ILLINOIS POLLUTION CONTROL BOARD
April 20,
1995
SANGAMON COUNTY,
Complainant,
AC 94—76
v.
)
(SCDPH Case No.
94—AC-22)
(Administrative Citation)
SLC OF SPRINGFIELD,
INC.,
Respondent.
ROBERT L.
SMITH, ASSISTANT STATE’S ATTORNEY, APPEARED ON BEHALF
OF
SANGANON
COUNTY.
MARK
K.
VINCENT
APPEARED
ON
BEHALF
OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by
3.
Yi):
This matter is before the Board pursuant to a petition for
review timely filed by the respondent,
SLC of Springfield
(SLC),
on October
5,
1994.
Respondent has requested review of one count
of an administrative citation issued August 29,
1994 by Sangamon
County.
Sangamon County
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)
and a delegation of
authority agreement with the Illinois Environmental Protection
Agency statutorily authorized in Section 4(r)
of the Act.
(415
ILCS 5/4(r).)
The Board accepted the petition for review on
October 20,
1994 and set the case for hearing.
Hearing was held
before Hearing Officer June C. Edvenson on January
10,
1995 in
Springfield, Illinois.
No post—hearing briefs were filed.
The administrative citation alleges violations of Sections
21(p) (1) and 21(p) (3)
of the Act
(415 ILCS 5/21(p) (1) and
5/21(p) (3)) which carry a statutory civil penalty of $500 for
each violation if the Board finds that such violation occurred.
SLC filed the petition for review for the limited purpose of
challenging the alleged violation of Section 21(p)(3)
of the Act.
SLC admits to violating Section 21(p) (1)
of the Act, for which
the Board finds respondent liable for the payment of the
statutory penalty of $500.
Therefore, the only issue before the
Board is whether SLC violated Section 21(p) (3)
of the Act.
For
the reasons set forth below, the Board does not find that the
record demonstrates that SLC violated Section 21(p)(3) of the
Act.
Since the petition for review only challenged the
allegation that SLC violated Section 21(p)(3)
of the Act and the
Board finds in favor of SLC, pursuant to Section 42(b)(4)
of the
Act no hearing costs will be assessed.
(415 ILCS 5/42(b) (4).)
2
FACTS
SLC is the owner of a facility located in Sangamon County,
Illinois.
(Complaint at
1.)
The property is commonly known to
the Agency and Sangamon County as “Springfield/SLC of
Springfield”.
The Agency has designated the facility with site
code no. 1678220081 and the current operator of the facility is
SLC.
(Complaint at 1.)
SLC is in the business of picking up
trash and garbage from residences and business.
(Tr. at
37•)1
SLC does not take the collected trash to a landfill.
Instead,
it
takes
it to a transfer station and
is charged by the transfer
station a fee per truck load.
(Tr.
at 42.)
The instant administrative citation was filed against SLC by
Sangamon County based on the direct observations made by Allen
Alexander and Brain Wood,
Solid Waste Specialists employed by the
Sangamon County Health Department,
on July 27,
1994.
The SLC
property is abutted to the east by property owned by the Wanless
Estate (Wanless), which is not a party to this action.
(Tr. at
20—21.)
Mr. Alexander testified that on the day of the
inspection he observed a large pile of burning refuse right next
to a fenced—in area and along the eastern side of a driveway
leading up to the fenced-in area.
Located within the fenced-in
area was a large pile of landscape waste and some dump trucks.
Mr. Alexander stated that he took approximately seven
(7)
photographs of the site which appear in his inspection report
numbered 10-17.
(Plaintiff’s Exhibit #2.)
Photograph #10 was
taken in a north eastern direction and is of a large pile of
burning refuse consisting of general garbage, demolition debris,
plastic buckets,
and tires just east of a driveway.
Photograph
#11 was also taken
in a north eastern direction and is of the
same pile of burning refuse but also shows the pile running
farther north along the east side of the fenced in area and the
driveway.
Photographs #12 and #15 were done facing the east and
are of the burning refuse.
Photograph #13 was taken towards the
northwest and is of the large landscape waste pile located within
the fenced in area of the SLC site.
Photograph #16 was taken in
a southeasterly direction and is of the burning refuse.
The last
photograph, photograph #17, was taken towards the north looking
up the driveway to the fenced in area where the dump trucks are
parked and shows just to the east of the driveway the pile of
burning refuse.
(Tr. at 8—15, Plaintiff’s Exhibit #2.)
Mr. Alexander testified that he did not see anyone lighting
the burning refuse on the day of his inspection on July 27,
1994.
(Tr.
at 15.)
Mr. Alexander also could not determine if the pile
tThe transcript of the hearing will be referenced as “Tr.
at
3
of burning refuse was located on the property of SLC or on the
property owned by Wanless.
(Tr.
at 21-22.)
Mr. Alexander revisited the site after the issuance of the
administrative citation and observed that “...most of the burned
material appeared to have been cleaned up, and sitting on part of
the area where the burning was occurring in July were two
dumpsters owned by SLC.”
(Tr. at 18.)
He also went by the site
at a later date and witnessed two men, who identified themselves
as SLC employees,
unloading refuse from trucks into the
dumpsters.
(Tr.
at 18.)
Mr. Larry Squires, the President of SLC, testified on its
behalf.
(Tr.
at 33.)
Mr. Squires testified that at no time did
SLC own or operate on the Wanless property prior to the July
inspection.
(Tr.
at 38.)
Mr. Squires also testified that there
is refuse located on other properties in the neighborhood.
(Tr.
at 38.)
DISCUSSION
The Act establishes that,
in order to seek enforcement by
way of the administrative citation process for violations of
Section 21(p), the Agency,
or in this case the County~ (since the
Agency has delegated its authority pursuant to Section 4(r)
of
the Act), must establish that the respondent caused or allowed
open dumping and must also prove that the open dumping resulted
in litter,
open burning or other specified conduct at the dump
site.
If the record demonstrates that such violation occurred,
then the Board must adopt an order finding a violation and
imposing the specified penalty.
The only mitigation of
a
violation is
if “...the person appealing the citation has shown
that the violation resulted from uncontrollable circumstances” in
which case the Board must adopt an ordering which imposes no
penalty.
(415 ILCS 5/31.l(d)(2)
(1992).
The administrative citation issued against SLC alleges that
Section 21(p)
subsection
(3)
of the Act was violated.
Section
21(p) (3) provides that no person shall
in violation of Section
21(a)
of the Act:
Cause or allow the open dumping of any waste in a
manner which results in any of the following
occurrences at the dump site:
3.
burning;
Section 21(a)
of the Act sets forth a general prohibition against
open dumping by providing that “no
person shall cause or allow
the open dumping of any waste”.
Section 3.24 of the Act defines “open dumping” as “the
4
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”.
(415 ILCS 5/3.31
(1992).)
Section
3.53 defines “waste”
as,
inter alia,
“garbage.. .or other
discarded material, resulting form industrial,
commercial,
mining
and agricultural operations....”
(415 ILCS 5/3.53
(1992).)
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
In this case,
SLC has admitted that it caused open dumping
which led to litter on its property and is not seeking review of
that count of the administrative citation.
However, SLC does not
admit,
and in fact presented evidence to the contrary, that it
ever open dumped on the Wanless property, and it denies that it
ever open burned.
The record before the Board demonstrates that
the open dumping occurred and that the refuse was burning at the
time of inspection on the Wanless property.
However, the County
must make some showing that the burning occurred at the facility
issued the administrative citation.
(See Sangamon County
Dei~artmentof Public Health v.
Lee Hsueh,
(July
1,
1993), Ac 92-
79 and Illinois Environmental Protection Agency v. John A.
Gordon,
(February 7,
1991), AC 89-156.)
The question is whether
the County has made such a factual showing in this particular
proceeding.
Based on the evidence in the record, the Board concludes
that the County has not demonstrated that the dperi burning
occurred on SLC’s property or that SLC caused or allowed the
dumping of the refuse on the Wanless property which led to the
open burning.
Mr. Alexander could not determine whether the
burning refuse was located on the SLC property or the Wanless
property.
The record demonstrates that the property line runs
along the fenced-in area and the driveway, with the Wanless
property being to the east where the burning refuse was located
and the SLC property to the west.
Mr.
Squires testified that SLC
has never operated or burned refuse on the Wanless property.
Thus,
the Board dismisses the alleged violation of 21(p) (3)
of
the Act.
PENALTY
Penalties in administrative citation actions are prescribed
by Section 42(b)(4) of the Act which states:
In an administrative citation action under Section 31.1 of
5
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 $500 for each violation of each such provision, plus
any hearing costs incurred by the Board and the Agency.
Such
penalties shall be made payable to the Environmental Protection
Trust Fund to be used in accordance with the provisions of “An
Act creating the Environmental Protection Trust Fund”, approved
September 22,
1979,
as amended (415 ILCS 5/42(b) (4)
(1992)).
Respondent will therefore be ordered to pay a civil penalty
of $500 based on the violation of Section 21(p) (1)
of the Act as
admitted to in its petition for review.
Pursuant to Section
42(b)(4) of the Act, normally respondents are also required to
pay hearing costs incurred by the Board and the Sangamon County.
However, the since the petition for review only challenged the
allegation that SLC violated Section 21(p) (3)
of the Act, which
the Board finds in favor of SLC,
no hearing costs will be
assessed.
For the reasons stated in the above opinion and order, the
Board finds that the respondents,
SLC of Springfield,
Inc.,
violated Section 2l(p)(l)
of the Act and dismisses the allegation
that SLC of Springfield,
Inc.,
violated Section 21(p)(3)
of the
Act.
Accordingly, the respondents are liable for a penalty of
five hundred dollars
($500.00).
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
Respondent,
SLC of Springfield,
Inc.,
is hereby found
to have violated 415 ILCS 5/21(p) (1)
(1992)
2.
Within 30 days of this order, the Respondents shall pay
the sum of five hundred dollars
($500.00) by check or money
order to the Illinois Environmental Protection Trust Fund.
The payment shall be mailed to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
Il.
62706
3.
SLC of Springfield shall write the case name and
number, and its social security number or federal Employer
Identification Number, on the certified check or money
order.
4.
Penalties unpaid after the due date shall accrue
interest pursuant to Section 42(g)
of the Environmental
Protection Act.
6
5.
Payment of this penalty does not prevent future
prosecution if the violation continues.
IT IS SO ORDERED.
Board Member Marili McFawn dissented.
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1992)) provides for appeal of final orders of the Board
within 35 days.
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 above~opinion and order was
adopt d on the
~
day of
_______________
,
1995, by a vote
of
_______
.
/
I
/
:7~’
~
-
~
Dorothy
M.
G~n,
Clerk
Illinois
Poi~ution
Control Board