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
    •‘~
    ~
    ~

    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
    I~
    —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

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