ILLINOIS POLLUTION CONTROL BOARD
March 20, 1997
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
DENNIS FULTS d/b/a ST. CLAIR
CONSTRUCTION AND PAVING,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB 96-118
(Enforcement - Air)
AMY L. SYMONS, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF OF
THE PEOPLE OF THE STATE OF ILLINOIS.
INTERIM OPINION AND ORDER OF THE BOARD (by K. M. Hennessey):
This case is an enforcement action by the People of the State of Illinois (State) against
Dennis Fults d/b/a St. Clair Construction and Paving (Fults). The State alleges that Fults
violated the Illinois Environmental Protection Act (415 ILCS 5/1 et seq. (1994)) (Act) and
Illinois Pollution Control Board (Board) rules when he demolished a building in Collinsville,
Madison County, Illinois. The State claims that Fults caused air pollution in violation of the
Act and Board rules by burning demolition debris. The State also claims that Fults violated
the Act’s and the Board’s direct prohibition against open burning. Finally, the State claims
that Fults violated the Act by failing to notify the Illinois Environmental Protection Agency
(Agency) in writing of his intent to demolish the building, in violation of the Act and the
National Emission Standards for Hazardous Air Pollutants (NESHAPs) regulations regarding
asbestos. The State seeks a civil penalty of not less than $10,000, an award of its fees and
costs and a cease and desist order.
In this opinion and order, the Board finds that Fults committed each of the five
violations outlined above. The Board imposes a civil penalty of $10,000 on Fults and orders
Fults to cease and desist from further violations of the Act and Board regulations. The Board
also orders the State to file an affidavit of its fees and costs, with supporting documentation,
with the Clerk of the Board within 30 days. After receiving that affidavit, the Board will enter
an order assessing fees and costs.
PROCEDURAL HISTORY
The State filed a complaint against Fults before the Board on December 1, 1995. Fults
did not respond. On March 12, 1996, the State filed a request for admission of facts to which
2
Fults did not respond. Because Fults did not respond, he is deemed to have admitted the facts
in the request. (See 35 Ill. Adm. Code 103.162(c).)
On April 18, 1996, the State filed a request for hearing. The hearing was held on May
29, 1996, before Chief Hearing Officer Michael Wallace. Ms. Amy Symons appeared for the
State, and Mr. James J. O’Donnell appeared for the Agency. Fults did not appear. The State
presented one witness, Ron Robeen (Robeen), who is a field inspector with the Agency’s
Bureau of Air.
The State filed a post-hearing brief on July 1, 1996, along with a request to supplement
the record with certified copies of certain court orders against Fults. These orders involve
defendant’s misdemeanor conviction on charges of open dumping and open burning in Monroe
County and St. Clair County. The Board addresses this motion to supplement on page 8 of
this opinion and order.
FINDINGS OF FACT
As noted above, the only witness who testified was Robeen, a field inspector with the
Agency’s Bureau of Air. (Tr. at 9.)
1
Robeen has a degree in electrical engineering from
Southern Illinois University Edwardsville and is certified to conduct asbestos inspections on
demolition and renovation sites under the federal Clean Air Act. (Tr. at 9-10.)
On November 28, 1994, Robeen’s supervisor asked him to inspect a facility at 401 Belt
Line Road in Collinsville, Illinois (site). (Tr. at 13-14.) Robeen visited the site and prepared
an inspection report that was admitted into evidence as Exhibit 1 (Exh. 1). (Tr. at 15.)
Fults was at the site during Robeen’s visit. Robeen spoke to Fults, who admitted that
he was responsible for the demolition of the building; others at the site agreed. (Tr. at 16-17.)
Robeen observed several instances of open burning of demolition debris at the site. (Tr. at
22.) The burning debris gave off smoke and an odor, and Robeen opined that these emissions
were of a quantity, characteristic or duration to threaten injury to human health, plant life or
animal health. (Tr. at 24.) He also stated that the emissions were of a quantity, characteristic
or duration so as to threaten an unreasonable interference with enjoyment of life or property.
(Tr. at 24.)
Fults told Robeen that Fults had sent a ten-day notification of the demolition to the
Agency, as required by the NESHAP regulations regarding asbestos. (Tr. at 17-18.) Robeen
later checked with the Agency and determined that no notification had been sent in. (Tr. at
18.)
Robeen admitted that he was not able to inspect the building being demolished at the
site to determine if asbestos was present and that he did not know if asbestos was present. (Tr.
1
The transcript of the hearing is cited as “Tr. at __.” The complaint is cited as “Comp. At
__.”
3
at 19-20, 27.) One employee at the site told him that asbestos in the building had been
removed before the demolition, but Fults told him that there had been no asbestos in the
building. (Tr. at 20.) Robeen’s inspection report also recounts a conversation Robeen had
with Pat Cunningham, an employee of Korman Group, the developer of the site. Cunningham
told Robeen that an environmental assessment study was done at the site before the demolition
and no asbestos was found. (Exh. 1.) The inspection report also states that the assessment
would be sent to the Agency; however, the record does not contain this study.
Robeen also testified to other instances in which Fults had not complied with
environmental laws. In particular, Robeen testified that Fults has been convicted of violating
county ordinances in Madison and Monroe Counties relating to open dumping and open
burning. (Tr. at 28.) In addition, Robeen testified that he observed Fults openly burning
demolition debris at a site in Belleville, St. Clair County in 1995. (Tr. at 29-30.) In 1996,
Robeen observed Fults burning trees and demolition debris in Swansea, St. Clair County. (Tr.
at 31.) At the Swansea site, Robeen informed Fults that open burning was not the proper way
to dispose of trees, landscape waste and demolition debris. Robeen testified that Fults replied,
“Go ahead and send me another letter. I’ll ignore it like the other ones that you sent me.”
(Tr. at 31.) Robeen issued compliance inquiry letters on the Belleville and Swansea sites.
(Tr. at 33.) Robeen concluded that Fults is likely to continue to violate environmental laws
“as long as he can make money at it.” (Tr. at 31-32.)
DISCUSSION
Count I: Air Pollution
As noted on page 1 of this interim opinion and order, Count I alleges that Fults
polluted the air in violation of Section 9(a) of the Act and 35 Ill. Adm. Code 201.141.
Section 9(a) provides:
No person shall:
a.
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 with contaminants from other sources, or so as to
violate regulations or standards adopted by Board under this Act . . . .
(415 ILCS 5/9(a) (1994).)
Similarly, Section 201.141 of the Board’s regulations provides:
No person shall cause or threaten or allow the discharge of any contaminant into the
environment in any State so as, either alone or in combination with contaminants from
other sources, to cause or tend to cause air pollution in Illinois, or so as to violate the
provisions of this Chapter, or so as to prevent the attainment or maintenance of any
applicable ambient air quality standard.
4
(35 Ill. Adm. Code 201.141.)
The Act defines “Air Pollution” as:
[T]he presence in the atmosphere of one or more contaminants in sufficient quantities
and of such characteristics and duration as to be injurious to human, plant, or animal
life, to health, or to property, or to unreasonably interfere with the enjoyment of life or
property.
(415 ILCS 5/3.02 (1994).) A “contaminant” is “any solid, liquid, or gaseous matter, any
odor, or any form of energy, from whatever source.”
There is no question that the burning of demolition debris releases contaminants into
the air. Robeen confirmed that the burning debris gave off smoke and an odor. (Tr. at 24.)
In addition, the uncontested evidence is that the quantity and nature of these emissions was
sufficient to threaten injury to human health, plant life or animal health, and to threaten
unreasonable interference with the enjoyment of life or property. (Id.) As a result, Fults
caused or tended to cause air pollution.
Before finding a violation, however, the Board must consider the factors set forth in
Section 33(c) of the Act. Those factors include, but are not limited to:
1.
The character and degree of injury to, or interference with the protection of the
health, general welfare and physical property of the people;
2.
The social and economic value of the pollution source;
3.
The suitability or unsuitability of the pollution source to the area in which it is
located, including the question of priority of location in the area involved;
4. The technical practicability and economic reasonableness of reducing or eliminating
the emissions, discharges or deposits resulting from such pollution source; and
5.
Any subsequent compliance.
(415 ILCS 5/33(c) (1994).) The Board considers these factors in turn.
The character and degree of injury to, or interference with the protection of the health,
general welfare and physical property of the people. As noted, Robeen testified that emissions
from the burning demolition debris were of a quantity sufficient to threaten injury to human
health, to plant life or animal health, and to threaten unreasonable interference with enjoyment
of life or property. The Board weighs this factor against Fults.
5
The social and economic value of the pollution source. The Board recognizes that a
demolition business may have social and economic value. However, Fults presented no
specific evidence on the number of persons employed in his business or on the importance of
his business in a particular market. (Compare Wells Manufacturing Company v. v. Pollution
Control Board, 73 Ill. 2d 226, 235-236, 383 N.E.2d 148, 152 (1978) (pollution source found
to have social and economic value when it employed 500 persons and was an important
supplier).) The Board weighs this factor in neither side’s favor.
The suitability or unsuitability of the pollution source to the area in which it is located,
including the question of priority of location in the area involved. Uncontrolled burning is
not suitable in any area, and thus the Board weighs this factor against Fults.
The technical practicability and economic reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting from such pollution source. As Robeen testified,
Fults could easily dispose of demolition debris through some other means than burning. (Tr.
at 32.) Accordingly, the Board weighs this factor against Fults.
Any subsequent compliance. There is no evidence that Fults complied with the law on
November 28, 1994 or thereafter. Accordingly, the Board weighs this factor against Fults.
After considering the Section 33(c) factors, the Board finds that Fults has tended to
cause air pollution in violation of Section 9(a) of the Act and 35 Ill. Adm. Code 201.141. The
penalty for this violation is set forth after the Board’s discussion of Counts II and III.
Count II: Open Burning
Count II alleges that Fults engaged in open burning in violation of Section 9(c) of the
Act and Board regulations. Section 9(c) of the Act provides:
No person shall: . . .
c.
Cause or allow the open burning of refuse, conduct any salvage operation by open
burning, or cause or allow the burning of any refuse in any chamber not specifically
designed for the purpose and approved by the Agency pursuant to regulations
adopted by the Board under this Act . . . .
(415 ILCS 5/9(c) (1994).) “Open burning” is the “combustion of any matter in the open or in
an open dump.” (415 ILCS 5/3.23 (1994).) “Refuse” means “waste” (415 ILCS 5/3.31
(1994)), and “waste” includes “discarded material.” (415 ILCS 5/3.53 (1994).)
Section 237.102(a) of the Board’s regulations provides that “[n]o person shall cause or
allow open burning, except as provided in this Part.” (35 Ill. Adm. Code 237.102(a).) In the
Board’s regulations, “open burning” is the “combustion of any matter in such a way that the
products of the combustion are emitted to the open air without originating in or passing
6
through equipment for which a permit could be issued under Section 9(b) of the Act .” (35
Ill. Adm. Code 237.101.)
In this case, the demolition debris constitutes “refuse” under the Act, and there is no
dispute that Fults burned it in the open. The evidence also shows that smoke and odor were
released into the open air without passing through any equipment, permitted or otherwise,
when Fults burned the demolition debris. Accordingly, the Board finds that Fults has violated
both Section 9(c) of the Act and 35 Ill. Adm. Code 237.102(a) as alleged in Count II.
Count III: NESHAPs Violation
Count III alleges that Fults violated Section 9.1(d)(1) of the Act, which provides:
No person shall:
1.
Violate any provisions of Sections 111, 112, 165 or 173 of the Clean Air Act, as
now or hereafter amended, or federal regulations adopted pursuant thereto . . .
(415 ILCS 5/9.1(d)(1) (1994).)
The State claims that Fults violated 40 CFR 61.145(b)(1) (1995), a regulation adopted
pursuant to Section 112 of the Clean Air Act, 42 U.S.C. Section 7412 (1995). Section
61.145(b)(1) provides:
(b)
Notification requirements. Each owner or operator of a demolition or renovation
activity to which this section applies shall:
(1)
Provide the Administrator [of the United States Environmental Protection Agency
or USEPA] with written notice of intention to demolish or renovate.
The notice must be provided at least 10 working days before the commencement of
demolition. (40 CFR 61.145(b)(3) (1995).) Fults has not contested the Agency’s authority to
receive notices on behalf of the Administrator of the USEPA. (Comp. at 6-7; Tr. at 27.)
An “owner or operator of a demolition or renovation activity” is:
any person who owns, leases, operates, controls, or supervises the facility being
demolished or renovated or any person who owns, leases, operates, controls, or
supervises the demolition or renovation operation, or both.
(40 CFR 61. 141 (1995).)
In this case, Fults was responsible for the demolition and thus was the “operator” of
the demolition activity. His demolition activities also fell within the scope of the notification
7
requirements imposed under 40 CFR 61.145. Section 61.145(a) generally applies to
demolition activities as follows:
To determine which requirements of paragraphs (a), (b) and (c) of this section apply to
the owner or operator of a demolition site or renovation activity and prior to the
commencement of the demolition or renovation, thoroughly inspect the affected facility
or part of the facility where the demolition or renovation operation will occur for the
presence of asbestos . . . . The requirements of paragraphs (b) and (c) apply to each
owner or operator of a demolition or renovation activity, including the removal of
RACM [regulated asbestos-containing material] as follows:
* * *
(2)
In a facility being demolished, only the notification requirements of paragraphs
(b)(1) . . . of this section apply, if the combined amount of RACM is
* * *
(ii)
Less than one cubic centimeter (35 cubic feet) off facility components where
the length of the area could not be measured previously
or there is no
asbestos
.
(40 CFR 61.145(a) (1995) (emphasis supplied).)
Under this section, a person supervising the demolition of a building that contains no
asbestos must still notify the Agency of the demolition. This is also confirmed by statements of
the USEPA when it proposed to adopt this requirement:
[A] proposed amendment clarifies the current requirement that notifications must be
made for all demolitions, even when no asbestos is present, in order to promote
compliance and aid enforcement.
54 Fed. Reg. 912, 917 (January 10, 1989).
As discussed in the Findings of Fact (
supra
at 2-3), Fults failed to notify the Agency of
the demolition. The Board therefore finds that Fults violated Section 9(d)(1) of the Act by
failing to comply with 40 CFR 61.145(b).
Penalty
The State has asked that the Board impose a monetary penalty of not more than the
statutory maximum, pursuant to Section 42(a) of the Act, which the State claims is not less
than $10,000. (Comp. at 4, 5 and 7; State’s Br. at 11.) The State also asks that the Board
award the State its costs in this matter, including reasonable attorney’s fees and expert witness
8
costs. (Id.) The State has offered to supplement the record with an affidavit of time spent in
the prosecution of this case. (State Br. at 11.)
The potential penalty for Fults’ violations of the Act and Board regulations may not
exceed $50,000 per violation. (See 415 ILCS 5/42(a) (1994).) The Act sets no minimum
penalty. Thus, the potential maximum penalty for the five violations that Fults has committed
is $250,000.
In determining the appropriate penalty for Fults’ violations of the Act and Board
regulations, the Board must consider the factors set forth in Section 33(c) (listed above at page
4), as well as the factors set forth in 42(h) of the Act. The Board’s earlier discussion of the
Section 33(c) factors is incorporated here.
Section 42(h) Factors
Section 42(h) factors are to be considered in aggravation and mitigation of the penalty,
and include, but are not limited to, the factors discussed below.
The duration and gravity of the violation. The evidence on the duration of Fults’
violations only show that they occurred on one day. However, Fults’ violations were serious.
Each involved at least the potential for environmental harm and a potential danger to public
health.
The presence or absence of due diligence on the part of the violator in attempting to
comply with the requirements of this Act and regulations thereunder or to secure relief
therefrom as provided by this Act. Fults showed no diligence in attempting to comply with
the Act or Board regulations or in obtaining relief therefrom. In fact, the evidence shows that
Fults intends to keep flouting the law. (Tr. at 31.)
Any economic benefits accrued by the violator because of delay in compliance with
requirements. By violating the Act and Board regulations, Fults avoided at least the cost of
disposing of refuse at a properly permitted pollution control facility. The exact cost is not in
the record, but the record supports a finding that Fults gained some economic benefit through
his violations.
The amount of monetary penalty which will serve to deter further violations by the
violator and to otherwise aid in enhancing voluntary compliance with this Act by the violator
and other persons similarly subject to the Act. The State has asked for a total penalty of not
less than $10,000 and stated that it believes that this is the penalty that will serve to deter
further violations and to enhance voluntary compliance with the Act by others similarly
situated.
The number, proximity in time, and gravity of previously adjudicated violations of this
Act by the violator. As noted in the Procedural History (
supra
at 1-2), the State has moved to
supplement the record with evidence that Fults has been convicted of violating county
9
ordinances banning open burning and open dumping. However, Section 42(h) states that the
Board is to consider previous violations of the Act, not local ordinances. While the factors in
Section 42(h) are not exclusive, the Board is reluctant to consider violations of local
ordinances in setting penalties in the absence of express authorization to do so in the Act. The
Board notes that the General Assembly has expressly authorized the Agency and the Board to
consider violations of local ordinances in other contexts. (See 415 ILCS 5/39(i) (1994)
(Agency may deny certain permits if permit applicant has been convicted of violating certain
local laws).) The General Assembly’s failure to include such an authorization here suggests
that violations of local ordinances should not be considered. The Board therefore denies the
State’s motion to supplement the record, and will not consider Fults’ violations of local
ordinances. The State admits that Fults has not been adjudicated to have violated the Act.
(State Br. at 10.)
The State also introduced evidence that Fults continued to violate the Act. This factor
only allows the Board to consider previously adjudicated violations of the Act. The additional
violations the State relies on were not adjudicated, but were the subject of compliance inquiry
letters. (Tr. at 33.) The Board is reluctant to consider alleged, rather than adjudicated,
violations in the absence of express authorization. Accordingly, the Board does not weigh this
factor against Fults.
Considering all of the above factors, the Board finds it appropriate to order Fults to pay
a penalty of $10,000. The Board also finds it appropriate to order Fults to cease and desist
from further violating the Act and the Board’s regulations.
Request for Fees and Costs
The State also has requested its attorneys’ fees and costs, which it states will be verified
through an affidavit submitted as a supplement to the record at some future time. (State Br. at
11.) The State relies on Section 42(f) of the Act, which provides in relevant part:
[T]he Board . . . may award costs and reasonable attorney’s fees, including the
reasonable costs of expert witnesses and consultants, to the State’s Attorney or Attorney
General in a case where he has prevailed against a person who has committed a wilful,
knowing or repeated violation of the Act.
(415 ILCS 5/42(f) (1994).)
In this case, the State has shown that Fults’ violation of the Act were wilful.
Accordingly, the Board will award the State its reasonable attorney’s fees and costs.
However, before the Board will issue an order to Fults to pay those costs, the State must file
an affidavit setting forth its fees and costs, along with supporting documentation, to the Clerk
of the Board within 30 days of the date of this interim opinion and order. Upon review of
those materials, the Board will enter an order assessing fees and costs.
ORDER
10
1.
The Board finds that Fults has violated Section 9(a) of the Act, 415 ILCS 5/9(a)
(1994), and 35 Ill. Adm. Code 201.141.
2.
The Board finds that Fults has violated Section 9(c) of the Act, 415 ILCS 5/9(c)
(1994), and 35 Ill. Adm. Code 237.102(a).
3.
The Board finds that Fults has violated Section 9(d)(1) of the Act, 415 ILCS
5/9(d)(1) (1994), by failing to comply with 40 CFR 61.145(b).
4.
The Board orders Fults to pay a penalty of $10,000. Such payment shall be made
by certified check or money order payable to the Treasurer of the State of Illinois,
designated to the Environmental Protection Trust Fund and shall be sent by First
Class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
P.O. Box 19276
Springfield, IL 62794-9276
The certified check or money order shall clearly indicate on its face Fults’ Federal
Employer Identification Number and that payment is directed to the Environmental
Protection Trust Fund.
Any such penalty not paid within the time prescribed shall incur interest at the rate
set forth in subsection (a) of Section 1003 of the Illinois Income Tax Act, (35 ILCS
5/1003), as now or hereafter amended, from the date payment is due until the date
payment is received. Interest shall not accrue during the pendency of an appeal
during which payment of the penalty has been stayed.
5.
The Board orders Fults to cease and desist from further violations of the Act and
Board regulations.
6.
The Board orders the State to file with the Clerk of the Board an affidavit of its fees
and costs in this action and documentation thereof within 30 days of the date of this
interim opinion and order.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above interim opinion and order was adopted on the _____ day of ___________, 1997, by
a vote of ______________.
__________________________
11
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board