ILLINOIS POLLUTION CONTROL BOARD
April 20, 1995
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
AC 94—5
v.
)
(IEPA No.
4-94—AC)
(Administrative Citation)
JAMES BENNETT and
)
KERRY 3. HENSON
(Hamilton/Bennett Tire),
)
)
Respondents.
DANIEL P.
MERRIMAN, ASSISTANT COUNSEL, APPEARED ON BEHALF OF
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.
JAMES
BENNETT APPEARED PRO SE.
OPINION AND ORDER OF THE BOARD
(by R.C. Flemal):
This matter is before the Board pursuant to a petition for
review filed by respondent, James Bennett’, on March
3,
1994.
Mr. Bennett requests review of an administrative citation issued
on February
1,
1994 by the Illinois Environmental Protection
Agency
(Agency).
The Agency is vested with the authority to
bring such a citation pursuant to Section 31.1 of the
Environmental Protection Act
(Act)
(415 ILCS 5/31.1).
The administrative citation alleges a violation of Section
21(p)(l)
of the Act (415 ILCS 5/21(p) (1)), which carries a
statutory civil penalty of $500 if there is a finding of a
violation by the Board.
For the reasons set forth below,
the
Board finds that the violation in question has not occurred.
Accordingly, this matter will be dismissed.
BACKGROUND
Mr. Bennett resides at a property located at 631 Elm,
Hamilton, Hancock County, Illinois
(Bennett property).
Legal
title to the property is held by Mr. Henson.
The Agency,
in the person of field inspector Robert E.
Figge,
initially inspected the Bennett property on June 23,
1993.
Mr. Kerry J. Henson did not file a petition for review,
nor did he participate at the hearing in this matter.
2
On the basis of this June inspection, the Agency on August 28,
1993 issued a Warning Notice to respondents.
However, no
enforcement action has been undertaken based
on the June
inspection.
On December 8,
1993 Mr. Figge again inspected the Bennett
property.
The instant administrative citation was issued to
respondents based on conditions at the Bennett property as
observed by Mr.
Figge on December 8,
1993.
The administrative
citation asserts that respondents open dumped used tires so as to
cause or allow litter in violation of Section 21(p)(l)
of the
Act2.
The sole issue before the Board is whether this open
dumping resulting in litter existed at the Bennett property on
December 8,
1993.
Hearing was held before Board Hearing Officer Deborah L.
Frank on Nay 24,
1994 in Carthage, Illinois.
Included in the
hearing record is the testimony of Mr.
Figge and Mr.
Bennett,
plus a series of
1.
photos taken by Mr. Figge on December 8,
1993
at the Bennett property.
No post-hearing briefs were filed.
DISCUSSION
The Act at Section 21(a)
sets forth a general prohibition
against open dumping by providing that “fno
person shall cause
or allow the open dumping of any waste”.
The Act at Section
21(p)
further provides that open dumping that results in any one
of six conditions is enforceable by an administrative citation.
The pertinent part of Section 21(p)
is subsection
(1), which
provides for administrative citation authority against open
dumping at results in litter:
p.
CN0 person shall)
.
.
.
cause or allow the
open dumping of any waste in a manner which
2
The assertation of open dumping/litter occurs on a “Tire
Disposal Site Inspection Report” form, which is part of the
administrative citation filings.
This form provides check boxes
within which the field inspector may note any of a large number
of alleged violations of the Act and the Board’s regulations
governing management of used tires.
The filled—out form for the
December 8,
1993 inspection does contain checks next to alleged
violations other than open dumping/litter.
However, none of
these additional alleged violations falls within the scope of
matters that may be prosecuted via the administrative citation
provisions of the Act.
A “narrative” attached to the “Tire
Disposal Site Inspection Report” also references several alleges
violations that are not subject matter for administrative
citations.
3
results in any of the following occurrences
at the dump site:
1.
litter;
*****
The Act does not contain a definition of “litter”.
However,
“litter” is defined in the Litter Control Act (415 ILCS 105/3),
and in St. Clair County v.
Louis Mund (AC 90-64, August 22,
1991,
125 PCB 381) the Board adopted the definition 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 105/3.)
That used tires existed on the Bennett property on December
8,
1993
is uncontested.
At issue is whether these tires were
open dumped such as to constitute litter,
in violation of the
open dumping prohibition found at Section 21(p)
of the Act.
The majority of the tires, approximately 130 out of a total
of 150 tires, were located inside two sheds.
(Tr. at 15—16.)
The Board reviewed a similar circumstance in IEPA v. Al Seaman
(AC 92—86, May 5,
1994).
Citing the court’s analysis of the
terms “open dumping” and “disposal”
in IEPA v.
IPCB
((5th Dist.
1991),
219 Ill. App.3d 975,
579 N.E.2d 1215,
162 Ill.Dec.
401),
the Board in Seaman found that tires
in a barn did not constitute
“disposal” within the meaning of “open dumping”.
The Board
explained that the Agency must demonstrate how the placement of
used tires
in a barn could result in waste entering the
environment, and that the Agency had failed to do so in that
case.
In the instant case, the Agency has likewise failed to
demonstrate how the tires inside the two sheds were “disposed of
improperly”
(i.e., how placement of the used tires in this case
could result in waste entering the environment).
Therefore, the
Board finds that the presence of used tires
in sheds at the
Bennett property on December 8,
1993 does not support a finding
of violation of Section 21(p)(1)
of the Act.
The remaining portion of the used tires, approximately 20 in
number, that were observed on the Bennett property on December 8,
1993, were observed outside.
The Board is not persuaded,
however, that these 20 tires constitute litter, or that their
presence rises to the level of open dumping.
4
Most of the 20 outside tires were clearly used in
landscaping, or had been processed for use in landscaping as
items such as planters and tree rings.
(E.g., photos #1,
#4, and
#10.)
Mr. Bennett indeed testified that he is involved in a
landscaping business.
(Tr.
at 37.)
The Board finds that these
tires were not “discarded,
abandoned or otherwise disposed of
improperly” as of December 8,
1993, and hence that they did not
constitute litter as that term is to be interpreted under Section
21(p’
‘~f
the Act.
CONCLUSION
Based on its review of the record in this case,
the Board
finds insufficient evidence to sustain a finding of the violation
as alleged.
The administrative citation will accordingly be
dismissed.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The administrative citation, IEPA No. 4-94-AC,
issued to
James Bennett and Kerry 3. Henson on February 1,
1994,
is hereby
dismissed.
This docket is closed.
IT IS SO ORDERED.
Chairman C.A. Manning and Board Member
3.
Yi dissented.
Section 41 of the Environmental Protection Act (415 ILCS
5/41 (1992)) provides for the appeal of final Board orders within
35 days of the date of service of this order.
The Rules of the
Supreme Court of Illinois establish filing requirements.
(See
also 35 Ill. Adm.
Code 101.246 “Motions for Reconsideration”.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the ~bove opinion and order was
adopted on the ~ô~-
day of 6~A~L
1995,
by a vote of
~
-~
Dorothy M. 9~n, Clerk
Illinois P93/Lution Control Board