ILLINOIS POLLUTION CONTROL BOARD
April
12,
1990
LEFTON IRON AND METAL COMPANY,
)
INC.,
a Missouri Corporation,
)
Complainant,
)
PCB 89-53
(Enforcement)
v.
CITY OF EAST ST. LOUIS,
Respondent.
Thomas Immel,
Immel,
Zelle, Ogren, McClain, Germeraad
& Costello,
on behalf of complainant;
Eric Vickers, Corporate Counsel for the City of East St. Louis, on
behalf of respondent.
OPINION AND ORDER OF THE BOARD
(by N. Nardulli):
This matter comes before the Board on
a complaint
filed
by
Lefton Iron and Metal Company,
Inc.
(“Lefton”)
on March
15,
1989
against respondent,
the City of East St. Louis
(“City”)
alleging
violations
of
section
21(a)
of
the
Illinois
Environmental
Protection Act (“Act”) which prohibits allowing open dumping
(Ill.
Rev.
Stat.
1987,
ch. 111 1/2,
par.
1021(a)) and 35 Iii. Adm. Code
807.201 which prohibits allowing the development of a solid waste
management site without a permit.
The City did not file an answer
to
the
complaint
and,
therefore,
all material
allegations
are
deemed denied.
(35 Ill. Adm. Code 103.122(d).)
A hearing was held
on July 24,
1989
at which no members of the public attended.
No
post—hearing briefs were filed.
Lefton operates
a
scrap
metal
business
on
leased property
located
in East St.
Louis.
Lefton’s property is bounded
on
the
east by Brady Avenue and on the west by Converse Avenue.
Brady and
Converse Avenues are unpaved right—of-ways owned and controlled by
the City.
Lefton alleges that during the spring
and
summer of
1988,
the City
failed to
provide
trash collection
services
and
allowed refuse and trash to be dumped on Brady and Converse and
accumulate to the point that Lefton encountered difficulty gaining
access to
its property.
(Complaint at par.
6-7.)
Lefton states
that the
City was
aware
of
the discarded
refuse
on
its
public
streets and failed to respond
to complaints by Lefton and other
residents.
Lefton alleges that the City has violated section 21(a)
of the Act and section 807.201 of the Board’s regulations.
(Ia.
at
par.
11-12.)
Lefton requests that the Board
direct the City to
cease
and desist
from
such
violations
and
to
submit
a plan
of
compliance to the Board.
(~.
at p.4.)
110—19
2
Two
witnesses
testified
at
hearing.
Benjamin
Lefton,
president of Lefton,
testified that he viewed the accumulation of
debris on Brady and Converse Avenues.
(Tr. 7/24/89 at 6.)
Lefton
introduced a June
10,
1988 letter from Norman Lefton, chairman of
Lefton,
to the mayor of East St. Louis and a June 27, 1988 letter
from another resident notifying the City of the debris and asking
that
it be removed.
((Ex.
1,
2.)
Lefton also testified
that he
took the two photographs which were attached to Lefton’s response
to the Board’s
Order
of March
23,
1989.
(Tr.
7/24/89
at
12.)
These photographs of Brady and Converse Avenues were taken on April
13,
1989
and show
the
accumulation
of
discarded
debris.
(Tr.
7/24/89
at 12-13; Response Ex.
2,
3.)
Lefton introduced two maps
showing the location of Brady and Converse Avenues and noting the
accumulation of the refuse.
(Ex.
3,
4.)
Mr.
Lefton stated that
the debris was still on the streets the last time he looked one
week prior to the hearing.
(Tr. 7/24/89 at
14.)
On cross-examination,
Mr.
Lefton testified that he did not
know who placed the refuse on Brady and Converse Avenues.
(Tr.
7/24/89
at
16.)
Mr. Lefton was asked what proof he had that the
City owned the property where the debris was located.
(Tr. 7/24/89
at
19-20.)
Mr.
Lefton
responded
that
the
streets
were
public
streets
as evinced
by the maps introduced
into evidence.
(Tr.
7/24/89
at 19—20;
Ex.
3,
4.)
George Foster,
coordinator of Emergency Service and Disaster
Agency
for East St.
Louis, testified that,
on the morning of the
hearing, he viewed the area in question and did not see the amount
of debris present as depicted in Lefton’s photograph
of Converse
Avenue.
(Tr. 7/24/89 at 30-32.)
Foster testified that it appeared
that some of the trash had been burned.
(a.)
Foster did state
that considerable debris remained on Brady Avenue.
(~4.)
Foster
also stated
that the City began
an
emergency
city-wide
cleanup
effort
in
1987
or
1988
and that
this
effort was halted
in
the
latter part of 1988 or the early part of 1989.
(Tr. 7/24/89 at 33-
34.)
Section
21(a)
of the Act provides
that
“no
person
shall
cause or allow the open dumping of any waste.”
(Ill. Rev. Stat.
1987,
ch.
111 1/2, par.
1021(a).)
The Act is malum prohibitum so
that the owner’s lack of knowledge
of the dumping
is no defense.
(Meadowlark Farms,
Inc.
v.
PCB,
17
Ill.
App.
3d
851,
308 N.E.2d
829,
836
(5th
Dist.
1974.)
The
owner
of
the
source
of
the
pollution “causes or allows” the pollution within the meaning
of
the statute and is responsible for that pollution unless the facts
establish
the owner either lacked the capability
to control the
source or had taken extensive precautions to prevent
intervening
causes.
(Perkinson v.
PCB,
187 Ill. App.
3d 689,
543 N.E.2d 901,
903
(3d Dist.
1989).)
Lefton introduced two photographs showing the accumulation of
110—20
3
a great deal of debris.
(Response Ex.
3,
4.)
Mr. Lefton testified
that
he
took
the
photographs
on
April
13,
1989
and
that
the
photographs depicted trash
on
Brady and Converse Avenues.
(Tr.
7/24/89 at 12.)
The evidence establishes that the debris had been
at that location from the summer of 1988 until at
least one week
prior to the hearing in July of 1989.
(Tr. 7/24/89 at 14; Ex.
1,2.)
In
support
of
its assertion that the debris was
located on
the
public
streets,
Lefton
introduced
two maps depicting
Brady
and
Converse Avenues and the location of the refuse.
While the City’s
cross-examination of Mr. Lefton attempted to cast doubt on whether
the debris was located on the public streets,
the Board finds that
Lefton
established by
a
preponderance
of
the
evidence that the
refuse was indeed located on public streets owned by the City.
The
City failed to introduce any evidence to rebut Lefton’s assertion
that the refuse was located on
Brady and Converse Avenues.
At
best, the City introduced some evidence that, at one point in time,
the City attempted a clean-up of the area.
(Tr.
7/24/89
at 33-
34.)
The Board finds that the City had control of the land where
the
debris
accumulated
and
allowed
the
dumping
of
waste
in
violation of section 21(a)
of the Act.
Lefton also contends that
the City’s conduct constitutes
a
violation
of
section
807.201
of
the
Board’s
waste
disposal
regulations.
Section 807.201 provides that “no person shall cause
or allow the development of any new solid waste management site
without a Development Permit issued by the Agency.”
(35 Ill.
Adin.
Code 807.201.)
The Board does not believe that the City’s conduct
in
this
cause
constitutes
the
“development”
of
a
solid
waste
management
site which
section
807.201
is
designed to regulate.
Therefore,
the Board finds no violation of that section.
Pursuant to section 42(a)
of the Act, the Board is empowered
to impose a maximum penalty of $10,000
and an additional penalty
of $1,000 for each day the violation continues.
(Ill. Rev. Stat.
1987,
ch.
111 1/2, par.
1042(a).)1
Lefton has taken the position
that, because of the City’s poor financial situation,
no monetary
penalty should be
imposed upon the
City.
Lefton requests that
the Board enter a cease and desist order and require that the City
submit
a plan to bring
itself
into compliance with the
Board’s
cease and desist order.
A consideration of the factors set forth in section 33(c)
of
the Act supports the relief requested by Lefton.
(Ill. Rev.
Stat.
1987,
ch.
ill
1/2, par.
1033(c).)
Pursuant to section 33(c)(l),
the
Board
finds
the
interference with
Lefton’s
property
to
be
substantial.
The Board finds that there is no “social or economic
value”
to
be
accorded to
the
source
of
the
pollution
(section
1
The Board notes that P.A.
86-1014 was recently enacted to
increase the minimum penalty to $10,000 and the maximum penalty to
$5”,OOO.
P.A.
86—1014 becoin~sef.~’ectiveJuly 1,
1990.
110—21
4
33(c)(2))
and that section 33(c)(3)
is inapplicable to this cause.
Regarding section 33(c) (4), the Board finds that, even for East St.
Louis,
it
is technically practicable and economically reasonable
to eliminate the pollution source.
The Board also finds that the
City has accrued some economic benefit from its failure to remove
the debris to the extent that the evidence shows that the trash has
interfered with Lefton’s use of its property since the summer of
1988.
(See,
Ill. Rev.
Stat.
1987,
ch.
111 1/2, par.
1033(c) (5).)
Although the City made an ineffective attempt to clean up the area,
there has been no compliance to date.
Therefore,
the Board finds
that section 33(c)(6)
is not germane to this matter.
The Board will not impose a penalty upon the City but directs
the City to remove the debris located on Brady and Converse Avenues
and to cease and desist from allowing the dumping of waste on those
streets so that Lefton’s operation of its business and enjoyment
of its property
is not interfered with any longer.
However, the
Board
does not believe that
it
is appropriate
in this cause
to
require the
City
to
submit
a
compliance
plan;
the
City
either
cleans
the
area
in
question
or
it
does
not.
The
situation
presented here does not necessitate that this Board put its stamp
of approval on the method of ridding the area of debris.
This Opinion constitutes
the
Board’s
findings
of
fact
and
conclusions of law on this matter.
ORDER
Within 60 days of the date of this Order, respondent,
City of
East St.
Louis,
is hereby directed to take all steps necessary to
rid Brady and Converse Avenues of all debris so that complainant’s
enjoyment of its property is not interfered’ with and to cease and
desist from allowing the open dumping of waste at the location in
question.
Section 41 of the Illinois Environmental Protection Act
(Ill.
Rev.
Stat.
1987,
ch.
111 1/2,
par.
1042)
provides for appeal of
final Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certj~fythat the above Order was adopted on the
/~‘~
day of
j~e.2~_
,
1990 by a vote of
7-O
/
~‘
~
~
J~
~
Dorothy M./Gunn, Clerk
Illinois Pollution Control Board
110—22