander caused or allowed the accumulation of litter and open
burning at the site in violation of Sections 21(q) (1) and 21(q) (3)
of the Act
(Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par.
lO2l(q)(1),
(3)).
On November 24,
1989, Vander filed his petition for review.
Hearing was held on May 10,
1990 in Marion,
Illinois.
The parties
elected not, to file post-hearing briefs, standing on their closing
arguments.
FACTS
On the morning
of
August
16,
1989
Charles
Hayduk,
a
field
inspector
for the
Agency,
was driving
east
on
Route
13
out
of
Marion when he noticed smoke in the sky.
(Tr.
at 6.)
He observed
two
fires
at a road construction
site.
(Id.)
He
approached Mr.
Vander who told him that he had started the fires.
(Tr. at 7-8.)
According to Vander,
he set the fires pursuant to a contract with
Southern
Illinois
Asphalt
Company
(Southern)
to
remove
eight
buildings
that
were
in
the
right-of-way
of
a
new
road
to
be
constructed by Southern pursuant to
a contract with the Illinois
Department of Transportation
(IDOT).
(Tr.
at 8.)
On the date
in
question,
Vander had set
fire to
the remains
of
two demolished
buildings.
(Tr. at 9.)
11
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~
~
2
Vander does not dispute that he set the demolished buildings
on
fire.
According
to
Vander’s
testimony
and
that
of
Terry
Mandrell,
superintendent of Southern, prior to the signing of the
contract for removal Vander had asked Mandrell whether there was
any prohibition against burning the buildings.
(Tr.
at
14-18.)
Mandrell testified that he spoke to Rightnower at IDOT who said it
was permissible to burn the remains of the buildings.
(Tr. at 21-
22.)
Mandrell passed this information along to Vander.
DISCUSSION
Section
31.1
of
the Act provides that
“the
prohibitions
specified
in subsections
(p)
and
(q)
of
Section
21
of this Act
shall be enforceable either by administrative citation under this
Section or as otherwise provided
in this Act.”
(Ill.
Rev.
Stat.
1989,
ch. 111 1/2,
par. 1031.1.)
Section 21(p)
of the Act applies
to sanitary landfills permitted under the Act while Section 21(q)
applies
to all
dump
sites.
The administrative citation
issued
against
Vander
alleges
violation
of
subsection
(1)
and
(3)
of
Section
21(q).
Section
21(q)
provides that no person
shall
in
violation of section 21(a)
of the Act:
cause or allow the open dumping
of any waste
in
a
manner
which
results
in
any
of
the
following occurrences at the dump site:
1.
litter;
*
**
3.
open burning;
Section 21(a)
of the Act sets forth a general prohibition against
open dumping by providing that
“no
person shall cause or allow
the open dumping of any waste.
These sections of
the Act establish that,
in order to
seek
enforcement
by way
of
the
administrative
citation
process
for
violations
of Section
21(q),
the Agency must establish that the
person caused or allowed open dumping and must also prove that the
open dumping resulted
in litter,
open burning or other specified
conduct at the dump site.
Therefore,
the initial inquiry
in this
case
is whether Vander’s conduct constitutes “open dumping.”
For
the following reasons,
the Board concludes that Vander’s actions
do not constitute open dumping.
Section
3.24
of
the
Act
defines
“open
dumping”
as
“the
consolidation of refuse from one or more sources at a disposal site
that
does not fulfill
the requirements
of a sanitary landfill.”
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2,
par.
1003.24.)
Section 3.31
of the Act defines “refuse” as “waste.”
(Ill. Rev. Stat. 1989,
ch.
I
!4~~
~
S
3
ill
1/2,
par.
1003.31.)
Section 3.53
defines
“waste”
as,
inter
alia,
“garbage
...
or other discarded material
...
.“
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2, par.
1003.53.)
Here,
Vander
demolished
two
dilapidated
buildings
in
the
right—of—way
of
a proposed roadway
pursuant to
a contract with
Southern, who
in turn had contracted with IDOT.
The photographs
introduced by the Agency indicate that the remains of the buildings
were scooped into piles and then set on
fire.
(Agency Ex.
4,
6.)
The site sketch prepared by Hayduk contains a hand drawn depiction
of the two buildings and a notation stating “buildings knocked down
and
burned.”
(Agency
Ex.
7.)
The
following
testimony
also
indicates that the buildings were torn down and burned at the same
location
where
the buildings
once
stood:
“it
was
a
pile
of
building
debris
that
had
been
pushed
there
by
some
pieces
of
equipment”;
“the
larger
fire
site where
there
was
a
structure,
concrete
block
structure,
and the
combustible
material
in
the
center was still smoking slightly”; and “there was nothing to one
of the buildings
...
but the other one,
I did push
it up into
a
small fire
...
I did demolish the building and get
it down into a
small pile.”
(Tr. at 10,
11 and 19.)
Based upon the facts presented here the Board cannot say that
Vander’s conduct amounted to “the consolidation of refuse from one
or more sources at a disposal site” as defined in Section 3.24 of
the Act and set forth at Section 21(q).
Vander merely tore down
the remains
of two buildings and burned the demolition debris on
site at the point where the buildings once stood.
This point can
hardly be deemed a “disposal site.”
The record indicates that the
demolition,
scooping up of the remaining debris and burning took
place
as
one continuous
sequence of
events.
Where
a person
is
involved
in
the continuous
process
of demolition,
the Board
is
unwilling
to
construe
the
Act
so
that
the
demolition
debris
instantaneously results
in an open dumping violation.
The Board
notes that
it
is possible that
setting
the remains
on
fire may
constitute an “open burning” violation and that failing to properly
remove the remains
after demolition may constitute
“littering”.
However,
under
the
existing
statutory
provisions,
such conduct
would come under the purview of a regular enforcement action rather
than an administrative citation.
The Board
is cognizant of the fact that demolition sites can
become open
dumps.
Whether demolition debris constitutes
“open
dumping” must be determined on a case—by—case basis.
However, the
facts presented here do not support a finding of a violation of the
prohibition against open dumping as set forth in Section 21(q)
of
the Act.
Pursuant to the administrative citation process set forth in
.
the Act,
a person may not be held to have violated the subsections
prohibiting
open
burning
and
littering
without
first
being
in
violation
of the prohibition against open dumping.
Having found
11
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—855
4
5
that Vander’s conduct does not constitute open dumping, the Board
concludes that Vander is not in violation of Sections 21(q) (1) and
(3)
of the Act as alleged by the Agency.
This
Opinion
constitutes
the
Board’s
findings
of
fact and
conclusions of law in this matter.
ORDER
The Board finds that the Agency failed to establish that Mr.
Vander violated Sections 21(q) (1) and
(3)
of the Act.
Section
41
of the Environmental Protection
Act
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2,
par.
1041)
provides
for appeal of final
orders of the Board within 35 days.
The Rules of the Supreme
Court establish filing requirements.
IT IS SO ORDERED.
J.D.
Dumelle,
J. Theodore Meyer and B. Forcade dissent.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that
e above Opinion and Order was adopted
on tyie
~
day of
e~p’
,
1990,
by a vote of
4t-~
~.
Dorothy N. ~unn,
Clerk
Illinois po~lutionControl Board
S