STATE
OF
ILLINOIS
55
COUNTY
OF
PEORIA
)
BEFOfl~THE
POLLUTION
CONTROL
20MW
OP
TilE
STATE
OF
ILLIi~OIS
ENVI
Ro:::
U~TAL
‘
;ZtECtiO~
:m~cy
)
v.
)
NO:
PCI3 70—5
)
NEAL
AUTO
511LV.\GE,
I?C.
•
a
corporation
)
D~C1:J3~.
11::D
ORDER
Notice
and
co::.olaint
~i
led
by
the
Environi~enta1 Protection
Agency
vuro
served
ucon
.:c:al
Auto
Salvage,
inc.
(hereinafter
re-
ferred
to
as
Hennoncioiit”)
al1~ninq violation
of
Rule
2—1.1
of
the
Ttulea
and
Re:;ulation:t
Governinq
the
Control
of
Air
Pollution
effect.ive
under
Section
49
(a)
62
the
Environr.c’ntal
Protection Act,
in
Lw t
cn
July
16,
1970,
Rcsponc~cntwas
observed
conducting
a
salveaqe
operat:.on
~v
OflPiI
burni:~g of
a
truck
:;ody.
By
letter
dated
~tt’’:’:t
~
.
‘
~‘
~
~
nn
.~n
4.nn
f’r..i..
plaint,
would
ho
hold
on
flentenber
Li,
1970
at
the
Peoria Puiflc
Library,
PeorIa, Illinois.
On
September 11, 1970, baring
was
conducted by Sarauel T. Lawton,
Jr.,
a
mcnber
of
the
Pollution
Control
Loard
and
duly
designated
Hearinsj
Of
I
icer
for
the
Hearing.
The
lLnvironniontal
Protection
Agency
was
represented
by
its
Chief
Enforcement
Officer;
Respondent
was
‘reprenented
by
counsel.
At
the
opening
of
the
licarina,
the
Envir—
onmental
Protection
Agency
asked
leave
to
tile
an
Anendod
Comnlaint
alleging
that
kespondent,
on
July
16,
1970,
was
observed
to
be
con-
ducting
a
saivacie
operation
by
open
burninçr,
in
violation
o
Sec-
tion
9 (c)
o~ the
Environ;::ontal
Protection
i~ct, and
in
violation
of
Rule
2.1—1
of
the
Rulei
and
IteauThtions
Governing
the
Contiol
of
Air
Pollution,
effective
under
Suction
49 (a)
of
the
Lnvironu~czstal
Protection
Act
or,
in
the
alternative
on
said
date,
Rosnonctent
was
observed
conducting
the
open
b’arning
of
rcfvse
in
violation
of
Rule
2—1.2
of
the
rc’quiationii
~tnd
the
sai~te
statutory
provisions.
~o
objection
was
:;utdo
at
the
Hearing
to
the
filing
of
the
Amencted
Complaint
and
leave
was
granted
to
file
said.
Amended
Complaint.
Respondent
was
given
ten
(10)
days
in
which
to
2ild
an
answer,
which
ha(;
been
received.
The
ansuor
denies
the
material
allegations
in
tIle
Conplczint
and
novas
that
the
amended
cou.plaint
be
diz:aisscd.
This
motion
is
denied.
1-71
At the hearing, Respondent moved that the ilgaring Officer dis-
qualify himself from conducting the Hearing because he had previously
participated in a Hearing and written the Order of the Air Pollution
Control Board in which Respondent’s request for a variance to permit
the open burning of automobile bodies on its premises has been de-
nied.
The motion to disqualify was denied.
harry
Heal,
President
and
sole
owner of Respondent, was called
by
the
Enviror.aental
Protection
Agency
as
an
adverse
witness
pur-
suant
to
Section
60 of the Illinois Civil Practice Act.
Objection
was made to oalling Neal as an adverse witness under Section 60 of
the Practice Act, which objection was noted but not sustained
(Rl7).
Testimony of the Environmental Protection Agency and Respondent was
heard and completed on Seutember 11, 1970, at which time Respondent
moved that a continuance be granted to a new date before Respondent
proceed with its defense.
This motion was denied.
Each side vas
.
given
the
right to file briefs and the matter
taken under advisement.
lie
have
reviewed
the
entire
testthony
and
the evidence in the
case,
toqethcr
with
the
briefs
submitted
by
both
parties.
We
have
carefully eonsiderad all legal arcJu2aents
ra~i-sodby
both
parties
and
~
r~”4
ne.’ne
Itsn
ral
e’unn
t’
reins t.i
tutional
•
statutory
and
regulatory
provisions.
It is the Order of the Pollution Control Board that an Order
be entered against Neal Auto Salvage, Inc. directing it to cease
and desist all salvage operations by open burning and that a penalty
of $1,000.00 he assessed against Neal Auto Salvage,
Inc.
Before commenting on the evidence and the substantive aspects
of the case, it is necessary to consider and dispose of
the
consti-
tutional and procedural points raised by Respondent.
In addition
to asserting that the Miency has failed to sustain its burden of
proof, Respondenta’sserts that the Complaint should be dismissed
and the Respondent found ‘Not Guilty’ for the following reasons:
1.
That a continuance should have been granted on
Respondent’s Motion at the close of the Hearing;
2.
That the Hearing Officer should have disqualified
himself;
3.
That by being called as an adverse witness, Respon-
dent Was forcEd to incriminate himself and was thereby
deprived of his constitutional rights.
These contentions will be considered in the order stated.
1-72
Contrary to the allegation in Respondent’s brief, that it is a
‘long practice
custom and tradition in proceedings before adminis-
trative bodies in the State of Illinois” to grant continuances or
split hearings, it is neither the policy
mr
the practice of this
Board to grant continuances unless there is a showing that a party
will be subjected to substantial hardship in being connelled to
proceed.
Such
showing
is
totally
lac3~ing in
the
instant
case.
The
original
complaint
chargeca
violation
of
Rule
2—1.1
in
that
Respondent
was
observed
cenUucl:in’j
a
saiva~gco;c’rn Lion
by
open
burning
of a truck body.
The
aiaenCect
co:::plaint
elegctci
thc:t
Respondent
was
observed conducting a salvage o~r:itsuri
by
oocrn
burnin”i
in
violation
of the same rule.
1;eclion Dcc)
of the
inviro~,’.t’rntalProtection
.~ct,
violation
of
which
in
also
as!;cy:tcc(
in
the
amo;)ch?d
complaint,
wakes
illegal the conduct of a salvaç;e oporett
ion
v;
coon
burning.
For
purposes
of
this
oroceeding,
;:e
disre~arc1 all
allegations
relating
to open burning of
refuse.
It
is
not
ap~aront izot;
amendment
of
the
pleadings
worked
to
the
prejudice
of
flo~ponccnt.
Eoreover,
the
Environmental Protection
hgency
‘
s
evid3ntial
proof
was
entirely
based
upop
the
salvage
operation
by
open
burning
of
a
truck
body
which
was
the
sole
allegation
of
the
oxiginal
cor,mlaint.
If
Respondent had been properly prepared to proceed in clerense of
the
allegations of the original conolaint at the tine of the Hearing,
it
would
have
been
aclequa tely
prepared
to
meet
the
proof
of£ered
at
that
tiree
irrespective
of
the
filing
of
the
amended
complaint.
The
amended
Counts
were
a
statement
of
the
statutory
and
regu-
latory
provisions
covering
the
factuaL
circumstances
alleged
in
the
original
Co:utolaint
without
the
specification
of
the
precise
eviden-
tial
event.
By
the
original
Complaint,
Respondent
was
on
notice
of
the
precise
time
and
nature
of
the
alleged
of fense.
It
was
on
notice
as
to
the
character
of
proof
that
would
he
presented
by
the
Environmental Protection
Agency
and
should
have
been
cognizant
of
what woWd he needed to rebut
such
showing.
Those
persons
who havó
furnished affidavits anpended to Respondent’s brief should have
been present at the ‘~‘rial to testify to the events and circumstances
set forth in
their
affidavits.
Their
affidavits
must
be
disregarded.
Since
the
proof
in
no
way
departed
froit~the
allcgations
of
the
e*iginal
Complaint;
no
continuance
was
appropriate.
Respondent
next
coptends
that
the
Hearing
Officer
should
have
disqualified
himself
from
conducting
the
hearing
because
he
had
previously participated in an earlier hearing and written the
Order of the old Air Pollution Control Board denying Respondent’s
variance request to conduct an open burning operation.
This conten-
tion is patently without merit.
As explained to the Respondent,
tile role of the Hearing Officer is solely to conduct the hearing
and prepare
a
record.
The
fact
that
ho
was
also
a
participant
in
Respondent’s
previous
efforts
to
obtain
a
variation
to
do
that
which he is now charged with doing illegally in no way serves as a
basis for disqualification.
Carrying this absurd contention to its
1-73
illogical conclusion would foreclose all members of the Board from
hearing any case involving a second offense or administrative pro-
ceeding
concerning
a
Respondent
who
had
previously
been
before
the
Board
in
any
capacity.
Indeed,
the
Rules
of
the Federal Court provide
precisely
the
opposite
in
requiring
reference
to
the
same
judge
who
had
heard
any
matter
~iizcre
the
Defendant
hed
previously
been
befoth
the
court.
Further,
tha
issue
ira
the present case is entirely differ-
ent from that presented by
the
former
variation
petition.
The
variation request related to
whether
the
Respondent
should
be
al.’?wed
to
continue
open
burning
of
auto
bodies.
The
issue
in
the
present
case
is
whether
Respondent,
did,
‘in
fact,
conduct
an
open
burning
operation.
The
function
of
the
Hearing
Officer
in
this
proceeding
is
strictly
administrative,
then
the
record
is
preserted
to
the
Board,
the
Board
acts
independently
iz~making
its
decision
on
the
disposition
of
the
case.
Respondent next contends that Neal has been denied his constitu-
tional
rights
by
being
called
to
testify
as
an
adverse
witness
and
has the~ehybeen compelled
to
incriminate
hirasolf.
Respondent
reasons
that since violation of the Act could be
the
basis
of
a
misdemeanor
charge
anti
because
Neal
would
allegedly
be
subject
to
a
contemnt
proceeding
if
he
fails
to
testify
in
the
Hearing
when
called,
he
is
thereby
forced
to
incrininate
himself
in
violation
of
the
Fifth
Amencl3;tent
of
the
United
States
Constitution.
The
answer
to
this
concenLJ’_~I~
.;.
:Lr’l”
IF
?nal
desired
to
plead
the
Fifth
Amendment
and
refuse
to
testify,
he
should
have
con”
SQ
~.
LLc.
tirr’
~
was
called
as
a
witness.
This
he
failed
to
do.
The
only
objection
voiced was
in
being
called
under
Section
60
of
the
Practice
Act
(R17).
The practice of calling an adverse witness is standard judicial pro-
cedure.
No reason is given why it would be inappropflate in the
instant case which complied with Section 60 of the Practice Act.
Indeed, the practice had
already
been
written
into
the
procedural
rules of the Board and is followed in normal court procedure gener-
ally.
While Respondent cannot be forced to incriminate himself, his
refusal must be timely, and made at the tine he is called.
The
present contention is an afterthought.
During the dourse of the Hearing, Respondent’s counsel suggested
that he was surprised to discover that the Hearing was a forMal one
from which serious consequences might follow.
This, suggests procedures
before State Administrative Agencies should not be taken seriously.
What
may
have created this impression we cannot imagine.
It is
time all people realize that the State of Illinois means serious
business
in
pollution
control
and
all
parties
should
guide
themselves
accordingly.
In
the
instant
case,
the
Complaint
and
notice
made
quite
p~ain the
possible
cdnsequences
of
Respondent’s
alleged
acts.
The
statute and regulations have been enacted to be enforced, and it
is
our
intention
to
do
so.
1—74
We turn now to the substative contentions of the Complaint
and
the
evidence
adduced
at
the
Hearing.
The facts of
the
case
are
simple.
Respondent
conducts
an
auto
salvage
operation
in
the
unin-
corporated
area of Peoria County.
It has approximately 1,800
vehicle
hodies
on
its
premises
(rtl2d).
While its principal business is
stripping
cars
of
accessories
and
parts
and
selling
them,
it
also
sells
salvage
car
and
truck
bodies
to
scrap
dealers
and
processors
after
the
stripping
operation
has
been
accomplished.
More
money
is
ob-
tained
from
a
scrap
dealer
tor
a
car
that
has
had
its
upholstery
and
non—metal
attac,:.tcnts
re:?.pvod
than
from
one
which
contains
them
CR141).
Manual removal
of
these
items
is
deemed
tine-consuming
and
expensive.
Burning
is
considered
the
cheanc:st,
and
most practical method.
Harry
Neal
admitted
to
employing
this
technique
in
the
past
CR143).
In
the
course of its salvage operations, vehicle bodies are cut into sections
with acytelene torches.
Fires
on
occasion
result
from
this
process
CR115).
Otto
P.
Klein,
Jr.,
Environmental
Control
Engineer,
ennloyed
by
the
Environmental Protection Agency of the State of Illinois testified that
on
July
16,
1970,
he
observed
a
olune
of
smoke
one—ha3f
mile
in
length,
while
approachinq
Respondent’s
property
and
that
on
closer
inspection
sat
a
refrigerator-type
truck
body -burning
in
Respondent’s
salvage
yard
CR43—SO).
The
witness,
who
has
had
great
experience
in
the
observation
of
auto
salvage
air
pollution
cases,
specifically
testified
to
his
~esbuJ’c.;
26.1~.;:vati:t
‘~
~tn
hnrnin3
as
aforesaid,
the type of vehicle,
the
presence
of
s::,okc
and
flame
and
the
dcL~ilsor tnc
•“~u.
be-
ttL~s
where
the
burning
took
olace.
His
testimony
is
both
believable
and
un—
contradicted.
There
is
no
denial
in
thc
evidence
that
such
burning
took
place.
There
is
no
contention
that
the
burning
was
occidental.
There
was
no
apparent
effort
to
extinguish
the
flaracs.
The
principal
contention
made
by
Respondent
was
that
the
refrigerator-type
truck
on
Respondent’s premises was not at the location observed by Klein
CR110,
134).
harry fleal, in his testimony, was not sure that he was on the pre-
mises on the day
in
question
CR32)
and
contended
only
that
if
there
had
been
a
fire
that
howoüld
have
known
about
it
or
that
his
er9ployees
would
have
so
informed
him
(Rl27).
The
testimony
of
Otto
3.
Klein,
Jr.
in
observing
the
burning
operations
and
testifying
to
its
character.
degree,
location
and
omissions
satisfied
the
initial burden of
proof
incumbent
upon
the
Agency.
The
burden
shifted
to
the
Respondent
to
rebut
the
allegations.
This
it
has
failed
to
do.
The
presence
of
a
burning
truck
in
a
salvage
yard
in
consideration
of
the
economic
advant
of
such
burning
and
the
history
of
salvage
operations
requires
an
expla
tion
in
defense.
The
Resnondent
has
the
facts
in
its
possession
and
mu:
offer
a
satisfactory
explanation.
None
was
forthcoz.ai~gd1oreover,
the
I
—
7K
existence of an acknowlecged fire hazard imposes both the duty
on
the
Respondent
to
have
available
the
means
to
oxtinguish
it
and
the
obligation
to
take
affirmative
steps
to
do
so
•
The
char-
acter
of
the
salvage
operation,
the
use
of
torches
for
removal
of
parts,
the
evi&nt
desire
to
cause
burning
of
upholstery
an4
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
be
prepared
to
offer
a
satisfactory
ctxplanLition
when,
in
fact,
a
fire
does
occur.
The
temptations
are
groat
to
attribute
such
fire
to
accident,
obtain
the
economic
bunefits
from
it and then assert that the
operator
is
not
responsible.
The uncontradicted evithince conclusively proves salvage
operation by open burning.
Uo defense was offered that it was
arbitrary or unreasonable to comply with the regulations.
On the
contrary, Respondent opdeavored to show,
unsuccessfully, that
it did comply.
In
the
record
of
this
case
is
the
entire
record
of
the
Respondent’r
previous
petition
for
variance
before
the
Illinois
Air
Pollution
Control
Board.
There
the
hoard,
in
aenying
the
request
for
varia-
tion
to
burn
auto
bodies
on
the
premises,
stated
that
denial
of
the
variation
to
Resnondent
unuld
not
constitute
a
hardship
but
Lh~~
~t;
:l2t:~”~
?tt,.3~1
ii:.nnM2
uuon
the
adjacc:nt
neighbors
the
burdens
which
the
open
burniny
sequiat~t;;sz
~~:3O
Ce~3gfl’”
a.u
~
aL.
What
the
Air
Pollution
Cor1trol
Eo~t3-dsaid
in
denying
the
variance,
we
adopt
for
the
purposes
of
this
ptoceeaing.
“In
short,
petitioner’s
cane
amounted
tono
more
than
an
bttempt
to
ass
on
to
unwilling
neighbors
a
portion
of
the
cost
of
disposing
of
its
wrecked
automobiles.
The
mere
de-
sire
to
save
money
is
not
ground
for
a
variance;
it
is
always
cheaper
to
pollute
thait
to
comply,
but
that
statute
and
regulations
recuire
everyone
to
make
financial
sacrifices
in
order
to
minimize
air
pollution.
In
cases
construing
analogous
variqnce provisions in zoning ordinances,
the
courts
have
made
clear
time
and
again
that
mere
financial
gc~into
the
petitioner
is
not
enough
to
permit
violations.
E.g.,
Woltonv.’Hamilton,
344 Ill.
82,
176 N.E. 333, 338
C1931):
“The mere iact that
the owner of a particular parcel of property
.
.
.
can make
more money out of it if permitted to disregard the ordinance
instead of required to comply with it, is neither a difficulty
nor a hardship authorizing the board of appeals to permit such
owner to disregard
the
ordinance
.
.
.
“
Accord, River_Forest
State
Bank
v.
Zoninc:
Boz~rd,
34 Ill. App.
2d 412, 181 N.E.
2d
1, CUst
i5flt.
l~GT)
Having
been
denied
a
variation,
Respondent
seeks
to
obtain
the
benefits of such allowance by violating the law.
In arriving at its
decision,
the
Board
i~ mindful
of
the
testimony
of
Nâal
that
other
materials were burned in the open in the past besides the specific
truck.
These
nattczrs
we
disregard
in
arriving
,at
our
finding
since
no notice ~as given to
Respondent
of
anything
but
the
burning
of
the
truck.
te
enter
the
cease
and
desist
order
against
Respondent
but
feel that such Order is
not
sufficient
deterrent
to
the
type
of
activities
being
coa1ducted.
A
cease
and
desist
order
standing
alone
would
give
nctanti’l
c,ficnc::rs
a
chance
to
violate
the
statute
and
recjulations until
thc:,
*tre
courjht.
The
offense
in
the
Respondent’ s
case
is
aggravated
~y
the
fact
that
it
had
just
been
denied
a
variance to do the thing
i t
no;;
~
done.
Salvage
by open burning
has
been
illegal
in
Illinois
since
1965.
It
is
tine
that it be
stopped.
We
urge
every
citizen
who
observes
salvage
by
open
burning
to report such violation to the I:nvironmental Protection Agency or
to file a formal connlaint with this Board.
As this decision makes
clear,
the testinony of onu’seyes and nose may be adequate for the
purposes
of
penalizing
violators.
TilE
POLLUTION
CONTROL
BOAPJ)
FINDS:
1.
That
it
has
jurisdiction
of
the
subject
matter
of
this
proceeding
and
the
parties
hereto;
2.
That
proper
notice
of
the
Co~~:plaint
and
Hearing
was
t:Lvs:ss
L.,
~c.:,..c..,
.t:.i.t
t~:!
:‘~
~
~~i.irc
held all as
by
statute
and
recjuiation
in
such
cases
made
and
i.rovidad;
3.
What
Neal
Auto Salvage,
Inc. conducted a
salvage
operation
by
open
burning
of
a
truck
body,
in
violation
of
section
9Cc)
of
the
Environmental
rrotection
Act
and
in
viola-
tion
of
Rule
2—1.1
of
the
Rules
and
Regulations
governing
the
control
of
air
pollution
effective
under
Section
49(c)
of
the
Environmental
Protecjion
Act.
IT
~S
THE
ORDER
OF
THE
POLLUTION
CONTRdL
BOARD
T1UtT:
1.
Neal
Auto
Salvage,
Inc.
cease
and
desist
the
conducting
of
a
salvage
operation
by
open
burning
in
violation
of
Section
9 Cc)
of
the
Environmental
Protection
Act
and
of
Rule
2—1.1
of
the
Rules
and
Regulations
covering
the
control
of
air
pollution
effective
under
Section
49
Cc)
of
the
Environmental
Protection
Act
1—n
2.
Penalty
in
the
ar~ouni:
of $1,000.00
is hereby
asncssC(i
~“~aifl~
L
eaJ
Auto
alvage,
Inc.
for
violation
of ~ec tioii
9 (c
)
of the
Lnvironocntal
I’rotoct*on net and violation
of Adle 2—1.1
of
the
Rules
and
Acciuiatjcnn
covering
the
control
of
air
polioLion
ad
rcc
lye
under
Section 49
(c)
of
the Act for having
conouc
ted
a salvaqe
operation dv onen
ourning
on July JO,
1970.
I concur:
I dissent:
1
—
78