ILLINOIS POLLUTION CONTROL BOARD
July 26, 2001
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
)
)
vs.
)
AC 00-84
)
(IEPA No. 248-00-AC)
JAMES DAY,
)
(Administrative Citation)
)
Respondent.
)
ROBERT J. SCHERSCHLIGT APPEARED ON BEHALF OF THE AGENCY; and
PHILIP A. SUMMERS APPEARED ON BEHALF OF JAMES DAY.
INTERIM OPINION AND ORDER OF THE BOARD (by S.T. Lawton, Jr.):
On June 14, 2000, the Illinois Environmental Protection Agency (Agency) issued an
administrative citation to respondent, James Day (Day). The citation alleges that Day violated
Sections 21(p)(1) and (3) of the Environmental Protection Act (Act) (415 ILCS 5/21(p)(1), (p)(3)
(2000)), in that he caused or allowed open dumping of waste, resulting in litter and open
burning. The alleged violations occurred on a vacant lot on the northwest corner of Logan and
Sherman streets in Longview, Champaign County, Illinois (site).
The Board finds that Day violated the Act as alleged in the complaint. In this interim
opinion and order, the Board orders the Agency and the Clerk of the Board to file a statement of
hearing costs, to which Day is given leave to reply. After it receives these pleadings, the Board
will issue a final order requiring Day to pay the total statutory penalty of $3,000 and any
appropriate costs.
PROCEDURAL MATTERS
The Agency filed an administrative citation with the Board on June 14, 2000, and served
it on Day by certified mail on June 13, 2000, pursuant to Section 31.1(b) of the Act. See 415
ILCS 5/31.1(b) (2000). The citation alleges that Day violated Sections 21(p)(1) and 21(p)(3) of
the Act. See 415 ILCS 5/21(p)(1), 21(p)(3) (2000). Sections 21(p)(1) and 21(p)(3) are
enforceable by administrative citation under Section 31.1 of the Act. See 415 ILCS 5/31.1(a)
(2000). Day contested the citation under Section 31.1(d)(2) by filing a petition for review with
the Board on July 3, 2000. See 415 ILCS 5/31.1(d)(2) (2000).
2
The Board accepted this matter for hearing on July 13, 2000. A hearing was held before
Hearing Officer Brad Halloran, on April 9, 2001.
1
Tr. at 2-4. The Agency presented four
witnesses at the hearing. Kenneth Keigley, Environmental Protection Specialist III with the
Land Pollution Control Division of the Agency in Champaign, Illinois, testified on behalf of the
Agency. Tr. at 7-56. Don Webber, Lawrence Sapp, and Ron Tatman testified that they observed
Day open burning at the site. Day testified on his own behalf at hearing. Edward Massie
testified on behalf of Day.
No other witnesses testified at hearing. The hearing officer in this matter accepted five
exhibits from the Agency and six exhibits from counsel for Day at hearing. Neither party filed
post-hearing briefs.
FINDINGS OF FACT
The parties presented facts on two issues. First, several witnesses testified as to whether
Day caused or allowed the open burning and litter at the site on either Saturday or Sunday, May
13 or 14, 2000. Second, the parties debated whether Day owned or operated the site at the time
of the alleged violation.
Allegations of Litter and Open Burning
The Agency received an anonymous complaint on May 14, 2000, that Day open burned
furniture, wood scrap and other refuse at the site. Tr. at 29; Agency Exh. 3.
2
Darwin Fields, a
Bureau of Air inspector with the Agency, responded to the anonymous complaint on
May 15, 2000, and photographed a burn pile at the site. Tr. at 35-36.
The Agency transferred the complaint to Kenneth Keigley, an Environmental Protection
Specialist III with the Bureau of Land, on May 16, 2000. Tr. at 28-29, 36. Keigley inspected
the site on May 17, 2000, and saw a 10-foot by 10-foot burn pile. Keigley testified that,
according to his observations and field inspection report, the pile included heat-scorched springs,
charred dimensional lumber and particle board, charred metal door framing, a partially burnt
cushion, glass bottles and cans. Tr. at 33-35, 37; see Agency Exh. 4. Keigley stated that the
photographs taken by Fields on May 15, 2000, showed the same burn pile that Keigley saw
during his May 17, 2000 inspection. Tr. at 36-37. The inspection by Keigley resulted in the
administrative citation in this matter.
The Agency presented three witnesses who testified that they saw Day next to a large
open fire at the site on either Saturday, May 13, 2000, or Sunday, May 14, 2000. Don Webber,
who operates an auto shop across the street from the site, testified that, on one of the above dates,
Day, his girlfriend, his daughters, and his son, Jason Day, burned construction-type debris at the
site. Tr. at 67-68. Webber stated that the group was burning waste that Jason Day stored in a
trailer after remodeling his home. Tr. at 67-68. Webber testified that he saw Day and the others
1
The Board refers to the transcript of the hearing in this matter as “Tr. at ___.”
2
The Board refers to Agency exhibits as “Agency Exh. ___,” and exhibits offered on behalf of
Day as “Resp. Exh. ___.”
3
remove waste from the trailer and throw it onto a large fire. Tr. at 69-70. Webber identified the
trailer in a photograph taken by Fields as the same trailer where Jason Day stored construction
debris and other household items. Tr. at 71, 78-79.
Webber testified that he saw Day personally throw a mattress and rug onto the fire. Tr. at
68. Webber identified heat scorched springs in a picture taken by Fields as remnants of the
mattress. Tr. at 72. Webber said the fire produced a huge cloud of black smoke that drifted
across the street. Tr. at 69. Webber stated that he reported the incident to the Agency on
Monday, May 15, 2000. Tr. at 77. He testified that the fire was still smoldering on that date. Tr.
at 80.
Webber testified that he has known Day for approximately 20 years. Webber admitted
that, although he has no animosity toward Day, the respondent previously reported Webber to the
Agency for environmental violations. Tr. at 73, 77. Webber also stated that he formerly had a
dispute with Jason Day over the right to access Webber’s property. Tr. at 76-77.
Ronald Tatman testified that, on Saturday, May 13, 2000, he saw Day open burning at the
site. Tr. at 53. He stated that he was driving past the site on the way to the post office when he
observed Day, his girlfriend, and one of Day’s children standing at the back of Day’s truck,
watching the fire. Tr. at 54-55. Tatman testified that he saw flames, but did not take notice of
what in particular was burning. Tr. at 56. Tatman identified the burn pile in the Agency
photograph as the same pile that he saw burning on May 13, 2000. Tr. at 58.
Tatman stated he was certain that Day was present during the open burning. Tatman,
who is the village president of Longview, has resided in the town since 1971. Tr. at 51. Tatman
has known Day as a resident of Longview, and testified that he has no animosity toward him. Tr.
at 51, 59.
Lawrence Sapp testified as the last eyewitness to Day’s open burning at the site. Sapp
stated that on either Saturday, May 13, 2000, or Sunday, May 14, 2000, he drove by the site, and
saw Day with other people standing around a bonfire. Tr. at 85. Sapp testified that he saw the
same burn pile as depicted in the Agency’s photograph of the site. Tr. at 86. Sapp stated he was
familiar with Day because he has been in Longview since 1950, and previously lived in a house
right next to the property. Tr. at 83.
Day testified that he solely created a pile of site-generated landscape waste on Saturday,
May 13, 2000. Tr. at 113, 115. Day stated that he, Ed Massie, Lloyd Langleyer, and members
of his family mowed the lot in response to a village complaint concerning noxious weeds. Tr. at
98-99. Day testified that he did not add any household or construction items, such as carpet or
mattresses to the pile. Tr. at 119, 136-37. Day stated he was not present when his brother and
other members of the family open burned the waste on Sunday, May 14, 2000. Tr. at 127, 131.
Day testified that he and Ed Massie were in Tuscola the following day, Sunday,
May 14, 2000. Tr. at 129. However, on that date, Day testified that his brother, John Day, his
son, Jason Day, and members of Jason Day’s family allegedly burned the landscape waste on the
site. Tr. at 139. Day said that witnesses to the fire probably mistook Day for his brother because
4
they have a very strong resemblance. Tr. at 134-35. Day testified that his brother told Day that
he used springs and other metal pieces to keep the weeds from blowing away. Tr. at 141.
However, Day testified that the burn pile that he cleaned up on Monday contained the same
waste as depicted in the Agency photographs. Tr. at 130. Day could not explain how the waste
ended up in the pile on Monday, May 15, 2000. Tr. at 132.
Ed Massie corroborated Day’s testimony that he assisted Day in mowing weeds at the site
in early May, and was with Day in Tuscola the Sunday after clearing the site of vegetation. Tr.
at 152. Massie also stated that he saw old metal springs on the lot when he was mowing the
grass. However, Massie could not state with confidence what weekend this took place. Tr. at
145-46, 153-54. At first, Massie only recalled that he helped Day in the spring of 2000. When
counsel for Day asked him for a more specific date, Massie stated late April to early May. He
agreed that he mowed the lawn in the first or second week of May only after Summers asked him
if that was the correct date. Tr. at 145-46.
Massie also testified that some of the grass that he mowed was “greening up.” Tr. at 151.
When Massie was asked to describe the weeds that were on the site, he stated the vegetation
varied from old head-high weeds to grass and new weeds that were growing in. Tr. at 149, 151.
Disputed Ownership of the Site
Both the Agency and Day testified that Day had a longstanding ownership interest in the
property involved in this administrative citation. Day testified that he has had a longstanding
nexus or relationship to the property for approximately 20 years, and kept his possessions on the
site. Tr. at 124-25. Around 1960, Day began to acquire the lots at the northwest corner of Logan
and Sherman Streets in Longview, Illinois. Tr. at 91; See Resp. Exh. 1. Day continued to buy
property until he owned all of the connecting lots. Tr. at 91; See Resp. Exh. 1. Day ultimately
failed to pay property taxes on the site. Tr. at 92. In response, Opal Thomas purchased tax
deeds for the lots of property on the northwest corner of Sherman Street and Logan Street,
including the site, between 1972 and 1991. Tr. at 92-93; Resp. Exh 1.
Day attempted to repurchase the property from Thomas. Thomas and Day signed a
contract to buy back the lots in 1997. Tr. at 93; see Agency Exh. 5. Day and Thomas later fell
into dispute over the payment agreement. Tr. at 93. Thomas notified Day of the intention to file
a forcible detainer suit on December 10, 1999, and gave Day until December 31, 1999, to cure
the defaults under their contract. Resp. Exh. 2. When Day did not pay the amount due on the
property, Thomas revoked the contract with a declaration of forfeiture. See Resp. Exh. 3.
After Day received the declaration of forfeiture, he and Thomas entered into a lawsuit
over the property. Tr. at 95. Although Day testified that he thought the suit was over, he did not
know of a final judgment or court order concerning the property. Tr. at 123. According to
Keigley, Robert Thomas, the custodian and son of Opal Thomas, stated they were still in a
dispute with Day over the site. Tr. at 43.
In the spring of 2000, the Village of Longview notified Day that the property violated a
local ordinance concerning noxious weeds. Tr. at 97-98. Day testified that the village gave him
5
seven days to mow the grass on the property involved in this administrative citation, or the
village would cut the grass and charge Day for the service. Tr. at 98. Day testified that, in
response to the letter, he “immediately went down [to the site] and started cutting the grass and
weeds and bushes.” Tr. at 98. Day testified that he was “possessing the property and [had]
physical control of the property on Saturday the 13th and [he] testified that [he] went back on
Monday the 15th [of May].” Tr. at 125. Day also stated that he and his family still store their
personal property on the site. Tr. at 126-27.
DISCUSSION
In this section, the Board will address whether Day violated Sections 21(p)(1) and (p)(3)
of the Act (415 ILCS 5/21(p)(1), (p)(3) (2000)) as alleged in the administrative citation. The
Board first discusses whether Day caused or allowed the open dumping of waste on the site. See
415 ILCS 5/21(p) (2000). The Board then discusses whether the open dumping by Day resulted
in litter and open burning on the site, pursuant to Sections 21(p)(1) and (p)(3) of the Act. See
415 ILCS 5/21(p)(1), (p)(3) (2000).
Open Dumping
The administrative citation alleges that Day caused or allowed open dumping that
resulted in litter and open burning at the site in violation of Sections 21(p)(1) and (p)(3) of the
Act. See 415 ILCS 5/21(p)(1), 21(p)(3) (2000). The provisions read that 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
dumpsite:
1.
litter;
***
3.
open burning (415 ILCS 5/21(p)(1), (p)(3) (2000)).
Section 21(a), to which Section 21(p) refers, provides that no person shall “[c]ause or
allow the open dumping of any waste.” 415 ILCS 5/21(a) (2000). Subsection (p)(1) requires the
Agency to show, as a threshold matter, that Day caused or allowed open dumping. “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 5/3.24 (2000). “Refuse”
means “waste,” (415 ILCS 5/3.31 (2000)), and “waste” includes “any garbage . . . or other
discarded material” (415 ILCS 5/3.53 (2000)).
Day raises two defenses to violating Sections 21(p)(1) and (p)(3) of the Act. See 415
ILCS 5/21(p)(1), (p)(3) (2000). Day first argues that he did not cause the open dumping of waste
resulting in a violation of the Act because he solely gathered a pile of weeds and grass on the
site. Day testified that he was not present when his family open burned the landscape waste the
following day. Tr. at 131. Day further stated at hearing that he also was not responsible for
allowing the open dumping of waste on the site because he no longer owned the site. Tr. at 130.
Day testified that he gave up an ownership interest in the site after receiving a declaration of
forfeiture on the property from Thomas. Tr. at 95-96, 126. The Board finds that the record does
6
not support Day’s arguments, and that Day was present when he and members of his family open
dumped waste that resulted in litter and open burning. See 415 ILCS 5/21(p)(1), (p)(3) (2000).
Three eyewitnesses testified that they saw Day standing next to a large fire on either
May 13, 2000, or May 14, 2000. Tr. at 55, 67, 85. Webber stated he saw Day and his family
unload a mattress, rug, and other waste from remodeling a home from a trailer, and threw it into
a large fire across the street from Webber’s business. Tr. at 67-70. Webber testified that he
personally saw Day throw articles such as a rug and mattress on the burn pile. Tr. at 68. Day
explained at hearing that his brother used the metal springs found in the pile and other metal
parts to ensure the weeds did not blow off the burn pile. Tr. at 141. However, Day could not
explain how the waste, including charred lumber and dimensional wood, glass and metal drink
containers, and a partially burnt cushion, was open dumped and burned on the site. Tr. at 132.
The Board finds that the testimony by Webber is credible despite the fact that Day
previously reported him to the Agency. Even if the Board gave less weight to the testimony
presented by Webber, both Tatman and Sapp also testified that they separately saw Day, along
with his friends and family, next to a fire on the site on either Saturday or Sunday, May 13 or 14,
2000. Tatman and Sapp are long-time residents of Longview, and were previously familiar with
Day and his family. Sapp testified that he had known Day for years, and previously lived next to
the property involved in the administrative citation. Tr. at 83. Tatman testified that he also had
known Day for quite a while from living in Longview. Tr. at 51.
Day failed to establish that the three eyewitnesses incorrectly placed him next to a fire on
the site over the weekend of May 13 and 14, 2000. Day testified that the witnesses mistook him
for his brother at the time of the open burning at the site. However, Day did not offer any
evidence other than the statement that he and his brother resembled each other, to refute the
witnesses testimony that they correctly identified him as the person near the fire. Tr. at 134-35.
The Board also finds that Day did not substantiate his claim that he was not present for
the violations because he and Ed Massie were in Tuscola on Sunday, May 14, 2000. Tr. at 129.
Day relied on testimony by Massie to prove that he was out of town on that date. However,
Massie could not rule out that Day was on the site on the weekend that the open burning took
place. Massie only testified that he helped Day mow the weeds and grass on the site, and then
went to Tuscola with Day on a Sunday in May. Tr. at 152. He could not testify with certainty
that he was with Day in Tuscola on Sunday, May 14, 2000. Tr. at 153. In fact, until counsel for
Day suggested that it was in the first two weeks of May, Massie could only remember that he
helped Day in the Spring, somewhere in late April or the first of May, 2000. Tr. at 145-46.
The testimony by Massie that he and Day mowed the lawn in the first or second week of
May is consistent with the eyewitness accounts that place Day at the site on Sunday,
May 14, 2000. Moreover, the testimony by Massie that some of the grass and weeds were
“greening up” supports the conclusion that Day could not open burn landscape waste containing
moisture, along with other waste, the day after mowing the site. Tr. at 151.
7
Day raised a second defense that he did not allow the open dumping of waste in violation
of Section 21(p) because he is not responsible for maintaining property that he no longer owns.
Day testified that he did not believe that he had any ownership rights to the site at the time of the
administrative citation. Tr. at 126. This defense is based on the premise that Day did not partake
in the open dumping and burning on the site. Since the Board finds that Day was present and
caused open dumping under Section 21(p) of the Act (415 ILCS 5/21(p) (2000)), the Board finds
that the basis of this defense is invalid.
The Board finds that the heat scorched metal springs, a partially burnt cushion, charred
lumber and plywood, metal and glass drinking containers, and other waste in the burn pile
constitute “discarded material” within the meaning of the term “waste.” The list includes
“waste” and “refuse” as defined in the Act. The Board also finds that the pile of waste
constitutes a “consolidation of refuse from one or more sources” within the meaning of the term
“open dumping.” Webber testified that he witnessed Day and his family remove waste from a
trailer that originated from a remodeling job at Jason Day’s home, and throw it in a pile on the
site. In addition, the Board finds that the area near Day’s trailer where the waste was
consolidated constitutes “a disposal site that does not fulfill the requirements of a sanitary
landfill.” Accordingly, the Board finds that Day caused the open dumping of waste.
Litter
The next question is whether Day’s open dumping of these wastes resulted in “litter”
under Section 21(p)(1) of the Act. See 415 ILCS 5/21(p)(1) (2000). 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) (2000); see
St. Clair County v. Louis I. Mund (Aug. 22, 1991), AC 90-64, slip op. at 4, 6.
Using this definition, the Board finds that the waste including heat scorched metal springs, a
partially burnt cushion, charred lumber and plywood, and metal and glass drinking containers,
constitutes “litter” under Section 21(p)(1) and that Day therefore violated that section.
Open Burning
The final question is whether the Day’s open dumping of these wastes resulted in “open
burning” under Section 21(p)(3) of the Act. See 415 ILCS 5/21(p)(3) (2000). The Act defines
“open burning” as “the combustion of any matter in the open or in an open dump.” 415 ILCS
5/3.23 (2000). Day caused open dumping which resulted in open burning, in that he open
dumped and burned heat scorched metal springs, a partially burnt cushion, charred lumber and
plywood, and metal and glass drinking containers.
8
Webber testified that he saw Day and his family remove waste from a trailer on the site
and throw it into the fire. Tr. at 60-70. Webber stated he personally saw Day throw a rug,
construction debris, and a mattress onto the fire at the site. Tr. at 68. Webber’s observations are
consistent with photographs taken by Agency inspector, Darwin Fields, on Monday,
May 15, 2000. Tr. at 35. The photographs show heat scorched metal springs and a partially
burnt cushion. Keigley testified that the springs and cushion would be consistent with a mattress
or furniture cushions. Tr. at 37-38. The photographs also showed charred metal framing
consistent with metal folding doors, charred particleboard and dimensional lumber. Tr. at 37.
The framing and wood is consistent with Webber’s testimony that he saw Day and his family
throw waste from remodeling a home onto the fire. Tr. at 67-68.
Webber testified that the waste that Day and his family threw on the fire produced a large
cloud of black smoke. Tr. at 69. The Board agrees with the Agency that “landscape waste,
especially if it’s dry, is not going to produce dark, thick smoke.” Tr. at 163-64. The black
smoke is further evidence that Day burned more than landscape waste on the site.
Sapp and Tatman also testified that they saw Day standing next to a large fire or bonfire
at the site on the weekend of May 13 and 14, 2000. Tr. at 53, 85. Although neither person could
state specifically what Day was burning, they both identified the burn pile in the Agency
photographs as what they saw when they drove by the site. Tr. at 58, 86.
The Board finds that the Agency photographs and inspection report and the eyewitness
testimony shows by a preponderance of evidence that Day open dumped waste in a manner
resulting in open burning at the site on the weekend of May 13 and 14, 2000, in violation of
Section 21(p)(3) of the Act. 415 ILCS 5/21(p)(3) (2000).
PENALTY AND COSTS
Section 42(b)(4-5) of the Act provides for penalties in an administrative citation action as
follows:
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 a first offense and $3,000 for a second or
subsequent offense, plus any hearing costs incurred by the Board and the Agency.
The penalties shall be deposited into the Environmental Protection Trust Fund, to
be used in accordance with the provisions of the Environmental Protection Trust
Fund Act; except that if a unit of local government issued the administrative
citation, 50% of the civil penalty shall be payable to the unit of local government.
415 ILCS 5/42(b)(4-5) (2000).
The Board will assess Day the total statutory penalty of $3,000 for violating Sections
21(p)(1) and 21(p)(3) of the Act. The Board and the Agency are also entitled to their hearing
costs under Section 42(b)(4-5) of the Act (415 ILCS 5/42(b)(4-5) (2000)), but the record does
not include information on those costs. Therefore, the Clerk of the Board and the Agency are
9
ordered to file with the Board a statement of hearing costs, supported by affidavit, with service
on Day, within 14 days. Day may file a reply as specified below.
This interim opinion constitutes the Board’s interim findings of fact and conclusions of
law in this case.
ORDER
1.
The Board finds that respondent, James Day (Day), violated Sections 21(p)(1) and
21(p)(3) of the Environmental Protection Act, 415 ILCS 5/21(p)(1), 21(p)(3)
(2000).
2.
The Illinois Environmental Protection Agency must file a statement of its hearing
costs, supported by affidavit, with the Board and with service on Day, within 14
days of the date of this order. Within the same 14 days, the Clerk of the Board
must file a statement of the Board’s hearing costs, supported by affidavit and with
service on Day.
3.
Day is given leave to file a reply to the filings ordered in paragraph 2 of this order
within 14 days after receipt of that information, but in no event later than 40 days
after the date of this order.
4.
No earlier than 40 days after the date of this order, the Board will issue a final
order assessing a statutory penalty of $1,500 for each violation, for a total civil
penalty of $3,000, and awarding appropriate costs.
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 26th day of July 2001 by a vote of
6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
