ILLINOIS POLLUTION CONTROL BOARD

October 28, 1971

ENVIRONMENTAL PROTECTION AGENCY

)

PCB 71—226

TOWNS WRECKING COMPJ½NY

Mr. and Mrs. Mix Towns, appeared

pro se

Mr. William 

3. Scott, Attorney General, and Mr. Deneen A. Watson,

Special Assistant Attorney General, appeared on behalf of the

Environmental Protection Agency

Opinion of the Board (by Mr. Kissel):

On August 5, 1971, the Environmental Protection Agency (the

“Agency”) filed a complaint with the Board against the Towns Wrecking

Company (“Towns”) which is a business owned by Mix and Myrtle Towns

in and about the area of Marion, Illinois. The complaint alleged

that Towns was guilty of causing “air pollution” because Towns burned

autos in the open for purposes of salvaging them. The complaint

also alleged a violation of the Regulations, namely Rule 2-1.1 of

the Rules and Regulations Governing the Control of Air Pollution.

A hearing was held in Carbondale, Illinois on October 

4, 1971,

before George Bullwinkel, Hearing Officer.

The Agency witness, Paul Schmierbach, testified that he

visited a site near Marion on April 19, 1971, and took a number

of photographs which depicted the open burning of automobiles

at that site. Exhibit 1, which is a photograph of the site, shows

Mr. Towns operating a hydraulic crane at or near the open burning.

He further testified that he asked Mr. Towns to stop open burning

salvage operations.

On April 22, 1971, Mr. Schmierbach was driving near another

site and saw a cloud of black smoke, He investigated and found 15

to 20 automobiles being burned in the open. Pictures were taken

oP the burninq, See Exhibits 

4,

and

6.

On the latter date Mr.

Towns was not at the site, but Mrs. Towns was.

Mr. Towns denied causing the open burning on the site, He

said that the site at which the automobiles were being burned was

not owned by him and he does not know who does, He said he hasn~t

burned autos for at least a year, but he did pick up the autos

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after they had been burned. His obligation is to clear the burned

autos from the site and deliver them to the manufacturers who can

use the scrap steel. Mrs. Towns, who also testified, also denied

having anything to do with the open burning. In fact, while she

admitted being on the site on April 22, she really did not know

whether autos were being burned,

There is no question that someone was burning autos in the

open in violation of Rule 2-1.1 and in violation of Sections 9(a)

and 9 (c) of the Environmental Protection Act. The more serious

question is whether the respondent, Towns Wrecking Company and

its employees,were the ones who were burning the autos in the

open. Mr. Towns emphatically denied that he had anything to do

with open burning. His testimony is that he receives title to

the autos only after they have been burned, The Agency made the

case against Towns based on the fact that Towns and his wife were

present on April 19 and 22, 1971, when the burning was observed

at the site. The Agency did not actually prove that Towns owned

the site, It would seem that this case would not be governed by

the doctrine in the Neal Auto Salvage case, EPA v. Neal Auto Sal-

vage, PCB 70-5, dated October 23, 1970, In that case the Board

held that where open burning on someones premises occurs, the

Agency must only prove that fact. The burden then shifts to the

property owner to rebut the allegation. The uncontradicted evi-

dence in this case is that Mr. Towns and his wife do not own the

preperty at which

the burning occurred. We therefore feel that

the Agency has not met the burden of proof necessary to establish

a violation of the statute by Towns, Mere presence on the site

where open burning occurs is not enough to prove a violation of

the statute and/or the regulations.

We note that Mr. Towns does condone open burning, even though

he is not the one who sets the fire. In his future dealings he should

find alternate sources for autos and buy them from dealers who are

not burning in the open. Shredding is available near the St, Louis

area, which is where Mr. Towns takes the burned autos anyway. We

hope that Mr. Towns takes the suggestion of this Board to find

alternate means to conduct his salvage business.

This opinion constitutes

the Board~s findings of fact and

conclusions of law.

I, Regina E. Ryan, Clerk of the Illinois Pollution Control

Board, hereby certify that the above

Opinion was entered on this

day of October__,

1971.

~aE.Ryan,Clerk

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