ILLINOIS POLLUTION CONTROL BOARD
April 21,
1994
MONTGOMERY COUNTY,
)
)
Complainant,
v.
)
AC 93—45
)
(Administrative Citation)
RITA HEFLEY,
)
)
Respondent.
KATHERINE DOBRINIC, MONTGOMERY COUNTY STATE’S ATTORNEY APPEARED
ON BEHALF OF MONTGOMERY COUNTY, and
RITA HEFLEY APPEARED
PRO SE.
INTERIM OPINION
AND
ORDER OF THE BOARD
(by M. McFawn):
This matter comes before the Board upon an Administrative
Citation filed September 27,
1993 pursuant to Section 31.1 of the
Illinois Environmental Protection Act
(Act)
(415 ILCS 5/31.1
(1992)) by Montgomery County.
The Administrative Citation
alleges respondent Rita Hefley violated the open dumping
provisions of the Act.
(415 ILCS 5/21.)
Respondent filed a
letter on October 16,
1993, which the Board construed as
a
request for hearing to appeal the administrative citation.
Accordingly,
a hearing was held March 11,
1994.
The County presented one witness,
Mr. Weldon Kunzeman, the
landfill and solid waste inspector for the Montgomery County
Health Department who inspected the site.
Ms. Hefley testified
on her own behalf.
No post-hearing briefs were submitted.
APPLICABLE
LAW
The administrative citation issued against Rita Hefley
alleges violation of subsection
(1)
of Section 21(p)
of the Act.
Section 21(p)
provides that no person shall
in violation of 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:
1.
litter;
Pursuant to Section 31.1(d) (2)
of the Act,
if the Board
finds the alleged violation occurred, then the final order issued
shall include a finding of violation,
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
2
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
This action concerns property in the Village of Honey Bend,
at the corner of North Litchfield Township Roads 1755 North and
395 East.
The property belongs to Rita Hefley, and the address
is Rural Route 1, Box 84, Litchfield Illinois,
62056.
At
hearing, Inspector Kunzeman testified that he first inspected the
property on May 5, 1993, and found it to be in violation of
Section 21 of the Act.
(R.
at 9.)
On May 24,
1993 an
administrative warning notice was sent to Ms. Hefley.
(Complainant’s Exh.
2.)
On July 23,
1993, Kunzeman re-inspected
the property and found violations of Section 21 still present.
He testified he found refuse or waste material piled and
scattered in several areas throughout the site.
(R.
at 6.)
Inspector Kunzeman also testified no permits were issued for the
site.
(R. at 7.)
The inspection report indicates that although one abandoned
vehicle had been removed since the first inspection,
three
remained at the time of the re—inspection.
(Complainant’s Exh.
1.)
The report further indicates the presence of several piles
of litter and debris.
Attached to the inspection report are
several photographs of the property, showing the abandoned
vehicles and a pile of debris.
The photos show that auto parts
and other trash are scattered near the abandoned vehicles, and
that the pile of debris contains shelving, auto parts, paint
cans, rusted metal containers,
a kitchen pan,
and large
unidentifiable pieces of rusted metal, amongst other
unidentifiable trash.
Rusted 55 gallon drums and old tire rims
are scattered near the trash pile.
In her testimony,
Ms. Hefley
admitted that there was an open dump on the property.
(R. at
12.)
DISCUSSION
The Board finds there is substantial, uncontroverted
evidence that the conditions on Ms. Hefley’s property constituted
an open dump operated so as to cause litter in violation of
Section 21(p) (1) of the Act.
The second and final question which the Board must consider
is whether Ms. Hefley has shown the violation resulted from
uncontrollable circumstances.
This is the only showing provided
in the Act that allows the Board to excuse a violation.
If the
Board so finds, then no violation would be found and no penalty
3
imposed.
(415 ILCS 5/31.1(d) (2).)
Ms. Refley testified heavy rains prevented her from
disposing of the trash pile during May and June.
(R. at 12.)
Ms. Refley also testified that she was working two jobs, and
suffered an illness during the first week in July,
sufficiently
serious to keep her from work during that week.
(R. at 13)
The
Board finds that none of these factors constitutes uncontrollable
circumstances so as to excuse such prolonged noncompliance with
the Act.
Addressing more fully the defense of heavy rains, we note
adverse weather conditions normally do not warrant a finding of
uncontrollable circumstances.
(See In The Matter of Dan
Heusinkved, County Clerk County of Whiteside, State of Illinois
(January 21,
1988), AC 87-25.)
In St. Clair CountY
V.
3
& R
Landfill,
Inc.
(May 10,
1990), AC 89—18,
a landfill owner
demonstrated that particular circumstances warranted an exception
to this general rule,
since the litter was frozen to the ground
and could not be picked up by hand.
The respondent in St. Clair
County also demonstrated it was not possible for litter pickers
to walk in the area due to muddy conditions.
The evidence was
uncontroverted and was supported by photographs in the record.
Ms. Refley has made no similar showing, and the photographs in
the record give no indication that the litter could not be
accessed or cleaned up.
Ms. Refley also testified that the property was cleaned up
soon after the inspection.
The Board has previously held removal
of the litter after the issuance of an administrative citation
does not negate a violation,
since clean up of the site
is not a
mitigating factor under the administrative citation program.
(See Illinois Environmental Protection Agency v. Jack Wright
(August 30,
1990), AC 89-227;
Illinois Environmental Protection
A~encvv. Dennis Grubaugh (October 16,
1992), AC 92-3.)
PENALTY
The statute sets forth a fine of $500 for each violation.
(415 ILCS 5/42(b)(4).)
Ms. Refley has been found to have
violated he open dumpong provision of the Act.
Therefore, at the
time of the Board’s final order, Ms. Hefley will be ordered to
pay a penalty of $500.
Additionally, respondent is statutorily
required to pay the hearing costs incurred by the Board and the
complainant.
(415 ILCS 5/42(b)(4).)
Those costs are not known
at this time.
therefore as part of its interim order,
the Board
will order the Clerk of the Board and complainant to provide that
information to the Board and the respondent.
This opinion constitutes the Board’s interim findings of
fact and conclusions of law in this matter.
A final order will
be issued pursuant to the interim order which follows.
4
INTERIM ORDER
1.
Respondent is hereby found to have violated 415 ILCS
5/21(p)(1)
(1992) on July 23,
1993.
2.
Montgomery County is hereby directed to file a statement of
its hearing costs, supported by affidavit, with the Board
and with service upon respondent, 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.
3.
Respondent 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 abov~interim opinion and order
was açiopted on the
~c’/~~i~+
day of
_____________
1994,
by a vote
of
(~--(.~
.
~
~
L~DorothyM.
G,Jlnn,
Clerk
Illinois Po4A.ution Control Board