1LLINOIS
POLLUTION
CONTROL
BOARD
ENVIRONMENTAL PROTECTION
AGENCY,
Complainant,
PCB
73~393
GLENN WILSON and GARY
BAILEY,
Respondents.
Mr.
Dale
R. Turner, Assistant Attorney General,
on behalf of the Environmental
Protection Agency;
Mr. Howard Campbell, Attorney, on behalf of Respondents.
OPINION AND ORDER OF
THE
BOARD (by Mr.
Seaman):
On September 17,
1973, the Environmental Protection Agency filed Complaint
against Glenn Wilson and Gary Bailey, charging therein that the named Respondents
caused or allowed the open burning of refuse in violation of Section 9(c) of
•the EnvirOnmental Protection Act,
11,
Rev.
Stat., 1971, Chapter
‘111
1/2,
§
1009(c)
and
in violation of Rule 502(a)
of Chapter 2,
Part
V of the Regulations of the
Pollution Control Board adopted pursuant to Section 10 of the Environmental
Protection Act Ill.
Rev, Stat., 1971, Chapter
ill
1/2,
§
1010.
More
specifically,
Complainant
a1leges~thatRespondent
Wilson owns certain
rural
real estate located in McClellon Township, Jefferson County, Illinois.
it
is further alleged that Respondent Wilson sold certain junk automobiles located
on said property to Respondent Bailey and that Bailey subsequently open burned
the automobiles
on Wilson~sproperty.
As stated in
Respondents’ Answer Brief:
“t.TJhe essential
facts concerning the violation are not
in
dispute.
Respondent Glenn Wilson
is the owner of the rural
real estate on
which the open burning involved
in this action took place.
Respondent
Gary Bailey stipulated to and testified to setting the fire complained
of, with
a match, for salvage purposes.
It is therefore undisputed by
the
Respondents that Respondent Gary Bailey violated the Environmental
Control
Act
and
the
rules
and
regualtions
of
the
Pollution
Control
Board
specified
in
the
complaint
by
conducting
open
burning
operations
for salvage purposes.
The dispute of Respondents with the statement
of
facts
given
by
the
Complainant
concerns
any
alleged violation by
Respondent
Glenn Wilson,
and the consideration to be given
to mitigating
and
aggravating factors introduced
in
evidence
in
this cause.”
13
—
89
-2—
Bailey frankly admitted setting the fire for salvage purposes on
July
12,
1974.
(R. 45).
Bailey testified that he did not advise Wilson
that he intended to burn the junk cars.
CR.
46).
Bailey further testified
that it was his responsibility to remove the cars from Wilson’s property.
(R. 47).
Wilson testified that he did not know that Bailey intended to open
burn the cars, nor did he authorize such action,
(R. 66).
Wilson indicated
that the, cars were to be stripped in.a hard,
level
area specifically set
aside for the operation.
(R. 69).
The mere ownership~ofland on which the burning occurred,
in the face
of uncontroverted,
competent testimony that Wilson did not participate or
even realize that such burning was to occur,
is
insufficient to prove
violation.
To do so would strain any construction of the term “allow’
beyond reason.
From the Record,
it
is clear that
all of the incidents of
ownership were transferred from Wilson
to Bailey,
nor can any agency re-
lationship be implied.
Bailey’s disposition of his personal property was
the independent and efficient cause of the violation.
Since there can be
no implication from the Record that Wilson knew or had reason
to know that
the burning was to take place, Wilson is
no more liable for the burning than
he would
be if the blaze had been started by
a cigarette thrown from
a
passing car.
Regarding the magnitude of the open burning,
Respondent Bailey testified
that approximately fifty to sixty cars were partially or completely burned
during the single date of violation alleged.
(R. 45).
Mr. Jim Tate,
Fire
Department Chief,
testified that he observed black smoke rising hundreds of
feet into the air (R.
6),
The open burning took place
in
a remote area approximately two miles
from the city limit of Mt. Vernon, ~Illinois.
Respondent Bailey testified
that,
although he knew that open burning was illegal within the city limits
of Mt.
Vernon,
he did not know that open burning
in rural areas was illegal.
(R,
49—51).
Respondents
in their Answer Brief emphasize that no contention
is made that scienter is an element
of the offense and that Bailey’s motives
and intentions were introduced solely for the purpose of mitigating his
violation and to show that no flagrant or intentional
violation of the law was
intended.
Respondent Bailey testified that he had knowledge that junk cars were
open burned for salvage purposes
in the vicinity of Jefferson and Marion Counties.
(R. 54).
Respondent Wilson testified that he had heard of people open
burning
cars and saw many loads
of burned-out cars pass his property.
(R.
72),
Respondent Bailey
is twenty-nine years old, married, and the father of
two children.
(R. 42).
Bailey
is without
a high school
education and
automobile ~salvage
is
his sole vocation.
(R. 45,56).
Bailey testified that
he has two or three hundred dollars
in
a bank account and is buying
a home
on contract.
CR.
59),.
13—90
—3—
Due to Respondent Bailey’s circumstances and apparent lack of wrongful
intent, we are disposed
to assess
a small
penalty for the single instance
of violation found.
The Respondents
have,
in their Answer, raised two affirmative defenses.
In the First Affirmative
Defense,
Respondents allege that Rule 332(b)
of the Pollution Control Board’s Procedural
Rules
is unconstitutional
because
it exceeds authority granted
by the Act, denies due process and equal
protection, and unconstitutionally grants judicial authority to the Board.
in the Second Affirmative Defense, Respondent contends the penalty
power is unconstitutional because the legislature has set no standards
for such imposition of penalty.
These arguments are without merit.
(See, City of Waukegan
v.
Pollution
Control Board,
311 N.E.
2d
145 (1974).
This Opinion constitutes
the findings of fact and conclusions of law
of the
Board.
IT
IS THE ORDER
of
the
Pollution
Control
Board
that:
1.
Complaint against Respondent Wilson
be dismissed.
2.
For the violation found herein,
Respondent Bailey shall pay to the
State of Illinois the sum of $25.00 within 35 days from the date of this
Order.
Penalty payment by certified check or money order payable to
•the
State of Illinois shall bemade
to:
Fiscal Services
Division,
Illinois
Environmental
Protection Agency, 2200 Churchill
Road, Springfield, Illinois
62706.
3.
Respondent Bailey shall
cease and desist from the violation found
herein.
Mr. Dumelie dissents and will file
a dissenting opinion.
I,
Christan
L.
Moffett, Clerk of the Illinois Pollution Control Board,
certify that the above Opinion and Order was adoptçd on this
day of
___________________,
1974 by
a vote of q—j
13—91