ILLINOIS POLLUTION CONTROL BOARD
April 4, 2001
PEOPLE OF THE STATE OF ILLINOIS, )
)
Petitioner, )
)
v.
) PCB 01-135
) (Enforcement - Land)
PATRICK ROBERTS LAND TRUST, )
)
Respondent.
)
ORDER OF THE BOARD (by S.T. Lawton, Jr.):
This matter involves a complaint against respondent Patrick Roberts Land Trust for
allegedly violating the Environmental Protection Act (Act) and Board regulations at its facility,
known as the Old Weaver Landfill. The landfill is located in Washington Township, Tazewell
County. The complaint specifically alleges that the respondent: caused or allowed the open
dumping of waste resulting in litter; caused, allowed, or threatened the discharge of contaminants
into the environment so as to cause or tend to cause water pollution; and lacked a permit from the
Illinois Environmental Protection Agency (Agency) to conduct a waste storage, treatment, or
disposal facility. This conduct is in alleged violation of Sections 12(a) and 21(a), (d), and (p) of
the Act (415 ILCS 5/12(a), 21(a), (d), (p) (2000)), and Section 812.101(a) of the Board’s
regulations (35 Ill. Adm. Code 812.101(a)).
On January 10, 2002, the complainant filed a motion either for summary judgment or for
a determination of certain major issues underlying the respondent’s liability for violations of the
Act. Mot. at 1. The respondent did not file a response to the motion. The Board grants the
complainant’s motion for summary judgment on the issue of liability for the reasons stated
below, and directs the parties to hearing for more information concerning the appropriate penalty
in this matter.
PROCEDURAL HISTORY
In response to the April 3, 2001 complaint, the respondent filed a June 6, 2001 answer
that admitted several factual allegations. On June 21, 2001, the complainant served a request for
the admission of facts on the respondent. In its response, the respondent either admitted that the
factual allegations were true or stated that it did not have sufficient knowledge as to whether the
allegations were true.
The complainant filed a motion for summary judgment on January 10, 2002, and attached
the affidavit of Ronald Mehalic, a field inspector with the Agency, in support of its motion. The
affidavit included photographs taken of the site on two different occasions. The respondent did
not file a response to the motion for summary judgment, thereby waiving any objections to the
motion.
See
35 Ill. Adm. Code 191.500(d).
2
UNCONTESTED FACTS
The respondent, in its answer to the complaint and response to the complainant’s request
to admit facts, admits the following to be true. Respondent owns the Old Weaver Landfill,
which is located in the SE 1/4 of the SW 1/4 of Section 9, T.26N, R3W, in Washington
Township, Tazewell County.
See
Ans. at 1; Resp. at 1. The Old Weaver Landfill accepted waste
from 1966 to 1974. Resp. at 1. Bessie Wyss owned the landfill property and Glenn Weaver
operated the landfill.
Id.
Final cover was placed on the landfill in 1975, and the Agency
approved closure of the Old Weaver Landfill by letter dated May 18, 1976.
Id.
Respondent admits that open-dumped waste, including wood, shingles, bedsprings,
chairs, mattresses, rusted metal objects, and white goods, existed at the site on March 23, 1999.
Resp. at 1. Respondent does not have a permit from the Agency to operate a waste-storage,
waste-treatment, or waste-disposal operation at the Old Weaver Landfill site. Resp. at 2.
The complainant alleged several facts concerning Agency inspections of the Old Weaver
Landfill on March 23, 1999 and April 18, 2000, as well as the current condition of the site in its
motion for summary judgment. The complainant provided a sworn affidavit and photographs by
Agency field inspector, Ronald Mehalic to verify the facts alleged in its complaint. The
respondent did not at any time deny these facts. The respondent also waived its objection by not
responding to the motion for summary judgment or objecting to information in the supporting
affidavit.
See
35 Ill. Adm. Code 191.500(d). The Board accordingly finds the factual allegations
by the complainant in its motion for summary judgment, as supported by Mehalic in his
affidavit, are uncontested facts.
The Board specifically finds that the following statements in the affidavit by Mehalic are
uncontested facts in this matter. Mehalic conducted an inspection at the Old Weaver Landfill
site on March 23, 1999. Affidavit at 3. On that date, Mehalic observed open-dumped refuse at
the northeast corner of the property, including wood waste, shingles, bed springs, chairs,
mattresses, various rusted objects, and white goods.
Id.
Mehalic took photographs of the waste,
which are attached to his affidavit.
Id.
Mehalic attests that photographs labeled 5, 6, 7, 8, 9, 10,
and 12 submitted with the affidavit truly and accurately depict the conditions that he observed on
March 23, 1999.
Mehalic noticed after further investigation of the northeast corner of the site that refuse
was protruding from ravines where the cover material of the Old Weaver Landfill eroded into the
landfill’s side slopes. Affidavit at 4. Mehalic saw “water flowing through the ravines and in
direct contact with the exposed refuse.”
Id.
Mehalic stated that it appeared that flowing water
had formed the ravines.
Id.
Mehalic said that the uncovered refuse was part of the closed
landfill.
Id.
Mehalic also observed a pool of leachate from the Old Weaver Landfill at the
northeastern lower side of the landfill’s slope.
Id.
Mehalic stated that a tributary to the Ten Mile
Creek runs along the north side of the property near the erosion rills.
Id.
On April 18, 2000, Mehalic re-inspected the site of the Old Weaver Landfill. Affidavit at
4. Mehalic stated that the conditions were the same as when he inspected the site on
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March 23, 1999. Specifically, he observed the same types of open-dumped waste in the
northeastern corner of the site.
Id.
He also observed water running through the same ravines in
direct contact with refuse from the Old Weaver Landfill. Affidavit at 5. Mehalic attached
photographs of his observations on that date to his affidavit.
Id.
He attests that photographs
labeled 13 through 21 truly and accurately depict the conditions that he observed at the Old
Weaver Landfill on
April 18, 2000.
Id.
STATUTORY AND REGULATORY FRAMEWORK
The complaint in this matter alleges that the respondent is in violation of Sections 12(a)
and 21(a), (d), and (p) of the Act (415 ILCS 5/12(a), 21(a), (d), (p) (2000)), and Section 812.101
of the Board regulations (35 Ill. Adm. Code 812.101). The violations can be broken down into
three counts of water pollution, litter, and permit requirement violations. The statutory and
regulatory provisions for each count are defined below.
Water Pollution
Section 12(a) of the Act states that no person shall:
Cause or threaten or allow the discharge of any contaminants into the
environment in any State so as to cause or tend to cause water pollution in Illinois,
either alone or in combination with matter from other sources, or so as to violate
regulations or standards adopted by the Pollution Control Board under this Act.
415 ILCS 5/12(a) (2000).
The Act defines a contaminant as “any solid, liquid, or gaseous matter, any odor, or any form of
energy, from whatever source.” 415 ILCS 5/3.06 (2000). The Act also defines water pollution
as an:
alteration of the physical, thermal, chemical, biological or radioactive properties
of any waters of the State, or such discharge of any contaminant into any waters
of the State, as will or is likely to create a nuisance or render such waters harmful
or detrimental or injurious to public health, safety or welfare, or to domestic,
commercial, industrial, agricultural, recreational, or other legitimate uses, or to
livestock, wild animals, birds, fish, or other aquatic life. 415 ILCS 5/3.55 (2000).
4
Litter
Section 21(a) of the Act provides that “no person shall . . . cause or allow the open
dumping of any waste.” 415 ILCS 5/21(a) (2000).
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 (2000). Waste is defined in pertinent part as:
any garbage . . . or other discarded material, including solid, liquid, semi-
solid, or contained gaseous material resulting from industrial, commercial,
mining and agricultural operations, and from community activities . . . .
415 ILCS 5/3.53 (2000).
Section 21(p) of the Act states that no person shall:
In violation of subdivision (a) of this Section, cause or allow the open dumping of
any waste in any manner which results in any of the following occurrences at a
dump site:
1. litter . . . . 415 ILCS 5/21(p)(1) (2000).
Permit Requirement Violations
Section 21(d) of the Act specifies in relevant part that no person shall:
Conduct any waste-storage, waste-treatment, or waste-disposal operation:
1. without a permit granted by the Agency . . . ; [or]
2. in violation of any regulation or standards adopted by the Board under this
Act . . . . 415 ILCS 5/21(d)(1), (2) (2000).
Section 812.101(a) of the Board regulations states that:
All persons, except those specifically exempted by Section 21(d) of the Environmental
Protection Act (Act) (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1021(d)) [415 ILCS 5/21(d)]
shall submit to the Agency an application for a permit to develop and operate a landfill.
The applications must contain the information required by this Subpart and by Section
39(a) of the Act, except as otherwise provided in 35 Ill. Adm. Code 817. 35 Ill. Adm.
Code 812.101(a).
STANDARD OF REVIEW
5
Summary judgment is appropriate when the pleadings and depositions, together with any
affidavits and other items in the record, show that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
See
Dowd & Dowd, Ltd. v.
Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998). In ruling on a motion for summary judgment,
the Board “must consider the pleadings, depositions, and affidavits strictly against the movant
and in favor of the opposing party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.
Summary judgment “is a drastic means of disposing of litigation,” and therefore it should
only be granted when the movant’s right to the relief “is clear and free from doubt.” Dowd, 181
Ill. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871
(1986). However, a party opposing a motion for summary judgment may not rest on its
pleadings, but must “present a factual basis, which would arguably entitle [it] to a judgment.”
Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).
DISCUSSION
The complainant alleges in its motion for summary judgement that no genuine issue of
material fact concerning respondent’s liability remains in the case, and the complainant is
entitled to summary judgment in its favor as a matter of law. Mot. at 2, 4. Since the respondent
did not file a response to the complainant’s motion, he has waived objection to the motion.
See
35 Ill. Adm. Code 191.500(d).
The Board finds that the facts in this matter are not in dispute. Accordingly, the Board
discusses whether the complainant is entitled to summary judgment as a matter of law. The
Board discusses the merit of each of the three counts of the complaint in turn.
Water Pollution
The complainant first alleges that respondent violated Section 12(a) of the Act (415 ILCS
5/12(a) (2000)) by causing, threatening, or allowing the discharge of contaminants into the
environment so as to cause or tend to cause water pollution.
See
Comp. at ; Mot. at 7. Mehalic
states in his affidavit that, on March 23, 1999 and April 18, 2000, he observed water flowing
through ravines in direct contact with exposed refuse on the site of the Old Weaver Landfill.
Mehalic also said that he saw a pool of leachate from the landfill. Mehalic stated that water that
formed the ravines had eroded the cover material from the Old Weaver Landfill.
Section 12(a) can be broken down into four main elements. The respondent must (1)
cause, threaten, or allow a discharge of (2) a contaminant (3) into the environment (4) so as to
cause or tend to cause water pollution. The Board finds that the complainant sufficiently proved
each element for the reasons expressed below.
The respondents “caused, threatened, or allowed” a discharge of contaminants at the Old
Weaver Landfill. The complainant provided sufficient evidence that the respondent was capable
of controlling the pollution, and was in control of the premises where the pollution occurred.
See
People v. A. J. Davinroy Contractors, 249 Ill. App. 3d 788, 793, 618 N.E.2d 1282, 1286 (5th
Dist. 1993). Respondent admitted that it owns the Old Weaver Landfill. It also admitted that
6
there was waste on the site on March 23, 1999. According to the uncontested affidavit by field
inspector Mehalic, the waste was still present on April 18, 2000. Mehalic also stated that water
cut ravines into the slope of the Old Weaver Landfill, eroding its cover material and running
across exposed refuse. Respondent had control over the property during both inspections by
Mehalic when he saw water in the ravines and leachate seeping from the landfill.
The respondent in its answer and response to request for admission of facts stated that it
did not know about the discharges at the site, as described by the complainants. Ans. at 2; Resp.
at 1-2. However, a “lack of knowledge that the discharge existed provides no defense.”
Perkinson v. PCB, 187 Ill. App. 3d 689, 694, 543 N.E.2d 901, 904 (3
rd
Dist. 1989), quoting
Meadowlark Farms v. PCB, 17 Ill. App. 3d 851, 861, 308 N.E.2d 829, 837 (1974). The Act “is
malum prohibitum
, no proof of guilty knowledge or
mens rea
is necessary to a finding of guilt.”
Id.
The Board has similarly held the owner of a coal mine liable for water pollution when
rainwater seeped through a mine refuse pile.
See
Perkinson, 187 Ill. App. 3d at 694, 543 N.E.2d
at 904, citing Freeman Coal Mining Corp. v. PCB, 21 Ill. App. 3d 157, 313 N.E.2d 616 (1974).
The Board finds that the leachate pool and water that runs through the waste at the Old
Weaver Landfill are “contaminants,” which are defined by the Act as “any solid, liquid, or
gaseous matter, any odor or any form of energy, from whatever source.” 415 ILCS 5/3.06
(2000). These contaminants were discharged into the environment. Mehalic saw the leachate
pooling on the ground, and water running through waste at the site. Affidavit at 4.
The close proximity of the leachate and ravines to a creek tributary is sufficient to show
that the discharges cause or tend to cause water pollution. Water pollution is defined as:
An alteration of the physical, thermal, chemical, biological or radioactive
properties of any waters of the State, or such discharge of any contaminant into
any waters of the State, as will or is likely to create a nuisance or render such
waters harmful or detrimental or injurious to public health, safety or welfare, or to
domestic, commercial, industrial, agricultural, recreational, or other legitimate
uses, or to livestock, wild animals, birds, fish, or other aquatic life. 415 ILCS
5/3.55 (2000).
Mehalic stated in his affidavit that both the leachate seep and water running through the ravines
were in close proximity to a tributary to the Ten Mile Creek, which runs near the erosion rills
along the north side of the property. Affidavit at 4, 5. The Board finds the nearby tributary to
the Ten Mile Creek to be “waters of the State,” which are defined by the Act as “all
accumulations of water, surface and underground, natural, and artificial, public and private, or
parts thereof, which are wholly or partially within, flow through, or border upon this State. 415
ILCS 5/3.56 (2000).
The Board accordingly finds that the respondent violated Section 12(a) of the Act (415
ILCS 5/12(a) (2000)) by causing, allowing, or threatening the discharge of contaminants, in the
form of leachate and flowing water exposed to landfill refuse, near a creek tributary so as to
cause or tend to cause water pollution.
7
Litter
The complainant alleges in its second count that the respondent violated open dumping
and litter provisions under Sections 21(a) and (p)(1) of the Act (415 ILCS 5/21(a), (p)(1)
(2000)). Complainant contends that the respondent violated Section 21(a) of the Act when it
“caused or allowed the open dumping of waste.” 415 ILCS 5/21(a) (2000). The complaint
alleges that respondent consequently violated Section 21(p)(1) of the Act by causing or allowing
the open dumping of waste at a dumpsite, resulting in litter.
See
415 ILCS 5/21(p)(1) (2000).
The respondent’s admissions of fact and the uncontested facts in the affidavit by Mehelic
support the finding that the respondent is in violation of these two provisions of the Act. The
respondent admitted that open-dumped waste, including wood, shingles, bed springs, chairs,
mattresses, rusted metal objects, and white goods, existed at the site on March 23, 1999. Resp. at
1. The Board finds that the wood waste, shingles, bed springs, chairs, mattresses, various rusted
objects and white goods are “waste,” which the Act defines as “any garbage . . . or other
discarded material, including solid . . . material resulting from industrial, commercial, mining
and agricultural operations, and from community activities . . . .” 415 ILCS 5/3.53 (2000).
The Board also finds that the waste that accumulated on the site qualifies as “litter”.
Since the Act does not define litter, the Board looks to the Litter Control Act for guidance. The
Litter Control Act defines litter as:
“LITTER means any discarded, used or unconsumed substance or waste. “Litter”
may include, but is not limited to, any garbage, trash, refuse, debris, rubbish, . . .
newspaper, magazines, glass, metal, plastic or paper containers or other packaging
construction material, . . . furniture, oil, . . . or anything else of any unsightly or
unsanitary nature, which has been discarded, abandoned, or otherwise disposed of
improperly. 415 ILCS 105/1 (2000).
The material observed by Mehalic at the Old Weaver Landfill site falls within the definition of
litter because it is discarded and used waste. As stated above, the respondent admitted that open-
dumped waste, including wood, shingles, bed springs, chairs, mattresses, rusted metal objects
and white goods, existed at the site on March 23, 1999. Resp. at 2. This waste was disposed of
improperly at the Old Weaver Landfill. The respondent admitted that it does not have a permit
to operate a waste-storage, waste-treatment, or waste-disposal operation at the Old Weaver
Landfill. Since the respondent did not have a permit to store waste at the Old Weaver Landfill,
the property also qualifies as a dumpsite under Section 21(p) of the Act (415 ILCS 5/21(p)
(2000)).
The Board next addresses whether the respondent caused or allowed the open dumping of
this waste at the Old Weaver Landfill. As stated previously, a person can cause or allow a
violation of the Act without knowledge or intent.
See
Utilities Unlimited, AC 97-41, slip op. at 5
(July 24, 1997), citing People v. Fiorini, 143 Ill.2d 318, 574 N.E.2d 612 (1991). The Board
previously found that:
8
[P]resent inaction on the part of the landowner to remedy the disposal of waste
previously placed on the site constitutes “allowing” litter in that the owner allows
the illegal situation to continue. Utilities Unlimited, AC 97-41, slip op. at 5.
The Board recently held that the operator of Utilities Unlimited was in violation of Section
21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2000)) because he left litter that was previously
dumped on the site to remain there when he was responsible for the site. Utilities Unlimited, AC
97-41, slip op. at 5. Such inaction qualified as an allowance under Section 21(p) of the Act. 415
ILCS 5/21(p)(1) (2000). Similarly, the respondent in this case, as owner of the Old Weaver
Landfill, allowed accumulated litter to remain on the site. The Board accordingly finds that the
respondent violated Sections 21(a) and (p)(1) of the Act (415 ILCS 5/21(a), (p)(1) (2000)).
Permit Requirement Violations
The complainant alleges in the last count of its complaint that the respondent lacked a
permit from the Agency to develop and operate a landfill, in violation of Section 21(d)(1) of the
Act (415 ILCS 5/21(d)(1) (2000)) and Section 812.101(a) of the Board regulations (35 Ill. Adm.
Code 812.101(a)). The Board finds that the respondent violated Section 21(d) of the Act because
it did not have a permit from the Agency to conduct a waste-storage, waste-treatment, or waste-
disposal operation at the Old Weaver Landfill. As stated above, the respondent admitted that it
lacked a permit from the Agency. It also admitted that open-dumped waste existed on the Old
Weaver Landfill site on March 23, 1999. Mehalic stated in his affidavit that this waste was still
on the site during his April 18, 2000 inspection. Since this waste was stored on the site without a
permit from the Agency, the respondent is in violation of Section 21(d)(1) of the Act.
See
415
ILCS 5/21(d)(1) (2000).
The Board also finds that the respondent violated Section 812.101(a) of the Board
regulations. 35 Ill. Adm. Code 812.101(a). The respondent admitted that it did not have a
permit to operate a landfill at the Old Weaver Landfill site. There is no evidence that suggests
that the respondent submitted to the Agency an application for a permit to develop and operate a
landfill at the site. There is also no evidence or argument to suggest that the respondent could be
exempt from permit requirements under Section 21(d) of the Act (415 ILCS 5/21(d) (2000)).
CONCLUSION
The Board grants complainant’s motion for summary judgment. The Board finds that the
respondent violated Sections 12(a), 21(a), (d), and (p)(1) of the Act (415 ILCS 5/12(a), 21(a),
(d), (p)(1) (2000)), and Section 812.101(a) of the Board regulations. 35 Ill. Adm. Code
812.101(a). However, the Board does not have sufficient information to decide the appropriate
penalty in this matter. The Board directs the parties to hearing as expeditiously as practicable on
the specific issue of the appropriate penalty amount, costs, and attorney’s fees in this matter.
In summary, the Board specifically orders the following:
1. The Board grants complainant’s motion for summary judgment, and finds
Patrick Roberts Land Trust in violation of Sections 12(a), 21(a), (d), and
9
(p)(1) of the Act (415 ILCS 5/12(a), 21(a), (d), (p)(1) (2000)), and Section
812.101(a) of the Board regulations. 35 Ill. Adm. Code 812.101(a).
2.
The Board orders Patrick Roberts Land Trust to cease and desist from
further violations of Sections 12(a), 21(a), (d), and (p)(1) of the Act (415
ILCS 5/12(a), 21(a), (d), (p)(1) (2000)), and Section 812.101(a) of the
Board regulations. 35 Ill. Adm. Code 812.101(a).
3.
The Board directs the parties to hearing on the specific issue of the
appropriate penalty amount, costs, and attorney fees in this matter. The
Board directs the parties to provide specific figures for proposed penalties
and proposed justification for such figures.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on April 4, 2002, by a vote of 6-0.
Dorothy
M.
Gunn,
Clerk
Illinois
Pollution
Control
Board
