ILLINOIS POLLUTION CONTROL BOARD
    May 5,
    1994
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Petitioner,
    )
    v.
    )
    AC 92—86
    )
    (IEPA No.
    658—92-AC)
    AL
    SEAMAN,
    )
    (Administrative Citation)
    )
    Respondent.
    CONCURRING OPINION (by
    G.
    T. Girard):
    I agree with the outcome and general line of reasoning
    expressed in the majority opinion.
    The used tires placed in a
    barn by Mr. Seaman do not warrant finding of violation of Section
    2l(p)(1)
    of the Environmental Protection Act (Act).
    (415 ILCS
    5/21(p) (1)
    1992.)
    Section 21(p) (1) prohibits open dumping
    resulting in litter.
    However,
    I concur because the majority
    opinion does not give the Illinois Environmental Protection
    Agency (Agency)
    enough guidance on what constitutes “litter”.
    A
    clear definition of litter is key to deciding this case.
    The majority opinion states on page 4:
    “the
    Agency has
    charged only that the used tires
    in this case resulted in litter.
    Yet, the Agency has failed to provide evidence demonstrating how
    this waste constitutes litter”.
    The majority opinion fails to
    mention several past Board opinions that found used tires as
    components of litter.
    (See generally,
    Sangamon County v. Ruth
    Ann Sheppard (November 4,
    1994)
    AC 93-6,
    —
    PCB
    _;
    IEPA
    V.
    Sickles,
    (September 17,
    1992) AC 92—47,
    136 PCB 83; IEPA
    V.
    Sickles,
    (July
    30,
    1992) AC 92—47,
    135 PCB 223; IEPA v.
    Hillebrenner,
    (May 21,
    1992), AC 92—16,
    133 PCB 559; and IEPA v.
    Sprinqman,
    (May
    9,
    1991) AC 90—79,
    122 PCB 147.)
    The instant
    case must be distinguished from past cases to give Agency field
    inspectors more specific guidance.
    The instant case can be distinguished because the used tires
    were contained inside a barn.
    There have been no prior Board
    findings of violations of Section 21(p) (1)
    inside
    a structure
    including all the prior Board opinions cited above which found
    tires as components of litter.
    The first line of argument should be based on a careful
    study of the term “litter”.
    The majority opinion cites the
    definition of litter first articulated in St.
    Clair County v.
    Nund which derives from the Litter Control Act.
    (415 ILCS 105.)
    If the Board is looking to the Litter Control Act for an
    authoritative definition of litter, the Board needs to read that
    definition within the entire context of 415 ILCS 105.
    Reading
    the entire Litter Control Act leads to the conclusion that the
    2
    definition of litter at 415 ILCS 105/3 was not meant to be
    applied inside structures.
    Littering is an outdoor event.
    Therefore, the Board can find that there is no violation of
    Section 21(p) (1)
    since all the tires are within the barn and,
    therefore,
    there is no litter.
    If there is no litter, there
    cannot be a violation of Section 21(p)(l).
    Therefore,
    I respectfully concur.
    G. Tanner Girard
    Board Member
    I, Dorothy N. Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    here~y..certify that the above concurring opinion was filed
    on the
    /9”~
    day of
    __________________,
    1994.
    Dorothy N. G32~n, Clerk
    Illinois Pol(l~itionControl Board

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