ILLINOIS POLLUTION CONTROL BOARD

June 13, 1985

THOMAS E. GREENLAND,

an Individual,

Complainant,

PCB 84—155

CITY OF LAKE FOI~T, ILLINOIS

)

a Municipal Corpc;:ation,

)

Respondent.

THOMAS E, GREENLAND APPEARED ON HIS OWN BEHALF.

MURRAY R, CONZELMANI, OF CONZELMAN, SCHULTZ, SNARSKI & MULLEN AND

THOMAS H. COMPERE, CITY ATTORNEY, APPEARED ON BEHALF OF

RESPONDENT.

OPINION AND ORDER OF THE BOARD (by

J.

Marlin):

This matter comes before the Board upon an October 17, 1984

complaint filed by Thomas E. Greenland against the City of Lake

Forest (City) alleging that the City is in violation of Section 9

of the Illinois Environmental Protection Act (Act), Ill, Rev.

Stat. 1983, ch, 111 1/2

,

par. 1009, by permitting leaf burning

pursuant to a city ordinance, Mr. Greenland also alleges that

the City is in violat:Lon of two Board regulations, 35 Ill. Adm,

Code 237.102 (prohibition on open burning) and Section 237.120(c)

(open burning of landscape waste). The City’s motion to dismiss

was denied by the Board on January 10, 1985, Hearing was held on

January 16 and Februa-:y 6, 1985 in Lake Forest, Illinois. Board

Orders relating to a briefing schedule were issued on March 7 and

April

4,

1985.

PRELIMINARY

ISSUES

A few preliminary issues need to be disposed of first. The

Board denies the oral motion to strike at page 83 of the

transcript and affirms the decision of the hearing officer. The

question asked by the City, although capable of being answered

with a yes or no, apparently elicited a clarification statement

and question from the witness, The City certainly could have

answered the first or second question of the witness or objected

and let the hearing off:icer decide, The City chose to let the

witness ramble and then move to strike, Arguably the response

was responsive to the question asked, and the Board will let the

response stand,

A second issne involves Complainantts Exhibit 1 which was a

study by the then Illinois Institute of Natural Resources (IINR)

64-233

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2

now Department of Energy and Natural Resources (DENR) entitled

“Advisory Report on the Potential Health Effects of Leaf

Burning,” Document No. 78/19, December 1978,, Project No.

90.002. The

City objected to

its admission on hearsay grounds

because it could not cross-examine the author and ascertain the

authoritativeness of the study~ Mr. Greenland countered that it

was offered as a breatise

or a atudy. The hearing officer

overruled the

Cit.y~s

objection

and admitt.ed the

document. While

the document is hearsay the

i~oard

~,i1laccept the document under

the Board’s rule regarding admission of

evidence,

located at 35

Ill. Adm. Code

103.204,

which allows evidence which is “material,

relevant and wcr.~ be relied upon by reasonably prudent persons

in

the conduct

cS:

curious affairs.

..

Id. In the instant case,

the Advisory Report was issued

by the IINR

in regulatory

proceeding R73--5 (See 40 PCB

8l~

December 4, 1980; 13 PCB 645,

September 19, i974)~

Although the

respondent is

entitled to the procedural

safeguards of testimony

under

o.~th/ cross~-examination, and

confrontation of

w,itriesses,

the Board holds that

there is enough

reliability to the

document. to

cu~eany absence of these

safeguards as

to

this document, since the agency has been

statutorily mandated to perform such a study, IL. REV. STAT.

1979, ch. 961/2, pars.

7401 ~h) (1) and

7403

(5~.

DISCUSSION

STATUTORY CONSTRUCTION: SECTI~JNS 9 AND 10

Mr. Greenland is a resident of

Lake Forest. The City is a

municipal corporation

of

the

State

of Illincrs located

in Lake

County. The City

population

is approximately 15,245 while that

of the County is in excess of

440

p000 people.

At t:he heart of

the controversy

is

the

leaf burninq

ord:inance

of the

City,

adopted October

13,

i9~4ç

which perr~its leaf burning (See Joint

Exhibit 1).

Mr. Greenland alleges

that the City has

violated Section 9

of

the Act,

which in

pertinent parl:.r

provides as

follows:

No

person

shali~

a)

Cause or threaten or allow the diseharce or emission of

any contaminant into the environment in any State so as

to

cause

or tend to

cause air pollution in

Illinois,

either alone or in combination with contaminants from

other sources,

or

so as

t.o violate regulations

or

standards

adopted by the Board under this Act;

*

c)

Cause or allow the open burning of refuse, conduct any

salvage operation by

open, burning, or cause or allow the

burning :~i

any refuse in any chamber not specifically

~4.~234

---

3

designed for the purpose and approved by the Agency

pursuant to regulations adopted by the Board under this

Act; except that the Board

may adopt regulations

permitting open burning

of refuse in certain cases upon

a finding that no harm will result from such burning, or

that any

alternative method of disposing of such refuse

would create a safety hazard so extreme as to justify

the pollution that would result from such burning.

***

This. Section shall not limit the burning of landscape

wacte

upon

the premises where it is produced or at sites

provided and supervised by any unit of local government,

except within any county having a population of more

than 200,000, Added by P,A. 82—678, eff. 1—1—821.

Section 3(s) defines person to include political sub-

divisions and corporations.

Section 10

is a limitation

on

the Board’s authority and

provides as follows:

The Board, pursuant to procedures prescribed in Title

VII of this Act, may adopt regulations to promote the

purposes of this Title,

Without limiting the generality

of this authority, such regulations may among other

things prescribe:

***

The Board may not adopt any regulation banning the

burning of landscape waste throughout the State

generally, The Board may, by regulation, restrict or

prohibit the burning sic landscape waste within any

geographical area of the State if it determines based on

medical and biological evidence generally accepted by

the scientific community that such burning will produce

in the atmosphere of that geographical area contaminants

in sufficient quantities and of such characteristics and

duration as to be injurious to humans, plant, or animal

life, or health,

The cardinal rule in construing a statute is to ascertain

and give effect to the intent of the legislature.

People v.

Boykin, 94 Iii, 2d 138, 445 N.E. 2d 1174 (1983).

In order to

determine this intent, one

must first look to the statutory

language itself.

If the meaning of the language itself is clear

on its face, then

it will be given effect,

Where the meaning of

the language is ambiguous, one must look to the legislative

history.

Id,

The City contends that.

Section 9 is invalid because it is

inconsistent c~iith Section 10. The Board disagrees.

Section 9

64-235

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establishes a statutory prohibition against the burning of

landscape wastes in counties over 200,000 in ~opuiation. Section

10 limits the Board’s regulatory autnorlty in this area and does

not address the statutory ban

of Sect~on

9.

The language of the

statute on its face is

clear~

The

i~1oard need

not. look to the

legislative history, Whie

Section 9

was arnenced in

1981, the

General Assembly simultaneousl~ chose to amend the Section 10

limiting paragraph

by replacirg

the ~~iord :Le~.~s”with

“landscape

wastes.”

The legislature

continued its Sect.ioL~ 10 limitation on

Board authority ‘ret also decided in Sec~:ion ~) to ban the burning

of landscape wa~•:~within any cc~un’::yhaving a poouiation of more

than 200,000, 1 ction 10 should not be

read, as the City does,

to limit the Se’., ion 9 ban, -:~berefore the open burning of

landscape wastes i.n counties having populations

of greater than

200, 000

is

flatly

proh:ihited by the Act, ru counties

having

populations

of less than 200,000

F

it: ~s ai!o~edby state law only

if it is burned upon the premises where it is croduced or at

sites provided and supervised by any unit, of local qovernment.

The City mistakenly reJe~ on t.t&e Attorrte3 General’s Opinion

No,

S—633, October 16, l~iT’i. Thau opinion was Issued

before the

new amendments and does net control the statutory

construction of

Sections 9 and 10 (See effect of opinion on regulations,

discussed

below

under

BOARD REGbnATIONS

i-:eading), Furthermore,

the City’s assertion

that

the Attorney

Genora1~s

opinion is

legally binding on a state agency is without tier:, The opinion

was merely an advisory opin:~oniDrovided

to an

Agency. Such an

opinion has been held to

be nonbinding on the Illinois Supreme

Court and appellate courts,

Ci~o

rinrfieldv,Allhth,

74

Ill, 2d 117, 384

N.E. Vt 310 (19~8~ Rç~ers

Park ?ost.No, 108 v.

Brenza, 8 Iii. 2d

286. (L956L tong

~

Loni.,~, 15 11.1,

App, 2d 276,

145 N.E. 2d

509

(2d Dist, L357~, The latest

court

decision on

this issue emanates

from che Fiy:vt Appeliate

District, which

stated,

“

we

are

aware

that the Attorney General’s

opinion does

not have the force

ant effect of

law,” ~nidz~r’i.J~s~r,

118

Ill. App. 3d 83, 454 N.E. 2d i0’?O

(1st

Disc, =1983), This

interpretation

is

binding on the Board~

~~he~_y.Medendorp,

294

Ill. App. 424, 13 ~,E,

2d 1015 Li938~. The cases cited by the

City do not support. its contention the: the op:nion of the

Attorney General is

binding on the Foat’d. The City

is confusing

the issue of precedent~ul ciaiue ~Tit.h the non—issue of

representation.

The ~nice!arkd decision and

related cases are

solely based on the authority of the Attorney

General as the

chief legal officer of the nrrmte oct oco he may

represent.

Peopleexre

Scott

v.B:r’celand.

~i1

11.1. Id 4F5,

359 N.E. 2d 149

(1976). Briceland does not address whether tns opinion of the

Attorney General is of precedentiaJ. value,

“CAUSE OR ALLOW” AIR PDL~1’iON

The issues then become whether the City has caused or

allowed the discharge o1 a contaminant so as::o cause or tend to

cause air pollution pursuant

to

Section 9 a)

arid whether the

City caused or allowed the open burning of refuse pursuant to

---

5

9(c).

A “contarrilnanti is any

soli.d~ liquid, or gaseous matter,

any odor or any form of energy, from whatever source”

(Section

3(d)).

Leaf smoke contains contautinant.s,

Whether the City caused or allowed the discharge of a

cont.aminant by the existence

of

its municipal ordinance

permitting leaf

burning in violation

of a state statute is

one of

first impression before the Board,. The Second District Appellate

Court entertained the cause or allow clause of Section 9(a) and

stated that

the

respondent

must “~exercise1 sufficient control

over the sourc’ of the

oiluticn.”

Phillips Petroleum Co. v.

IEPA, et al.,

.

Ill.

App.. 3d 2?, 390 N.E. Vt 620 (2d Dist.

1979)

,

The Fiit~.

i

District, in construing identical language in

Section 12(a) of the Act~ affirmed the Board and found that the

respondent “had the capability of controlling the pollutional

discharge.” Meadowiark Farms, Thc~v. IPCB, et: al., 17 Ill. App.

3d 851, 308 N.E. 2~i826 (5th Diet, 1974) Freeman Coal Mining

Corp. v. IPCB, et at,, 21 III. App. 3d

:is’/,

313 N.E. 2d 616 (5th

Dist. 1974) In interpreting the word allow

F

the Board has found

that one can allow a discharge by poor practices which contribute

to the problem. Ifl?Av. Sat’n~ inc.

cc

el., PCb ;1—52; Bath, Inc.

et a., v. IEPA, PCP 71~224,. (ccnsol.), 2 PCB 433, September 16,

1971. The Fourth Uistr:i,ct~. in fit~dnci t:.he

Board,

noted that to

argue that a violation cannot be prethcated upon the existence of

burning in the absence of: a finding that: respondent by its

affirmative act caused,...the burnicg~ is not: persuasive. Bath,

Inc. et al. v. IPCB, etal.,

10 1)1, App

Id 507,. 294 N.E. 2d 778

(4th Dist. 1973).

Herein, the Board finds that. the

City

uas caused or allowed

the discharge of conra’~inantc into

the

environment, Although the

leaves are burned on private property, the City has openly

encouraged it.s residents to burn .ieaves by

passing

an ordinance

in direct contravention of the state stetutory ban on leaf

burning contained in Section 9 of oLe Act, The record shows that

in fact 17 percent ol the residents

do burn leaves (R, 32).

The

Phillips test of

suff:Lcient cont:ro

over the source of the

pollution has been satisfied,

)3ad

the

City

obeyed the statutory

mandate and enforced iL~

the wthe~~readburning of leaves in the

City would not occur~

Air Pollution: Injurto

Heaoth.

Environment or Property

Whether the City caused or ~endcG

...~

cause air

pollution is

another

issue. Section 3~h.~

det:oies air ~oilution. In

interpreting this SCCt~OflF the Illinois Supreme Court

distinguishes two types

of

air pollution, Incinerator, Inc. v.

PCB,

59

Ill. 2d 290, 319 N.E dd

794

~1974),

The first is

pollution that is

injuriouc to riu~tich,. cite

erivircnment,

or

property, The second is a nuisance type where

there is an

unreasonable interference with the enjoyment: of Life

or property.

As for the first: ‘cyoe or air collutior.,

the record herein

amply demonstra:es that leaf smoke

and the

constituents

therein

64-237

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6

satisfy the first

and second type of air pollution

as defined in

Section 3(b). Dr. Ryan testified that the hydrocarbons, present

in leaf smoke, are irritating antigens which cause the body’s

immunological system to respond by producing histamines to combat

the foreign objects (R,l2), Those with allergies and susceptible

to asthma attacks not only display itchiness of the eyes, but

also have other multiple symptoms (R.10). Dr. Addono, an allergy

specialist defined allergies as abnormal responses to normal

exposures of things in the environment (R. 73). The allergic

response can include coughing, wheezing, increased mucous

production and a possibility of secondary iniection (R. 73). Dr.

Ryan described his own allergic response whereby his bronchial

tree secretes excess mucous which overly constricts the bronchial

tubes, thereby causing difficulty in breathing (R. 10), termed

asthma (R. 73). Asthmatic children are prone to pneumonia (R.

ii). In order to reverse asthma, aerosols are injected down the

bronchial tree to break up the mucous so it can be expelled from

the body and drugs such as adrenaline are used to dilate the

bronchial tubes for easier breathing. Aerosol injection can be

by a pocket inhalator and can include time on a breathing machine

at an allergist’s office, Dr., Addono stated that. in his opinion,

there was a causal connection between exposure to leaf smoke and

illnesses such as asthma and chronic bronchitis, apparently in

aggravating these conditions R77—78)., Leaf smoke is materially

irritating to those who have a~ respiratory disease, not solely

asthma (R. 76), Besides illnesses, the doctor testified tht one

particular hydrocarbon in oak leaves is carcinogenic (Id.) Mr.

Lubes stated that there were a lot of oak trees in his

subdivision,

located in the City (R 86—87),

Dr. Addorto testif:Led that as the leaves die, mold spores

disperse and can trigger allergic reactions. Disturbance of the

leaves by wind and raking may release many spores, but burning

releases billions of spores into the air (R, 75). On leaf

burning days the sports activities of asthmatic children are

curtailed and on bad days sleep is interrupted because of

breathing abnormalities (R..92)

Referring to her eldest daughter, one witness, Mrs. Ryan,

testified that niormally she misses, I would say, five to six

weeks of school in the fall.” (R, 23). ‘~Shecoughs so much that

walking across the room becomes a great big deal.” (Id.).

Furthermore, “...tshe can’t go to football games and things that

lots of kids in high school like to do. it is just because the

air is full of smoke in the fall,” (R, 24).

“..,I know so

many other

kids who miss time in

school and who don~tget to do the

normal

things the kids

enjoy doing in the fall,

:~ust because

of

all this stuff

in the air. Arid it

is a shame.

For several years I was

just so busy trying to keep our family afloat that it

never occurred to me that. this is maybe very unnecessary,

and when I realized it is not done in highland Park, it

is not done in Deerfield, I think, my goodness, what is

64-238

---

7

the matter

here

that our children have to go through this

kind of thing. Because we burn leaves?~’ (R. 26).

To provide some indication of to how many people are

involved, Dr. Addono testified that in the United States 10 to 12

percent of the populace have lower respiratory allergies (R.

79),

As for the first type of air pollution, the Board has

previously found leaf smoke to be an air pollutant and takes

judicial notice of its prior Opinions, After considering the

evidence, the Board stated in a prior Opinion the following:

Dr. George Arnold, on behalf of the Madison County

Sanitation and Pollution Committee, argued that leaf

burning creates a hazard of fire and of traffic

accidents, contributes to the violation of particulate

air quality standards, reduces visibility, endangers

health, and destroys valuable organic matter (R, 64—

67). Several witnesses discussed from personal

experience the adverse health effects of leaf burning,

especially on persons with respiratory problems (R. 214-

32). An allergy specialist testified as to the serious

health effects of burning leaves,, especially those

contaminated with pesticides, upon people with allergies

or respiratory diseases (R. 184—9.).. In the Matter of Open

Burning Regulations, 2 PCB 373, 374, R70—i. Opinion, September

2, 1971.

Furthermore, the Board was concerned with the solid and

liquid particulates of leaf smoke; solid particulates consisting

of dust, smoke and fumes and

!iqui.d

particulates consisting of

mist and spray. in the

Matt r

Df

Oen Burning Regulations, 6 PCB

357, 361, R 72—li Opinion, November 28, 1972, The evidence

cont inued:

Solid particulates, with which we are now concerned,

have a diverse chemical composition, They may exert a

toxic effect in three ways: 1) the particulate may be

intrinsically

toxic duo to its inherent chemical or

physical characteristics (although few common atmospheric

particulates have been shown to be intrinsically

toxic). 2) The

particulate may

interfere with one or

more of the clearance mechanisms in the respiratory

tract. 3) The particulate may act as a carrier of an

absorbed toxic substance, Particulates sometimes combine

with other pollutants, to form harmful products,

Synergism occurs when two or more pollutants combine to

produce a pollutant more damaging than the sum of the

effects of the ind:Lvidua! ooLLutants

acting

independently.

The presence

of carbon or soot as a

common particulate poLLutant

is

noteworthy, as carbon is

well known as an efficient absorber of a wide range of

organic and inorganic compounds. Carcinogenic materials

have been identified in the atmosphere of virtually all

64-239

---

large cities in

which studies have been conducted and it

may be seen t:hat large quantities of

particulates may

help carry these pollut:ants into the human body.

(Air

Quality Criteria for Particulate Matt:er, U.S.. Dept. of

Health, Education and Welfare,

Jan.

1969, AP—49, Page

137)

. ~

Notwithstanding the evidence contained in prior

Board

Opinions, the Board

finds sufficient evidence in

this record

:‘:

show that smoke from leaf burning contains

contaminant

hat are

injurious to human health and that

leaf burnir:

.

oherefore, is air pollution under the first

category of

.~.

;ti.on 3(b),

The DEk:~

advisory report referenced earlier,

submitted

in Board

regulatory proceeding R 73—5, In the

Matter of Leaf

Burnin~1,

generally supports the above

record evidence

(Cplt.~s Exh.. I).. The advisory report

found the open burning ci leaves to be injurious to human

health (Id.

at.

12),

Air Pollution:

Unreasonable Interference

As for the second type of air po:Llutioni recognized

under Section 3(b), to find art unreasonable interference,

the Board must address

the Section 33(c) factors.

Incinerator, Inc.

V.

PCB, 59 Ill. 2d 290, 319 N.E. 2d 794

(1974); Mystik Tape v. PCB, 60 Ill, 2d 330, 328 N.E. 2d 5

(1975); Processing and Books, Inc., et al, v. IPCB et

al,, 64 Iii. 2d 68, 351 N.E. 2d 865

(1976), Section

33(c) provides that.

c) In icakcnq its orders and determinations, the Board

shall take into consideration all the facts and

circumstances hearing upon the reasonableness of

the emissions, discharges, or deposits involved

includ:hiq, but not

:Limited to:

1)

character and degree of injury to, or

interference wit:h

the protection

of the

heait~,

general welfare

and physical property

of the people;

40 PCB 81, December 4, 1980, The Board dismissal of this

proceeding was due to many actors, most important of which were

the probability of a federa.1 respirable standard in the near

future and the Agency withdrawal of the pooposal

besides the age

of the proceeding. The

Board

stated, however, that dismissal

does not mean “that eiement.s from the record,,,whjch have

continuing valido.o,~

cannot no brought into the

later record.”

The Board notes t:h~t the

health aspects in the study are still

valid,

64~24O

---

9

2) the social and

economic value

of the pollution

source;

3)

the

suitability

or unsuitability

of

the

pollution

source to the area in which it is

located, including the question of priority of

boat ion in the

area

involved; and

4~ the technical :~racticabi1ity and

economic

~~abieness

of reducing or eliminating

the

esions, discharges or deposits resulting

I: :on such pollution source.

Concerninc

.. .~

‘I ‘rst factor,~ the City asserts that

notwithstanding

‘.t~

et;ldence on

health

above, only 0,04 percent

of the populati::~ testified as to adverse health effects (Resp.

Brief 1—2 incor~c:.:.iy stated as 0,0004). In addition, it asserts

that wood smoke

•~

auto exhaust contain the same irritants as

leaf smoke and a’~: in far

greater number

(Id. at

2). The City

appears to misuncurstand

Its burden of persuasion,

Mr. Greenland

produced substantial testimony on the health effects of leaf

smoke, yet the City

failed to

rebut this evidence. The evidence

shows substantial injury

t:o arid ~.nterference

with the health of

people exposed and

susceptt.ole to smoke from leaf

burning.

As for the second factor, there has been no testimony that

the open burning of leaves ‘is of social or economic value. Even

if one would argue otherwise,, the proper focus is akin to a Board

finding that a properly operated wastewater treatment plant is of

value, which value i.s reduced by inadequate maintenance and

operation. IEPA v~

Citi

crr lton, 47 PCB 405, 411

(PCB 81-

145, 1982). There no intrinsic value in burning leaves.

Economic reasonabbenect is properly considered under the fourth

factor.

Regarding t.he tnirh factor, the City baldly asserts that it

is suitable to burn

~L5SVOS

on the property where they were

generated.

(,~

at

The Board does not agree.. Leaf smoke

knows no boundar:ies~ it leaves the property of

origin and drifts

onto other private and

puh.1~c

properties.. Testimony has shown

that there are

many people susceptible to the constituents of

leaf smoke. Based on the evidence presented above, the burning

of leaves in the City

is

unsuitable,

The fourth factor, technical

practicability,

is not an

issue. The evidence has shown that many alternative options were

studied by the city staff’.. The options included City pick—up,

landscape service, or compnst:ing.

The City staff

appears to

favor continuing its ext3ting collection

system, This system

requires residents.

t.o~ bag the leaves with plastic bags

provided

by the City at re-..co~ 1 rates,. The City then collects the full

bags with the reçpi.a.: ç~srbage collection,

The

City manager

stated at hearitl’:ca’: the City staff

was recommending to the

64~241

---

10

City council that leaf burning ~e banned in the City

(R.. 100).

Currently, forty percent of the resident.s have City

pick—up,

seventeen percent burn and approximately forty percent employ a

landscaping service to rid their properties of leaves (R.

46,32), Technical and economic feasibility of a:iternatives to

leaf burning are clearly evidenced by the fact that

83

percent of

the residents

currently erarthy chem. Assn~ri.n

t.nat the City

repeals its ordinance

and that all seventeen percent

of those

burning leaves

choose

the City p:ick’-~upplan? the City anticipates

a first year cost of $88, 53U which includes, the

purchase of a

new

packer truck for

$75,000 ~CLty’ Cxhl~it ‘ircI~ Report to City

Council, p. 101). if the cost. of the truck

it; amortized over ten

years, the annuaL cost of the truc~ is approximately

$8,000.

Annual operation and maintenance costs will be approximately

$14,150 for personnel and fuel, Nowhere has the

City argued that

this expenditure would be

an arhiti:’ary or unreasonable

hardship. The Board finds that the elimination of

leaf

burning

in the City is economically reasonable, The Board further finds

that

leaf

burning constitutes an unreasonable

~nterterence

with

life or property.

The Board

finds that. by

enactment of an ordinance

in direct

contravention of a state statute, the City

has caused

or allowed

the discharge of contaminants into the environment

so as to

cause

or tend to cause air pollution in Illinois in violation of

Section 9(a) of the Act, It. has been held

that municipal

authorities cannot adopt ordinances which infringe upon the

spirit of a State law

or which are repugnant to

the

general

policy ‘of the State. Husz~hv, City of Oakbruok Terrace, 41

Ill.. 2d 387, 243 N.E. 2d ~3i ~L968 ; Ci~rof

~~en~ov.

Rowland,

263 Ill. 531, 105 N.E.. 285. (1914). Tue test ~s whether the

ordinance permits an act which the statute prohibits or prohibits

what the statute permit:s :see

Citcj.~Chica~i.Unio~IceCream

Manufacturing Co., 252 111,, 311, 95 N,E, B72 !‘19.l), and in case

of a conflict, the omct:nance fails. Dean Milk Co. v.

City of

Chicago, 385 Ill. 565,~ 53 N.E. 2ci 612 ~,i944) Village of

Mundelein v, Hartacit, 11.7 1.11,, App~. 3d 1011, 454 N.E. 2d 29 (2d

Dist, 1983), The municipal ordinance of the

City

permits an act

which the statute prt;hioits and, therefore,. lacks force and

effect. The Court

in ~sza~jIi found an ordinance to

be contrary

to public policy and spoke of ilieaality in

voiding

the

ordinance. Hus~agh, ~

The Board declines to declare the

ordinance of the City of

Lake

Forest. void as

being

unnecessary to

disposition of this case. Iris sufficient

to

find that the City

ordinance conflicts with tne banning clause of

Section 9 of

the

Act and that therefore the City is

in violation of that

Section

of the Act..

WASTE DEFINITIONSt

SECTlON~’~:’,

Mr. Greenland further alleqes tnat. the City

has violated

Section 9(c) of

the I~ct, The Board

must construe

t.he

definitions

of refuse and waste in

relation to landscape t~iaste. Refuse is

defined in

Sect.:on 3 (w) of the

Act.

as

waste, Waste is further

64-242

---

11

defined in subsection (11) as~

...any garbage, sludge

from a

waste treatment plant,

water supply

treatment

plant, or air pollution control

facility

or other discarded material,

including solid,

liquid, semi—solid or contained gaseous material

resulting from industrial, commercial, mining and

agricultural

operations,

and from community

activities,,.,, (emphasis supplied)..

Waste includes garbage, sludos .:~r other discarded material, The

statutory language provides cert.:.in inclus~.ons, but not to the

exclusion of those categories not. mentioned. The Board

interprets

the definition

of waste to include landscape waste and

therefore, leaves. This interpretation is consistent with 1) the

inclusion of the general phrase ~or other discarded material” in

the

definition

of waste, 2)

the

liberal construction

of the Act

as

provided in Section

2’:~), and

3) the legislature’s use of the

word “waste” after

the

word “landscape” in the definition

of

“landscape waste” irk subsection (uu), which definition does

specifically include leaves,

The Board has found that

the

City caused or allowed the

discharge of contaminants so as to cause or tend to cause air

pollution. Likewise, the Board finds that the City has also

caused or allowed the open burning of

refuse in

violation of

Section 9 (c) of the Act,

BOARD REGULATIONS: OPEN BURNING

Mr. Greenland asserts that the City is

in violation

of 35

Ill. Adm. Code 237,102 and 237.120(c), the open burning of

landscape waste regulations.. The City asserts that they are

invalid.

Section 237.102 provides as follows:

a) No person shai’,l cause or allow open burning, except as

provided in tiis Part,.

b) No person

shall cause or allow

the burning of

any refuse

in any chamber or

apparatus, unless such chamber or

apparatus is

designed

for the

purpose

of disposing of

the class of refuse heinq burned..

Section 237.120(c) provides as follows:

The following

activities are not in violation

of Section 9(c)

of the Act (Ill.. Rev. Stat. 198l~ oh, 111 ~ par.. lOO9(c)) or of

this Part unless they cause air pollution as defined in the

Act..

Nothing in this Section shall

exempt such activities

from

applicable local

restrictions,

**

B4~243

---

c)

The open

1) On the premises on which such waste is generated;

2)

When

of 2,500 according to the latest federal

municipality having a population in excess of

(64.5 kilometers) of Meigs Field, Chicago,

connecting St. Louis, Missouri and Venice,

from a munic~.pal1ty in which open burning of

landscape waste is prohibited.

In 1973, by P.A.J8’243,

the

Illinois General Assembly

limited the Pollution Control Board’s regulatory authority to

“restrict or prohibit1’ the burning of landscape waste to

situations in which it determines ‘based on medical and

biological evidence generally accepted by the scientific

community that such burning will produce in the atmosphere of

that geographical area contaminants in sufficient quantities and

of such characteristics and duration as to be injurious to

humans, plant, or animal life, or health.’

As previously noted on page 4, in October 1973 the Illinois

Attorney General issued a written opinion finding that the

previously adopted Board regulataon (35 Ill. Adm. Code

237.120(c)) had not been adopted on the basis of this new

standard (IL. A.G. No. 8—633, October 16, 1973). Additionally,

the Attorney General opined that the Board regulation banned the

burning of leaves generally, in excess of the Board’s statutory

authority. While the Board does not agree that it went beyond

64-244

---

13

its authority and that its regulation banned the burning of

leaves generally, it does agree that Section 237, 120(c) was

promulgated without cons:iderat.ion of the new standard enunciated

in P.A, 78—243 and is therefore invalid, In addition, until a

new open burning of landscape waste regulation is adopted, the

general prohibition section on open b~rning, Section 237.102(a),

is of no effect as to landscape waste

•

The Board finds that the

City has not violated Sections 237.102 or 237,120(c).

RELIEF

The Bc~~:dhas

found the City

in violation of

Sections 9(a)

and 9(c). LIr, Greenland requests that the Board declare the

City’s ordinance in

violation

of the Act and Board regulations,

enjoin the open burning of leaves within the City, order the City

to provide notice to all residents that the open burning of

leaves is in violation of the Act and Board regulations, and that

the Board provide other relief if warranted (Complaint at 4).

The City asserts the Board has no authority to declare

ordinances of a city inva1id~ to enjoin any acts by a city, or

otherwise

grant

relief including

requiring a municipal corportion

to provide notice to its residents, yet offers no support for its

assertions.

Pursuant to Section 3(c) the City, a municipal corporation

and political subdivision, is a person. As such and pursuant to

Section

41,

it must comply with the Act and the regulations

promulgated thereunder. City of Waukegan v. IPCB, 57 Ill. 2d

170, 311 N.E. 2d 146 (1974), Although the Board has no authority

to issue an injunction,

it has the authority to issue a cease and

desist order pursuant to Section 33(b). Processing and Books,

Inc. v, IPCB, 64 iii. 2d 68~ 351 N.1~, 2d 865 (1976), The Board

has o~-deredmunicipal corporations: to cease and desist from

violation of the Act and Board regulations and has been upheld by

the Illinois Supreme Court. North Shore Sanitary District v

IPCB, 55 Ill. 2d 1Oi~

302 N~E.

2d

50

(1973). The legislature has

conferred upon the Board those powers that are reasonably

necessary to

accornplirh the legislative purposes

of the Act.

City of Waukegan, sup~~. Finally, while the Board declines to

order the City to notify its

residents that open burning of

leaves in Lake Forest is in violation of state law, the Board

trusts that the City

will, take

whatever steps necessary to

eliminate the violations~

2 Public Act 78—243 would allow a Board regulation banning the

open burning of landscape waste only in specific geographical

areas where evidence snows that such burning will produce air

pollution in

those geo;raphical areas,

The term ‘~geographical

areali is a flexible

one an~ its

definition will depend

on the

evidence

before the

Board in

any

subsequent regulatory

proceeding.

64-245

---

14

The Board has found the

City

to be in violation of the

~ct. It need not also

find

the ordinance invalid for the

resolution of this

matter. The Board

will order the City to

cease and desist from further violations of the Act.

This Opinion constitutes the Board~s findings of fact and

conclusions of law in this matter.

ORDER

1. The res~:~dentCity of Lake Forest has violated Section

9(a)

~ct~

2. The rest

~ent

City of Lake Forest has violated Section

9(c)

of

~

Act.

3.

The resp

sent

City

of Lake Forest shall cease and

desist

fr~afurther

violations of the Act.

3.

Theodore Meyer thssented.

IT IS SO ORDERED,

I,

Dorothy N. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was

adopted on the

/.~tZ-’

day of

____________________,

1985

byavoteof

___________

Dorothy N.

~inn, Clerk

Illinois Pollution Control Board