ILLINOIS POLLUTION CONTROL BOARD
May 28, 1987
THERESA CASTELLARI,
)
DEE ANN MAYER, AND
)
SHIRLEY WATSON,
)
Complainants,
)
V.
)
PCB 86—79
JOHN PRIOR,
)
)
Respondent.
MR.
JAMES
~OHO APPEARED ON BEHALF OF THE COMPLAINANTS.
MR. GEORGE C. LACKEY APPEARED ON BEHALF OF THE RESPONDENTS.
OPINION AND ORDER OF THE BOARD (by J. Marlin):
This matter comes before the Board upon a twelve (12) count
complaint filed on June 11, 1986 by Theresa Castellari, Dee Ann
Mayer, and Shirley watson (Complainants) against John Prior. The
Complaint alleges that Prior owned and operated two non—hazardous
waste landfills located in an unincorporated area of Marion
County and that Prior violated various provisions of the Illinois
Environmental Protection Act (Act) and Board regulations dealing
with landfill operations. The Complainants request that the
Board impose a civil penalty of $10,000 against Prior. Hearings
were held in this matter on October 16 and 21 in Salem. The
Board has received a letter from Shirley Watson, dated March 3,
1987, in which she requests that the Board render a decision at
the “earliest possible date”. The Board views this letter as a
Motion for Expedited Decision and hereby grants the motion.
The two landfills at issue are located adjacent to one
another and are commonly called Centralia Prior and
Centralia/Prior—Blackwell. The two landfills utilize the same
entrance. (R. 21, 32). Since no distinction is made between the
two landfills in the alleged violations, the Board will refer to
the two collectively as “the Landfills”.
One count concerns alleged violations between May 9, 1985
and December 17, 1985. Another count spans the period from May
9, 1985 to January 22, 1986. Ten of the complaint’s counts
allege violations that occurred between May 9, 1985 and May 31,
1986. The threshold issue for the Board to decide is whether
Prior owned and/or operated the Landfills during the time frames
specified in the complaint.
78-132
2
Prior’s Role as Owner or Operator During Alleged Violations
Prior admits that up until the last day of June, 1985 he
owned and operated the landfills. (R. 227). He claims, though,
that beginning on July 1, 1985, he no longer operated, managed,
or controlled the Landfills. According to Prior, Jackson County
Landfill, Inc. (Jackson) and Jeffrey Pauline, owner of Jackson,
took over the operations of the Landfills on July 1. The
complainants claim that Prior was a lessor for the time period
alleged in the complaint. In addition, they assert that Prior
was the permit holder for the Landfills during the alleged
violation. The permit issue will be discussed later.
On June 21, 1985, a Lease and Purchase Agreement (Agreement)
was entered into between Prior, his wife Betty, I.S., Inc. as
landlord/seller and Jackson County Landfill, Inc. as
tenant/buyer. The Agreement was admitted as Respondent’s Exhibit
*1. According to the Agreement, Jackson agreed to lease the
Landfills and operate them as sanitary landfills. The term of
the lease was to begin July 1, 1985 and end September 14, 1986.
(Resp. Exh. il, 1). The Agreement also provides that on the
“day after the end of the term of the foregoing Lease Agreement
Landlord shall sell and Tenant shall buy” the Landfills. (Resp.
Exh. #1, 16). The purchase part of the Agreement can be
classified as a “contract for deed” arrangement. The Agreeinenet
states:
If the Buyer shall first make the payments
and perform the covenants herein contained on
its part to be made and performed, Seller
agrees to convey the Property to Buyer by a
good and sufficient Warranty Deed, with
revenue stamps paid by Seller. (Resp. Exh.
#1, 17).
At hearing, Paul Schoen, Jackson’s and Pauline’s attorney,
stated, “If my client has performed all conditions imposed upon
him under the purchase agreement portion of this document he is
entitled to possession of and to record the warranty, the deed;
not until.” (R. 167). The Agreement states that rent paid under
the lease portion of the Agreement will be applied to the
purchase price. In addition, the Agreement sets forth a schedule
of payments to be made by Jackson during the purchase period.
However, the number of required monthly payments is blackened out
on the exhibit. (Resp. Exh. #1, 18). At hearing, though, Prior
stipulated that “the total amount of money due for the purchase
of the properties has not yet been paid because the total months
of installments haven’t yet passed.” (R. 247). Consequently, at
the time of the hearing, title to the Landfills had not passed
according to the Agreement, because Jackson had not completed
payments to Prior.
78-133
3
In summary, Prior was an owner and operator of the Landfills
for the period covered by the complaint prior to
July 1, 1985. Subsequent to that date and until September 14,
1986, Prior’s role with regard to the Landfills was that of an
owner—lessor pursuant to the lease portion of the Agreement.
After September 14, 1986 until the date of the hearing, Prior
still held title to the Landfills under the purchase portion of
the Agreement.
Standard of Owner—Lessor Liability
An examination of the case law relevant to the issue of
owner—lessor liability is necessary. The Board has long held
that the Act imposes an affirmative duty on persons in positions
of potential control to take action to prevent pollution.
Environmental Protection Agency v. James McHugh Construction
Company, PCB 71—291, 4 PCB 511, 513 (1972). The Board has
previously determined that lessors have such a duty if they are
in a position to control the activities occurring. Environmental
Protection Agency v. Thompson Oil Company, PCB 75—475, 32 PCB 3,
9 (1978). The test used by the Board to determine liability in
both of the above—cited cases was one of reasonableness; i.e.,
that a person is liable if it was reasonable for him to have
exercised control in order to prevent pollution. A determination
using this standard will necessarily be dependent upon the
particular circumstances of each individual case. illinois
Environmental Protection Agency v. Bittle, PCB 63—163, slip. op.
at 6 (April 16, 1987).
The requisite control which would impose liability on the
landowner does not automatically stem from the lessor—lessee
relationship. Ownership of land, used pursuant to a lease, is
not sufficient alone to impose liability upon the lessor for
actions of the lessee. Bittle, at 6.
In Environmental Protection Agency v. Lake County Grading
Company, PCB 81—11, 58 PCB 75 (1984), the Board indicated, in
dicta, that lessor control, hence liability, is not automatically
presumed from a lessor—lessee relationship. In that case, the
lessee—operator of a sanitary landfill was found to have violateã
numerous sections of the Act and regulations. Although the
lessors of the site were not named as Respondents in the case,
the Board stated that the lessors were “merely the landowners who
lease the land to Lthe lessee) and they do not have any control
over the operations of the lessee.” Lake County Grading
Company at 77. Such an aside indicates that a lessor does not
necessarily control a lessee’s operations. Therefore, in order
to find the requisite control, the Board needs to look at the
particular relationship at issue.
The Illinois Appellate Courts have held that the
Environmental Protection Act (Act) is malum prohibitum no proof
nfl
. a
4
of guilty knowledge
OL
mens rea is necessary in order to support
a finding of guilt. Paul Hindman v. Pollution Control Board, 42
Ill. App. 3d 766, 769 (5th District 1976); Meadowlark Farms, Inc.
v. Pollution Control Board, 17 Ill. App. 3d 851, 861 (5th
District 1974); Bath, Inc. v. Pollution Control Board, 10 Ill.
App. 3d 507 (4th District 1973).
In Bath, the owner—lessor of a landfill had been found by
the Board in violation of a rule concerning the burning of
refuse. The petitioners claimed that the finding of violation
was an error due to the fact that the petitioners never caused or
intended the burning. The court, in upholding the Board’s
finding, stated that “tilt is not an element of a violation of
the rule that the burning was knowing or intentional. We hold
that knowledge, intent, or scienter is not an element of the case
to be established by the Environmental Protection Agency upon the
issue of burning.” Bath, 294 N.E.2d at 781.
The reasoning in Bath was also adopted by the court in
Hindman. In that case, Hindman, the petitioner, was an operator—
lessee of a landfill. he, too, was found in violation of the Act
and rules concerning refuse burning. Hindman similarly claimed
that he did not cause or intend the fire and that as a
consequence, he did not violate the Act. The court followed Bath
and affirmed the Board’s finding of violation. Citing Meadowlark
Farms, the court stated, “other authorities have adopted the Bath
standard arid have concluded that the Environmental Protection Act
is malum prohibitum, there being no proof of guilty knowledge or
mens rea necessary to support a finding of guilty.” Hiridman 42
Ill. App. 3d at 769.
Meadowlark Farms concerned the violation of Section 12(a) of
the Act due to the discharge of contaminants into a creek from
iron pyrite mining refuse piles. The petitioner, who owned the
land on which the piles were located, had been found by the Board
in violation of the Act. The refuse piles were the result of a
mining operation that had taken place on the land prior to the
petitioner’s ownership. The court affirmed the Board’s findings
that the petitioner had ownership of the surface
rights of the property which was the source of
the violation, that the evidence showed that the
pollution had its source on that property and
that fish were killed, and that the petitioner
had the capability of controlling the pollutional
discharge. Therefore, petitioner was found to
have violated section 12(a) of the Act, as well
as violating the other rules and regulations
related to water pollution.
Meadowlark Farms, 17 Ill. App. 3d
at 861.
q~
1t~
5
The court, after discussing Bath, found that the same reasoning
applied to Meadowlark Farms, Inc. Consequently, the court held
“that knowledge is not an element of a violation of 12(a) and
lack of knowledge is no defense.” Id. at 862.
The Board notes that there are several cases which have held
that a degree of intent or knowledge of the wrongdoing is
required before a violation may be found.
In McIntyre v. Pollution Control Board, 8 Ill. App. 3d 1024,
1029, 291 N.E.2d 253 (3rd Dist. 1972), the Third District
reversed the ~oard’s finding that the Petitioner had violated
Sections 9(a) and (c) of the Act by having caused or allowed the
open burnings of refuse and auto salvage. The court stated that
the mere occurrence of fire is not a violation of Section 9(c).
“The motive, intent or purpose to institute or permit open
burning for the purpose of disposing of refuse either by itself
or as an incident to salvage must be shown before any statutory
violations can be proved.”
The Third District, in People v. Joliet Railway, 108 Ill.
App. 3d 197, 438 N.E.2d 1205 (3d Dist. 1982) followed McIntyre
when it reversed a Will County Circuit Court’s injunction
regarding open burning by a business engaged in the dismantling
of railway cars. The Third District stated,
The accidental or incidental starting of a
fire within a railroad car being scrapped
would not, in and of itself, constitute “open
burning.” Granted, it would be open burning
if a railroad car were deliberately set on
fire to burn out all of the wood before the
steel was cut up. It would not be open
burning if wood components in the car caught
on fire during the use of a cutting torch by
an operator who was disassembling a railroad
car. In the latter instance, such a fire
would be an accidental or incidental
occurrence...The mere occurrence of a fire or
its frequency is insufficient to support a
conclusion that the defendants engaged in
open burning.
Joliet Railway, 108 Ill. App. 3d
at 204—205.
In Wasteland, Inc. v. Illinois Pollution Control Board, 118
Ill. App. 3d 1041, 456 N.E.2d 964 (3d Dist. 1983), the Third
District continued its line of decisions regarding open
burning. In Wasteland, the Third District reversed the Board’s
finding of violation of the Act due to open burning at a landfill
78-136
6
and a paper recovery site. The Third District cited Joliet
Railway and McIntyre and held,
With respect to the open burning violation,
we find the Board’s conclusion to have been
in error, for it has been established that
where there is no evidence that fires have
been intentionally set for the purpose of
disposing of refuse, there is no violation.
Wasteland, 456 N.E.2d at 974.
The Fifth District also has implied that a degree of
knowledge is a necessary prerequisite for a finding of
violation. In Alton and Southern Railway v. Illinois Pollution
Control Board, 12 Ill. App. 3d 319, 297 N.E.2c3 76L, (5th District
1973), the Fifth District reversed a Board decision which had
imposed liability upon a lessor due to illegal actions stemming
from the operations of a lessee. In Alton and Southern Railway,
the lessee was operating an auto salvage operation on land it
leased from the lessor as well as on the right—of—way that the
lessor owned but had not leased. The salvage work on the right—
of—way was done for such a period of time that the court presumed
the lessor to have had notice of the operation. The alleged
illegal action entailed the burning of junk autos. Two incidents
of such burning occurred on the right—of—way. After considering
these facts, the court held,
from the fact that Alton and Southern may be
presumed to know that salvage operations were
being conducted on their land, it does not
follow that they may be presumed to know that
the operations were being conducted
illegally.
Alton arid Southern Railway, 297
N.E.2d at 763.
In Altori and Southern Railway, the court relieved the lessor from
liability and implied that knowledge of the wrongdoing was a
necessary factor in order to hold a lessor liable for the
operations of the lessee.
Although the above cases seem to be inconsistent with Bath
and Hindman, cases which also concern open burning violations,
the Board will adopt and follow the holding of Bath and its
progeny.
Although knowledge of wrongdoing is not necessary for a
finding of violation of the Act, it is one factor which the Board
may look to in order to assess whether the lessor could have
reasonably exercised control over the lessee in order to prevent
7
pollution. Illinois Environmental Protection Agency v. Bittle,
PCB 83—163, slip. op. at 8 (April 16, 1987).
Prior claims that the Board should determine that the lessor
of real estate is not liable for the acts of the tenant in
possession. Prior cites two cases as authority for such a
holding: Wright v. Mr. Quick, Inc., 109 Ill. 2d 236, 486 N.E.2d
908 (1985) and Gilbreatn v. Greenwalt, 88 Ill. App.3d 308, 41u
N.E.2d 539 (3d Dist. 1980). The Board finds, though, that the
holdings in these cases are not applicable to the instant case.
The cases that Prior cites are personal injury tort actions
brought against a sublessor in one instance and a lessor in the
other. The primary issue in each case concerns the standard of
care owed by a lessor to keep third persons safe from injury. In
the instant case, the complainants are not bringing a personal
injury action against Prior, but rather they are bringing an
enforcement action against Prior for failure to comply with State
environmental laws and regulations. As discussed earlier, the
standard of lessor liability for an enforcement action has
already been defined by the Board.
Liability of Prior as Owner—Lessor
Prior admits that he was owner and operator of the landfills
prior to July 1, 1985. As a result, Prior would be liable for
any violations during that period. Prior’s liability subsequent
to July 1, 1985, the beginning date of the lease term pursuant to
the Agreement, will be discussed next.
As stated above, liability, in the case of an owner—lessor,
does not automatically result from a lessor—lessee
relationship. The standard must be applied to the particular
circumstances of each case in order to determine whether to hold
the lessor liable for the illegal operations conducted by the
lessee. In the instant action, the Board must determine if it
was reasonable for Prior to have exercised control over Jackson
to prevent pollution.
The Agreement between Prior and Jackson sets forth the terms
of the relationship between the two. The purchase portion of the
Agreement incorporates several paragraphs of the lease portion.
Consequently, there are provisions common to both the lease and
purchase portions. Among the common provisions are the
following:
1. The property shall be used for the conduct of a sanitary
landfill. (Resp. Exh. #1, 4).
2. Tenants shall operate the sanitary landfill in
accordance with all applicable federal, state, and local
laws and regulations.... (Resp. Exh. #1, 4(A)).
78-138
8
3. Tenants shall exercise all reasonable efforts to keep in
full force and effect all sanitary landfill permits
heretofore or hereafter transferred to Tenant by
Landlord and all additional permits hereafter acquired
by Tenant from the State of Illinois or other
governmental agencies.... (Resp. Exh. ~l, 4(B)).
4. Tenant shall not dispose of any hazardous wastes on the
property.... (Resp. Exh. 11, 4(C)).
5. All trash shall be compacted arid buried so as to
maximize the useful life of the landfill site; provided,
that Tenant’s obligation hereunder shall be met if it
follows the practices heretofore followed by Landlord in
operating the landfill. (Resp. Exh. *1, 4(D)).
6. In the event that Tenant ceases operation of any
landfill site, Tenant shall properly close such site in
accordance with all applicable laws, rules and
regulations. (Resp. Exh. #1, 4(E)).
7. Tenant shall not sell or remove any dirt for use off the
premises without the written consent of Landlord, except
as provided for in) this Agreement. (Resp. Exh. #1,
4(F)).
8. Landlord shall at all reasonable times during Tenant’s
business hours have access to the property for the
purpose of inspection. (Resp. Exh. #1, 10).
The lease portion further provides:
In the event that Tenant defaults in paying
any installment of rent or other sums of
money required to be paid...or defaults in
performing any of the other covenants,
agreements, or conditions...and such default
continues for a period of 30 days after
notice in writing thereof from Landlord to
Tenant, this Agreement shall, at the sole
option of Landlord, be terminated.
A similar provision appears in the purchase portion of the
Agreement.
in the event that Buyer defaults in paying
any installments or other sums of money
required to be paid hereunder, or defaults in
performing any of the other covenants,
agreements, or conditions of this Agreement,
and such default continues for a period of
number blackened out days after notice in
78-139
9
writing thereof from Seller to Buyer, then
the Seller shall have the following remedies,
in addition to any other remedies provided by
law:
A. To retain all sums of imoney paid by
the Buyer as liquidated damages and cancel
this Agreement, or
B. To continue this Agreement in full
force and effect and hold Buyer liable for
all damages permitted by law, or
C. To keep this Agreement in full force
and effect and demand specific performance
thereof by the Buyer....
(Resp. Exh. *1, 23)
It is apparent that the Agreement sets forth specific
guidelines as to how Jackson must operate the landfills. In
particular, Jackson is required to operate the landfill in
accordance with the State laws and regulations. The Agreement
also provides Prior with the power to terminate the Agreement or,
in the case of the purchase portion, demand specific performance
if these guidelines are not followed by Jackson. To that end,
the Agreement gives Prior the right to inspect the premises
during Jackson’s business hours.
Such clauses in a lease give the lessor a certain amount of
control over the lessor—lessee relationship. However, this
control manifests itself only after the lessee has already
violated laws, regulations, or other covenants of the lease.
That is, these clauses alone do not grant the lessor control over
the actions of the lessee prior to the lessee’s wrongdoing.
Other than the use of coercion, by threatening to terminate the
lease, the lessor does not have the power to mold the lessee’s
behavior according to the lessor’s wishes. Even threatening to
terminate the lease may not influence the actions of the lessee,
particularly since termination may involve court action.
However, there are indications that Prior could have had
some influence over Jackson short of threatening to terminate or
terminating the Agreement. One provision in the Agreement
states:
John Prior agrees to act without compensation
as a consultant to the Buyer in the conduct
of the waste hauling and landfill business
78-140
10
for a minimum period of twelve months from
the date of closing.
(Resp. Exh. #1, 36)
It is clear that Prior did have the ability to control the
actons of Jackson in order to prevent continued violations.
Specifically, he could terminate the Agreement thereby
shutting
down any illegal operations.
It would certainly be unreasonable
for him to exercise his control
——
terminate the Agreement
——
prior to having any knowledge that Jackson was violating the
Act. On the other hand, it is quite reasonable to expect him to
exercise control once he knew or reasonably should have known of
the violations.
Allegations concerning illegal operations of the Landfills
are not new. The Agreement, executed on June 21, 1985, states:
There is pending in the Circuit Court for the
Fourth Judicial Circuit, Marion County,
Illinois, Cause No. 85—CH—17, being a suit
for injunction and other relief filed by the
People of the State of Illinois against the
seller. Said suit as presently constituted
seeks monetary fines against the Seller
together with an injunction requiring the
Seller to comply with the laws and the rules
and regulations pertaining to the operation
of a landfill.
(Resp. Exh. #1, 31)
Cause No. 85—CH—17 was eventually resolved by a consent decree
issued by the circuit court on August 5, 1986. (Resp. Exh. #3).
The court determined that Prior violated Sections 21(a) and 21(d)
(2) of the Act as well as 35 Ill. Adm. Code 807.301 and
807.305(a) by failing to place daily cover on exposed refuse;
Prior was ordered to pay $12,000 as a civil penalty. The court
dismissed the remaining five counts of the Amended Complaint.
Although this circuit court action was resolved in August of
1986, it is probative for the Board to note the status of this
action at or near the time that Prior entered into the Agreement
with Jackson.
The Stipulation and Settlement Agreement (Settlement) states
that the People of the State of Illinois filed an Amended
Complaint against Prior on July 25, 1985. (Resp. Exh. #2, 5).
The date upon which the original complaint was filed is not in
the record. However, the acknowledgement of the “pending” suit
in the Agreement indicates that the original complaint in Cause
No. 85—CH—17, was filed previous to June 21, 1985.
The six—count Amended Complaint charged Prior with
78-141
11
1)
Failure to place daily cover on exposed refuse,
2)
Failure to spread and compact refuse,
3)
Failure to deposit refuse into the toe of the fill,
4) Failure to
collect and dispose of litter,
5)
Failure to comply with certain permit conditions, and
6) Failure to
control leachate adequately.
(Id. at
6)
As stated in the
Agreement, the remedies sought by the People of
the State of Illinois entailed a monetary penalty as well as an
injunction requiring Prior to comply with the laws and the rules
and regulations pertaining to the operation of the Landfills.
Given all these facts, Prior knew or should have known that the
legality of the Landfills’ operations had been seriously
challenged. The Board notes that the violations alleged in the
Amended Complaint were not unlike those alleged in the instant
action. The requested relief should have also alerted Prior to
the fact that the operations of the Landfills would have to
change if the enforcement action was successful. All of this
would have led a reasonable man to have taken affirmative action
to ensure that the Landfills’ operations were in fact in
compliance with the laws of Illinois.
Such a conclusion is proper despite the fact that the
operations of the Landfills were leased to Jackson. Prior knew
of the violations that were alleged to have occurred during his
tenure as operator. He also was on notice of the fact that
continuing violations, if found, would have to cease. Given the
Landfills’ history, Prior, as owner and lessor, should have
closely monitored the operations of Jackson and made sure that
those operations were in compliance with the state laws and
regulations. If the operations were not in compliance, Prior had
the authority to terminate the Agreement. The Agreement also
gave Prior the authority to inspect the Landfills and act as a
consultant for operators. Given such a framework, it would not
have been unreasonable for Prior to have actively taken steps to
bring the operations into compliance with the regulations.
In actuality, Prior never contacted Jackson or Jackson’s
owner, Pauline, to determine whether Jackson’s operations were in
compliance. (R. 303—04). At hearing, Prior stated “after that
date execution of the Agreement I don’t know a thing about it
the Landfills).” (R. 303). Prior claims that since the last day
of June he has had nothing to do with the Landfills. In
addition, Prior stated that he has never undertaken any efforts
to terminate the Agreement with Jackson. (R. 278—79).
78-142
12
The Board notes that in Illinois Environmental Protection
Agency v. Bittle, PCB 83—163 (April 16, 1987), the Board
held an
owner—lessor liable for the illegal operations of the lessee when
there was even less of an opportunity for the owner to become
involved with the operations.
In conclusion, from the time the lease began, Prior should
have scrutinized Jackson’s operations and then taken steps to
prevent violations. At no time did Prior scrutinize the
operation let alone exercise or attempt to exercise such
control. Consequently, Prior is liable for any violations which
occurred on or subsequent to July 1, 1985.
Admissibility of Photocopies of Agency Records
At hearing, the complainants introduced two letters (Comp.
Exh. *5 and 6) and various inspection reports (Comp. Exh. *7),
all of which are alleged to be photocopies of originals located
in the Agency files in Springfield. Complainant Mayer testified
that Complainant Exhibits #5 and #6 are photocopies of letters
addressed to Prior from the Agency CR. 112—113). The letters
grant landfill operating permits to Prior; they are dated July
23, 1975 and October 31, 1981. Complainant Mayer also testified
that Complainants’ Exhibit #7 consists of photocopies of
inspection reports which are also present in Agency files. (R.
122). The copied reports memorialize Agency inspections of the
Centralia/Prior—Blackwell Landfill conducted on December 17, 1985
and February 21 year is not visible on the photocopy~ and of the
Centralia/Prior Landfill conducted on December 17, 1985, January
22, 1986, February 21, 1986, and April 8, 1986.
At hearing, Prior objected to the letters on the grounds
that they were hearsay and that they did not have proper
foundation to be admitted. Prior similarly objected to the
inspection reports, stating that no one was present at the
hearing who could be cross—examined as to the truth of the
reports’ contents. (R. 146—47). The Hearing Officer admitted the
exhibits over Prior’s objections. (R. 150).
The Illinois Administrative Procedure Act (APA) states that
in contested cases “the rules of evidence and privilege as
applied in civil cases in the Circuit Courts of this state shall
be followed. However, evidence not admissible under such rules
of evidence may be admitted (except where precluded by statute)
if it is of a type commonly relied upon by reasonably prudent men
in the conduct of their affairs.” Ill.Rev.Stat.l985 ch. 127,
par. 1012(a). As in judicial proceedings, hearsay evidence is
generally inadmissible in administrative hearings unless it
satisfies the requirements of an exception to the rule excluding
hearsay. Daniels v. The Retirement Board of the Policemen’s
Annuity and Benefit Fund, City of Chicago, 106 Ill. App. 3d 412,
415, 435 N.E.2d 1276 (1st Dist. 1982).
78-143
13
One exception to the rule against hearsay which the courts
have recognized concerns public records. In People ex rel.
Wenzel v. Chicago and North Western Railway, 28 Ill. 2d 203, 190
N.E.2d 780 (1963), the Illinois Supreme Court enunciated the
public record exception.
At common law it
has long been
settled as an
exception to the hearsay rule that records
kept by persons in public office, which they
are required either by statute or the nature
of their office to maintain in connection
with the performance of their official
duties, are admissible in evidence and are
evidence of those matters which are properly
required
to
be
maintained
and
recorded
therein.
(Id. at 211—12)
This public records exception to the rule against hearsay has
continued to be recognized by the courts in Illinois. See, e.g.
Department of Conservation v. The First National Bank of Lake
Forest, 36 Ill. App. 3d 495, 504, 344 N.E.2d 11 (2d Dist. 1976);
ex rel Person v. Miller, 56 Ill. App. 3d 450, 371 t~LE.2d1012,
1020 (1st Dist. 1977); and People ex rel. Bernardi v. James E.
Moran, 121 Ill. App. 3d 419, 421, 459 N.E.2d 1073 (let Dist.
1984).
In Broadway v. Secretary of State, 130 Ill. App. 3d 448, 473
N.E.2d 967, 971 (4th Dist. 1985),
the Fourth District held that a
Department of Transportation
certificate of evaluated property
damage was
admissible under the business record exception to the
hearsay rule pursuant to
Supreme Court Rule 236.
However, in its
discussion of the issue of admissibility, the court cited the
public record exception language of People ex rel Person v.
Miller. This seems to suggest that there is at least some
overlap between the public records exception and the business
records exception of Supreme Court Rule 236.
The business records exception to the rule against hearsay
as stated by Supreme Court Rule 236 is as follows:
Any writing or record, whether in the form of
any entry in a book or otherwise, made as a
memorandum or record of any act, transaction,
occurrence, or event, shall be admissible as
evidence of the act, transaction, occurrence,
or event, if made in the regular course of
any business, and if it was the regular
course of the business to make such a
memorandum or record at the time of such an
i8-1~
14
act, transaction, occurrence, or event or
within a reasonable time thereafter. All
other circumstances of the making of the
writing or record, including lack of personal
knowledge by the entrant or maker, may be
shown to affect its weight, but shall not
affect its admissibility.
The term
“business,” as used in this rule, includes
business, profession, occupation, and calling
of every kind.
I1l..Rev.Stat.1985, ch. 11OA,
par. 236(a)
In Illinois Environmental Protection Agency v. Record, 31
PCB 581 (1978), the Board admitted an Agency inspection report
under the business record exception of Supreme Court Rule 236.
Record concerned an enforcement action against the operator of a
landfill. The Board also concluded in Illinois Environmental
Protection Agency v. Wasteland Inc., 48 PCB 1 (1982) that
observation reports of Agency and Will County inspectors could be
characterized as business records. However, in deciding that the
reports were properly admitted, the Board also mentioned that the
persons most responsible for the reports’ preparation were at
hearing and that there was considerable testimony aside from the
reports which established the same facts. Id. at 9.
The Agency letters and reports which have been challenged by
Prior can clearly be classified as the type of documents which
could be admitted under the public records exception to the rule
against hearsay rule. Likewise, given prior Board case law and
Supreme Court Rule 236, the exhibits in question could also come
in under the business records exception. However, even though
the exhibits could qualify under an exception to the rule against
hearsay, their admissibility is not automatic. That is, the
documents’ authenticity must be shown before being admitted.
The admissibility of public records depends on custody and
authenticity. Bell v. Bankers Life & Casualty Co. 327 Ill. App.
321, 64 N.E.2d 204, 208 (1st Dist. 1945).
In People ex rel. Bernardi v. Moran, 121 Ill. App. 3d 419,
459 N.E.2d 1073 (1st Dist. 1984), the First District in
discussing the public records exception stated Nproduction in
court by the custodian thereof is sufficient proof of the
authenticity of the records.” 121 Ill. App. 3d at 421; Bell v.
Bankers Life & Casualty Co., 327 111. App. 321, 329, 64 N.E.2d
204, 208 (1st Dist. 1945); See also People ex rel. Wenzel v.
Chicago & Northwestern Railway Co. 28 Ill. 2d 205, 190 N.E.2d 780
(1963).
7g44~
15
The Illinois Code of Civil Procedure (Code) also addresses
the issue of authenticity of records. Municipal records “may be
proved by a copy thereof, certified under the signature of the
Clerk or the keeper thereof, and the corporate seal, if there is
any; if not, under his or her signature and private seal.”
Il1.Rev.Stat.1985 ch. 110, par. 8—1203. Similarly, corporate
records “may be proved by a copy thereof, certified under the
signature of the secretary clerk, cashier or other keeper of the
same. If the corporation or incorporated association has a seal,
the same shall be affixed to such certificate.” Id. at par. 8—
1204. The Code further provides, “Any such papers, entries,
records and ordinances may be proved by copies examined and sworn
to by credible witnesses.” Id. at par. 8—1206.
The Board’s own procedural rules parallel the language of
the Illinois Administrative Procedure Act with regard to the
admissibility of evidence. Section 103.204 provides,
The Hearing Officer shall receive evidence
which is admissible under the rules of
evidence as applied in the Courts of Illinois
pertaining to civil actions except as these
rules otherwise provide. The Hearing Officer
may receive evidence which is material,
relevant, and would be relied upon by
reasonably prudent persons in the conduct of
serious affairs provided that the rules
relating to privileged communications and
privileged topics shall be observed.
In the enforcement case at hand, the letters and reports
making up Complainants’ Exhibits #5, 6, and 7 were neither
signed, certified copies nor did any Agency personnel testify to
the authenticity of the copies at hearing. The Board notes that
an Agency affidavit stating that the exhibits were unaltered
photocopies of Agency documents would have provided a sufficient
foundation for admitting the exhibits under the public records or
business records exception to the rule against hearsay. The
Complainants’ exhibits were admitted on the testimony of
Complainant Mayer that the exhibits were photocopies of documents
found in the Agency’s files. The Board will uphold the Hearing
Officer’s admission of the documents under Section 12(a) of the
Illinois Administrative Procedure Act, Ill. Rev. Stat. 1985 ch.
127, par. 1012(a), and the Board’s procedural rule 35 Ill. Adm.
Code 103.204. The Board has no reason to doubt the authenticity
of the exhibits and notes that Prior could have produced his own
copies of the permit letters if he desired to challenge the
Complainants’ copies. The lack of opportunity to examine the
persons who prepared the exhibits affects the weight the Board
places on them. These exhibits did not determine the outcome of
this case. As discussed later, the Board did not make a finding
as to whether Prior held the permits during the alleged
78-146
16
violations. Complainants’ Exhibit #7 was not used in finding any
violation.
Admissibility of Complainants’ Observation Logs
Complainants’ Exhibits #1, 2, and 3 consist of typed
versions of logs in which were recorded observations of the
Landfills by the Complainants and one witness during the time
period of the complaint. The exhibits were admitted by the
Hearing Officer over the objection of Prior (R. 145). The
Complainants claim that the logs were properly admitted since
they can be considered as either past recollection recorded or as
business records of the Concerned Citizens Group, of which the
Complainants are members. Prior first claims that the
introduction of the logs did not meet the requirements of past
recollection recorded. Specifically, Prior asserts that the
three logs are not past recollection recorded since he claims
that witnesses did not testify that they had no recollection of
the events observed. In addition, Prior states that the logs
were improperly admitted because they are merely a written
summary of testimony not orally presented at hearing. Finally,
Prior claims that the logs are not business records since they
were made solely in preparation for testimony.
In Dyan v. McDonald’s Corporation, 125 Ill. App. 3d 972, 466
N.E.2d 958, 970 (1st Dist. 1984), the First District set forth
the requirements for past recollection recorded:
Generally, a document is admissible in
evidence under the past recollection recorded
exception to the hearsay rule if the
following four requirements are met: (1) the
witness must have had firsthand sic
knowledge of the event recorded; (2) the
written statement must be an original
statement made at or near the time of the
event; (3) the witness must lack any persent
sic recollection of the event; and (4) the
witness must vouch for the accuracy of the
memorandum. citation omitted.
In
determining the admissibility of a document
under this hearsay exception, the court
should be primarily concerned with the
reliability of the proffered document and
apply the above criteria accordingly.
Complainants’ Exhibits #1 is the observation log of
Complainant Mayer. Mayer testified that after observing alleged
violations at the Landfills, she recorded those observations in a
pocket calendar which she carried with her. She stated that
about once a month she and her neighbors would meet and type up
the observation notes that they had taken previously. Mayer
7g~147
17
claimed that the typed log of her observations was an accurate
record of what she had observed at the Landfills. With regard to
her memory of the observations she stated, “I remember seeing all
of these things. On any given date, I probably could tell you
pretty close to what I saw. I would have to refer to my log to
be exact on anything.” According to Mayer, though, all the
observations were recorded at a time when she had recall of the
events. (R. 24—28).
Complainants’ Exhibit #2 is the observation log of Barbara
Miley. As with Complainant Mayer, Miley is a member of Concerned
Citizens Group who has also observed the Landfills’ activities in
the past. With regard to the recording of her observations,
Miley stated, “I wou.ld have a note pad, I also recorded on a
calendar in the kitchen, and I transferred it then to a piece of
paper. You know if I had it in the car I transferred it to a
paper at home and then we met and typed them up.” Miley
testified that she recorded her observations “instantaneously
almost, right at the moment.” She also claims that the meaning
or text of the typed version is not different from her
handwritten notes and that only some wording might be
different. Concerning her memory of the events, she testified,
“Most of them I recall vividly, and some of them specifically.”
(R. 81—83).
Complainant’s Exhibits #3 is the observation log of
Complainant Castellari. At hearing, Castellari stated that she
kept notes of observations in a notebook. She also testified
that the events she observed were fresh in her mind when she
recorded them. Castellari stated that the procedure used to
convert her handwritten notes into a typed form was the same as
testified by Mayer and Miley. Complainants’ counsel did not ask
Castellari whether she could presently remember what she
observed. (R. 85—87).
All three witnesses testified that they recorded their
observations at a time when the events they had observed were
still fresh in their minds. It is also apparent from the
testimony that the typed versions of the logs accurately reflect
the witnesses’ handwritten notes of the observations. With
regard to the witnesses’ present memory of the observations, the
evidence varies. Mayer stated that she would have to “refer” to
her log in order to be “exact on anything”. Miley stated that
she recalled “most” of the observations “vividly”. Castellari
was not asked by counsel whether she had any present memory of
the observations.
A clear and proper foundation for past recollection recorded
could have been laid by counsel for the Complainants if just a
few pointed questions had been asked of the witnesses.
Unfortunately, though, the record is not as clear as it could
have been as to the foundational requirements of past
recollection recorded in relation to the logs.
78-148
18
The court in Dyan v. McDonald’s Corporation, 125 Ill. App.
3d 972, 466 N.E.2d 958, 970 (1st Dist. 1984) explained past
recollection recorded as follows:
The underlying rationale for this past
recollection recorded hearsay exception
relies on the fact that the proffered
document contains sufficient circumstantial
guarantees of trustworthiness and reliability
because the recorded recollection was
prepared at or near the time of the event
while the witness had a clear and accurate
memory of it. (McCormick on Evidence (2d
Ed.1977)
299 at 712) Under these
circumstances, the reliability of the
evidence is perceived to outweigh the
inherent testimonial infirmities of hearsay
occasioned by the inability of the opposing
party to effectively cross—examine.
Consequently, the reliability of the past recollection recorded
evidence must be established to the extent that it outweighs the
inability of the opponent to cross—examine the witness directly
due to the witnesses’ lack of present memory.
In this instance, the foundational infirmities of the past
recollection recorded evidence stem from the less than clear
assertions in the record concerning the witnesses’ memory of the
observations. That is, the logs seem to meet all the
requirements of past recollection recorded except that the
witnesses did not affirmatively state that they had no present
recollection of all the events recorded in their logs. Mayer
seems to indicate at hearing that she did not remember the events
clearly. Miley stated that she remembered “most” of them,
whereas Castellari did not make any statement as to her present
memory. Consequently, Mayer’s observation log, Complainants’
Exhibit *1, would constitute past recollection recorded. Miley’s
log, Complainants’ Exhibit #2, also meets the past recollection
recorded requirement to the extent that Miley has no present
memory of observations recorded therein. Unfortunately, the
record does not state which observations she does not remember.
For the sake of discussion, the Board will assume that Castellari
had complete recollection of the events recorded in her log,
although there is nothing in the record to indicate that she did
remember them. Consequently, Castellari’s log, Complainants’
Exhibit #3, and parts of Miley’s log which she could remember
could not typically qualify as past recollection recorded.
However, the rationale behind past recollection recorded is not
frustrated by admitting Miley’s and Castellari’s logs in their
entirety. Since the witnesses could remember the events which
occurred, they could have been cross—examined by Prior as to
78-149
19
those events. However, Prior chose not to ask the witnesses
about events which they could remember.
The mere fact that two of the witnesses did not orally
testify to events which they remembered does not constitute
prejudicial error. Obviously, the witnesses were present at
hearing for cross—examination by Prior concerning the events
recorded in the log. In addition, the APA provides that “when a
hearing will be expedited and
the interests of the parties will
not be prejudiced, any part of the evidence may be received in
written form.” Ill.Rev.Stat., 1985 ch. 127 par. 1012. Given all
the above considerations, the Board finds that Complainants’
Exhibits #1, 2 and
3
were properly admitted.
Denial of Prior’s Motion for Continuance
Prior to the hearing, the Hearing Officer issued a subpoena,
at the request of Prior, which commanded the appearance and
testimony of Joseph Madonia, Assistant Attorney General. In
addition, the subpoena required Madonia to produce all documents
in his possession relating to the Landfills. (Resp. Exh.
*4).
Madonia had been involved in the earlier circuit court action
against Prior. Madonia appeared at hearing with James L. Morgan,
another Assistant Attorney General who was there on behalf of the
Attorney General’s Office. Morgan made a Motion to Quash the
subpoena.
At hearing, Morgan stated that Madonia was not at
liberty to produce any document and that the formal procedure for
the procurement of documents from the Attorney General’s Office
had not
been
complied with.
He.
further stated
that
until the
procedure was complied with, the documents could not be
released. Next, Morgan claimed that Madonia had no personal
knowledge of any of the violations contained in the complaint.
In addition, Morgan asserted that any other relevant knowledge
possessed by Madonia was priveleged under the attorney—client
privilege, work product privilege, or as part of settlement
discussions. (R. 6). The Hearing Officer denied the Attorney
General’s motion and stated that Madonia could make specific
objections to questions dealing with privileged information when
he testified. At that point both Madonia and Morgan walked out
of the hearing. (R. 12).
Later at hearing, Prior moved for a continuance until he
could compel the testimony of Madonia. (R. 251). The Hearing
Officer denied Prior’s Motion for Continuance. (R. 253).
However, the Hearing Officer allowed Prior to make an offer of
proof as to what he had expected Madonia to testify about (R.
253—256). Essentially, the offer of proof put forth the same
information contained in the Stipulation and Settlement Agreement
and Order (concerning the previous circuit court action) admitted
later in the hearing as Respondent’s Exhibit #2 and 3
respectively. However, there are three points made in the offer
of proof which do not appear in the Settlement Agreement. For
78-150
20
the sake of discussion, the Board will assume that each would
have indeed been adduced at hearing.
First, Prior claims that Madonia would have testified that
the Attorney General believed that Jackson and Pauline, owner of
Jackson, had become owner and operator of the Landfills as of
July 1, 1985. Although such testimony would be relevant to the
issue of Prior’s role during the alleged violations, a conclusion
of the Attorney General is certainly not legally binding upon the
Board’s deliberations. It is far more important for the Board to
consider the terms of the legal documents executed between Prior
and Jackson concerning the lease/sale of the Landfills as well as
the facts surrounding that transaction. After such
consideration, the Board believes it has properly resolved the
issue of Prior’s ownership. Given the evidence, a contrary
conclusion by the Attorney General would not have changed the
Board’s finding in this instance.
Secondly, Prior claims that Madonia would have testified
about the efforts of the Attorney General’s office in assisting
in the transfer of the Agency permits from Prior to Jackson and
Pauline. Such efforts, however, are not determinative in
concluding whether the permits were in fact transferred. The
Agency, not the Attorney General, has the authority to grant or
transfer permits. Consequently, this point, if introduced at
hearing, would not have changed the Board’s finding with regard
to the permit issue which is discussed later.
Finally, Prior asserts that Madonia would have testified
that the Attorney General’s Office has been working with the
Agency and Pauline to obtain a satisfactory closure of the
Landfills. Efforts by Pauline in the closure of the Landfills do
not alter the liability of Prior for violations alleged in the
instant Complaint. As discussed earlier, Prior’s liability stems
from his own action, or in this instance inaction, and is not
derived from Pauline’s independent actions. Consequently, such
evidence, if introduced, would not have changed any Board
finding.
In summary, it is apparent from the offer of proof that
Prior was not prejudiced by Madonia’s failure to testify.
Therefore, it was not prejudicial error for the Hearing Officer
to deny the Motion for Continuance. The Board affirms the
denial.
Whether Prior Was the Permit Holder During Alleged Violations
It is the position of the Complainants that Prior held
Agency operating permits for the Landfills during the time period
of the violations alleged in the Complaint. In support of that
position, the Complainants’ point to the testimony of Complainant
Mayer. At hearing, Mayer testified that she looked through the
~Q
1~i
21
Agency’s files
subsequent to May 31, 1986 and found no letters or
documents indicating to her that the permits for the Landfills
had been transferred from Prior. (R. 118—22). Mayer also states
that due to her conversations with Agency personnel, she believes
that the permits were never transferred from Prior CR. 340—42).
The Agreement provides that the tenant shall keep in full
force and effect “all sanitary landfill permits heretofore or
hereafter transferred to Tenant by Landlord”. (Resp. Exh. #1,
3(b)). However, the Agreement does not mention when the permits
are to be transferred. At hearing, Paul Schoen, Pauline’s
attorney stated, “the applications for transfer were filed on or
about the time the agreement between Mr. Prior and Mr. Pauline
and their respective companies was executed.” (R. 157). He also
claimed that he received “a document issued by the IEPA Agency
that indicates...that the permits have been transferred.” (R.
159). However, Schoen did not state when he received the
document nor was any such document produced at hearing. On
cross—examination, Schoen stated that Pauline was operating the
site prior to receiving the permit. (R. 173). However, he again
asserted that “Mr. Pauline has been granted the permit for which
he applied to have transferred.” (R. 174). Prior testified that
he did not think he was still the permit holder for the
Landfills. (R. 282). He also stated that he did not know whether
or not he received any notification from the Agency that the
permits had been transferred. (R. 289).
The record is at best inconclusive with regard to the issue
of whether Prior held the operating permits during the time frame
of the alleged complaint. The Board notes that the Complainants
could have subpoenaed Prior or Pauline to produce the permits at
issue, but they did not. The Complainants did not put forth
sufficient evidence to prove their conclusion that Prior was the
permit holder and that the permits had not been transferred prior
to the alleged violations. Prior did not put forth sufficient
evidence for the Board to conclude that the permits had been
transferred prior to alleged violations. Consequently, the Board
will not make a finding as to whether Prior held the permits
during the alleged violations.
VIOLATIONS
In this case, the Board can essentially turn to only two
sources of evidence to determine whether the alleged violations
took place. Since oral testimony at hearing regarding the
alleged instance was minimal, the Board must rely on the
observation logs that were admitted as Complainant’s Exhibits #1,
2, and 3. Secondly, the Board can base its determination on
photographs of the Landfills taken by Complainant Mayer and her
husband during the time of the alleged violations. These
photographs were admitted as Complainant’s Exhibit #4. The Board
notes that Prior did not object to the admission of this exhibit.
78-152
22
(R. 147). In the following discussion concerning the various
counts of the complaint, the Board has accounted for any overlap
of dates found between the differing observation logs and
photographs. For all counts, the Complainants allege that Prior
violated Section 21(d) of the Act which requires waste disposal
facilities to comply with Board regulations and permit conditions
as well as 35 Ill. Adm. Code 807.304 which also requires
compliance with Board regulations and permit conditions. Each
count then specifies the specific regulation which Prior is
alleged to have violated.
Count I
—-
Failure to Apply Daily Cover
The Complaint alleges that Prior failed to comply with 35
Ill. Adm. Code 807.305(a) from May 9, 1985 until May 31, 1986.
That subsection states:
Daily Cover
—
a compacted layer of at least 6
inches of suitable material shall be placed on
all exposed refuse at the end of each day of
operations.
Complainant Mayer stated that whenever she recorded in her log
that there was a failure to apply daily cover, she observed that
condition after the Landfills closed for the day. (R. 29). Also,
when she recorded such an observation, she was refering to
incidences where areas of the Landfills lacked any cover
whatsoever. That is, even though the regulations require six
inches of cover, she did not report “lack of cover” if all the
refuse was covered, even if by less than six inches of material.
(R. 31). Barbara Miley testified that she defined her
observations in the same manner as Mayer with regard to the log
entries. (R. 83). Likewise, Complainant Castellari stated that
she defined the terms in her log in the same way as did the other
witnesses. (R. 87).
After evaluating the •observation logs and the photographs of
Complainant’s Exhibit *4, the Board determines that the witnesses
observed 117 distinct days where refuse at the Landfills was not
covered. On the days when photos were taken, it is obvious that
the failure to apply cover was blatant and widespread across the
Landfills. The photos alone depict seven days of violations.
Although the complaint alleges violation from May 9, 1985 to May
31, 1986, the 117 days of violations occurred during the period
of time between October 3, 1985 and April 2, 1986.
Count II
——
Failure to Collect Litter
The Complainant alleges that from May 9, 1985 until May 31,
1986 Prior violated 35 Ill. Adm. Code 807.306. That section
requires,
78-153
23
All litter shall be collected from the
sanitary landfill site by the end of each
working day and either placed in the fill and
compacted and covered that day or stored in a
covered container.
Complainant Mayer stated that all the observations regarding
blowing or scattered litter took place after closing. (R. 32).
Also, as stated earlier the other authors of logs used like
definitions for like observations. (R. 83, 87).
After tabulating the incidences recorded on the logs and
photos, the Board finds that there were 53 days in which litter
was not collected on the Landfills. The photos alone depict one
day of violation. The violations took place between November 20,
1985 and April 13, 1986.
Count III
——
Failure to Control Leachate
The Complainant alleges that from May 9, 1985 until May 31,
1986 Prior violated 35 Ill. Adm. Code 807.314(e). Section
807.314 states,
Except as otherwise authorized in writing by
the Agency, no person shall cause or allow
the development or operation of a sanitary
landfill which does not provide:
.
.
.
e) Adequate measures to monitor and control
leachate.
At hearing, Complainant Mayer described what she observed and
recorded as leachate. “Leachate is a liquid material that is
seeping out of a landfill. It has a terrible odor. Most of what
I have seen is black in color and it is just oozing out of the
landfill along the perimeter of the landfill. It runs out into
the ditch along Perrine Street Road.” (R. 33). Complainant Mayer
also stated that she could distinguish leachate from
uncontaminated water in part because she has a degree in
microbiology with a minor in chemistry. (R. 34).
From the logs and photos, Mayer recorded that she observed
pooled or flowing leachate for 12 separate days. Barbara Miley
recorded one additional day of leachate observations. Section
807.104 defines “leachate” as “liquid containing materials
removed from solid waste.” Mayer’s explanation of leachate
observations seems accurate enough for the Board to determine
that Mayer did actually observe leachate from the Landfills.
Since Miley used the same definitions for her recorded
observations (R. 83), the Board finds that leachate was
inadequately controlled for 13 days. The photos alone depict one
day of violation. These violations occurred during the period
between November 27, 1985 to April 6, 1986.
•ig.-154
Count IV
——
Open Burning
The Complaint alleges that from May 9, 1985 until May 31,
1986, Prior violated 35 Ill. Adm. Code 807.311. That section
provides,
No person shall cause or allow open burning
at a sanitary landfill site except in
accordance with the provisions of 35 Ill.
Adm. Code Subtitle B....
After reviewing the logs, the Board can find evidence of open
burning only for one incident which occurred on May 6, 1986.
Therefore, the Board finds that one violation of open burning
occurred at the Landfills.
Count V
——
Trash in Water
The complaint alleges that from May 9, 1985 until May 31,
1986 Prior violated 35 Ill. Adm. Code 807.313. That section
provides,
No person shall cause or allow the operation
of a sanitary landfill so as to cause or
threaten or allow the discharge of any
contaminant into the environment in any state
so as to cause or tend to cause water
pollution in Illinois, either alone or in
combination with matter from other
sources.
Section 3 of the Act defines “contaminant” as “any solid, liquid,
or gaseous matter, any odor or any form of energy, from whatever
source.” In addition, the Section defines “water pollution” as:
such alteration of the physical, thermal,
chemical, biological or radioactive
properties of any waters of the State, or
such discharge of any contaminant into any
waters of the State, as will or is likely to
create a nuisance or render such waters
harmful or detrimental or injurious to public
health, safety or welfare, or to domestic
commercial,
industrial,
agricultural,
recreational, or other legitimate uses, or to
livestock, wild animals, birds, fish or other
aquatic life”.
“Waters” is defined as “all accumulations of water, surface and
underground, natural and artificial, pubic and private, or parts
thereof, which are wholly or partially within, flow through, or
78-l5~
border upon this State.” Considering the above statutory
definitions, the Board finds that trash found in standing water
would sufficiently constitute water pollution.
The observation logs and photographs recorded a combined 20
days when trash was observed in standing water on the Landfill’s
sites or in a nearby creek. The photos alone depict three days
of violations. The Board finds Prior in violation for those
instances. The violations took place during the period between
November 27, 1985 and April 18, 1986.
Count VI
——
Site Access
The complaint alleges that from May 9, 1985 to May 31, 1986
Prior violated 35 Ill. Adm. Code 807.314(c). This subsection
requires that landfill’s shall provide “fencing, gates, or
other measures to control access to site.”
The logs and photos indicate that there were seven days when
the gate to the Landfills was not locked after closing. The
photos alone depict one day of violation. The Board finds Prior
in violation of Section 807.314(c) for those seven days. The
violations occurred during the period of time from November 24,
1985 to May 6, 1986.
Count VII
——
Vectors
The Complaint alleges that Prior was in violation of 35 Ill.
Amd. Code 807.314(f) from May 9, 1985 until May 31, 1986.
Section 807.314(f) requires that sanitary landfills be operated
to provide “adequate measures to control dust and vectors.”
Section a07.l04 defines “vectors” as “any living agent, other
than human, capable of transmitting, directly or indirectly, an
infectious disease.”
The three observation logs recorded 15 days when dogs or
birds were observed feeding on garbage in the Landfills. (The
Board notes that one entry on Complainant Mayer’s log records the
observance of vectors from December 10, 1985 until a date that is
not legible on the log. The Board will count that entry as one
day). Such vector incidences were likely caused by the
inadequate daily cover of the refuse. Consequently, the Board
finds that Prior was in violation of this regulation for 15
separate days. These violations occurred during the period from
November 29, 1985 to January 2, 1986.
Count VIII
——
Odor
The complaint alleges that Prior violated 35 Ill. Adm. Code
807.312 from May 9, 1985 until May 31, 1986. That section
states1
26
No person shall cause or allow operation of a
sanitary landfill so as to cause or threaten
or allow the discharge 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
from other sources....
As stated earlier, “contaminant” is defined by Section 3 of the
Act to include “any odor”. In addition, “air pollution” is
defined as
“
the presence in the atmosphere of one or more
contaminants in sufficient quantities and of such characteristics
and duration as to...unreasonably interfere with the enjoyment of
life or property.”
At hearing, Complainant Mayer stated that generally when the
observation logs referred to “an odor” such odor could be
detected offsite. However, she stated, “The closer you get to
the landfill the more it stinks. It smells like putrid
garbage. On occasion, there are chemical odors of what has
smelled like insecticides or resins, mostly putrid garbage.” (R.
37—38).
Mayer also testified that she could smell the Landfills from
her house, which is about one quarter of a mile distant, between
November 20, 1985 and December 9, 1985. (R. 51). She also stated
that she could smell the Landfills as she drove by it on a daily
basis. (R. 52). In determining what constitutes air pollution
under Section 3 of the Act, the Illinois Supreme Court has stated
that the phrases “unreasonably interferes with the enjoyment of
life and property” does not include “trifling inconvenience,
petty annoyance or minor discomfort.” Rather, the Court held
that the phrase means “substantial interference with the
enjoyment of life and property.” Processing and Books, Inc. v.
Pollution Control Board, 64 Ill. 2d 68, 77, 351 N.E.2d 865
(1976). Aside from a few adjectives such as “horrible” and
“terrible” recorded on the logs, no specifics with regard to the
extent of the odor are given. As a result, the odor’s degree of
interference with the enjoyment of life or property cannot be
determined from the record. Therefore, the Board is not able to
find that a violation occurred due to the Landfill’s odor.
Count
IX
——
Failure to Conceal Operations from Public View
The Complaint states, “35 Ill. Adm. Code prohibits the
operation of landfills for which permits are applied subsequent
to the date of the Board’s regulations when the landfills
operations are not screened from public view.” It further
alleges that Prior did not comply with this requirement from May
9, 1985 to May 31, 1986. The Board’s procedural rules requires
that the Complaint cite the specific sections of regulations or
the Act which are alleged to be violated. 35 Ill. Adm. Code
27
l03.122(c)(l). Counsel for the complainants neglected to cite
the applicable regulation for this count. A cite only to title
35 of the Illinois Administrative Code is insufficient to meet
the requirements of a formal complaint. As a consequence, the
Board cannot make a finding on this count of the complaint. Even
if this count of the complaint was deemed sufficient, the record
does not contain information as to when Prior originally applied
for permits for the Landfills, so the Board could not make a
finding as to whether the regulation applies to Prior.
Count X
——
Permit Compliance
The complaint alleges that for the period from May 9, 1985
until December 17, 1985, Prior was in violation of 35 Ill. Adm.
Code B07.302. That section states, “All conditions and
provisions of each permit shall be complied with.” The complaint
further states that Prior “failed to comply with Special
Condition No. 3 of Supplemental Permit No. 80—1219 in that
countour sic markers for the 525—foot contour were not in
place.”
The permit referenced by this count was never introduced
into the record by the Complainant. Consequently, the Board
cannot determine whether Prior complied with the conditions of
that permit.
Count XI
——
Final Cover
The Complaint alleges that from May 9, 1985 until January
22, 1986 Prior violated “35 Ill. Adm. Code Sec. 807.0305(c)
sic.” Section 807.305(c) requires for final cover that “a
compacted layer of not less than two feet of suitable material
shall be placed over the entire surface of each portion of the
final lift not later than 60 days following the placement of
refuse in the final lift....”
The Complainants did not show that refuse has been placed in
the final lift and that the Landfills are ready for final
cover. In fact, at hearing Complainant Mayer even stated that
the Landfills were still receiving refuse for disposal. (R.
78). The record is clearly insufficient for the Board to make a
finding of violation.
Count XII
——
Roads
The complaint alleges that from May 9, 1985 until May 31,
1986 and on December 17, 1985, Prior violated 35 Ill. Adm. Code
807.314. Section 807.314(b) requires that a landfill have
“roads adequate to allow orderly operations within the site.”
The Complainants never showed that the roads in the
Landfills were inadequate for “operations within emphasis added)
28
the site.” In the observation logs, incidences concerning the
public roadway and the Landfills operations were recorded.
Specifically, mud on the public road from the Landfills was a
problem. Also, trucks backing up into the Landfills often caused
congestion on the public road. However, no testimony or other
evidence was presented which would prove that the roads within
the Landfills were inadequate for its operations. Consequently,
the Board will not find a violation for this count.
In summary, the Board has made the following findings with
respect to each count of the complaint.
Time Period
Count
Findings
Covered by the Violatio
I——Failure to
117 days of
October 3, 1985 to
Apply Daily Cover
Violations
April 2, 1986
Il——Failure to
53 days of
November 20, 1985 to
Collect Litter
Violations
April 13, 1986
Ill——Failure to
13 days of
November 27, 1985 to
Control Leachate
Violations
April 6, 1986
IV
——
Open Burning
1 day of Violation
May 6, 1986
V
——
Trash in Water 20 days of
November 27, 1985 to
Violations
April 18, 1986
VI
——
Site Access
7 days of
November 24, 1985 to
Violations
May 6, 1986
VII
——
Vectors
15 days of
November 29, 1985 to
Violations
January 2,, 1986
VIII
——
Odors
No Finding of
~‘iolation
IX
——
Failure to
No Finding of
Control Operations
Violation
X
——
Permit
No Finding of
Complaince
Violation
XI
——
Final Cover
No Finding of
Violation
XII
——
Roads
No Finding of
Violation
The Board notes that all of the violations took place during the
lease term of the Agreement. That is, Prior’s role was that of
lessor during the violations.
78.159
29
Penalty
In Wasteland, Inc. v. Illinois Pollution Control Board, 118
Ill. App. 3d 1041, 456 N.E.2d 964 (3d Dist. 1983), the Third
District affirmed the Board’s imposition of penalties upon a
corporate operator and manager of a waste landfill facility. In
its discussion of penalties, the court stated, “the question of
good faith or lack thereof, is pertinent to the issue of
sanctions.” In Wasteland, the court stated that the Board had
properly found that the site had been operated in “blatant
disregard for the Act, the Board rules and overall environmental
safety.” The Board had also considered the fact that improper
operations had continued despite notice of the violations from
state and local officials. The court recognized that the
violations were shown to have been committed over a period of a
year. In addition, the court noted that the Board had found that
the operators had realized a substantial savings due to their
sidestepping of applicable rules and regulations. Given the
above consideration of the Board, the court concluded that the
$75,000 penalty was within the Board’s discretion. Wasteland,
456 N.E.2d at 975—76.
Similar considerations are equally applicable to the case at
hand. Here, violations took place at the Landfills from October
3, 1985 until April 18, 1986. As a result of the filing of a
circuit court action, Prior knew of trouble concerning the
Landfills operation many months prior to the first of the
violations proved in this case. Yet, Prior never exercised
control over Jackson and Pauline in order to prevent continuing
violations.
At hearing, evidence of the condition of the Landfills at
times subsequent to the time period alleged in the complaint was
admitted over the objection of Prior. This evidence in part,
consists of Complainant’s Exhibits #8, a composite of observation
logs which recorded incidences that took place during the period
of June 1, 1986 through October 10, 1986. This exhibit contains
observations of the Landfill’s as well as that of a third site.
Also, Complainant’s Exhibit #9 consists of photographs of the
Landfills taken by Complainant Mayer during the period from June
5, 1986 to September 7, 186.
According to Prior these exhibits should not have been
admitted, since they relate to the Landfill’s condition
subsequent to the time period of the violations alleged in the
Complaint. On the other hand, Complainants argue that these
exhibits are presented to the Board not for consideration of a
finding of violation, but rather to aid the Board in assessing a
penalty.
78.160
30
Prior Board decisions have held that post—complaint facts
may be admitted in order to act as mitigating or aggravating
factors in the assessment of a penalty. Illinois Environmental
Protection Agency v. The Victory Memorial Hospital Association,
51 PCB 99, 103 (February 10, 1983); See Environmental Protection
Agency v. Metropolitan Sanitary District of Greater Chicago, 31
PCB 349, 350 (September 7, 1978). Therefore, Complainants’
Exhibits *8 and 9 could be properly used in determining a penalty
if otherwise admissible.
Complainants’ Exhibit *9, the photographs, were properly
admitted, since an adequate foundation had been laid at
hearing. Complainant Mayer testified that she took the pictures
on the dates specified in the exhibit and that the pictures
accurately reflect what she had observed on those days. She also
stated that the pictures of the Landfills were taken after
closing. (R. 334—35, 345—46).
Prior also objects to Complainants Exhibit #8, for the same
reasons that he objected to Complainants’ Exhibits #1, 2, and
3. After review of the record, the Board finds that it was error
to admit Complainants’ Exhibit #8. Unlike Complainants’ Exhibits
#1, 2, and 3, this exhibit is a composite of alleged observation
logs. There are several people whose observation are recorded in
the exhibit who did not testify at hearing. In addition, not all
the observations deal with the Landfills, but rather many concern
a third landfill site not the subject of this case. Although the
exhibit was introduced while Complainant Mayer was testifying,
Mayer’s testimony did not address any of the four requisites of
past recollection recorded in regard to her own recorded
observations. (R. 321—26). Similarly, Miley and Complainant
Castellari did not adequately testify to the four requirements,
but rather they merely asserted that the exhibit accurately
reflects their handwritten notes. Nothing was stated with regard
to the timing and accuracy of the handwritten notes. (R.348—
51). Due to the above considerations the Board finds that
Complainants’ Exhibit #8 does not have the same indicia of
reliability that Complainants’ Exhibits #1, 2, or 3 have. In
addition, the Board will not allow this exhibit in under the
business records exception to the rule against hearsay.
Consequently, Complainants’ Exhibit *8 will not be considered by
the Board.
However, the photographs of Complainants’ Exhibit #9 are
quite probative of the fact that conditions at the Landfills have
generally not changed since the time of violations complained of
in this case. Such continued failure to rectify this troubled
situation is grievous and inexcusable.
In an enforcement case, the burden of proof is upon the
complainants to prove the violation. However, the burden is on
the respondents to supply the Board with information in order to
78-161
31
enable the Board to consider the criteria of Section 33(c) of the
Act. Processing and Books, Inc. v. Pollution Control Board, 64
Ill. 2d 68, 76—77, 351 N.E.2d 865 (1976). In making its
determinations in this case, the Board has considered Section
33(c) factors to the extent that the applicable information is in
the record.
The extent of Prior’s non—compliance with the laws and
regulations of the State concerning the Landfills’ operations was
considerable. The great number of observed violations indicates
an almost constant interference with the interests that those
regulations are designed to protect. The illegal activities of
the Landfills created extensive pollution that at times extended
beyond the boundaries of the Landfill. In addition, the failure
to apply daily cover to the Landfills created a health risk which
was exacerbated by the lack of control over vectors. Prior’s
general disregard for operational requirements of the Board
undermines the Board’s role in protecting the environment of the
State.
Sanitary landfills certainly have social and economic value,
however, that value is lost when they are operated in a manner
that endangers the environment and the health of the people. The
record shows that the Landfills were operated in disregard of the
environmental laws and regulations. Such an operation has a
negative value for society.
Although the record indicates that the Landfills are located
near residences, there is nothing in the record to indicate that
the Landfills, if properly run, would be unsuitable in the
area. That is, there is no reason to believe that Prior’s
Landfills are inherently incompatible with the surrounding areas.
Finally, all the violations are such that they could have
been corrected by technically feasible and economically
reasonable means. For example, applying daily cover cannot be
classified as technically infeasible or economically
unreasonable. Similarly, collecting litter, controlling
leachate, controlling access to the site and controlling vectors
are all technically feasible and economically reasonable
activities for a landfill operation. Prior has presented no
information which would lead the Board to conclude otherwise.
With regard to penalties, Section 42 of the Act states,
Any person that violates any provisions of
this Act or any regulation adopted by the
Board...shall be liable to a civil penalty of
not to exceed $10,000 for said violation and
an additional civil penalty of not to exceed
7Q.1~9
32
$1,000 for each day during which the
violation continues....
(111.Rev.Stat. 1985, ch. 111
,
par. 1042(a))
The Board has found that Prior violated seven different
regulatory provisions. This alone would provide a maximum
penalty of $70,000. When considering all the additional days of
violation, not counting the first day of violation, the maximum
penalty that the Board could impose against Prior would be
$205,000.
The Board believes that a penalty of $10,000 will aid in the
enforcement of the act. The Board notes that the violations at
this site continued over a period of six months even after the
Attorney General brought action against Prior for similar
violations.
This Opinion constitutes the Board findings of fact and
conclusions of law in this matter.
Order
It is the Order of the Board that:
1. Respondent has violated Section 21(d) of the Act; 35
Ill. Adm. Code 807.304; 807.305(a); 807.306; 807.314(e);
807.311; 807.313; 807.314(c); 807.314(f).
2. Respon~3ent shall cease and desist from further
violations of the Act and regulations
promulgated
thereunder.
3. Respondent shall, by certified check or money order
payable to the State of Illinois and designated for
deposit into the Environmental Protection Trust Fund,
pay a civil penalty of $10,000. Respondent shall pay
this penalty within forty—five (45) days
of the
date of this Order to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, IL 62706
IT IS SO ORDERED.
Board Member 3. Anderson concurred.
78-163
33
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certi~ythat the above Opinion and Order was
adopted on the ~
day of
p7’)
,
1987, by a vote
of
____________________.
7
Dorothy M Gunn, Clerk
Illinois Pollution Control Board
78-164
