2

LEGAL FRAMEWORK

Under the Act (415 ILCS 5 (2006)), an administrative citation is an expedited

enforcement action brought before the Board seeking civil penalties that are fixed by statute.

Administrative citations may be filed only by the Agency or, if the Agency has delegated the

authority, by a unit of local government, and only for limited types of alleged violations at

sanitary landfills or unpermitted open dumps.

See

415 ILCS 5/3.305, 3.445, 21(o), (p), 31.1(c),

42(b)(4), (4-5) (2006); 35 Ill. Adm. Code 108.

The Agency or delegated local authority must serve the administrative citation on the

respondent within “60 days after the date of the observed violation.” 415 ILCS 5/31.1(b)

(2006));

see also

35 Ill. Adm. Code 108.202(b). The Agency or delegated local authority also

must file a copy of the administrative citation with the Board no later than ten days after serving

the respondent.

See

415 ILCS 5/31.1(c) (2006). To contest the administrative citation, the

respondent must file a petition with the Board no later than 35 days after being served with the

administrative citation. If the respondent fails to do so, the Board must find that the respondent

committed the violations alleged and impose the corresponding civil penalty.

See

415 ILCS

31.1(d)(1) (2006); 35 Ill. Adm. Code 108.204(b), 108.406.

If the respondent timely contests the administrative citation, but the complainant proves

the alleged violations at hearing, the respondent will be held liable not only for the civil penalty

but also for the hearing costs of the Board and the complainant.

See

415 ILCS 5/42(b)(4-5)

(2006); 35 Ill. Adm. Code 108.500. However, if the Board finds that the respondent “has shown

that the violation resulted from uncontrollable circumstances, the Board shall adopt a final order

which makes no finding of violation and which imposes no penalty.” 415 ILCS 5/31.1(d)(2)

(2006);

see also

35 Ill. Adm. Code 108.500(b).

Because the Act (415 ILCS 5/42(b)(4-5) (2006)) specifies the penalty for a violation in an

administrative citation action, the Board cannot consider mitigating or aggravating factors when

determining penalty amounts.

See

,

e.g.

, IEPA v. Stutsman, AC 05-70, slip op. at 2 (Sept. 21,

2006). The appellate court in Miller v. PCB

, 267 Ill. App. 3d 160, 642 N.E.2d 475 (4th Dist.

1994), described the Board’s administrative citation process as follows: “the administrative

citation proceeding is to the Act as traffic citations are to the body of criminal law.” Miller

, 267

Ill. App. 3d at 167, 642 N.E.2d at 482.

PROCEDURAL MATTERS

Procedural History

On June 2, 2006, the Agency filed the administrative citation. The Agency served the

administrative citation on respondent Michael Gruen on the same date. The Agency served the

administrative citation on respondent Jon Eric Gruen on June 8, 2006. The Agency site

inspection resulting in the citation took place on April 20, 2006. On June 28, 2006, respondents

timely filed with the Board a petition to contest the administrative citation. In a July 6, 2006

order, the Board accepted the petition for hearing.

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3

Board Hearing Officer Carol Webb held this case’s hearing on March 14, 2007, at the

Carlinville City Hall Council Chambers. Two witnesses testified: Agency field inspector Jan

Mier and Jon Gruen.

1

Hearing Officer Webb found both witnesses credible. Tr. at 74. The

Agency offered one exhibit at hearing, an open dump inspection report dated April 20, 2006,

which was admitted into the record.

2

Respondents offered 43 exhibits at hearing. Exhibits 1-9 are receipts for the sale of

firewood by Jon’s Tree Service. These transactions took place before the April 20, 2006

inspection, and were admitted into the record. Respondents’ Exhibits 10 through 13 are receipts

documenting firewood sales by Jon’s Tree Service taking place after the Agency inspection; they

were not admitted into the record but were accepted as an offer of proof. Respondents’ Exhibits

14 through 31, showing the site in July 2006, including a log splitter, tools, and barrels, were not

admitted into evidence but were accepted as an offer of proof. Respondents’ Exhibits 32 through

43 are vehicle certificates of title and registration and photos, which were admitted for

illustrative purposes to assist the Board in reviewing testimony regarding vehicles at the

property.

3

The Agency filed a brief on April 30, 2007, and respondents filed a brief on May 30,

2007.

4

Offer of Proof

Respondents moved at hearing to enter, as hearing exhibits, four receipts (Resp. Exhs.

10-13) allegedly documenting Jon Gruen’s continued sale of firewood and fifteen photos (Resp.

Exhs. 14-28) showing timber on respondents’ property that allegedly could be used for business

purposes. The respondents also moved to enter three photos (Resp. Exhs. 29-31) that included

pictures of equipment used in the tree and wood-cutting business and barrels used for burning

wood scraps. The Agency objected to the entry of these respondents’ exhibits, arguing that the

photos and copies of receipts postdate the Agency’s site inspection and on that basis are

irrelevant to the alleged violation. The photos and copies of receipts were received by the

hearing officer as an offer of proof. Tr. at 45-57.

The Agency does not dispute that Jon Gruen has been and is in the business of cutting

trees and selling firewood. The record contains, without Agency objection, receipts of firewood

sales prior to the inspection date.

See

Resp. Exhs. 1-9. In fact, the Agency’s site inspection

report notes Jon Gruen’s submission of firewood sale receipts to the Agency.

See

Ag. Exh. 1,

Narrative at 1. Under the Board’s procedural rules, the hearing officer may admit evidence that

is “material, relevant, and would be relied upon by prudent persons in the conduct of serious

affairs.” 35 Ill. Adm. Code 101.626(a). Respondents’ receipts and photos postdating the

1

The Board cites the hearing transcript as “Tr. at _.”

2

The Board cites the Agency’s hearing exhibit as “Ag. Exh. 1 at _.”

3

The Board cites respondents’ hearing exhibits as “Resp. Exh. _ at _.”

4

The Board cites the Agency’s brief as “Ag. Br. at _” and respondents’ brief as “Resp. Br. at _.”

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4

inspection were not offered to prove that a cleanup took place after the inspection date, which is

generally irrelevant to whether an administrative citation violation has occurred.

See

,

e.g.

, IEPA

v. John Brown d/b/a John Brown Painting, AC 04-82, slip op. at 3-4 (May 19, 2005). Rather,

these exhibits were offered by respondents to further support the claims that Jon Gruen has an

on-going business cutting trees and selling firewood.

See

Resp. Br. at 6-7. On that basis, the

Board accepts the offer of proof and enters the exhibits (Resp. Exhs. 10-31) into the record.

FACTS

On April 20, 2006, Mier, an Environmental Protection Specialist with the Agency,

inspected a site located at the conjunction of Route 66 and Old Route 66, south of Mount Olive,

in Macoupin County, known to the Agency as “Mount Olive/Gruen,” designated with Site Code

No. 1178135010. Ag. Exh. 1, Checklist at 1; Tr. at 10-11. At the time, the site was owned by

respondent Michael Gruen, but was operated by respondent Jon Gruen. The site contained Jon

Gruen’s office and storage space for his business, “Jon’s Tree Service.” Ag. Exh. 1, Photos 006,

009, 013; Tr. at 11, 41, 65-66. Specifically, situated on the property were a former motel

building and a mobile home, which were used in the business for office space and storing

equipment. Tr. at 12, 27-28, 65-66; Ag. Exh. 1, Photos 006, 009, 013.

The April 20, 2006 inspection was the final Agency inspection of the site in a series that

began in December 2004. Ag. Exh. 1, Checklist at 1, Narrative at 1; Tr. at 21. The “original

deadline date for the Administrative Citation Warning Notice was March 31, 2005.” Ag. Exh. 1,

Narrative at 1. Four “extensions” were given by the Agency: first until May 31, 2005; second

until July 29, 2005; third until December 31, 2005; and finally until March 15, 2006.

Id

. Neither

the Administrative Citation Warning Notice nor the extensions were included in the record, and

no testimony was provided as to the scope of any directed cleanup. The administrative citation

does provide, however, that “Mr. Gruen submitted receipts for firewood he has sold and metal

and vehicles he has scrapped.”

Id

.

During the April 2006 inspection, Mier observed stacked, cut logs lined along a fence for

approximately 250 feet on the west side of the property, as well as stacked, cut logs lined along

each side of the site’s driveway. Tr. at 13; Ag. Exh. 1, Narrative at 1, Photos 001-003. Portions

of the logs collected on the site had begun to deteriorate and crumble and saplings were growing

through some of the woodpiles. Tr. at 13-16, 30; Ag. Exh. 1, Narrative at 1, Photos 003, 004,

009, 010. Mier originally estimated that approximately 200 cubic yards of “waste material” was

present, but testified that she “vastly underestimated” the amount, revising her estimate to

approximately 750 cubic feet of logs in one area of the site. Tr. at 17; Ag. Exh. 1, Checklist at 1.

Jon’s Tree Service has been in business since 1996. Tr. at 41. In the business,

respondent Jon Gruen “tops” and removes trees, grinds tree stumps, and sells the resulting

firewood after processing. Tr. at 41, 44-46; Ag. Exh. 1, Photos 001-005; Resp. Exhs. 1-13, 29-

31. “We also deliver chips, mulch, and we also scrap some metal on the side.” Tr. at 41

(testimony of Jon Gruen). The estimate of the business’ average gross annual income is $75,000,

some 20% to 25% of which comes from the sale of firewood. Tr. at 41-42, 46.

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Brush from a cut tree is typically chipped at the site where the tree was cut down, though

brush was once brought to the Gruen site for later chipping because the chipper equipment was

not working. Tr. at 42, 67-68; Ag. Exh. 1, Narrative at 1, Photo 005. Hardwood collected from

the tree service work is brought to the Gruen site where it is cut, stacked, seasoned, and split to

sell as firewood. Tr. at 42-43, 46, 51, 53. Seasoning or drying out of the wood takes

approximately nine months to a year. Tr. at 43. Soft woods from the cut trees, and any woods

brought to the site that end up deteriorated so as not to be saleable as firewood, are given to area

farmers to burn in their outdoor stoves. Tr. at 42-43. Some of the wood had been on the site for

at least approximately 17 months, based on the first and last Agency inspections, and Jon Gruen

admitted that some of the wood may have been there for two years. Tr. at 21, 43.

A number of other items were located outside on the property. Approximately 8 to 12

vehicles were on-site, at least five of which required repairs to be operational. Ag. Exh. 1,

Narrative at 1, Photos 005, 008, 011, 013; Tr. at 57-61. One vehicle required brakes; another

needed a master cylinder; another required freeze plugs; another needed a valve tightened; and

another required a new rear end. Tr. at 57-61. Three of the inoperable vehicles were used in the

business. Tr. at 57-59, 61. Some of the inoperable vehicles were surrounded by high vegetation.

Ag. Exh. 1, Photos 011-013; Tr. at 15-16, 24.

Also present in uncovered truck beds and a recreational boat were piles of unsorted

debris, including wire, metal, plastic, mowers, and vehicle parts. Some of these materials had

been there since December 2004. Tr. at 16, 26-28, 64-65, 69-70; Ag. Exh. 1, Narrative at 1,

Photos 011-013. The piles included scrap metal that Jon Gruen intends to sell. Tr. at 41, 64-65.

Jon Gruen has sold scrap metal for approximately $100 per truckload to Mullins Salvage, which

is located a few miles from the site. Tr. at 65.

The site also had a large rusted metal tank present for one to two years, a rusted grill with

weeds growing through it, and used plastic containers on the ground. Tr. at 15-16, 39; Ag. Exh.

1, Narrative at 1, Photos 006-008. Five drums or barrels are located along the eastern fence.

One drum was smoldering and filled with ash. Ag. Exh. 1, Narrative at 1, Photos 006-007; Tr. at

14. Jon Gruen uses the barrels to burn scraps of wood left over from splitting firewood. Tr. at

56-57.

PARTIES’ ARGUMENTS

Agency’s Arguments

The Agency argues that respondents caused or allowed the “open dumping of waste” at

the site based on the presence of:

materials including cut logs, deteriorated lumber, wood chips, plastic, a rusted

metal tank, vehicles, a truck bed full of wood, metal and other materials, and a

boat full of plastic, metal scraps, wood, and a used tire. Ag. Br. at 1-2.

The Agency inspector found that the timber, vehicles, scrap metal, “plastic strewn on the

ground,” tarp, and items in the back of the truck were of an “unsightly or unsanitary nature.”

Id

.

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at 2, citing Tr. at 34, 39. According to the Agency, the “wood, plastic, rusted metal tank,

vehicles, truck bed and boat full of wood, metal, plastic, tire and other materials” constitute

“litter” under Section 21(p)(1) of the Act. Ag. Br. at 2.

Inspector Mier estimated that “three-quarters of the waste on site was landscape waste.”

Ag. Br. at 2. The Agency does not dispute that Jon Gruen intends to use most of the wood he

brings back to the site or that he has “used some.”

Id

. However, the Agency relies upon its

inspector’s testimony:

[I]t’s reached a point, though, that there’s so much wood on site that it’s starting

to disintegrate at the bottom of the piles and it would take a long time to get rid of

the amount of wood that’s there [and some of the wood is] damp, it’s ridden with

bugs, that type of thing.

Id

. at 4-5, quoting Tr. at 19-21.

* * *

[H]e’s not using [the wood]. He’s let the wood sit for a number of years. Ag. Br.

at 5, quoting Tr. at 29.

The Agency argues that a “plan for use of material at some future date is not dispositive

in determining whether a material is waste or litter” and that “a person can cause or allow a

violation of the Act without knowledge or intent.” Ag. Br. at 5. Though the Agency agrees with

respondents’ counsel that “there is no statutory ‘time limit’ on a material turning into a waste

from neglectful non-use,” the Agency argues that “when a person ceases to take care of his

materials and allows them to degrade into the environment, then his time has passed.”

Id

.

Though Jon Gruen holds title or registration papers for the vehicles on the property

(Resp. Exhs. 32-35) and he testified that none of the vehicles have been “deserted” (Tr. at 57-

61), the Agency points out that one vehicle needed “brakes put on it” (Tr. at 57), another needed

“a master cylinder” (Tr. at 58), one needed “freeze plugs put in it” (Tr. at 59), and another

needed “a new rear end” (Tr. at 61). Ag. Br. at 4. Despite Jon Gruen’s “intent to make the

repairs” needed (Tr. at 59), the Agency continues, “[c]learly, none of these vehicles are currently

roadworthy, and apparently haven’t been for at least the last year, since the April 20, 2006

inspection.”

Id

.

The Agency asserts that by Jon Gruen’s own testimony, the truck beds and boat include

material that is “unusable.” Ag. Br. at 5. Jon Gruen testified that the materials require sorting:

“the scrap metal from

the stuff that’s not useable

.”

Id

., quoting Tr. at 65 (emphasis added by

Agency). Jon Gruen elaborated:

[A]ll the material that’s thrown into the truck bed is not necessarily scrap metal.

It’s just put there until my son can later go through it and decide

what’s valuable

and what’s not

. Ag. Br. at 5, quoting Tr. at 70 (emphasis added by Agency).

The Agency insists that, “[a]t a minimum, this ‘unusable’ material is waste, and supports this

Administrative Citation.” Ag. Br. at 5. The Agency also emphasizes that Jon Gruen intends to

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convert the large metal tank into a wood-burning stove (Tr. at 64), but this has not occurred, even

though the tank was on the property for “a year or two” (Tr. at 67). Ag. Br. at 4.

Finally, the Agency argues that Michael Gruen is “equally responsible for the violation of

Section 21(p)(1) of the Act as is Jon Gruen.” Ag. Br. at 6. The Agency states that the Board has

long held that:

present inaction [on] the part of a current landowner to remedy past illegal

disposal of waste previously placed on the site constitutes “allowing” open

dumping, in that the owner allows the illegal situation to continue.

Id

. at 5-6.

Respondents’ Arguments

Respondents argue that the Agency’s case is “flawed” because Jon Gruen “uses the items

which are the subject of the Complaint in his business, they are not abandoned and they do not

constitute ‘litter.’” Resp. Br. at 2. The materials have value and have not been disposed of

improperly.

Id

. The Agency concedes that there is “no time limit on removal stated in any

statute, regulation, or policy of the EPA.”

Id

. at 5, citing Tr. at 35. “[T]he import of the state’s

position,” according to respondents, “would be to effectively put Mr. [Jon] Gruen out of

business.” Resp. Br. at 9.

Respondents state that Jon Gruen’s business, Jon’s Tree Service, is removing trees;

grinding stumps; and selling firewood. Resp. Br. at 5, citing Tr. at 41. In addition, Jon Gruen

testified that he delivered wood chips, mulch, and also some scrap metal “on the side.”

Id

. Jon

Gruen’s average yearly gross income from the business is about $75,000, approximately 20% to

25% of which comes from selling cut firewood. Resp. Br. at 5-6, 9, citing Tr. at 46.

After a tree is chopped down, Jon Gruen would typically “chip up all the brush on site.”

Resp. Br. at 5, citing Tr. at 42. Hardwood is cut and stacked at the Gruen property for seasoning.

Resp. Br. at 5-6, citing Tr. at 42. Seasoning takes about nine months to a year. Resp. Br. at 6,

citing Tr. at 42. Jon Gruen sells the hardwood as firewood and “the non-reusable soft woods

would be given away to farmers in the area who would burn it in their outside wood-burning

stoves.” Resp. Br. at 5-6, citing Tr. at 42. According to respondents, the Agency concedes that

there is no alleged “violation relating to the drums.” Resp. Br. at 3, citing Tr. at 22. Further,

respondents assert that Inspector Mier “did not dispute [Jon] Gruen’s characterization that the

drums were used in his business, they were not discarded, and they were not abandoned.” Resp.

Br. at 3, citing Tr. at 22-23.

Respondents argue that the vehicles at issue do not come within the definition of “litter”

because they have not been “abandoned.” Resp. Br. at 2. The Illinois Vehicle Code (625 ILCS

5/1-101.05 (2006)) defines an “abandoned vehicle” as:

any vehicle in a state of disrepair rendering the vehicle incapable of being driven

in its condition or any vehicle that has not been moved or used for seven

consecutive days or more and is apparently deserted. Resp. Br. at 2 (emphasis

added by respondents).

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In this case, respondents maintain, the vehicles have been “in the custody and control of Jon

Gruen, and they have not been deserted.”

Id

. at 2-3. The Agency inspector “did not know

whether the vehicles were deserted.”

Id

. at 5. Nor does the Agency contest that Jon Gruen

“intended to have certain of the vehicles repaired.”

Id

. at 4.

Respondents identified 12 vehicles and a boat on the property:

1.

A 1987 Chevrolet Caprice, “which still ran, but it needed brakes.” Resp. Br. at 7,

citing Tr. at 57.

2.

A 1985 Chevrolet one-ton dump truck “used in the business which needed a

master cylinder, but this was not a complicated repair.”

Id

.

3.

A 1987 GMC Jimmy four 4-wheel drive truck not owned by Jon Gruen “but

[which] was used by one of his workers in the business.” Resp. Br. at 7, citing Tr.

at 58.

4.

A 1985 Dodge van “used to pull trailers full of logs which needed freeze plugs

put in it” and Jon Gruen “intended to make the repairs.” Resp. Br. at 7, citing Tr.

at 58-59.

5.

A 1994 Chevrolet one-ton dump truck “used to hold chips in the bed and to pull

trailers of logs.” Resp. Br. at 7, citing Tr. at 59.

6.

A 1974 Chevrolet dump truck “that was used in the business.” Resp. Br. at 7,

citing Tr. at 60.

7.

A 1986 Dodge pickup truck “used in the business to pull trailers and to store tools

to keep them out of the weather.” Resp. Br. at 8, citing Tr. at 60.

8.

A 1991 Chevrolet pickup “used to pull trailers.”

Id

.

9.

A 1984 Ford one-ton dump truck “used in the tree business for accumulating

chips.”

Id

.

10.

A 1975 Chevrolet flatbed pickup “used in the business.”

Id

.

11.

A 1981 Chevrolet Camaro not used in the business, “but it was a collectors

item and he intended to fix it.”

Id

.

12.

A 1986 Ford pickup “which needed a new rear end and Respondent intended to

repair it.” Resp. Br. at 8, citing Tr. at 61

13.

A recreational boat. Resp. Br. at 8, citing Tr. at 69.

Respondents summarize that “other than the Camaro, Caprice, and boat, Respondent used all of

the vehicles in his business.” Resp. Br. at 8, citing Tr. at 61.

According to respondents, the metal tank and scrap material “have a business use, are

valuable, and have not been improperly disposed of.” Resp. Br. at 3. Jon Gruen intends to

convert the metal tank into a wood-burning stove and use it in his business.

Id

. at 4, 8, citing Tr.

at 64. Respondents acknowledge that the administrative citation also had “some pictures of

some truck beds that contained wire, metal, plastic, mowers and vehicle parts.” Resp. Br. at 8.

Gruen testified that he “ran across scrap material and that he would accumulate it and sell it.”

Id

., citing Tr. at 64. Respondents assert that the “miscellaneous material accumulated as scrap”

therefore had a business use and was not abandoned: “there is no reliable evidence to refute

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9

Gruen’s testimony that he intends to accumulate it, sort it, and sell it.” Resp. Br. at 8, 11, citing

Tr. at 65.

DISCUSSION

Alleged Violation

The Agency’s administrative citation alleges that respondents violated Section 21(p)(1)

of the Act (415 ILCS 5/21(p)(1) (2006)). Section 21(p)(1) of the Act provides:

No person shall: In violation of subdivision (a) of this Section, cause or allow the

open dumping of any waste in a manner which results in any of the following

occurrences at the dump site:

1.

litter. 415 ILCS 5/21(p)(1) (2006).

Section 21(a) of the Act, which is referred to in Section 21(p), provides:

No person shall:

Cause or allow the open dumping of any waste. 415 ILCS 5/21(a) (2006).

“Open dumping” is defined as “the consolidation of refuse from one or more sources at a

disposal site that does not fulfill the requirements of a sanitary landfill.” 415 ILCS 5/3.305

(2006). “Refuse” means “waste.” 415 ILCS 5/3.385 (2006). The Act defines “waste” as:

[A]ny 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 . . . . 415

ILCS 5/3.535 (2006).

The Board has adopted the definition of “litter” provided in the Litter Control Act for

purposes of Section 21 of the Act.

See

St. Clair County v. Mund

, AC 90-64, slip op. at 4, 6

(Aug. 22, 1991). The Litter Control Act defines “litter” as:

[A]ny discarded, used or unconsumed substance or waste [and] may include, but

is not limited to, any garbage, trash, refuse, debris, rubbish, grass clippings, or

other lawn or garden waste, newspaper, magazines, glass, metal, plastic or paper

containers or other packaging construction material, abandoned vehicle (as

defined in the Illinois Vehicle Code

5

), motor vehicle parts, furniture, oil, carcass

5

The Illinois Vehicle Code defines “abandoned vehicle” as “any vehicle in a state of disrepair

rendering the vehicle incapable of being driven in its condition or any vehicle that has not been

moved or used for 7 consecutive days or more and is apparently deserted.” 625 ILCS 5/1-101.05

(2006).

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10

of a dead animal, any nauseous or offensive matter of any kind, any object likely

to injure any person or create a traffic hazard, potentially infectious medical waste

as defined in Section 3.360 of the Environmental Protection Act, or anything else

of an unsightly or unsanitary nature, which has been discarded, abandoned or

otherwise disposed of improperly. 415 ILCS 105/3(a) (2006).

Wood

The Board finds that the Agency has not met its burden of proving that the wood on the

site constitutes the open dumping of waste resulting in litter. The inspection on which the

administrative citation is based took place in April 2006. The initial site inspection occurred in

December 2004. The logs brought to the site came from Jon’s Tree Service for processing and

sale as firewood. The logs were cut and stacked for seasoning. The seasoning process takes

approximately nine months to a year. Accordingly, that some of the wood had been on-site for

roughly 17 months, or even up to two years, is not dispositive to a finding of violation.

Respondents presented numerous receipts documenting the sale of firewood. The

business makes 20% to 25% of its $75,000 average gross annual income from such sales. Logs

that have degraded on-site are given away by respondent Jon Gruen to area farmers for use in

their wood-burning outdoor stoves. The Agency does not allege here that the presence of the

burn barrels for scrap wood violates the Act (Tr. at 22) and respondents are not charged with the

open dumping of waste resulting in open burning (

see

415 ILCS 5/21(p)(3) (2006)).

Based on the particular facts of this case, the Board finds the wood on-site as of the April

20, 2006 inspection had not been “discarded” within the meaning of the term “waste” and

therefore does not violate Section 21(p)(1) of the Act.

Cf

. IEPA v. Northern Illinois Service Co.,

AC 05-40, slip op. at 9-10 (Sept. 21, 2006) (Section 21(p)(1) violation found where

excavation/demolition business had 9,700 cubic yards of “discarded” landscape debris on-site,

some of which had been present for more than ten years, and the company provided no evidence

that it had ever processed or planned to process the trees to create mulch),

appeal docketed sub

nom.

Northern Illinois Service Co. v. IEPA and PCB

, No. 2-07-0213 (2nd Dist. Feb. 28, 2007).

Other Items

The Board does find, however, that the presence of numerous items located outdoors at

the property and plainly visible from the site fence constitute the open dumping of waste

resulting in litter: inoperable vehicles exhibiting signs of not having been moved for a

substantial period of time; a rusted, out-of-use tank and grill; used plastic containers strewn on

the ground; and debris piled in truck beds and a boat. With the exception of the plastic

containers, respondents argue that these items were not “waste” because they were going to be

used and therefore had not been “discarded.” Resp. Br. at 2-3. However, respondents’ claims of

intended future uses are not determinative of whether the materials are waste or litter.

See

County of Sangamon v. Daily, AC 01-16, 01-17 (consol.), slip op. at 10, 12-13 (Jan. 10, 2002)

(despite expressed “intention to use every single discarded item . . . numerous items were not in

use, were not useable in their current condition, and were not stored in such a way as to protect

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11

any future use”),

aff'd. sub nom

. Daily v. County of Sangamon and PCB, No. 4-02-0139 (4th

Dist. Sept. 18, 2003) (unpublished order under Illinois Supreme Court Rule 23).

Respondents do not contest that several of the vehicles on the site were inoperable. Nor

do respondents claim that the vehicles had been out of operation for only a short time as of the

inspection date. Instead, respondents assert that some of the vehicles were used in the business,

the necessary repairs are relatively minor, Jon Gruen intends to repair certain of the vehicles, and

the vehicles had not been “deserted.” The repairs needed included adding brakes to a vehicle

and providing a new back end for a pickup truck. At the time of the site inspection, some of the

vehicles had been inoperable for a sufficient amount of time to allow vegetation to grow up

around them. As of the hearing, the vehicles were still inoperable, and a photo showed weeds

growing through a truck bed. Tr. at 57-61; Resp. Exh. 43. Respondents gave no indication of

when the vehicles would be repaired and put back into use.

Jon Gruen intends to convert the rusted tank into a stove. He admits, however, that the

tank had been on-site for one or two years. The tank was outside and not covered, and no

timeframe for its conversion was offered. Next to the tank was a rusted grill through which

weeds had grown. Used plastic containers were scattered on the ground near these items.

Also present were considerable amounts of plastic and metal debris, which had been

collected off-site, brought to the property, and piled into truck beds and a boat, and left

uncovered. A used tire was also present. At least some of this material had been on-site since

December 2004. Even though Jon Gruen plans to eventually sell the scrap metal at some

unstated future time, the metal materials were not sorted for recycling and Jon Gruen concedes

that the piles included unusable items. These admittedly unusable items are not valuable, have

not been properly disposed of, and will not be “returned to the economic mainstream in the form

of raw materials or products.” Alternate Fuels, Inc. v. Dir. of IEPA, 215 Ill. 2d 219, 240, 830

N.E.2d 444, 456 (2005) (quoting 415 ILCS 5/3.380).

As set forth above, “open dumping” means “the consolidation of refuse from one or more

sources at a disposal site that does not fulfill the requirements of a sanitary landfill.” “Refuse”

means “waste.” “Waste” includes “discarded material.” “Litter,” which is not limited to the

Illinois Vehicle Code’s definition of “abandoned vehicle,” may be “any discarded, used or

unconsumed substance or waste,” including, but not limited to, “any garbage, trash, refuse,

debris, rubbish . . . or anything else of an unsightly or unsanitary nature, which has been

discarded, abandoned or otherwise disposed of improperly.”

See supra

at 9, 10. In Miller

, the

court stated:

A person of common intelligence can understand the term “litter.” *** Given its

ordinary meaning, “litter” refers to material of little or no value which has not

been properly disposed of. The examples of litter set forth in the Litter Control

Act [citation omitted] provide additional guidance. Miller

, 267 Ill. App. 3d at

168-69, 642 N.E.2d at 483.

Simply asserting an intended use for an item at some unspecified date in the future

cannot insulate the item from ever becoming “discarded” or “disposed of,” without regard to

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12

how unsightly it is, the manner in which it is kept, and the considerable length of time it has

remained deposited.

See

Daily, AC 01-16, 01-17, slip op. at 11 (“statements regarding

[respondent’s] intentions to utilize, dispose of, or sell these various materials at some

undetermined date in the future are not dispositive of the question of whether the items constitute

a waste or litter”). Moreover, the Illinois Supreme Court has established that one may “cause or

allow” a violation of the Act without knowledge or intent.

See

People v. Fiorini, 143 Ill. 2d 318,

336, 574 N.E.2d 612, 621 (1991) (“knowledge or intent is not an element to be proved for a

violation of the Act. This interpretation of the Act . . . is the established rule in Illinois.”);

see

also

Freeman Coal Mining v. PCB

, 21 Ill. App. 3d 157, 163, 313 N.E.2d 616, 621 (5th Dist.

1974) (the Act is

malum prohibitum

and no proof of guilty knowledge or

mens rea

is necessary

to find liability).

On this record, the Board cannot find that every one of these items at the property had

value, was being handled consistent with legitimate re-use, or was being promptly removed for

proper off-site disposal or recycling.

See

IEPA v. Carrico

, AC 04-27, slip op. at 7 (Sept. 2,

2004). Further, it is undisputed that the property does not meet the requirements for a sanitary

landfill. The Board therefore finds that respondent Jon Gruen, the site operator, has caused the

open dumping of waste in a manner resulting in litter.

Owner Liability

Respondent Michael Gruen did not testify at hearing. Respondents do not assert that

Michael Gruen exercised no control over the site, that he undertook extensive precautions to

prevent the open dumping, or that he does not own the site.

See

People v. A.J. Davinroy

Contractors, 249 Ill. App. 3d 788, 793, 618 N.E.2d 1282, 1286 (5th Dist. 1993); Perkinson v.

PCB, 187 Ill. App. 3d 689, 695, 543 N.E.2d 901, 904 (3rd Dist. 1989).

It is undisputed that Michael Gruen is the owner of the property at which Jon Gruen

operates. The Board has long held that a landowner who has not acted to remedy a violation has

“allowed” litter in violation of the Act.

See

,

e.g.

, IEPA v. Rawe, AC 92-5, slip op. at 6 (Oct. 16,

1992). In these situations, “passive conduct amounts to acquiescence sufficient to find a

violation of the Act.” IEPA v. M.K. O’Hara

, AC 94-96, 94-97 (consol.), slip op. at 6 (Apr. 6,

1995). “Present inaction on the part of the landowner to remedy the disposal of waste that was

previously placed on the site, constitutes ‘allowing’ litter in that the owner allows the illegal

situation to continue.”

Id

. The Board finds that respondent Michael Gruen, the site owner,

allowed the open dumping of waste in a manner resulting in litter.

Violation, Civil Penalty, and Hearing Costs

Having found that respondents caused or allowed the open dumping of waste resulting in

litter, the Board finds that respondents violated Section 21(p)(1) of the Act. Neither respondent

alleges that “the violation resulted from uncontrollable circumstances.” 415 ILCS 5/31.1(d)(2)

(2006). The Agency seeks the statutory $1,500 civil penalty for the violation. The Agency also

requests that respondents pay its hearing costs.

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Because respondents violated Section 21(p)(1), the Board now discusses the issues of

civil penalty and hearing costs. Both are addressed in Section 42(b)(4-5) of the Act:

In an administrative citation action under Section 31.1 of this Act, any person

found to have violated any provision of subsection (p) of Section 21 of this Act

shall pay a civil penalty of $1,500 for each violation of each such provision, plus

any hearing costs incurred by the Board and the Agency, except that the civil

penalty amount shall be $3,000 for each violation of any provision of subsection

(p) of Section 21 that is the person’s second or subsequent adjudicated violation

of that provision. 415 ILCS 5/42(b)(4-5) (2006).

There is no indication in the record that this is a second or subsequent adjudicated

violation for respondents. Therefore, the civil penalty for respondents’ first violation of Section

21(p)(1) is statutorily set at $1,500.

See

415 ILCS 5/42(b)(4-5) (2006); 35 Ill. Adm. Code

108.500(b)(2). The Board will assess the $1,500 penalty in its final opinion and order.

In addition, by unsuccessfully contesting the administrative citation at hearing,

respondents must pay the hearing costs of the Agency and the Board.

See

415 ILCS 5/42(b)(4-5)

(2006); 35 Ill. Adm. Code 108.500(b)(3). However, no information on those costs is in the

record. The Agency and the Clerk of the Board are therefore each ordered to file a statement of

costs, supported by affidavit, and to serve the filing on respondents. Respondents will have an

opportunity to respond to the requests for hearing costs, as provided in the order below.

CONCLUSION

The Board finds that respondents violated Section 21(p)(1) of the Act by causing or

allowing the open dumping of waste resulting in litter. Having found the violation in this

administrative citation action, respondents must pay a civil penalty of $1,500 and the hearing

costs of the Agency and the Board. As set forth in the order below, the Board directs the Agency

and the Clerk of the Board to file hearing cost documentation, to which respondents may

respond. After the time periods for the filings on hearing costs have expired, the Board will

issue a final opinion and order imposing the civil penalty on respondents and assessing against

them any appropriate hearing costs.

This interim opinion constitutes the Board’s interim findings of fact and conclusions of

law.

ORDER

1.

Respondents violated Section 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2006)).

2.

By February 22, 2008, the Agency must file a statement of its hearing costs,

supported by affidavit. By February 22, 2008, the Clerk of the Board must file a

statement of the Board’s hearing costs, supported by affidavit.

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3.

Within 21 days after service of the filings required by paragraph 2 of this order,

respondents may file a response challenging the claimed costs.

4.

Within 14 days after service of any response permitted under paragraph 3 of this

order, the Agency may file a reply to the response.

IT IS SO ORDERED.

I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the

Board adopted the above opinion and order on January 24, 2008, by a vote of 4-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board