ILLINOIS POLLUTION CONTROL BOARD
September 15,
1994
SANGANON COUNTY,
)
Complainant,
)
v.
)
AC 94—16
(Administrative Citation)
LEROY DONLEY and DONLEY,
INC.,
)
an Illinois Corporation,
)
Respondents.
ROBERT SMITH, ASSISTANT STATE’S ATTORNEY, SANGAMON COUNTY,
APPEARED
ON
BEHALF
OF
COMPLAINANT;
DELNAR
DONLEY
APPEARED
ON
BEHALF
OF
RESPONDENT
DONLEY,
INC.
INTERIM
OPINION
AND
ORDER
OF
THE
BOARD
(by
R.C.
Flemal):
This matter comes before the Board on an administrative
citation complaint filed March 21,
1994 pursuant to Section 31.1
of the Environmental Protection Act
(Act)
(415 ILCS 5/31.1
(1992)) by Sangamon County.
The citation alleges that respondent
Leroy Donley, the present owner of the property, and respondent
Donley,
Inc., violated the open dumping provisions of the Act
(415 ILCS 5/21), specifically as those provisions relate to the
occurrence of litter and open burning at the site.
Donley,
Inc. filed a petition for review on April
4,
1994.
Accordingly,
a hearing was
held on June 29,
1994 before hearing
officer Deborah L.
Frank.
Sangamon County presented one witness,
Mr. Brian Wood,
a solid waste inspector for Sangamon County,
Department of Public Health.
Delmar Donley testified on behalf
of Donley,
Inc.
The filing of post-hearing briefs was waived,
and no briefs were filed.
MOTION FOR DEFAULT
At the hearing, the attorney for Sangamon County moved that
the Board enter a default judgment against Leroy Donley,
stating
that Leroy Donley hasn’t appeared at hearing and did not file a
petition for review of the citation.
(Tr. at 21.)
Our review of the record indicates that Leroy Donley has not
been properly served with the administrative citation.
Although
Sangamori County
State’s
Attorney’s letter of April
6,
1994 to the
Clerk of the Board states that service was had upon Leroy Donley
and Donley,
Inc.,
only a single, signed certified mail receipt
solely addressed to Donley,
Inc. was attached to the letter as
2
proof of service.
The Board finds that since service was not had
upon Leroy Donley, the administrative citation should be
dismissed as against Leroy Donley.
Today’s order will include
this dismissal.
Accordingly,
the motion for default judgment
against Leroy Donley is hereby denied.
This finding regarding
Leroy Donley does not affect the service which was made upon
Donley,
Inc.
We next turn to the merits of findings of violation as
alleged in the administrative citation against respondent Donley,
Inc.
APPLICABLE LAW
The administrative citation issued against respondents Leroy
Donley and Donley,
Inc., alleges violation of subsections
(1) and
(3)
of Section 21(p)
of the Act.
Section 21(p)
provides that no
person shall in violation of Section 21(a)
of the Act:
cause or allow the open dumping of any waste in manner
which results in any of the following occurrences at
the dump site:
1.
litter;
*
*
*
3.
open burning;
Where a petition for review has been filed as was filed by
respondent Donley,
Inc.,
Section 31.1(d) (2) of the Act states
that if, based on the record, the Board finds the alleged
violation occurred, then the final order issued shall include a
finding of violation as alleged in the citation, and shall impose
the penalty specified in subdivision
(b) (4)
of Section 42,
i.e.,
$500 per violation.
Section 31.1(d) (2)
further provides that if
the Board finds the violation resulted from uncontrollable
circumstances,
it shall adopt a final order which makes no
finding of violation and which imposes no penalty.
Thus,
a two-
part inquiry is required:
first,
the Board must determine
whether there was a violation based on the record in this case,
and if so, the Board must then determine whether the violation
was caused by uncontrollable circumstances.
BACKGROUND
The subject property consists of 8.33 acres and is located
at the corners of Sandhill Road and Peoria Road in Springfield
Township.
The location is designated with Illinois Environmental
Protection Agency site code no.
1678220075.
Ownership of the
property is recorded as belonging to Leroy Donley and Illinois
National Bank under a specified trust number.
3
At hearing, Brian Wood testified that he first inspected the
property on September 20,
1993,
and observed smoke and flames
coming from a pile of railroad ties.
He stated that the pile
also contained what appeared to be the metal coils of
a box
spring mattress.
(Tr. at 6-7; See also Compl.
Exh.
3, photos
19
and 20.)
He stated that he also observed a second pile of
railroad ties that was not burning,
a pile of broken wooden
pallets, and two to three unmounted truck tires.
(Tr. at 6—7,
Compi.
Exh.
3 photos.)
He testified that subsequent to the
September 20 inspection,
the Department of Public Health sent an
inspection report and administrative warning notice to Leroy
Donley, which noted alleged violations of open dumping, and of
causing and allowing open burning and litter.
(Tr. at 7; Compl.
Exh.
3.)
Donley,
Inc. responded to the administrative warning
notice by letter dated December
3,
1993.
The letter stated that
the pallets would be cleaned up, the tires removed, and the
burning discontinued.
(Compl.
Exh.
4.)
On January 31,
1994,
Mr.
Wood again inspected the property and found the remains from the
pile of burning railroad ties (charred wood) that appeared to
have been pushed over a slope into a ravine area.
(Tr.
at
9,
11;
Compl.
Exh.
5, photos
14 and 15.)
The tires were no longer at
the site.
(Tr. at 9.)
The second pile of railroad ties was at
the site and the broken pallets were still at the site.
(Tr. at
9,
11;
Conipl.
Exh.
5, photos
13 and 16)
The inspector testified
that he considered the pallets to be litter because they were
broken, unorganized, and appeared to be waste material.
(Tr. at
14.)
Delmar Donley testified that the site is used as a storage
yard and that a previous tenant had used the site as a storage
yard.
Regarding the railroad ties,
he stated that they had been
neatly stacked, but were set on fire by someone.
He said that
the fire department came out and the burning ties were pushed out
of the way of the other ties so they would not all burn.
He said
that he sells the railroad ties so he did not want to burn them.
(Tr. at 15.)
He further testified that there was no further
burning after the fire department came out and that there was no
further burning after the letter was sent to Sangamon County.
(Tr. at 16.)
He did not state any dates when the fire department
came out, only mentioning that the pictures show the “remains of
the original time that they were set on fire”
(Tr. at 16).
He
testified that there is a gate on the property to keep intruders
out, and that he does not know who set the railroad ties on fire.
(Tr. at 17-18.)
Concerning the present condition of the railroad
ties,
he stated that there continues to be a pile of stacked ties
on the property, and that the five or six ties remaining from the
fire are still down the bank of the ravine.
(Tr.
at 17.)
Regarding the pallets, Delmar Donley stated that there are
only eight to fifteen pallets on the property, and that these
pallets were used to block off one of the roads so that truck
drivers would know which road to use.
(Tr.
at 16.)
Pallets have
4
been used in this manner for probably two years.
(Tr. at 17.)
He said there are two or three pallets remaining on the property.
These he still uses to block off the road.
(Tr. at 16-17.)
DISCUSSION
The Board must first determine whether on January 31,
1993,
respondent caused or allowed open dumping on the site which
resulted in litter and open burning.
It is the complainant’s
burden to make this showing to the Board.
(IEPA v. Lakewood
Homes
& Development Co..
Inc.
(March 25,
1993),
AC 92-41,
_____
PCB
______;
Section 31. 1(d) (2) of the Act.)
Section 3.24 of the Act defines “open dumping” 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 5/3.24
(1992).)
Section 3.31 of the Act
defines “refuse” as “waste” which is defined in the Act as,
inter
alia,
“garbage
*
*
*
or other discarded material, resulting from
industrial,
commercial, mining and agricultural operations,
*
*
*‘~~
(415
ILCS
5/3.53
(1992).)
The Fifth District Appellate Court in Illinois Environmental
Protection Agency v. Illinois Pollution Control Board
(5th Dist.
1991),
219 Ill.App.3d 975,
579 N.E.2d 215,
162 Ill.Dec.
401,
in
reviewing an administrative citation involving consolidated
refuse at a demolition area, presented an analysis of whether
open dumping is happening at a site.
The court focused on
whether disposal was occurring at a location, citing the
definition of disposal in the Act at 415 ILCS 5/3.08
(1992):
“Disposal” means the discharge, deposit,
injection,
dumping, spilling, leaking or placing of any waste
*
*
*
into or on any land or water or into any well so that
such waste
*
*
*
or any constituent thereof may enter
the environment or be emitted into the air or
discharged into any waters,
including ground waters.
The Board finds that based on the record the stacked
railroad ties were not refuse since they were not discarded
material, but were stored for future sale.
Sangamon County did
not rebut Delmar Donley’s testimony here.
However, there is no
evidence that at the time of the January 31,
1993 inspection the
previously burned railroad ties were being stored for future
sale.
In fact, they had been pushed into the bank of a ravine.
The Board finds that these charred ties constitute a
consolidation of refuse at a disposal site that does not meet the
requirements of a sanitary landfill.
Therefore, the complainant
has shown that respondent Donley,
Inc. caused or allowed open
dumping as was found by inspection on January 31,
1993.
5
Regarding the pallets, the Board finds that using refuse or
waste,
i.e., discarded material,
to block
a road constitutes
disposal under the definition in the Act.
Since the use of waste
material to block a road is a method of disposal at a site that
is not a sanitary landfill, the Board finds that respondent
Donley,
Inc. caused or allowed open dumping at the site.
In St. Clair County v. Louis Mund (August
22,
1991), AC 90—
64,
125 PCB 381, the Board adopted the definition of litter
contained 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
*
*
*
abandoned vehicle
*
*
*
or anything else of an
unsightly or unsanitary nature which has been
discarded, abandoned or otherwise disposed of
improperly.
(415 ILCS 105/1.)
The Board finds that the open dumping of waste on the
property resulted in litter.
The pallets and charred railroad
ties observed on the property were discarded materials
constituting litter.
Open Burning
There
is no evidence that the railroad ties were discarded
material and not stored for future sale at the time of the
September 20,
1993 inspection.
However, the photographs and the
testimony indicate that other debris, including a mattress box
spring was on the property and burning at the time of the
September 20,
1993 inspection.
Complainant does not contest that
the burning occurred at the site on this occasion.
Evidence of
this past burning remained on the property at the time of the
January 31,
1994 inspection.
Therefore, the Board finds that
respondent Donley,
Inc. caused or allowed open dumping that
resulted in open burning occurring at the site.
Respondent
Donley,
Inc. can be found to have allowed the open burning even
though its agents may not have performed the burning and may have
attempted to secure the property by a gate.
See Illinois
Environmental Protection Agency v. Gordon (2/7/91), AC 89-156,
118 PCB 309,
312, citing Freeman Coal Mining Corp. v. Pollution
Control Board
(1974),
21 Ill.App.3d 157,
313 N.E.2d 616:
TJhe
fact that the discharges were unintentional, or
occurred despite efforts to prevent them,
is not a
defense.
The owner of the property that creates the
pollution has
a duty,
imposed by the legislation, to
take all prudent measures to prevent the pollution.
The efforts by the landowner to control or treat the
pollution go to the issue of mitigation, not to the
6
primary issue of liability.
citations
omitted.
(Gordon at 312.)
In summary, the Board finds that Sangamon County has met its
burden of proof that the alleged violations occurred.
Based on
the facts and law presented in this case,
the Board concludes
that Donley,
Inc. did cause or allow the open dumping and open
burning that occurred on the property.
Therefore,
Donley,
Inc.
is in violation of Section 21(p)3 of the Act.
The Board further
concludes that Donley,
Inc. did cause or allow the open dumping
and litter that occurred on the property.
Therefore, Donley,
Inc.
is in violation of Section 2l(p)1 of the Act.
INTERIM ORDER
1.
This administration citation is hereby dismissed as against
respondent Leroy Donley only.
1.
Respondent Donley,
Inc.,
is hereby found to have violated
415 ILCS 5/21(p) (1) and
(3)
(1992).
2.
Sangamon County is hereby directed to file a statement of
its hearing costs, supported by affidavit, with the Board
and with service on respondent Donley,
Inc., within 14 days
of this order.
Within the same 14 days, the Clerk of the
Board shall file a statement of the Board’s costs,
supported
by affidavit and with service upon respondent Donley,
Inc.
3.
Respondent Donley,
Inc.
is hereby given leave to file a
reply to the filings ordered in paragraph 2 within
14 days
of receipt of that information, but in no case later than 40
days after the date of this order.
4.
After the deadline for filing such information and reply
thereto has expired, the Board will issue a final order
assessing the statutory penalty, and making the appropriate
award of 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 ~n the
/i’~.day of
_________________,
1994, by
a vote of
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.
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.
Dorothy M.
G~n,
Clerk
Illinois Pollution Control Board