C ~
V ~ D
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
SEP
132004
ILLINOIS ENVIRONMENTAL PROTECTION)
STATE OF
ILUNOIS
AGENCY,
)
PoHut~onComro~Board
)
Complainant,
)
)
AC 2005-017
vs.
)
)
(IEPA No.
349-04-AC)
ROGER MILLER and JOAN KAY MILLER
)
)
Respondents.
)
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street, Suite 11-500
Chicago, IL
60601
Michelle M. Ryan
Assistant Counsel, Division of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL
62794-9276
PLEASE TAKE NOTICE that I have today filed with the Office of the
Clerk of the Illinois Pollution Control Board an original and nine copies of a
Petition for Review and Entry of Appearance ofJeffrey W. Tock, copies of which
are herewith served upon you.
Respectfully submitted,
Roger Miller and Joan Kay
Miller, by their attorneys,
Harrington
& Tock
By:
QI~Y~J72
Tock
Dated:
September 10, 2004
Jeffrey W. Tock, Esq.
HARRINGTON
& TOCK
201 West Springfield Avenue,
Suite 601
P.O. Box 1550
Champaign, Illinois 61824-1550
Telephone:
(217) 352-4167
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ILLINOIS ENVIRONMENTAL PROTECTION)
AGENCY,
)
)
Complainant,
)
)
AC 2005-017
vs.
)
)
(IEPA No.
349-04-AC)
ROGER MILLER and JOAN KAY MILLER
)
)
Respondents.
)
CERTIFICAT E OF SERVICE
I, Jeffrey W. Tock, the undersigned, hereby certify that I have served a
copy of the attached Petition for Review and Entry of Appearance of Jeffrey W.
Tock upon:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street, Suite 11-500
Chicago, IL
60601
Michelle M. Ryan
Assistant Counsel, Division of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL
62794-9276
by depositing said documents in the United States Mail in Champaign, Illinois,
postage prepaid, on September 10, 2004.
W. Tock
vlb/Complain.jef/Miller/IPCB-NoticeFiling.CertServ
RECEgv~~
CLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
SEP
132004
ILLINOIS ENVIRONMENTAL PROTECTION)
Poll
nC~t~d
AGENCY,
)
)
Complainant,
)
)
AC 2005-017
vs.
)
)
(IEPA No.
349-04-AC)
ROGER MILLER
and
JOAN KAY MILLER
)
)
Respondents.
)
ENTRY OF APPEARANCE OF JEFFREY W. TOCK
NOW COMES Jeffrey W. Tock, of the law firm of HARRINGTON &
TOCK, and hereby enters
his
appearance on behalf of Respondents, ROGER
MILLER and JOAN KAY MILLER.
Respectfully submitted,
Roger Miller and Joan Kay
Miller, by their attorneys,
Harrington & Tock
By:_______
j1~f
e
W. Tock
Prepared
By:
Jeffrey W. Tock, Esq.
HARRINGTON & TOCK
201 West Springfield
Avenue, Suite 601
P.O. Box 1550
Champaign, Illinois 61824-1550
Telephone:
(217) 352-4167
vlb/Complain.jef/Miller/IPCB-EntryApp
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~
I~CEUVED
‘~RI(S OFFICE
ILLINOIS ENVIRONMENTAL PROTECTION)
AGENCY,
)
SEP
13
2004
)
STATE OF ILLINOIS
Complainant,
)
Pollution Control Board
)
AC 2005-017
vs.
)
)
(IEPA No.
349-04-AC)
ROGER MILLER and JOAN KAY MILLER
)
)
Respondents.
)
PETITION FOR REVIEW
COME NOW the Respondents, ROGER MILLER and JOAN KAY
MILLER, by their attorneys, Harrington
& Tock, and, pursuant to Section 31.1 of
the Illinois Environmental Protection Act (415 ILCS 5/31.1) and 35
Il1.Admin.Code
§
108.204, submit this Petition for Review (“Petition”) of the
Administration Citation issued by the Illinois Environmental Protection Agency.
In support of this Petition, the Respondents state as follows:
1.
The Administrative
Citation issued to Respondents alleges that the
Respondents have violated the Illinois Environmental Protection Act
as follows:
(a)
That Respondents caused or allowed the open dumping of
waste in a manner resulting in litter, a violation of Section
2l(p)(l) of the Act, 415 ILCS 5/2l(p)(l)
(2002).
(b)
That Respondents caused or allowed the open dumping of
waste in a manner resulting in open burning, a violation of
Section 2l(p)(3) of the Act, 415 ILCS S/2l(p)(3)
(2002).
(c)
That Respondents caused or allowed the open dumping of
waste in a manner resulting in deposition of general
construction or demolition debris or clean construction or
demolition debris, a violation of Section 2l(p)(?) of the Act, 415
ILCS S/2l(p)(7)
(2002).
2.
The People of the State of Illinois have previously filed a Complaint
against these Respondents for the same type of violations as set forth
in Paragraphs (a) and (c) above, alleging that the Respondents are
open dumping waste and creating litter.
That case is presently before
the Illinois Supreme Court on the Respondents’ Petition for Leave to
Appeal the decision of the Fourth District Appellate Court in that
matter.
(IllSCt case no. 95727.)
Until such time as the Illinois Supreme
Court makes a final determination on the Respondents’ Petition for
Leave to Appeal
and
a determination as to the definition of “waste”
and “litter”, there remains open the issue as a matter of law as to
whether or not the Respondents have allowed the open dumping of
“waste” or “litter”
as alleged in the Complaint by the People of the
State of Illinois and as alleged now in this current Administrative
Citation.
3.
The Respondents deny that they have open dumped any waste or
created litter as alleged in the Administrative Citation.
4.
The site of the alleged violations is in excess of 20
acres in area
and
is
partially wooded.
From
time
to time, areas of the site are cleared of
landscape material growing on site through the use of a bulldozer.
The bulldozer is used to accumulate such landscape material which is
then burned on-site as allowed by 35 Ill.Admin.Code
§237.120(c).
5.
At the time of the alleged violation as set forth in (b) above for open
burning, the Respondents were on a trip in Alaska.
The Respondent
Roger Miller was unable to supervise the burning of the on-site
landscape waste.
6.
Based upon the report of the EPA inspector, there apparently was a
diminimus amount of non-landscape waste material that was pushed
into a landscape waste burn pile that was burned along with the
landscape waste.
7.
The Respondent Roger Miller understands the restriction imposed by
35 Ill.Admin.Code §237.120(c).
If the Respondent Roger Miller had
been present, he would have made a review of the material to be
burned
and
would have removed the diminimus non-landscape
material.
8.
Due to the absence of the Respondent Roger Miller from the site due to
his trip to Alaska, the circumstances surrounding the burn of the non-
landscape material mixed in with the landscape waste was an
uncontrollable circumstance as to which an Administrative Citation is
not warranted.
WHEREFORE, for the above reasons, Respondents Roger
Miller
and
Joan
Kay Miller pray that this Board dismiss the Administrative Citation filed herein
by the Illinois Environmental Protection Agency and grant all other just
and
proper relief in this matter.
Respectfully submitted,
Roger Miller and Joan Kay
Miller, by their attorneys,
Harrington & Tock
By:__
Prepared
By:
Jeffrey W. Tock, Esq.
HARRINGTON
& TOCK
201 West Springfield
Avenue, Suite 601
P.O. Box 1550
Champaign, Illinois 61824-1550
Telephone:
(217) 352-4167
v1b/Comp1ain.je~/Miller/IPCB-PetitionReview
