ILLINOIS POLLUTION CONTROL BOARD
September
15,
1994
PEOPLE OF THE STATE
OF ILLINOIS,
COMPLAINANT,
)
V.
)
PCB 94-1
(Enforcement)
ROBERT D.
FOSNOCK, d/b/a
)
FOB AUTO AND TRUCK PARTS,
)
)
RESPONDENT.
ROLAND
W.
BURRIS, ATTORNEY GENERAL AND JANES MORGAN, ASSISTANT
ATTORNEY GENERAL APPEARED ON BEHALF OF THE COMPLAINANT,
THE
PEOPLE OF THE STATE OF ILLINOIS AND THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY; and
MR. RICHARD MENO,
BY SPECIAL AND LIMITED APPEARANCE,
APPEARED ON
BEHALF OF THE RESPONDENT,
MR. ROBERT
D.
FOSNOCK.
OPINION AND ORDER OF THE BOARD
(by CA.
Manning):
This matter
is before the Board on a complaint for violation
of both the Used Tire Management Act
(UTMA) provisions of
Environmental Protection Act
(Act)
(415
ILCS 5/53 et seq.), the
Act’s open dumping provisions
(415 ILCS 5/21)
and their
corresponding regulations.
On January
3,
1994, Roland W. Burns,
Attorney General
of the State of Illinois
(Attorney General),
brought
a three-count complaint on behalf of the Illinois
Environmental Protection Agency
(Agency)
and the People of the
State of Illinois against Robert
D.
Fosnock, doing business as
Fos Auto and Truck Parts).
A hearing was held on April
12, 1994 before Board Hearing
Officer Deborah Frank.
No members of the public attended.
No
briefs were filed,
nor were there any motions relating to
discovery,
nor were any motions of a dispositive nature filed.
For reasons more fully explained below, on all three counts,
the Illinois Pollution Control Board
(Board)
finds Mr. Fosnock
in
violation of Section
55(a),
(a) (6), (c)
,
(d) (2), (e),
(j)
of the Used
Tire Management provisions of the Environmental Protection Act,
Sections 21(a), (d) (1) and
(2), (e) and
(p) (5)
of open dumping
provisions of the Environmental Protection Act,
and 35 Ill. Adm.
Code 848.201(b)
and 848.501(a)
848.202(a),
(b),
and
(c),
848.400(b),
848.401(a),
and 848.404(a)
848.202(a),
(b), and
(c),
848.400(b),
848.401(a),
and 848.404(a)
as alleged.
PROCEDURAL AND FACTUAL
BACKGROUND
In attendance at the April
12 hearing on behalf of the
complainant were Assistant Attorney General Mr. James Morgan, and
two witnesses from the Agency, Mr. John Senjan and Mr. Paul
Pursglove, both of whom are employed in the Agency’s Used Tire
program.
Mr. Senjan testified regarding his inspections of
Fosriock’s property
(Tr.
at
8)
and Mr. Pursglove, Manager of the
Agency’s Used Tire Management Program, testified regarding the
Used Tire Management Program requirements
in the State of
Illinois and how they relate to the allegations against Mr.
Fosnock.
(Tr.
at 18.)
On behalf of the respondent,
attorney Richard Meno entered a
special and limited appearance for the purpose of contesting the
Board’s authority to hold a hearing based upon Fosnock’s filing
of Chapter 7 bankruptcy proceeding
in the Bankruptcy Court for
the Central District of Illinois on April
11,
1994.
Specifically,
Fosnock contends that
11 U.S.C. Section 362, which
acts as an automatic stay of certain proceedings,
applies
in this
matter.
The hearing officer determined that the automatic stay
did not apply due to the “police powers exception” found
in
Section
362(b) (4) and ruled the hearing would go forward.
(Pr.
at 6.) Mr. Meno withdrew from the hearing and no other counsel
presented a case in Mr.
Fosnock’s defense, nor did Fosnock argue
pro
Se.
This case involves a seven—acre tract of land in Gillespie,
Macoupin County,
Illinois whereupon Fosnock operates “Fos Auto
and Truck Parts”
(Fos Auto Site). The Agency first became aware
of this site in June of 1991 when the Agency received a complaint
that an individual was digging trenches and burying tires on
property in Gillespie.
(Tr.
at 19.)
Mr. Pursglove dispatched an
Agency inspector to the site to investigate the complaint.
(Tr.
at 19.)
Once on-site, the Agency discovered that Mr.
Fosnock had
been operating a used tire storage and disposal business for two
years.
Pursglove testified Fosnock had been hauling used tires
onto the site at a rate of five to six hundred tires per week and
that Pursglove estimated that he received approximately
.75 cents
per automobile tire and $2.50 per truck tire.
(Tr.
at 24.)
As
of the April
12,
1994 hearing, the Agency estimates there are
150,000 used tires stored on the Fosnock property.
(Tr. at
13.)
The Agency visited this site on at least seven separate
occasions: June 20,
1991,
July of
1991,
December
6,
1991,
October
2,
1992, May of 1993,
October 24,
1993 and April
11,
1994.
During
these investigations,
the Agency found that there were tires
in
piles and they were also strewn about the site,
and that they
were dumped directly on the ground
in the midst of the brush,
grass,
and trees,
and that Fosnock had buried some of the tires
on-site.
The Agency also found the site was cluttered with junk
cars.
(Tr. at
15.)
At one of the more recent site—visits, the
2
Agency discovered that Fosnock had purchased a tire shredder and
was using the tire chips to fill the site’s entrance road
potholes.
(Pr. at 13.)
The Agency also observed that the tire
pieces did not conform to UTMA standards; they were shredded into
six inch pieces rather than two inch pieces.
(Tr.
at 13.)
Mr. Pursglove also testified that the inspections
demonstrated that the site posed a significant public health
concern.
Inspectors from the Illinois Department of Public
Health
(IDPH)
and the Macoupin County Public Health Department
collected specimens of the Asian Tiger Mosquito and confirmed its
presence on Fosnock’s property.
(Complaint at 4;
Tn.
at 28;
Exh.#4.)
On July 16,
1991,
the Agency issued a “Section 55.3(d)”
violation letter pursuant to 415 ILCS 5/55.3(d)
of the Used Tire
Management Act provisions,
indicating that the IDPH considered
the site a public health threat
(Pr.
at 28)
and directing Fosnock
to take immediate action to control the proliferation of the
Asian Tiger Mosquito, and to commence removal of the tires.
(Id.;
Pet. Exh.
#7.)
Mr. Pursglove testified this mosquito is
a vector
that can transmit diseases,
some of which are fatal.
(Tr.
at
28.)
In response to the 55.3(d)
letter, Fosnock treated the site
for mosquitos with the assistance of the Macoupin County Health
Department and the IDPH.
(Tr. at 30.)
The treatment was found
to be 85
effective; however,
it was to have been repeated
periodically, specifically after every rain event.
Pursglove
testified that he believed Fosnock has periodically treated to
control the mosquitos,
but he did not indicate whether the
treatments occurred after every rain event.
(Tr. at 33.)
However,
Mr. Fosnock was also directed in the above—
referenced 55.3(D)
letter to remove the tires from the site and
excavate the buried tires.
He was required to submit a tire
removal and excavation plan within 30 days.
(Tr. at 29;
Pet.
Exh. #7.)
In a written response to the 55.3(d)
letter, on July
23,
1991,
Fosnock merely agreed to construct a metal building in
order to operate
a tire recycling facility.
(Pet.
Exh. #8.)
Pursglove testified that the Agency sent Fosnock additional
correspondence indicating essentially that “under no uncertain
terms he must submit,
to us,
a removal plan by which he must
systematically commence and complete the removal of the tires on
the property.”
(Tr.
at
31; Pet.
Exh.
#9)
While Fosnock agreed
to unearth the buried tires and entered into
a tire removal
agreement with the Agency in January of 1992,
he has not yet
removed any tires to date.
(Tn. at 31 and 34.) According to Mr.
Pursglove,
Fosnock has continued to haul tires onto the property
from June
1,
1991 to December of 1993,
and has never submitted
any reports showing proper disposal.
(Tr.
at 30,34.)
While on the Fos Auto site,
and after a records review, the
Agency also determined that Fosnock had no tire fire fighting
capability and that the local fire department
is at least six to
seven miles away.
(Tr.
at 23;
Pet.
Exh.
#5.)
When the Agency’s
3
inspectors were on—site,
Fosnock could produce none of the UTMA—
required records and reports, specifically a contingency plan,
financial assurance,
daily tire records, and annual tire
summaries.
(Pr. at
14 and 35.)
As the manager of the Used Tire Management Program, Mr.
Pursglove testified that he and other Agency employees held
several meetings with Mr. Fosnock from June of 1991 to November
of 1992
in an effort to “assist him in operating” his used tire
business.
(Tr.
at 36.)
According to Mr.
Pursglove,
Fosnock
wanted to remain in the tire business and to comply with the used
tire management regulations; therefore,
the Agency “bent over
backwards in trying to get Mr. Fosnock to comply with the
regulations.”
(Tr.
at 36.)
The Agency was particularly
interested in Fosnock’s staying in business so that the revenue
would go toward remediation and cleanup of the site.
(Tr. at
37.)
As a result of these meetings, Fosnock agreed to take
several actions:
(1)
enter into a tire removal agreement with
the Agency that he would remove 2,500 tires per month from the
Fos Auto site, which he did submit on January 16,
1992;
(2)
open
a tire recycling facility in Benld,
which would be a more
accessible location than that in Gillespie;
and
(3)
as of January
1,
1992 cease hauling used tires onto the Fos Auto site.
(Tr. at
35—36; Pet.
Exh. #11,
“Letter from Paul Pursglove to Fosnock,
dated December 18,
1991”.)
Mr. Pursglove testified that while
Fosnock did enter into the tire removal agreement in January of
1992,
he has not complied with it, nor has he removed any tires.
Rather, the uncontroverted evidence indicates that he has
continued to haul tires onto the site.
(Tr. at 39.)
Moreover, while not a basis for the instant enforcement
action, the Fosnock’s new tire recycling business location in
Benld was not operated in compliance with the used tire
management requirements either;
Fosnock maintained no annual
reports, no daily tire records, no contingency plan,
nor
financial assurance.
(Tr.
at 41.)
However, based on Fosnock’s
expressed desire to come into compliance,
the Agency allowed
Fosnock to return to Gillespie and operate his business on the
original, seven—acre site.
According to Mr. Pursglove, Fosnock
has not yet brought the Fos Auto site into compliance.
It still
has an uncompleted storage building.
Mr. Pursglove further
testified that Fosnock’s written plan to comply with the UTMA
requirements
(by bringing new tires onto the site,
sorting them,
removing and selling the casings from the waste,
and disposing of
the remaining tires)
has yet to come to fruition.
(Tr. at 41;
Pet.
Exh.
#12.)
Thus,
Fosnock’s actions have culminated in the
instant enforcement action to gain compliance and Fosnock’s
filing for bankruptcy the day before the Board hearing on the
complaint.
4
ISSUES PRESENTED FOR REVIEW
A.
The Respondent’s Entry of a Special and Limited Appearance
Contesting the Board’s Power to Conduct an Enforcement
Hearing.
Mr. Meno appeared on the morning of the April
12,
1994
hearing to notify the hearing officer that he was filing a
“Suggestion of Filing Bankruptcy Petition and Stay of
Proceedings” which was entered as Respondent’s
Exhibit #1.
(Tn.
at 3.)
This document appears to be a special
and limited appearance challenging the Board’s authority to
conduct the hearing on the complaint.
Meno argues that Fosnock
filed Chapter
7 bankruptcy proceedings in the Bankruptcy Court of
the Central District of Illinois on April
11,
1994 and triggered
Section 362(a), the automatic stay provision of the United States
Bankruptcy Code.
(11
U.S.C.
Section 362(a).)
Fosnock’s position
is that his filing for bankruptcy grants an automatic stay from
all proceedings pending before state courts and administrative
agencies,
including the instant action pending before the Board.
In response at the hearing, Mr. Morgan,
argued that Section
362(b) (4) provides an exception to the automatic stay
specifically for the continuation of actions or proceedings by a
governmental unit to enforce a State’s police power.
(Tr.
at 4—
5.)
Citing In re Lenz Oil Service Inc.
65 B.R. .292
(N.D.
Ill.
1986),
Mr. Morgan further argued that Illinois’
enforcement
actions pursuant to the Act have been found to fall within the
police powers exception to the automatic stay provision.
He
argued that it is appropriate for the Pollution Control Board to
proceed with the hearing,
and that such proceeding is not
affected by the federal stay provisions.
(Id.)
B.
Counts
I,
II and III:
Violations of the Used Tire
ManacTement Act,
the Environmental Protection Act and the
Illinois Administrative Code
The three-count complaint filed by the State
of Illinois
against Robert Fosnock alleges the following violations of the
Used Tire Management Act provisions of the Environmental
Protection Act, violation of the open dumping provisions of the
Environmental Protection Act and the corresponding regulations of
the Illinois Administrative Code.
1.
Count
I
-
The Used Tire Management Act Provisions of the
Environmental Protection Act and Corresponding Regulations:
Operation
of a
Tire Disposal
Site
without Providing Notice
to the Agency, Entering into a Tire Removal Agreement
and
Failure to Submit all Necessary Records and Reports.
Count
I of the complaint alleges that Fosnock violated
5
Sections 55(a) (6),
(c),
(d) (2)
and
(j)
which provide:
(a)
No person shall:***
(6)
Fail to submit required reports, tire removal
agreements***.
(c)
On or before January
1,
1990,
any person who
operates a tire storage site or tire disposal site
which contains more than 50 used or waste tires
shall give notice of such activity to the Agency.
Any person engaging in such activity for the first
time after January
1,
1990,
shall give notice to
the Agency within
30 days after commencement of
the activity***.
(d)
Beginning January
1,
1992,
no person shall cause
or allow the operation of:***
(2)
a
tire disposal site,
unless the owner or
operator
(i) has received approval from the
Agency after filing a tire removal agreement
pursuant to Section 55.45,or
(ii)
has entered
into
a written agreement to participate in
a
consensual removal action under Section 55.3.
(j)
No person shall
fail to comply with the terms of a
tire removal agreement approved by the Agency.
Count
I further alleges that Fosnock violated 35
Ill.
Adm. Code
848.201(b)
and 848.501(a)
in failing to give the Agency notice
within 30 days of commencing the operation of a tire storage and
disposal site, and
in failing to submit and operate pursuant to a
tire removal agreement.
2.
Count II
-
The Environmental Protection Act and
Corresponding Regulations:
Open
Dumping and Proliferation
of Disease Vectors.
Count II of the complaint
alleges that Fosnock violated
Sections 21(a)
,
(d) (1)
and
(2)
,
(e), and
(p) (5)
of the Act:
No person shall:
(a)
Cause or allow the open dumping of any waste;
**
*
6
(d)
Conduct any waste-storage,
waste—treatment,
or
waste—disposal operation:
(1)
Without a permit granted by the Agency
***;
or
(2)
In violation of any regulations or standards
adopted by the Board under this Act; or
***
(e)
Dispose***any waste***except at a site or facility
which meets the requirements of this Act and of
regulations and standards thereunder.
(p)
In violation of subdivision
(a)
of this section,
cause or allow the open dumping of any waste
in a
manner which results
in any of the following
occurrences at the dump site.***
(5)
proliferation of disease vectors.
Count II further alleges that Fosnock violated 35
Ill.
Adm. Code
Sections 807.201 and 807.230
in failing to comply with the tire
removal agreement once it had been approved, by operating a waste
disposal unit without
a permit,
and by allowing the proliferation
of disease vectors at the site.
3.
Count
III
-
The
Used Tire
Management Act Provisions of the
Environmental Protection Act and Corresponding
Regulations:
Open Dumping of Used or Waste Tires
Count III of the complaint alleges that Fosnock has violated
Sections 55(a),
and
(e)
which provide:
(a)
No person shall:
(1)
Cause or allow the open dumping of any used
or waste tire.***
(5)
Abandon, dump or dispose of any used or waste
tires on private or public property except in
a sanitary landfill approved by the Agency
pursuant to regulations adopted by the
Board.
***
(e)
No person shall cause or allow the storage,
disposal, treatment or processing of any used or
waste tire in violation of any regulation or
standard adopted by the Board.
7
Count III further alleges that Fosnock violated 35 Ill. Adm Code
Sections 848.202(a),
(b), and
(c),
848.400(b),
848.401(a),
and
848.404(a)
by causing or allowing open dumping of used tires at
a
site not permitted by the Agency,
by placing tires too close to
grass, weeds,
brush, and tree limbs and in not maintaining and
submitting the required records and reports,
i.e.,
contingency
plans,
financial assurance,
tire removal cost estimates.
C.
Remedies Sought by the State of Illinois Against Fosnock.
The Complaint seeks the issuance of a final order finding
the respondent in violation.
The State of Illinois also requests
that we direct the respondent to take all measures necessary to
cease and desist from being
in violation and from committing
further violations.
In addition to seeking an award of the
State’s costs including attorney’s fees and expert witness fees,
the State also seeks
a civil penalty up to $50,000 for the
initial violation of each subsection of the Environmental
Protection Act,
and additional penalties of $10,000 per day for
each violation. The State asks that we grant any such other
relief as we deem appropriate, including attorneys fees and
costs.
At hearing, Mr. Morgan urged the Board to impose
a penalty
in the amount of $156,250,
which,
Mr.
Pursglove testified, would
deprive Mr. Fosnock
of the economic benefit of his noncompliance,
and would deter others from committing similar violations.
(Tr.
at 44 and 48.)
Mr. Morgan arrived at $156,250,
by multiplying
the number of tires on the site
(approx.
150,000)
by the
approximate amount of the disposal fee Mr. Fosnock received
($1.00 for 125,000 car tires and $2.50 for 25,000 truck tires).
(Tr.
at 49.)
Mr.
Pursglove further testified that the Agency
would like
a high penalty in this case because the Agency needs
to send out a clear message.
(Pr.
at 44.)
According to Mr.
Pursglove,
the Agency has been working hard
for the past three to four years to establish markets and develop
programs to keep tires out of landfills,
and to expand disposal
and recycling options for used and waste tires.
(Tr. at 44—45.)
Approximately five million used tires each year reach these
markets
in Illinois,
and the Agency believes that with the
addition of the Illinois Power Facility
in Baldwin, the State’s
capacity for consuming and recycling tires as a fuel product will
approach 10 to 12 million tires per year.
(Tr.
at 45.)
According to Mr.
Pursglove,
there are legitimate recycling and
disposal options,
such
as the Archer Daniels Midland facility in
Decatur which accepts used tires for 20 cents each.
Mr.
Fosnock
chose only to collect the disposal fee from his customers,
and to
stop there.
(Tr.
at
45.)
The Agency wants to impress upon those
persons operating out of compliance with the Act and the Board’s
regulations, that they can no longer collect tires,
charge for
8
the service, and indiscriminately openly dump the tires.
(Tr.
at
44.)
9
DECISION
A.
The Hearing Officer Properly Ruled that the Automatic Stay
Provisions of the Bankruptcy Code Do Not Prohibit an
Enforcement Proceeding Before the Board.
We find that the hearing officer’s decision to go forward
with the hearing was a proper ruling which
we
hereby affirm.
When a debtor files for protection from his creditors under
Chapter
7. of the United States Bankruptcy Code,
11 U.S.C. Section
362(a) provides an automatic stay against many types of actions
which may be pending against a debtor.
However,
such
a stay is
not an absolute prohibition against the actions of all creditors
or governmental agencies.
Section 362(b)
lists several
exceptions to the automatic stay,
one of which is the “police
power exception” which allows the states to protect the public
health and the environment and sue a debtor to prevent or stop a
violation of the environmental protection
laws,
or affix damages
for violation of such laws.
(~
Midatlantic
v. New Jersey 474
U.S.
494,
106 S.Ct.
755,
761
(1986);
In re Lenz,
65 B.R. 292,293,
citing, S.Rep.No.95—989 at
52,
1978 U.S.Code Cong.
and Ad. News
at 57—87,
5838; H.Rep.
No.
95-595 at 343
1978 U.S. Code Cong.
and
Ad. News at 6299.)
“The policy behind this police or regulatory
exception to the automatic stay is to prevent the bankruptcy
court from becoming a haven for wrongdoers.”
(In re Lenz,
65
B.R.
at 293,
citing,
Commodity Futures Trading Comm.
v.
Co Petro
Marketing 700 F.2d 1279,
1283
(9th Cm.
1983).)
Therefore,
the automatic stay does not apply to the
enforcement action which the Attorney General and the Agency have
commenced against Fosnock,
and
it would not be
a violation of the
stay to hold a hearing,
or to enter a judgment in this matter.
Our issuing such an order granting the requested injunctive
relief or affixing a penalty is not
a violation of the automatic
stay: the courts have found that to rule otherwise,
the police
powers exception would be “narrowed into virtual nonexistence.”
(In re Lenz,
65 B.R.
at
294.)
The Board can think of no better
reason for the State to exercise its environmental police powers
than to seek the immediate cessation and clean-up of
a site which
causes an imminent threat to the public health of Illinois
citizens, and the environment,
as the one present here.
B.
Violations of the Used Tire Management Act, the
Environmental Protection Act and the Illinois Administrative
Code
The complainant in an enforcement proceeding has the burden
of proving violations of the Act by
a preponderance of the
evidence.
This standard of proof requires that the proposition
proved must be “more probably true than not.”
Once the
complainant presents sufficient evidence to make
a prima facie
case,
the burden of going forward shifts to the respondent to
10
disprove the propositions.
(IEPA
v.
Bliss
(August
2,
1984)
59
PCB 191,
PCB 83-17.)
In enforcement actions brought by the
State,
the Agency is charged under the Act with enforcing and
proving violations of the Act before the Pollution Control Board.
(415 ILCS 5/31(a).)
The Board finds that the State of Illinois has proven,
by a
preponderance of the evidence,
that Fosnock has violated each of
the sections of the Used Tire Management Act, the Act,
and the
corresponding regulations set forth in Counts
I,
II,
and III:
operating without a permit,
open dumping of used tires by placing
tires close to grass, weeds,
brush,
and tree limbs, and operating
a non—permitted used tire storage facility in such a manner to
cause the proliferation of disease vectors.
Fosnock has also
violated the Environmental Protection Act and Board regulations
by failing to notify the Agency that he had commenced a used tire
storage business,
failing to enter into and implement a tire
removal agreement with the Agency and failing to maintain the
required records and reports.
Having found Fosnock to be
in violation,
the Board must
issue an appropriate order under the circumstances.
This
determination is governed by Section 33(b)
and Section
42 of the
Environmental Protection Act.
Under
Section 33(b),
the Board has
the authority to issue final orders,
including orders directing
a
party to cease and desist from violations,
and orders imposing
civil penalties in accordance with Section 42.
Under Section
33(c)
of the Act, when issuing its orders and determinations,
the
Board may consider:
the character and degree of injury, the
social and economic value of the pollution source, the location
of the pollution,
the technical and economic reasonableness of
reducing or eliminating the pollution and subsequent compliance.
Section 33(c)
specifically requires that we consider:
1) The
character and degree of injury to,
or interference with the
protection of the health,
general welfare and physical property
of the people;
2)
the social and economic value of the pollution
source;
3)
the suitability or unsuitability of the pollution
source to the area in which it
is located,
including the question
of priority of location in the area involved; 4)the technical
practicability and economic reasonableness of reducing or
eliminating the emissions,
discharges or deposits resulting from
such pollution source; and
5)
any subsequent compliance.
(415
ILCS 5/33(c).)
In considering Section 33(c)
(l)—(4),
as
discussed more fully below,
Mr.
Fosnock has created
actual and
potential harm to human health and the environment by his
improper operations.
Concerning Section 33(c) (4),
compliance
with the requirements of
the
Act and the Board regulations
is
economically reasonable and technically feasible,
as evident
from
the fact of his agreement with the Agency on a tire removal plan.
Finally,
in taking into account Section 33(c)(5)
the record in
this matter demonstrates that Mr. Fosnock operated out of
11
compliance and has yet to remove any of the used tires which he
agreed to in 1992.
In light of these considerations and the clear,
unequivocal
and unrebutted evidence offered at hearing by the Attorney
General demonstrating
Mr. Fosnock’s gross failure to comply with
the used tire storage,
disposal and management practices of the
Used Tire Management Act,
we issue today,
a cease and desist
order directing that Fosnock immediately cease violating the Act.
We also direct that all tires
on the site be properly disposed
within 30 days of the entry of this order.
We also award the
State of Illinois
a penalty
in the amount of $156,250.00 pursuant
to 42(h), which provides the considerations for ascertaining a
penalty amount,
e.g.,
the duration and gravity of these
violations,
the absence of due diligence, and that the penalty
will serve to deter further violation and aid
in enhancing
voluntary compliance.
(415
ILCS 5/42(h).)
From June of 1991 to the present,
Mr. Fosnock has operated a
used tire business totally
in violation of those sections of the
Environmental Protection Act set forth in Counts 1,11 and III of
the Complaint.
He has accumulated 150,000 used tires on-site and
having done so,
has caused
a very serious threat to the human
health and the environment.
Mr. Fosnock’s blatant and reckless disregard for the
management practices of Used Tire Management Act has created an
environmental situation that has not only allowed for the
proliferation of the Asian Tiger Mosquitos,
mosquitos which are
potentially fatal disease vectors,
but Mr. Fosnock has operated a
used tire storage and disposal business wholly without concern
for potential tire fires,
which
in and of itself
is
a very
substantial threat to our environment.~
We are also disturbed by the blatant disregard and lack of
‘The recent tire
fire in
East Chicago,
Indiana, which started July 16,
1994 and burned until late August,
highlights the real concern the Board has
for the danger posed by Mr. Fosnock’s property in Gillespie.
In that
incident,
a 45,000—ton pile of shredded tires caught fire and the smoke and
fumes caused the evacuation
of nearby residents on at least three occasions.
Tire fires are difficult to extinguish and handle because the petroleum—based
rubber burns quite efficiently while the pockets of air in the tire piles
provides oxygen.
The core of the fire burned at 1300 degrees, which was so
hot
it melted the
vinyl siding of nearby homes.
Even after the tire fire is
extinguished,
the melted tires will have to be landfilled at an estimated cost
of
$5 million.
~
e.g.
Cram
Communication,
Inc. Business
Insurance,
~‘Burning Questions:
Fire at Subleased Site Sparks Confusion Over Liabi1ity,’~
August
22,
1994;
Associated Press,
“Smoldering Tire Fire Plagues East Chicago
Neighborhood,” August
4,
1994;
USA Today,
“40—Foot Tall Tire Fire Terrorizes
Indiana Town,”
August
3,
1994.”);
see also In the Matter of Used and Waste
Tire Regulations
(35 Ill. Adm. Code Part 848;
35 Ill.
Adm. Code Part 849),
R90—9B, Adopted Rule,
(February
6, 1992).
12
due diligence exhibited toward the law and
in attitude exhibited
by the respondent
in his relationship with the Agency.
The Used
Tire Management Act assigns the Agency responsibility for
ensuring that recycling,
storage and disposal of used tires
occurs in
a manner that
is protective of the environment and of
the public health.
In passing this
law,
the legislature
specifically found that used tires present an imminent threat to
public health and safety because of the disease vector problem
associated with the inosquitos and the risk presented by tire
fires.
((415 ILCS 5/53
(“General Assembly findings”2.))
The
Agency had demonstrated a willingness to work with Mr. Fosnock so
that he could operate a recycling business
in compliance with the
environmental laws and regulations of the State of Illinois.
However, on almost every occasion that Mr. Fosnock has entered
into an agreement to begin bringing this site into compliance,
Mr. Fosnock has failed to act.
Moreover,
this recalcitrant behavior
is further exacerbated,
in our view,
by Mr. Fosnock’s failure to come forward
in this
proceeding and offer any explanation for the conditions on his
property.
Had the
issue of whether the automatic stay applies
been one that was merely evolving,
or had Mr.
Fosnock at least
presented caselaw to support his position that the hearing should
not go forward,
we may not have viewed his failure to appear so
critically.
However, the bankruptcy law in this area appears to
be clear.
At least since 1986
in the Northern District of
Illinois,
In re Lenz stands for the proposition that the
automatic stay does not apply to enforcement actions brought
pursuant to the Illinois Environmental Protection Act.
Mr.
Fosnock had a responsibility to appear before this tribunal,
which he has failed to meet.
If he desired to contest the factual
presentation of the Agency,
he had every opportunity to do so in
our forum.
2The findings are as follows:
1.
that used and waste tires constitute
a growing solid waste problem of
considerable magnitude that
is exacerbated by the fact
that tires do no
readily degrade or decompose;
2.
that the accumulation of used and waste tires
constitutes
a fire hazard
and a threat to air and water quality;
3.
that unmanaged used and waste tire sites encourage open dumping of other
types of waste;
4.
that used and waste tire accumulations pose
a threat to the public
health,
safety and welfare by providing habitat
for a number of disease—
spreading mosquitos and other nuisance organisms,
and that the transport
of used
tires
has introduced such mosquitos
into the State and dispersed
them;
5.
that
State agencies need the ability to remove, or cause the removal
of,
used and
waste tire accumulations
as necessary to abate or correct
hazards to public health and to protect the environment; and
6.
that used and waste tires may also afford
a significant and economic
opportunity for recycling into
new and useful products or as
a source of
fuel.
(415 ILCS 5/53.)
13
Finally, we are awarding the $156,250.00 penalty requested
by the Attorney General, calculated at
a rate of $1.00 per auto
tire and $2.50 for truck tires,
in order to deprive Mr. Fosnock
of any economic benefit he may have received based on his record
of three years of non-compliance.
We
are also awarding this
amount to send a clear message,
as requested by this Agency, that
“noncompliance”
is not an option.
The record shows there are at
least six tire recycling facilities operating
in compliance in
this State
(Pr.
at 42),
and the Agency has demonstrated a more-
than—ready willingness to assist a business owner
in his or her
endeavors to establish and operate a recycling business in
compliance with the law,
as this case shows.
We are convinced
that a penalty in this amount for a site of this magnitude will
cause other property owners to rethink their position when
considering whether to disregard the Used Tire Management Act and
the Environmental Protection Act.
The record also clearly
demonstrates a wilful, knowing and repeated violation of the
Environmental Protection Act, and therefore, pursuant to Section
42(f)
we also award reasonable attorney’s fees and costs.
ORDER
The Board hereby finds the respondent
in violation of
Section 55(a),
(a) (6)
,
(c)
/
(d) (2)
,
(e)
/
(j)
of the Used Tire
Management provisions of the Environmental Protection Act,
Sections
21(a)
,
(d) (1) and
(2)
/
(e) and
(p) (5)
of open dumping
provisions of the Environmental Protection Act, and
35 Ill. Adm.
Code 848.201(b)
and 848.501(a)
848.202(a),
(b), and
(c),
848.400(b),
848.401(a),
and
848.404(a)
848.202(a),
(b),
and
(c),
848.400(b),
848.401(a),
and 848.404(a).
Accordingly,
we award the
State of Illinois the following relief:
(a)
Robert Fosnock shall immediately cease and desist from any
further violation of the Used Tire Management Act provisions
of the Environmental Protection Act, the Environmental
Protection Act and the Illinois Administrative Code.
(b)
Within 30 days of receipt
of this opinion and order, Robert
Fosnock shall have properly disposed of all used tires from
the Fos Auto Site property located
in Gillespie,
Illinois.
(c)
The respondent,
shall pay the sum of one hundred and fifty—
six thousand and two hundred and fifty dollars
($156,250.00)
within 30 days of the date of
this
Order.
Such payment
shall be made by certified check or money order payable to
the Treasurer of the State of Illinois, designated to the
Environmental Protection Trust Fund,
and shall be sent by
First Class mail
to:
Illinois
Environmental
Protection
Agency
Fiscal Services Division
2200 Churchill Road
14
P.O.
Box 19276
Springfield,
IL 62794—9276
The certified check or money order shall clearly indicate on
its face,
the respondent(s)
Federal Employer Identification
Number or Social Security Number and that payment is
directed to the Environmental Protection Trust Fund).
Any such penalty not paid within the time prescribed
shall incur interest at the rate set forth
in subsection
(a)
of Section 1003 of the Illinois Income Tax Act
(35 ILCS
5/1003),
as now or hereafter amended,
from the date payment
is due until the date payment is received.
Interest shall
not accrue during the pendency of an appeal during which
payment of the penalty has been stayed.
(d)
The respondent shall pay the attorneys fees and costs
incurred by the Office of the Illinois Attorney General
in
its representation of the State of Illinois and the Illinois
Environmental Protection Agency.
Within
7 days from receipt
of this order,
the Attorney General shall file an affidavit
of fees and costs,
Respondent may file a response with the
Clerk of the Board within
7 days thereafter.
(415 ILCS
5/42(f).)
Failure to comply with this cease and desist order,
including the proper disposal of all used tires on the Fos Auto
site, may result in sanctions and may constitute further
violation,
which could subject respondent to an additional civil
penalty in the
amount
of
$50,000,
and an additional $10,000 for
each day the violation continues.
(415 ILCS 5/42.)
IT
IS SO ORDERED.
Board Member J. Theodore Meyer concurred.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the ~bove
opinion and order was
adopted on the
/~7—day
of
~
/
1994,
by a vote
of
(~2~O
/2
/‘
.~
-
4
.
I
(~(
/~
/
JL•
Dorothy
M.
Gupn,
Clerk
Illinois Po~lutionControl Board
15
