ILLINOIS POLLUTION CONTROL BOARD

August 8, 1972

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

VS

GEORGE P. BAKER, RICHARD C. BOND,

JERVIS LANGDON, JR., AND WILLARD  

)

PCB 72-43

WIRTZ, Trustees of the Property of

the Pennsylvania Central Transpor-

tation Company.           

)

Wayne Golomb and Thomas A. Cengel, Assistant Attorneys General, for

the Environmental Protection Agency; Ralph Walker and Harry 3. Sterling

for Baker et al.

OPINION OF THE BOARD (by Mr. Parker):

The Pennsylvania Central Transportation Company, through its

Trustees, George P. Baker, Richard C. Bond, Jervis Langdon, Jr., and

Willard Wirtz, operates railroad yards and related facilities in and

around East St. Louis, Illinois.

By Complaint filed February 7, 1972 (later amended to designate

as respondents the trustees of the railroad), the Agency alleges that

open burning of railroad ties and other refuse took place on five

different dates: September 29, 1970, October 7, 1970, September 23, 1971,

October 1, 1971, and October 6, 1971. Respondents’ Answer constitutes

a general denial.

We believe the record shows that open burning violations for which

respondents must be held accountable did take place on each of the five

relevant dates.

The September 29, 1970 fire took place about 2:00 p.m. near the

Round House in the Rose Lake Yard of the Railroad (R.21, 51, Agency

Exhs. 5, 7). This was a rubbish fire (Agency Exh. 1), which a rail-

road janitor admitted setting CR. 23-24, 117-119).

Railroad ties (approximately 30 to 40 in number) and trash were

burned in the October 7, 1970 fire, which took place at approximately

3:00 p.m. in the lower railroad yards near 208 South Front Street,

East St. Louis (R. 24-25, 51, Agency Exhs. 5, 7). The fire covered

an area of about 50 feet by 60 feet, the smoke being generally light

gray and occasionally black (R. 25). This fire occurred after the

Assistant Foreman of the railroad instructed one of his men “to get

rid of the ties and the debris” (R.123).

On September 23, 1971 at about 2:30 p.m. railroad ties were

burned in the open in an extension of the Rose Lake Yard CR. 28-29,

51, Agency Exhs. 6, 7), the fire covering an area about 20 feet by

20 feet (R. 29-30, photos Agency Exhs. 2-4). Once more the smoke being

emitted was light gray, and occasionally black (R. 30).

—

The October 1971 fires took place 

on railroad property* adjacent

the service road running along the north side of the Rose Lake Yard

tracks (R. 53—54, 56, 61). The October 1st fire, of railroad ties and

other combustible material, took place at approximately 5:30 p.m.

(R. 59-60, Agency Exhs. 12, 15). Heavy dense black smoke was given

off from the fire, which covered an area approximately 20 feet by 30 feet

CR. 60, photo Agency Exh. 9). The October 6th fire was of approximately

the same size and character CR. 61-62, photo Agency Exh. 11, Agency

Exhs. 12, 17). It occurred at about 7:15 p.m. These fires as de-

picted by the photos (Agency Exhs. 9, 11) were accompanied by vigorous,

high reaching flames and billowing gray smoke,.

While the record includes some evidence of open burning incidents

having taken place at times in addition to those described above, we

consider this evidence to he incomplete and therefore inadequate to

prove additional violations. The Agency apparently felt 

likewise since

it did

not

amend

its Complaint 

conform 

to the evidence. 

hardly need repeat here that due process requires that Respondents he.

given notice in advance of the hearing of the charges they must meet.

Respondents contend the record fails to prove that the railroad

caused or 

allowed open burning as required

by the Act 

because there

was limited evidence as to how each of the fires was started. But, as

pointed out in earlier Board decidions (eg. see EPA 

Neal Auto

Salva e, Inc., 

#70—5,

dated October 28, 1970), the economic desirability

o burning trash, and in 

this case old railroad ties, creates a dut.y on

the part

of

the burner to offer a satisfactory explanation.

Here, the

record shows that open burning took place on the railroad premises (note

that

the

September 29, 1970 violation was admitted, and the October

7,

1970 via :Lation came about in response to foreman’s instructions—-thus

creating an even stronger duty than

in

the Neal Salvage case)

Ciearl?~

was ir Pesoondents

eco’iorrju. in’ ere~

~o ocr rio

al

:te tsc~ and

the debris” (A, 123)

;

yet respondents offered no satrsiactory

exolana-

Respondents suogest, however, that they

had

no control over the

actions

of

their employees.

The argument seems to be tuat control over

railroad “properties and employees,

.vast in number” :Ls not

“an 

easy

task”, and that the company should not be “unreasonably punished for

the independent action of an employee who ignores the directives of his

superiors”

(Respondents’ Brief, pp. 13-14)

The argument fails on the

record facts as well

as

the law, Whatever were the company “directives”,

they

were 

apparently not passed down to the employees in

time to do 

any

good (A. 118-119, 125). And

the

Respondents

have failed to 

show any

reason why the time honored legal doctrine of respondent 

superior should

not apply here.

Respondents’ remaining arguments, or like arguments, 

have been raised

and discussed in earlier decisions of this Board. Thus, Respondents argue

that because violation of the Environmental

Protection Act constitutes a

misdemeanor (Section 44) , the instant enforcement proceeding under the

There is a suggestion in the transcript (R,59) that 

Respondents question

the adequacy of the record proofs tying the October 1971 fires to orop-

ertv controlled by Penn Central. We find these proofs,. submitted by the

Agency, adequate on the 

ooint;~

in any event, the 

proofs

were sufficient

t~’ s”rft nI~o~.burcos 

Pe~orde~ 

~-~‘

‘or1-~

for~.iarc ~icr ~r~1 con..~ra~

~‘

s~e’~”~

t”~’,cio

Act is criminal rather than civil in nature, so that 

the

usual criminal

safeguards and criminal standard of proof apply. But such contention

misconstrues the nature of this proceeding (see EPA v. Container Stapler

Corporation et al., #70-18, dated March 3, 1971). While the Act provides

f

or misdemeanor prosecution, the present proceeding is not such an

action. The instant case is a civil action calling for the entry of a

cease and desist order and the imposition of penalties and does not

constitute a criminal charge or require proof in excess of a prepon-

derance of the evidence. For the same reasons Respondents’ assertions

that the witnesses at the hearing must have been advised of their

constitutional rights against self—incrimination miss the mark. (In

any event we note that the Hearing Officer did so advise the witnesses,

R. 17—18, 105, 112, 116, 121, 128, 134; none of the witnesses refused

to testify).

Respondents challenge the constitutionality of the Environmental

Protection Act and this Board’s Rules and Regulations for failure “to

convey a sufficient and definite warning as to the proscribed conduct...

to enable the respondents to reasonably understand the charges” (Amend-

ment to Answer, par. 4~5), for creating “special treatment for open

burning of agricultural waste and domicile waste” in derogation of

“the legislative purpose” (ibid, par. 6), and for failing to constitute

“a reasonable limitation or regulation of open burning” (ibid, par. 7).

These and like constitutional arguments have been previously considered

and rejected by this Board (eg. see EPA v. 3. M. Cooling, #70-~2l, dated

December 9, 1970), and we accordingly apply the same reasoning in re-

jecting them here.

The Agency seeks a penalty of up to $10,000 for each violation

shown to have occurred. It does appear from the record that the

Respondents have resolved to cease all open burning in recognition of

the laws banning this activity (see Respondents Exhs. 1-6). In view of

this we believe a penalty of $250 per violation is 

appropriate, 

in this

case a total of $1,250 for the five violations.

The foregoing Opinion constitutes the findings of fact and con-

clusions of law by the Board.

ORDER

1. Respondents shall cease and desist from the open burning of

railroad ties and other refuse at its railroad yards and related

facilities in and around East St. Louis, Illinois.

2. Respondents shall within 

35 days after receipt of this Order

pay a penalty of $1,250 by check payable to Fiscal Services Division,

Environmental Protection Agency, 2200 Churchill Road, Springfield,

Illinois 62706.

I, Christan Moffett, Clerk of the Pollution Control Board, certify that

the Board adopted 

the

above Order and Opinion this 

~)( day of. ~

1972, by a vote of 

~ C

5

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99