ILLINOIS POLLUTION CONTROL BOARD
October
31, 1972
ENVIRONMENTAL
PROTECTION AGENCY
V.
)
~72—151
HARSHANY,
INCORPORATED;
PETER
HARSHANY
AUTO
PARTS,
1-IARSHANY
SCRAP
YARD
AND
THE
ALTON
AND
SOUTHERN
RAILROAD
)
ROBERT
F,
KAUCHER,
SPECIAL
ASST,
ATTORNEY
GENERAL,
ON
BEHALF
OF ENVIRONMENTAL PROTECTION AGENCY
HARRY
J.
STERLING OF WALKER AND WILLIAMS,
ON BEHALF OF THE
ALTON
AND
SOUTHERN
RAILROAD COMPANY
PETER HARSHANY, PRO SE
OPINION AND ORDER OF THE BOARD
(BY SAMUEL T.
LAWTON,
JR.):
Complaint was filed against Harshany, Incorporated;
Peter
Harshany Auto Parts, Harshany Scrap Yard and the Alton and Southern
Railroad Company, alleging that on or about March
10,
1971,
June
7,
1971,
June
9,
1971,
June 18,
1971 and on other unspecified occasions,
Respondents allowed the burning of automobiles and conducted a sal-
vage operation by open burning,
in violation of Section 9(c)
of the
Environmental Protection Act
(Ill. Rev.
Stat.
1971, Chap.
111-1/2,
Sec.
109(c) and Rules
2—1.1 and 2—1.2 of the Rules
and Regulations
Governing the Control of Air Pollution,
and prohibiting open burning,
continued in effect by Section 49(c)
of the Act, and Rule 502(a),
Chapter
2, Part V of the Illinois Pollution Control Board Rules and
Regulations Governing Air Pollution,
prohibiting open burning.
Respondent Harshany,
Incorporated
(“Harshany,
Inc.”)
is the owner
of a wrecking yard where it engages in the business of salvaging used
automobiles.
Peter Harshany,
his wife and daughter are the sole share-
holders in Harshany,
Inc.
(R.
24).
Harshany Auto Parts and Harshany
Scrap Yards are not legal entities but only names occasionally ascribed
to the operation.
During the period covered by the complaint., Respon-
dent Harshany,
Inc. owned title to part of the property which consti-
tuted its yard and leased the remainder from the Alton and Southern
Railroad.
The railroad,
in addition,
owns vacant land adjacent to
the yard
(R.25 and following).
Harshany’s operation consists of
processing used cars, separating resaleable parts
and selling the
scrap.
(R.27).
The car bodies are frequently hauled off of the salvage
6
—
89
yard site to the vacant, contiguous property owned by the rail-
road, where they are dismantled by persons characterized by Harshany
as “contractors”.
Fires take place in
the
course
of
the
dismantling
operation.
This process appears
to have been going on for over a
15 or
20 year period
(R.
112).
Agency witnesses testified that fires,
or evidence of recent
fires, were observed on March 10, 1971
(R.50)
when tires and upholstery
producing smoke and flames were noted,on June
7,
1971
CR.
52-55),
when
evidence of burned cars was observed with smoke still coming
from one car
(R,59),
on June 18, 1971
(R.
75) when a burning auto
was seen and on March
3,
1972 when smoke from the salvage yard was
observed without the source being identifiable.
The fires observed
on March
10, 1971 and March
3,
1972
(R.
87 and R.lol) appear to have
taken
place
on
property
owned
by
Harshany,
Inc.
The
fires
observed
on
June
9,
1971
and
June
18,
1971
appear
to
have
occurred
on
property
owned by the railroad (R.57-75).
Harshany concedes that burning of cars has resulted in the conduct
of his business
(R.
31,
36,
46,
106).
The railroad denies any knowledge
of the burning having taken place.
We believe that the evidence sup-
ports the Agency’s contentions. Clearly, Harshany,
Inc.
is liable
because of the negligent and indifferent manner in which
it
has
conducted its business irrespective of whether the persons causing
the fires as a consequence of the dismantling operation are contractors
or employees of Harshany,
Inc.
The fires have taken place in pursuance
of Harshany,
Inc. ‘s salvage operation with the knowledge and consent
of the principals involved.
In cases of this sort, we are not obliged
to go into the refinements of. agency or master and servant relation-
ships.
The fires were a result of Harshany’s business operation,
for which
it
must be held accountable.
The railroad has filed a Motion to Dismiss contending that it had
no awareness of the burning having taken place.
This argument might
be persuasive
if
only
a single episode was involved.
However, where
the operation described has been going on over a 15 or 20—year period,
where fires have taken place with the frequency described in the
hearing, and where the railroad has the capability of control on
property owned by it and not leased to others,
we equate the position
of the railroad to that of an owner
who permits promiscuous dumping
on its property,
see Environmental Protection Agency v. Chicago,
Rock Island and Pacific
Railroad,
#72-136,
5 PCB
,
(September 12,
1972),
and find
it
liable for permitting open burning on property
subject
to
its
control,
Furthermore,
we
do not require that in order
to assess liability that the burning must be intentional.
Negligence
in the conduct of an operation having inherent attributes
of burning
potential
is sufficient to find a violation of the statute and regula-
tions.
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6
—
90
Testimony of Peter Harshanv and Agency witnesses demonstrated
negligence on the part of Respondents which we have held is suffi-
cient to sustain violation of the statutes and regulations.
As we
stated in Environmental Protection Agency
v.
J.
M.
Cooling,
#70-2,
1 PCB 85,
(December
9,
1970):
“Because of his negligence
in the operation of the
dump
site,
the Respondent caused, allowed and permitted
the open burning of refuse in violation of the relevant
statutory and regulatory provisions.
The Agency’s burden
of
proof
has
likewise
been
established
in
this
respect.
The
law does not require that in order to be found guilty
of the open burning provisions, the Respondent must actually
be seen igniting the materials burned.
Negligence, indiffer-
ence and slipshod operation of
a facility having a high poten-
tion of combustion falls within the purview of the statute
and regulations.
The
$1,000 penalty
is well within the
applicable
provisions.
Harshany,
Inc.
uses,
or permits the use of, acetylene torches
in
its operation,
which quite
likely were
the cause of the fires ob-
served
(R.42).
As
we held
in Environmental
Protection Agency v.
Neal Auto Salvage,
Inc.,
#70—5,
1 PCB 7l,(Oct.28,l970)where
a $1,000
penalty was assessed for open burning in a salvage operation:
“The character
of
the salvage operation,
the use of
torches for removal
of parts,
the evident desire to
cause
burning
of upholstery and non—metallic accessories
imposes
an
affirmative obligation on
a salvage operator to see that fires
do not take place,
to take affirmative steps to extinguish
them and to he prepared to offer a satisfactory explanation,
when,
in fact,
a
fire does occur.
The temptations are great
to attribube such fire to accident, obtain the economic
benefits from
it and then assert that the operator is not
responsible.
Additionally, there
is evidence showing that the operation is not
enclosed by
a fence adequate to discourage trespassers and that the
yard itself was strewn with random piles of auto parts and automo-
bile bodies
(R.
55)
Numerous wrecked automobiles and automobiles to be wrecked
were on all the properties
involved, including that belonging to
Harshany,
Inc.,
that leased to Harshany,
Inc. and that owned by
the
Alton
and
Southern
Railroad,
and
under
its
exclusive
control
(R.57).
Property owned by Ilarshany,
Inc.
or leased to
it was under
the control of Alton and Southern Railroad.
It was the railroad’s
duty to police this property and
it
was
negligent for not having
done so.
—3--
6—91
We
find
that
Respondents
have
caused
or
allowed
the
open
burn-
ing
of
automobiles
and
the
conduct
of
a
salvage
operation
by
open
burning,
in
violation
of
Section
9(c)
of the Environmental Protection
Act,
Rules
2-1.1
and
2-1.2
of
the
Rules
and
Regulations
Governing
the
Control
of
Air
Pollution
and
Rule
402(a),
Chapter
2,
Part
V,
of the Illinois Pollution Control Board Rules and Regulations Govern-
ing Air Pollution.
We order all Respondents to cease and desist
operation
of
the
salvage
yard
in
violation
of
the
Environmental
Protection
Act
and
the
relevant
regulations.
A
penalty
in
the
amount
of $1,000
is assessed for the violations aforesaid.
The continuing
indifference of Respondents over a substantial period of time
to the
legal requirements in the conduct
of
a salvage operation,
and the
frequency of
fires calls for the imposition of a penalty in excess
of that imposed in Environmental Protection Agency v.
Farley,
#72—267,
5 PCE
,
(October
31,
1972)
decided
this
day.
In
addition
to
the
Motion
to
Dismiss
filed
by
the
railroad
based upon its absence of knowledge and control of the burning having
taken
place
on
its
property
which
we
have
denied,
the railroad has also
filed a Motion to Dismiss based upon alleged constitutional infirmities
in the Environmental Protection Act,
all of which contentions have
been
answered
by
previous
opinions
of
this
Board.
See
Granite
City
Steel Company
v. Environmental Protection Agency,
#70-34,
1 PCB 315,
(March 17, 1971), Modern Plating Corporation v. Environmental Protec-
tion Agency,
##70—38, 71—6,
1 PCB 531,
(May
3,
1971)
.
This
motion
to dismiss
is also denied.
Lastly,
the
railroad
has
filed
a
document
entitled Cross Complaint
in which it seeks a judgment of indemnification against Peter Harshany
because
of
a
lease
document
entered
into
between
him and the railroad.
The
issues
raised
by
the
railroad
are
not
germane
to
this
enforcement
action
nor
properly
before
the
Board.
The
Environmental
Protection
Act
and
the
regulations
adopted
both
before
and
after
its
passage
do
not
envision
this
type
of
litigation
or
give
the
Board
jurisdic-
tion
to
adjudicate
proceedings
of
this
character.
Relief
as
sought
by the Cross Complaint should be pursued in
a civil proceeding.
This
opinion
constitutes
the
findings
of
fact
and
conclusions
of
law of the Board.
IT
IS
THE
ORDER
of
the
Pollution
Control
Board
that:
1.
All
respondents
shall
cease
and
desist
the
causing
or
allowing
of
open
burning,
and
salvage
by
open
burning,
on
property
owned
or
leased
by
them
in
violation
of
Section
9(c)
of
the
Environmental
Protection
Act
and
the
Rules
and
Regulations
of
the
Pollution
Control
Board.
—4—
6
—
92
2.
Penalty
in the amount of $1,000
is assessed against
respondents
jointly,
for violation of Section 9(c)
of
the Environmental Protection Act and Rules 2-1.1
and 2-1.2
of
the Rules and Regulations Governing
the
Control
of Air Pollution and Rule 402(a),
Chapter
2,
Part V of
the Illinois Pollution Control Board Rules
and Regulations Governing Air
Pollution.
Payment
shall be made within
35 days,
by certified
check
or money order, made payable
to the State of Illinois
and sent to:
Fiscal Services Division,
Illinois
Environmental Protection Agency,
2200 Churchill
Drive,
Springfield,
Illinois 62706.
I,
Christan Moffett, Clerk
of
the Illinois Pollution Control
Board,
certify, that
the above Opinion was adopted on the
;‘/)
day of
__________________A.
D.
1972,
by
a vote of
.‘~.
to
________
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.
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93