ILLINOIS POLLUTION CONTROL BOARD

November 8, 1972

ENVIRONMENTAL PROTECTION AGENCY

)

#72—230

C. M. FORD

Mr. Prescott E. Bloom, Special Asst. Attorney General,

appeared on behalf of the Environmental Protection Agency

Respondent appeared pro se

Opinion and Order of the Board (by Mr. Currie)

Mr. C. M. Ford (“Respondent”) owns and operates certain

facilities located in Bourbonnais Township, IKankakee County,

and, by complaint filed on June 7, 1972, is charged with

numerous violations of the Illinois Environmental Protection

Act, Ill. Rev. Stat., 1971, ch. 111 1/2 (“Act”) and the

Rules and Regulations for Refuse Disposal Sites and Facilities

(“Rules”) on several separate occasions. Public hearing on

the charges was held on September 5, 1972.

Respondent has apparently constructed some kind of in-

cineration device on his property which he calls his “smoke

annihilator” invention CR. 20). Evidence indicated that

Respondent has not secured a permit for the device or for

the landfill sice itself, although he did make preliminary

efforts to seek one for open burning (EPA Ex. #12) 

but

apparently no such permit was ever issued. But Respondent

maintained that he does not consider his site to be a

“landfill” or a dump” and that he therefore did not really

“want” a permit to conduct operations there. Re admitted

without hesitation that he brings timber, and wood products

to the site to burn (R. 18, 25) 

and. that the reason he

bought the property in the first place was to be able to

burn in an “out-of-the-way” place (F. 18). But he also

maintained that burning operations

were conducted only

“about once

a

year” CR. 25)

Furthermore,

Respondent denied

any recollection

of fires on his site on the dates alleged

in the complaint,

but added that if the fires did in fact

occur, he did not set them (F. 37—38, 213—214) and

is there-

t ~

~or

them.

An Agency witness testified

that trees, brush and lumber

are stockpiled around the annihilator (F. 50-51) and Res-

ronhent maintained that since the material on the site is not

subject

to

the rules and regulations

governing landfills.,

—2—

it in his view not being a landfill at all, he did not have

to cover the wood (R. 42-43). He stated: “It hasn’t never

been covered. There is no 

— —

we have no fill operation.

There is no hole there or no nothing to fill with.” (R. 43).

Respondent is charged with causing or allowing the open

dumping and open burning of refuse at the site on five specific

dates: May 7, 1971; June 24, 1971; Nov. 29, 1971; Dec. 9,

1971; and March 7, 1972. We will consider each date indivi-

dually:

May 7, 1971 

—

A witness testified that he saw brush and lumber stock-

piled near Respondent’s invention CR. 50) 

and concluded that

it was “open dumped” (F. 51).

An Agency inspection

sheet

(EPA Ex. #13) noted that combustible matter was present,

was uncovered, but was properly spread and compacted. This

constituted the extent of the Agency’s proof on this date.

No proof was introduced regarding the time the materials

had been deposited, how they had been deposited, who had

deposited them, or whether they were covered by the end of

the day as the regulations require. No burning was shown.

We find the woof insufficient to support the allegations of

violations on this date.

June 24, 1971 

—

An Agency witness testified that he saw a pile of re-

fuse, wood, tire rims and some wire on the site on this

date, and he added that he observed an area “smoldering” there

(R. 54-56) 

and detected some smoke as well CR. 64) 

Another

Agency witness also testified that he observed smoldering

(F. 75—81) and smoke emanating from an area behind Res-

pondent’s invention (R. 76) 

Both witnesses testified

that Respondent physically

menaced them preventing

their

continued investigation of the site. A resident of Bour—

bonnais said that burning at the site was a “common occur-

rence” and that “there is constantly burning” there (F. 133)

notwithstanding

Respondent’s

statement that burning only

occurs approximately once a year at the site (F. 25—26,

42)

This witness went on to confirm that there was a fire

on the site on June 24 (F. 134).

The testimony that the burning did in fact occur on this

date is both believable and virtually uncontradicted. Res-

pondent does not deny that open burning took place on his

site on the dates alleged in the complaint, but merely states

that he does not “recall” whether or not it did (R. 37-38).

He repeatedly

asserted that he should not be held responsible

for

the fires unless and until someone could show that he

actually set them (F. 37-38, 213-214); no evidence was intro-

duced to suggest that the fires were accidentally started,

6— 166~

—3—

and there was no apparent effort by Respondent to extinguish

the flames after they had been detected.

In our view, the testimony regarding the burning operations,

the character and degree of the nuisance caused thereby,

and the damage inflicted on

Respondent’s neighbors as a

result of such operations

satisfied the initial burden of

proof incumbent upon the Agency. As we have said

in similar

cases, the burden then

shifted to Respondent to rebut the

allegations,

to offer a satisfactory

explanation in defense

of the charges.

EPA

Neal Auto Salvage, Inc., PCB 70-5

(Oct. 28, 1970).

No such explanation or mitigating evidence

was forthcoming.

The testimony also indicated that fires

may have occurred at the site with a certain degree of

regularity, and the hazard to nearby residents

imposed upon

Respondent the further duty to do all that he could to pre-

vent a recurrence of such episodes. We find that he has

failed to meet his burden to rebut the evidence presented

against him; we find that Respondent has failed to provide the

necessary degree of care to prevent the burning at his site,

whether or not such burning was accidental or deliberate;

and we find that there was open burning at the site on this

date in violation of law.

Nov. 29, 1971 

—

An Agency engineer, responding to a complaint he had

received on the morning of Nov. 29, 1971, visited the site

and witnessed several areas of fire and flame (R. 86-87).

A builder, whose property is near the site, testified that

there was a large fire at the site onthis date, measuring

some 250 feet by 50 feet, which blew smoke and hot embers

over the roof of his house (F. 107-108). He described the

fire as being “enormous” CF. 134) and said flames and sparks

were landing on his property, his shrubbery, and his house

causing great damage (F. 135). He said there were often

fires there that had affected the health of his children

(R. 133, 136) and caused him financial damage as well

CR. 138). We find the evidence supports the charge of open

burning at the site on Nov. 29, 1971 for the same reasons

stated above regarding the June 24 incident.

Dec. 9, 1971 

—

A witness testified that there was a fire on Mr. Ford’s

property on Dec. 9, 1971 (F. 135) 

No other evidence was

offered regarding alleged violations on this date, and we

feel that the unelaborated statement that a fire occurred

on that date, unsupported by additional evidence of any kind

whatsoever, is inadequate grounds upon which to find vio—

lation.

6-- 167

—4—

March 7, 1972 

An Agency witness testified that he observed stock-

piled brush at the site on this date (F. 65) which Respon-

dent told him was to be burned in the annihilator (F, 67)

He said he saw some ashes, and evidence of past burning

(F. 58) but did not testify that a fire was then burning.

The neighbor who had observed the fire on Nov. 29 and had

testified that a fire also occurred on Dec. 9 said he saw

a fire there on March 7, 1972 as well (F. 135). No further

evidence of this fire was introduced. We find this in-

sufficient to prove a violation on this date.

In summary, we find a violation of the open burning

regulations on June 24, 1971 and on November 29, 1971. The

evidence allows the reasonable inference that Respondent was

accumulating or stockpiling wood products to burn in his

incineration device, and whether or not this was the actual

origin of the fires in question, there seems no doubt that

Respondent allowed such fires to occur. EPA Exhibit #30

is

a petition signed by approximately fifty nearby

residents

asking that the fires

on Fespondent’s property cease. Aside

from individual instances of damage caused by the fires,

therefore, it appears that such occurrences have caused a

nuisance in the area, and have unduly bothered Mr. Ford’s

neighbors.

Mr. Ford’s defense seemsto be that since no one ever

saw him toss a match into the accumulated wood and brush

piled up on his land, and since he prefers to call his

operation a “salvage yard” rather than a “landfill” or

“dump,” he should be excused from applicable provisions of

the law covering such activities. We reject such contentions.

Under 

our State law, accountability for pollution violations

extends to those who allow as well as to those who cause

the contamination of our environment. We will order

Respondent to immediately cease and desist violating the

law at the site, and to pay $2,000 for the violations which

have been proved, $1,000 for each instance. And since this

is not the first time Fespondent has appeared before us on

relatively similar matters, we remind him that we will

not take kindly to a third appearance, and that the pollution

laws which we enforce today are meant to be obeyed and not

ignored.

ORDER

1. Respondent shall immediately cease and desist the open

burning of any materials whatsoever on his property,

and shall secure a permit from the Illinois Environmental

Protection Agency in the event he wishes to burn materials

in any enclosed device or incinerator;

—

168

—5—

2. Respondent shall pay to the State of Illinois within

thirty-five (35) days from the date hereof, the sum

of $2,000 as a penalty for th~ violations found

in this proceeding. Payment shall be made by certified

check or money order payable to the State of Illinois,

and shall be sent to “Fiscal Services Division, Illinois

Environmental Protection Agency, 2200 Churchill 

Drive,

Springfield, Illinois 62706.”

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

certify that the Board adopted the above Opinion 

Order

this 

;

‘

day of  

•

1972, by a vote of

~

6— 169