BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
)
)
)
)
AC 09-56
v.
)
)
)
(IEPA No. 136-09-AC)
GARY J. SZCZEBLEWSKI and
JAMES R. SZCZEBLEWSKI,
)
)
Respondents.
)
)
NOTICE OF FILING
To: Gary J. Szczeblewski, Esq.
111 East Franklin Avenue
Sesser, IL 62884
PLEASE TAKE NOTICE that on this date I electronically filed with the Clerk of the
Pollution Control Board of the State of Illinois the following instrument(s) entitled POST-
HEARING BRIEF OF COMPLAINANT.
Respectfully Submitted,
_________________________________
Michelle M. Ryan
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
Dated: December 8, 2009
Electronic Filing - Received, Clerk's Office, December 8, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
)
)
)
)
AC 09-56
v.
)
)
)
(IEPA No. 136-09-AC)
GARY J. SZCZEBLEWSKI and
JAMES R. SZCZEBLEWSKI,
)
)
Respondents.
)
)
POST-HEARING BRIEF OF COMPLAINANT
On June 25, 2009, the Illinois Environmental Protection Agency (“Illinois EPA”) issued
an administrative citation to Gary J. and James R. Szczeblewski (“Respondents”). The citation
alleges violations of Section 21(p)(1) and (7) of the Environmental Protection Act (“Act”) (415
ILCS 5/21(p)(1) & (7) (2008)), in that Respondents caused or allowed open dumping of waste
resulting in litter and the deposition of clean or general construction or demolition debris. The
violations occurred at a property located at 402 East Yung Road, outside Sesser, Franklin
County. Transcript, pp. 7, 60; Exhibit 1.
Illinois EPA has demonstrated that Respondents caused or allowed open dumping on the
site. “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.” 415 ILCS 5/3.305 (2008).
“Refuse” means “waste,” (415 ILCS 5/3.385 (2008)), and “waste” includes “any garbage . . . or
other discarded material” (415 ILCS 5/3.535 (2008)). Respondents have had a farm partnership
with respect to the property for approximately twenty years. Tr. at 61. The June 11, 2009
inspection report admitted into evidence as Exhibit 1 and the testimony at hearing show that
Electronic Filing - Received, Clerk's Office, December 8, 2009
materials including a tire, cement block or cinder block, roofing material, dimensional lumber, a
child’s bed, a child’s plastic slide, a cigarette sorter from a store, deteriorated steel drums, plastic
tarp, a toilet, a couch, drywall and other miscellaneous items were present at the site. Tr. at 9-11,
19; Exh. 1, pp. 3-10. These materials were overgrown with vegetation (Tr. at 9-10; Exh. 1, pp. 3-
10), indicating that they had been present in their current location for a significant period of time.
In fact, Respondents’ testimony indicated some of the waste was present when they bought the
property, and such dumping has “probably” been continuing for “more than fifty years.” Tr. at
61-63. Therefore, Respondents caused or allowed the open dumping of waste observed on June
11, 2009.
Respondents’ causing or allowing the open dumping of these wastes resulted in “litter”
under Section 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2008)). The Act does not define “litter,”
but in similar cases, the Board has looked to the definition of “litter” in the Litter Control Act:
“Litter” means any discarded, used or unconsumed substance or waste. “Litter” may
include, but is 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.
415 ILCS 105/3(a) (2006); see
St. Clair County v. Louis I. Mund
PCB AC 90-64, (Aug. 22, 1991)
pp. 4, 6. According to the definition and supporting case law, the tire, cement block or cinder block,
roofing material, dimensional lumber, a child’s bed, a child’s plastic slide, a cigarette sorter from a
store, deteriorated steel drums, plastic tarp, a toilet, a couch, drywall and other miscellaneous items
constitute “litter” under Section 21(p)(1) of the Act, and therefore Respondents violated that section.
Respondents’ causing or allowing the open dumping of these wastes also resulted in the
deposition of construction or demolition debris in violation of Section 21(p)(7) of the Act (415
ILCS 5/21(p)(7) (2008)). “Construction or demolition debris” is defined in part, as follows:
Electronic Filing - Received, Clerk's Office, December 8, 2009
“General construction or demolition debris” means non-hazardous,
uncontaminated materials resulting from the construction, remodeling, repair, and
demolition of utilities, structures, and roads, limited to the following: bricks,
concrete, and other masonry materials; soil; rock; wood, including non-hazardous
painted, treated, and coated wood and wood products; wall coverings; plaster;
drywall; plumbing fixtures; non-asbestos insulation; roofing shingles and other
roof coverings; reclaimed asphalt pavement; glass; plastics that are not sealed in a
manner that conceals waste; electrical wiring and components containing no
hazardous substances; and piping or metals incidental to any of those materials.
415 ILCS 5/3.160(a) (2008).
The cement block or cinder block, roofing material, and drywall at the site are included within the
above definition of general construction or demolition debris. In addition, “[d]imensional lumber
qualifies as construction or demolition debris under the Act.”
Illinois EPA v. Yocum, et al.
, PCB
Nos. AC 01-29 and AC 01-30 (Consolidated), June 6, 2002, p. 7;
aff’d
,
Yocum, et al. v. Illinois
Pollution Control Board
, (4-02-0709), June 20, 2003 (unpub.). The cement or cinder block, roofing
material, drywall, and dimensional lumber dumped at the site all meet the definition of “construction
or demolition debris” for purposes of Section 21(p)(7) of the Act, and therefore Respondents violated
that section.
Respondents admitted that at least some of the waste observed at the site was present
since before they owned the property, and may have been there for more than fifty years. Tr. at
61-63. This Board has long held that present inaction of 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.
Illinois EPA v. William
Shrum
, AC 05-18 (March 16, 2006), p. 8 (citations omitted);
Sangamon County v. Lee Hsueh
,
AC 92-79 (July 1, 1993), pp. 4-5.
Respondents also failed to prevent additional open dumping that they were aware was
happening at the site. Access to the site was not restricted in any way, and the gate was wide open at
Electronic Filing - Received, Clerk's Office, December 8, 2009
the time of the June 11, 2009 inspection. Tr. at 40-41. Respondents allegedly made attempts to lock
the gates at some point in the past, but someone cut off the locks. Tr. at 60. However, it is clear
from the further testimony on this issue that the reason for these gates was not to prevent open
dumping but theft, because “they was stealing everything, grain, electric motors, everything.” In
fact, Respondent “had to end up moving the grain bin.” Tr. at 61. Obviously, the need for the
locked gates became less important to them when there was nothing on the property left to steal, and
Respondents had abandoned any attempt to secure the site by the time of the June 2009 inspection. It
is difficult to imagine someone so interested in fly dumping on a certain piece of property that they
would cut a lock to access a private field road, rather than leaving their waste along the public rural
roadway. Therefore, it does not appear that Respondents took reasonable steps to secure the site
against additional open dumping.
A person can cause or allow a violation of the Act without knowledge or intent.
County of
Will v. Utilities Unlimited, Inc.,
et al. PCB AC 97-41, (July 24, 1997) p. 5, citing
People v.
Fiorini
, 143 Ill.2d 318, 574 N.E.2d 612 (1991). However, Respondents were well aware that the
dumping on their property was in violation of the Act, because Illinois EPA issued an
Administrative Citation Warning Notice (“ACWN”) on April 16, 2009, almost two months
before the inspection that resulted in this Administrative Citation. Exh. 2. Contrary to
Respondent’s assertion that “we were given no notice of it, we were not asked to solve this
problem…They didn’t give us an opportunity to do anything,” (Tr. at 23), the ACWN did exactly
that. Testimony showed that the purpose behind the ACWN was to give Respondents a chance
to clean up their property. Tr. at 43. However, by the time of the June 11, 2009 inspection, “it
was perfectly clear that [Respondents] weren’t going to clean it up within the timeframe” given
in the ACWN. Tr. at 47. The ACWN itself warned that further action such as this
Electronic Filing - Received, Clerk's Office, December 8, 2009
Administrative Citation could be taken without additional notice. Exh. 2. Respondents did
respond in writing to the ACWN, but they gave no indication that they had any intention of
cleaning up the site. Exh. 3, Tr. at 43.
There was some indication in the testimony that Respondents were confused about the
exact deadline for remediation of the site. The written evidence provided in Exhibits 2 and 4
indicate that May 31, 2009 was the Illinois EPA’s original deadline. Exhibit 4 further indicated:
“You may request,
in writing
, an extension of the deadline. If you request an extension, provide
a clean up plan including dates and proper disposal methods for the documented waste along
with a method to prevent future open dumping and open burning at the site.” Exh. 4,
emphasis
added.
Rather than following these written instructions, Respondents relied upon the notes of
the law office manager/secretary of her telephone conversation with Tom Edmonson of Illinois
EPA that an extension was granted through July 31. Tr. at 56. As Gary Szczeblewski is a
lawyer, this behavior is completely unreasonable. Furthermore, although the secretary’s
testimony showed that Mr. Edmondson mentioned a 30-day extension during the May 28, 2009
phone call, (Tr. at 54) her notes inexplicably stated July 31 was the new deadline (Tr. at 56),
which is 63 days from the date of the phone call. Illinois EPA’s witness indicated that a 30-day
extension was granted, subject to further written request, as required by the letter. Tr. at 50. No
written extension request was ever received from Respondents (Tr. at50), and no clean up was
performed, even by the July 31, 2009 date. Tr. at 57. Respondents have never evidenced any
intention of cleaning up their site, and in fact they have never cleaned up any open dumped waste
since they acquired the property. Tr. at 62. They cannot now claim surprise at the issuance of an
Adminstrative Citation, which they were warned against in April 2009, and did nothing to
prevent.
Electronic Filing - Received, Clerk's Office, December 8, 2009
Respondents mention several other apparent defenses, which can be disposed of quickly.
Respondents claim that the property is under the control of the Abandoned Mines Program.
See
Petition for Review. However, the inspection report that is the subject of this Administrative
Citation does not address the mine waste (Tr. at 49), and Exhibit 4 makes clear that the waste at issue
in this Administrative Citation is not going to be addressed by that program. Respondents claim that
“small town politics” are involved in this case. Tr. at 49, 53. Illinois EPA’s inspector found this
laughable (Tr. at 53), because Illinois EPA reports are based upon the inspections of the property,
and nothing else. Tr. at 33. Respondent also claimed in opening statements that the waste may be on
the railroad right-of-way (Tr. at 5), but Illinois EPA testified that this was clearly not the case. Tr. at
13.
The Illinois EPA photographs, inspection report and the testimony show that Respondents
caused or allowed open dumping of waste in a manner resulting in litter and the deposition of clean
or general construction or demolition debris in violation of Sections 21(p)(1) and (7) of the Act.
Illinois EPA requests that the Board enter a final order finding that Respondents violated these
sections and imposing the statutory penalty.
Electronic Filing - Received, Clerk's Office, December 8, 2009
Respectfully Submitted,
DATED: December 8, 2009
_________________________________
Michelle M. Ryan
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
Electronic Filing - Received, Clerk's Office, December 8, 2009
PROOF OF SERVICE
I hereby certify that I did on the 8
th
day of December, 2009, send by U.S. Mail with postage
thereon fully prepaid, by depositing in a United States Post Office Box a true and correct copy of the
following instrument(s) entitled POST-HEARING BRIEF OF COMPLAINANT
To: Gary J. Szczeblewski, Esq.
111 East Franklin Avenue
Sesser, IL 62884
and the original of the same foregoing instrument on the same date by electronic filing
To: John Therriault, Acting Clerk
Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
_________________________________
Michelle M. Ryan
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
Electronic Filing - Received, Clerk's Office, December 8, 2009