BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

R~.C~\,ED

CLERK’S OF~CE

COUNTY

OF

JACKSON,

)

~

A

1

FE~03

2005

Complainant,

IN F\ L

STATE OF lLLh~9~S

)

Pollution Control Board

vs.

)

AC

No.

2004-063

EGON

KAMARASY,

)

Respondent.

RESPONDENT’S

POST-HEARING

BRIEF

I

INTRODUCTION

The County of Jackson (“County”)

seeks

to impose

civil penalties for two

(2)

alleged

violations ofthe Act.

Mr. Kamarasy denies that his actions

violated the Pollution Control

Act.

He

further

denies that his

aqçions gave rise to

any “pollution”.

II

FACTUAL AND PROCEDURAL BACKGROUND

For the sake ofbrevity, the respondentrefers to

and incorporates herein the Factual

and

Procedural

Background

section

of

his

Memorandum

Supporting

Petition

to

Contest

Administrative

Citation filed at the hearing on

November 22,

2004.

It

accurately states

the

evidence that was adduced at the hearing.

Don

Teiry,

a

solid

waste

inspector

employed

by

the

Jackson

County

Health

Department, with seventeen (17) months on the job1 and no prior relevant experience

(Tr.

7

—

8,

1

At the

time of the~inspectionof the

site

involved

in

this

case

and

on

the

date of his

written report that

was

admitted

into evidence

Mr

Terry had heen

a solid

waste insnerfnr

fnr

nnlv

~nnrny~m~tp1~,

~~ht

(~ 1m-~thQ

(

---

18

—

19), testified~that

he conducted

a three-minute inspection of the site2

on

March

25,

2004,

and took one photograph (Tr.

11

—

12) that was introduced into evidence. (P 7).

The

inspection

was visual only, no testing or sampling was done (Tr. 23

—

24), and the inspector never got any

closer than apprQximately 300 feet to the materials depicted in the photograph. (Tr.

10)

He was

careful

not to enter upon the respondent’s property

since he had

neither permission of the

landowner to enter nor a warrant.3 (Tr.

31

—32)

Based upon this cursory inspection, Mr.

Terry prepared a written report and

concluded

that at least eight (8) violations ofthe Act had occurred. (P 3)

On ~

2004, the County filed the Administrative

Citation against the respondent

in

this

cause.

Although

containing more

legal

conclusions than

facts,

the

Admillistrative

Citation charges’the respondent with

two (2) violations of the Act: (1) “the

Respondent has

caused or al1ow~dlitter at the facility in violation of 415 ILCS

§

5/2l(p)(l)”;

and

(2)

“the

Respondent has~causedor allowed the deposition of general construction

or demolition,

or

clean constructioii or demolition debris in violation of415 ILCS

§

5/21(p)(7).”

The respondent timely filed a Petition to

Contest Administrative Citation in

which he

denied that his conduct violated theAct.

At

the

hefáring,

Mr.

Terry

testified that

he had

inspected the

site

in

question

on

December

5,

2003

in the same manner as the March

25,

2004

inspection.

(Tr.

12

—

13)

Mr.

Terry testified that

he found the

site on

March

25,

2004

to

be

substantially similar to

the

condition ofthe site on December

5,

2003.

Followin&the December 5, 2003 inspection, Mr. Terry’s supervisor, Bart Hagston,

sent

therespondent a letter, dated January 9, 2004, in which certain corrective actions were requested

ofthe respondent~tô

be completed by a date certain, February

13, 2004, or else the matter would

be referred to prosecutorial authorities.

(Tr.

33

—34; R-4).

2

“The

site”

shall

mean

and

refer to

the

property

owned

by

the

respondent

that

is

identified in

the

Administrative

Citation.

---

In respotise to Mr. Hagston’s letter, the respondent called Mr.

Terry

on

January

15,

2004.

(Tr.

32

—

~5,

53)

During this conversation,

the respondent and the County

reached an

agreement that the’ pile ofmaterials on

the

site

would be removed and

properly disposed on

or

before a date certain, February

13, 2004. (Tr.

34— 35, 53

—

55)

The respondent told Mr.

Terry,

during this telephone conversation, that he had

arranged already for a contractor to

remove and

dispose of the thäterials and

that he

believed that the job

would be

completed not

later than

February

13, 2004.

(Tr.

34

—

35,

53

-

55)

This

agreement was

confirmed by

a

letter, dated

January

16, 2004,~from

Mr. Terry to the respondent.

(R-5)

Mr. Terry’s next action concerning this case came on March

25,

2004,

when he

went to

the site, stood at~hegate, conducted the 3-minute inspection,

took

one

(1)

photograph

(P-7),

and prepared a wi~ittenreportthat accused the respondent of eight (8) separate

violations of the

Act.

(Tr.

35

-

36)

Mr.

Terry did

not

call

or otherwise communicate

with

the

respondent

concerning the respondent’s apparent failure to

remove and

dispose

of all

the materials

on

the

site, until March 30, 2004, when the Administrative Citation was filed. (Tr..

35

—

36)

Mr. Terr~snext visit to

the

site occurred after the

Administrative Citation had

been

filed. (Tr.

37)

The

materials that he had

seen on

March

25,

2004 had been removed, but Mr.

Terry did not

c&itact

the respondent

to

verify the disposal

of the

materials because “the

administrative citation had already been filed”.

(Tr. 37)

Based uphn this evidence, the County asks the Board to find two (2) violations of the

Act and to assesS:a fine

in the

amount

of One Thousand

Five

Hundred and

no/lOO

Dollars

($1,500.00) for each violation.

The respOndent denies violating the Act and specifically denies causing any

pollution.

(Tr.

45)

~

As the

facts in

AC

04-064,

involving a nearby

site owned by

the respondent that

was

the

subject of

an

inspection by Inspector Terry, reveal, he showed no

such caution about entering upon

the

respondent’s

property

~n

tl,~t‘~~sp

,x

thivsitThp

li,ndr~wner’s

‘nnsent

nnd

with

no

wnrrcint

is~iiedlw

iiidici~,lauthority

(Tr

~

—

~Q

---

The site i~

rural, unimproved land that

is

used to pasture horses.

There are no

houses

nearby and the land is located within the unincorporated area ofJackson County. (Tr.

10, 46)

It

is located within one

(1) mile of the Raccoon Valley Mobile Home Park that

is

owned by the

respondent. (Tr. 46

—

47)

In November 2003, the Illinois Department of Public Health, as a result of its

inspection

of the mobile home park,

ordered the respondent to

remove mobile homes

from

several of the

lots in the mobile, home park that had been abandoned there by their owners

(Tr.

47

—

49)

(See

R-1)

The Department ofPublic Health demanded the structures be removed from the mobile

home park by December

12, 2003, so the respondent removed them to the site for the purpose

of recycling ther~recyclable

materials and he

had retained a contractor to take the

remaining

materials to

a loo~1

landfill.

(Tr. 50)~

On Januazy

15, 2004, afterreceiving a violation notice from the Jackson County

Health

Department,

the4respondent

called and

spoke

with

Mr.

Terry.

(Tr.

53)

The

respondent

informed Mr. Terry that he already had contracted with Mr. McMurphy

to

remove and

dispose

of the materials left in the pile and expected the process to be completed before February

13,

2004.

(Tr.

53

_~.55)5However, due to weather conditions,

Mr.

McMurphy

was unable

to

complete the jol~by

February

13, 20046 and the respondent hired another

firm.

(Tr. 54

—

55)

Thejob was completed by approximately April

16,

2004

after the respondent contracted with a

licensed waste hau~1er

to remove the materials to a local landfill.

(Tr. 54

—

58)

‘~

Archie Mays testified that the pile

of materials consisted of wood and other materials from mobile homes that

people had abandoned in Raccoon Valley Mobile Home Park and that he participated in separating the materials,

taking

some to a lo~a~recycler

and using the usable wood.

(Tr.

65

—

67)

~ The respondent believed there

was

an

agreement with

the

Jackson

County

Health

Department

that

no

enforcementproceedi~igswould result if the removal procedure were completed by

February

13, 2004. (Tr.

57)

6

This was corroho

ed

by

the testimony of Mr

M~~Muirnhv

(Tr

~cS

—

---

III

ARGUMENT

A.

The complainant’s evidence is insufficient to support a finding of any

violation of

the Pollution Control Act that is alleged in the administrative citation.

The Act requires that

in the administrative citation process an enforcement agent must

base

his

testimony

upon

his

direct

observations.

The

legislature created the

administrative

citation process

a streamlined and

efficient method of enforcing and

obtaining

compliance

with

the Polluti~Control Act.

It limited the amount of fines that

are assessable

and

limited

consideration of~othercircumstances, mitigating

or

aggravating.

And,

it

required

that

enforcement agents base their testimony and evidence upon their direct observations in

order to

sustain a finding ofa violation ofthe Act.

The

respondent

argued

in

his

Memorandum

Supporting

Petition

to

Contest

Administrative Ciiation (“Resp. Memo”) that the inspector did not observe, and could not have

observed,

on

March

25,

2004,

the

specific

items

that

he

claims

to

have observed

in

his

inspection report, therefore, his report should be disregarded as mere speculation, lacking any

foundation. (Resp~Memo,11

—

13)

The complainant argues in its post-hearing brief that since the respondent

admitted that

the materials at the site consisted of the mobile homes

that others

had

abandoned upon

his

property, the speculation

and lack of foundation for

the

inspector’s

evidence is

overcome.

(Complainant’s Post-Hearing/Closing Argument, 4)

In this case, an inexperienced inspector made a three minute inspection from a distance

of 300 or more fdbt,

saw

what he

described as

a

pile

of materials on

the

site,

and

made no

testing

or sampling

of

the

materials

he

observed.

He personally

observed

no

acts

of

transporting or diUmping or doing

anything

with or to

the materials.

He

knew

from

prior

conversations wi~hthe respondent that the

materials were

mobile

homes

abandoned by

their

---

owners at the respondent’s mobile home park located about one

mile away that

the respondent

had moved to th~ite,disassembled, separated the materials, recycled some, reused some,

and

had contracted with

a waste hauler to dispose of the remaining materials

on

or before February

13, 2004.

It appeared, however, to the inspector on March 25, 2004 that the material had

not

been removed frdm the site by the promised date.

But,

rather than contacting the respondent to

find out the causefor the apparent non-compliance with the agreement to remove the remaining

materials, the inspectorfiled an administrative citation

against the respondent

charging, not one,

but two

violatiOns

of the Act thereby seeking a fine in

the amount of Three Thousand

and

no/l00 Dollars ($3,000.00).

It should:~be

clear that this is not what the legislature had in

mind when it created the

administrative citE~tionenforcement mechanism for the Pollution Control Act.

It is

clear that the

evidence present~d

is insufficient to support

the findings

that the complainant must prove

to

establish a violatiOn under the administrative citation procedure.

The insp

~btor’

s evidence

is not based upon his

direct

observation.

The respondent’s

attempt

to resolve~~he

issue previously with the inspector should not and cannot be used to

cure

that deficiency.

fFhe complainant cannot be allowed to testify about what materials comprised

thepile that he observed from morethan 300 feet away and this support a finding of a violation

ofthe Act in an adthinistrative citation procedure.

The

com~iainant’sargument

that the respondent admitted

to

every factual

element

needed to show the two violations charged is misleading and is not accurate.

The act of moving

the abandoned mObile homes to the site from his mobile home park, especially when done at the

behest ofa state ~ency

in the interest ofthe public health and

welfare, is

not an

admission

that

open dumping occurred or that

the

activity

caused or resulted in

litter because there was

no

showing that there was

actual or even a likelihood

that the items placed

on the site entered the

environment, weriemitted into the air or discharged into the waters.

Nor did the admission of

moving the abai~tdonedmobile homes

to the site evidence that

the

activity

created a

public

---

nuisance, fire, health or

safety hazard

or

that

the

items

scattered freely

and

entered

upon

surrounding prop~rty.

The competent evidence presented by the complainant, therefore, simply is

insufficient

to

sustain a findi~t~

of the two (2) violations charged in this case.

B.

The ‘complainanthas not alleged norproven

that the respondent created an “open

dump”

or

engaged

in

“open

dumping”

of

waste

that

resulted

in

unlawful

litter or

the

deposition of gei~ieral

or demolition debris or clean construction or demolition debris.

The

predicate for finding

a

violation

of

§

21(p)

of the Act

is

a

finding

that

the

respondent caus~ior allowed “open dumping” of any waste material.

The

respondent

argued

in

his

Memorandum

Supporting

Petition

to

Contest

Administrative ~itation

that the abandoned mobile homes on the site

are neither the result of

open dumping noi~

open dumping because none ofthe material comprising

the

so-called pile of

materials threatei~d

or was allowed to scatter freely into the environment;

and, it cannot be that

any pile ofmaterials that a landowner places upon

his

land creates

a “disposal

site”

under the

Act since such à~•

expansive interpretation of the Act would be

arbitrary

and

unenforceable.

(Resp. Memo, 1~—18)

In respoi~e,the complainant argues

that

“proof

of dumping”

is

all

that

must

be

shown” by the C~inty.(Complainant’s Post-Hearing/Closing Argument,

5)

The act Of depositing materials upon one’s own land

is not “open dumping”,

as

that

termis defined in

the

Pollution Control Act and by the Board’s regulations.

(See

415

ILCS

§~

5/3.385. 5/3.535~and5/3.305)

The

complainant

must

show

that

the

respondent created a

“disposal site” oti:;his land by

the act(s) of depositing material thereon.

It cannot~hètrue,

however, that any time

a landowner places

any household

item

(for

example, a brokerichair) on his

land, or piles

up

some branches and

leaves, that he or she has

thereby created a~”disposal

site” under the statute.

Such

an

interpretation would render the

Pollution Contro’ Act so broad as to be arbitrary and unenforceable.

See

Alternate Fuels,

Inc.

v.

---

Director of the Illinois Environmental

Protection

Agency,

2004 WL 2359398

(Ill.

Sup.

Ct.

2004)

It would mean for example that every homeowner who has everplaced a broken chair in

his backyard, or an

old piece of plywood

has thereby created a “disposal

site”

under the law,

and would be subject (in

the case of the plywood) to charges of both littering

and

depositing

demolition debris in

violation ofthe Pollution

Control Act.

Hopefully, this

Board would

agree

that that is not the type ofproblem that the Pollution Control Act was meant to

address.

The crucial concept that distinguishes a violation from a non-violation

is

whether the act

of depositing material on one’s land will cause “pollution”.

The evidence in

this

case failed to

show that there ~v~sany pollution

caused by

the respondent’s

act of moving the abandoned

mobile homes from his mobile home park to

the

site for the purposes he

intended.

There was

no scattering ofthe material, or constituents thereof, freely into the environment.

And there was

no evidence presented that the abandoned mobile homes, at least for the period of time that they

remained at the sit~,

eventhreatened to enter and damage the environment.

Consequently,

the

complainant

failed

to

establish

its

prima facie

case of

“open

dumping” by the~respondent

in this case under the Pollution Control Act.

C.

The~complainanthas

not

shown

that

the respondent caused or allowed open

dumping that restilted in

litteror the deposition

of general construction or demolition debris or

clean constructidnor demolition debris.

The

ActCdefines

“disposal”

to

mean

“the

discharge,

deposit,

injection,

dumping,

spilling, leaking

Or. placing of any waste or hazardous waste into or on any land or water or into

any

well

so

that

such waste or

hazardous

waste or

any

constituent thereof may

enter the

environment or be emitted into the

air

or discharged into any

waters, including

ground waters”

(415 ILCS

§

5/3~i~85)

The respmdent argues

that since “open dumping”

can be found only

if the

material

involved may enterthe environment or be

emitted into the air or discharged into any waters or

the activity

in quistion

created a public health

or safety hazard,

a public

nuisance or a

fire

---

hazard, the evidence shows that he

did not cause or allow

open dumping because there was no

showing that anything was emitted or entered into the environment and

no

evidence showing

that his

action ofremoving the abandoned mobile

homes from

the mobile home park one

mile

away

to

the

site

for

the purpose

of recycling

the

recyclable,

re-using

the

re-usable,

and

disposing ofthe remainder created a public

health or safety

hazard, a public

nuisance or a

fire

hazard. (Resp. Memo,

13

-

18)

The complainant does not address this argument directly, but maintains that “proof

of

open dumping is

all that must be

shown”

because requiring a showing of more “would

make

any

successful

prosecution

under

Section

21(p)

nearly

impossible

and

subject

to

overly

technical scientific theories and data”.

(Complainant’s Post-Hearing/Closing Argument,

5)

The testithony

and

exhibits offered by the complainant do

not

show

that the abandoned

mobile homes created a public health or safety hazard, a public nuisance,

or a fire hazard.

The

complainant did not

show that the abandoned mobile homes

on the

site

might scatter or freely

enter into the enY~iionment.

These

cokicepts

are

crucial because the Pollution

Control

Act is

designed to

protect the

environment fror

some damage.

Without a showing that materials deposited on

one’s

own

landsomehow are emitted or enter into the environment, enforcementof the Act

is

impeded

and

misguided beca14~e

the Act then becomes a law

that simply regulates

private

conduct without

regard to the consequences thereof.

In the field of environmental law, nothing could be more

destructive thanheavy-handed attempts to regulate conduct having

no

substantial

or discernable

environmental impact.

These ar~

elements of the charges of open dumping resulting in litter or the deposition

of general constrctction or demolition debns

The charges of open dumping resulting in litter or

the

deposition

i~

construction

debris

cannot

be

sustained

without proof,

at

least

by

a

preponderance ~f,the

evidence, that

the

materials

deposited

on

the

site

entered

into

the

environment in a~damaging

or potentially damaging manner.

---

The evidence produced by the complainant in this

case fails

to

establish these

crucial

elements; therefOre, no findings ofthe violations charged are sustainable.

D.

The

complainant has not

shown

that the

respondent caused or allowed open

dumping that resulted in litteror the deposition

of general

construction or demolition debris or

clean construction or demolition debris.

Count

1

df the

Administrative

Citation

alleges that the respondent caused or allowed

open dumping thai resulted in “litter” in violation of

§

21(p)(1) ofthe Act.

The Act itself does

not define the te±i: “litter”, but the Board has adopted the meaning of “litter”

as it is

used in

the

Litter Contr~’1Act

(see

e.g.

St.

Clair

County

v.

Louis

Mund,

AC

90-64);

and,

those

provisions

of

the’

Litter Control Act that

pertain

to

the

case

at

bar

require

either

(1)

that

dumping, discar~ing

ordepositing litter on one’s own property “create a public health or safety

hazard, a public

nuisance, or a fire hazard” or

(2)

accumulation of

litter upon

one’s

own

property “in such a manner as to

constitute a public nuisance or in such a manner that the litter

may be blown or otherwise carried by

the natural elements on to

the real property of another

person”(see 4l5~~LCS

§~

105/4 and

105/6)

The respt~ndent

argued that the evidence showed that

he

did

not

cause or

allow

open

dumping that resulted in or caused litter under the Act because the definition of litter under

the

Litter Control Actrequires a showing that the respondent,

in depositing

the abandoned mobile

homes upon the Site, created a public health or safety hazard, a public nuisance, or a fire hazard;

and,

the eviden~eadduced at the hearing showed that the placing of the

abandoned mobile

homes upon

the

aite

and

the subsequent

activities

taken with

respect to

those

items

did

not

create a public health or safety hazard,

a public nuisance, or a fire hazard.

(Resp. Memo,

18

—

22)

Ironicall~1

the complainant appears

to

argue that the definition of litter found in

the

Litter Control Abtidoes

not

govern

the definition of litter used in

the Pollution

Control

Act,

which the respondOntis charged with

violating:

section 21

of the Pollution Control

Act, argues

the complainant;~”pertains

to

littering in an

open dumping context”,

while the Litter Control

---

Act “speaks to other types of littering violations”, and “the Litter Control Act does not say

that

its provisions

are applicable to any

facet of a Section

21

case other than to

the definition

of ‘litter’

.

“(Complainant’s Post-Hearing/Closing Argument,

5)

But, this argument flies in the face of prior

Board

precedent and

leaves the

Pollution

Control Act vulnerable to constitutional infirmities due

to vagueness,

and

the lack of guidelines

given to the enforcement agents leading to the sort ofunbridled discretion that breeds

disrespect

for the law.

B.

The complainant should not

be allowed simply to

rename the

materials at

the

site

as construction debris rather than litter in order to sustain a finding ofviolation ofthe Act

The Administrative Citation

also

charges

the

respondent with

open

dumping

that

“caused or allowed the deposition of general

construction or demolition or clean construction

or demolition debris

in violation of 415

ILCS

§

5/2l(p)(7)”.

The Act prohibits

causing or

allowing “the open dumping of any waste.

.

.

in

a manner which results in.

.

.

the

deposition

of.

.

.

general

construction or demolition

debris

.

.

.

or clean

construction

or

demolition

debris”. (415 ILOS

§

5/21(a),

(p)(7)(i) and (ii))

The respondent argued that he cannot be found to have violated the Act in the manner

charged, under the~

evidence adduced at the hearing, because the Act must be

interpreted in

such

a manner to allow;a landowner, such as the respondent, to deposit the abandoned mobile homes

on

his

own land~’providedthose

things

do

not

cause

a

public

nuisance,

migrate onto

a

neighbor’s properiy, or create a health, safety or fire hazard;

and,

because fundamental fairness

requires that sincéhe did not violate the Litter

Control Act, he cannot be found to have violated

the Pollution Cotitrol Act for the same activity that

is alleged to

violate the Litter Control

Act

simply by callingthe materials so deposited onto his

own land “demolition

debris”

instead of

“litter”.

(Resp. Memo, 22— 25)

The respondent also argues that if he is found to have

violated

the Pollution Control Act due to placing the abandoned mobile homes

on

his

own land prior to

recycling the recyclable, reusing the re-usable, and disposing of the rest, then only

one, not

two,

violations may b~found.

(Resp. Memo, 24— 26)

---

The complainant argues that multiple charges for the same offense”

are acceptable arid

prior Board precedent has allowed

it”

(Complainant’s Post-Hearing/Closing Argument,

5)

The respondentconceded that the materials atthe site consisted of remaining parts

from

several mobile h

mes that others

had abandoned at his

mobile home park

located about a mile

away, after he had disposed of certain recyclable and reusable materials.

However,the Board must dismiss

this “depositing demolition debris”

charge for the

same reason as i~tmustdismiss

the littering

charge.

The

littering

charge must

be

dismissed

because the Litter Control Act expressly grants

a landowner theright to deposit on his own land

the kind of “stuff~”,

which does not spread freely onto

other people’s

land, that the respondent

deposited at theL~ite,in the manner that he

did

so

(in

order

that

it

did

not

cause a

public

nuisance, orhealth, safety or firehazard).

In its second claim in this case, the complainant simply attempts to rename the materials

as “construction~debris”rather than “litter” in order to

attain a second fine assessment for the

same act of depositing the materials at the site.

This should no be tolerated.

The

respondent

cannot

rightfully

be

convicted

of

both

littering

and

depositing

demolition material in this

case

If the respondent is not

guilty

of violating the Act by

open

dumping causing~.1itter

because the Litter Control Act expressly permits the act of depositing the

abandoned mobile

homes

on

his

own property,

then the

respondent

also

is

not

guilty

of

unlawfully depositing construction debris for placing

these

same items

on

his

own land

This

is not a case of Q~en

dumping of both

kinds

of materials, litter and

construction or demolition

debris, where tw~separate

offenses properly is chargeable.

F.

The~tespondent

should be exonerated because he was prevented by

uncontrollable

circumstance froth completing the disposal by the agreeddate.

TheAct contemplates

and encourages the use of agreements to

obtain

compliance as a

means of enforcement and the Board consistently has

held that uncontrollable

circumstances

might constitute~ä

defense when a respondent is

charged with

failure

to

meet the terms of a

compliance agreinient.

---

The respondent argued that the

condition of the site

on

March

25,

2004

was due

to

uncontrollable circumstances in that he was prevented from complying with the agreement he

reached in Januar

2004 with the complainant to remove and dispose of the materials from the

site on or beforeFebruary 13, 2004.

(Resp. Memo,

26— 28)

The

complainant

responds

that

there

was

no

agreement.

(Complainant’s

Post-

Hearing/Closing Argument, 6)

The complainant

seeks

to

avoid the

defense of

“uncontrollable

circumstances”

by

denying that anyagreement existed.

But,

the evidence palpably

shows

there was

an agreement

because it was stated that no administrative citation would have resulted if the material

had been

disposed of properly by

the February

13,

2004

deadline. (Tr.

35

—

36)

And, there was

no

evidence

to

coi~itradictthat

presented

by

the

respondent

and

one

of

the

witnesses,

Mr

McMurphy, with Whomthe respondent had contracted for the removal of the materials,

that the

removal

was

delayed

by

the

weather

and

conditions

at

the

site,

both

uncontrollable

circumstances ofthe sort previouslyrecognized by the Board in

othercases.

G.

The~definitionof “litter”

and

“open

dumping resulting

in

the

deposition

of

construction debris” urged by the complainant constitutes

an

abuse of discretion and

exceeds

the intended scope of the administrative citation process.

The respondent argued that since the Board has adopted the definition of “litter”

used

in

the Litter Control Act, it would

be unfair,

an

abuse of discretion, and

a violation

of due

process of law to find an act in

violation of the Pollution Control Act that did

not

violate the

Litter Control A~&

because doing

so would prevent a citizen, such

as

the respondent,

from

reasonably deteri~rining

what is lawful conduct and what is not. (Resp. Memo, 29— 30)

The complainant does not appear to

address this

argument,

except to

say that the Litter

Control Act provisions do not apply

to

a case alleging a violation of

§

21(p)

of the Pollution

Control Act and ~“themeaning of the word

‘litter’ is

clearly understood

by

any person with

common intelligence.” (Complainant’s Post-Hearing/Closing Argument,

5)

---

The Board has adopted the definition of “litter”

as

it is used in the Litter

Control Act.

That should mean that lawfulness

and

unlawfulness with respect to

matters

covered by

both

Acts are the same.

Yet, the complainant urges the Board to hold, in effect,

that it

is

easier to

convict a landowner ofpollution under the Pollution Control Act by littering than it is

to

convict

the same landowner ofsimple littering under the Litter Control Act.

This

is

the

result of the

definition of

open

dumping

causing

litter

urged

by

the

complainant.

The placing or depositing of materials on

one’s

own land,

alone,

is

not unlawful under

theLitter Control Act.

But, the complainant urges that depositing

materials on

one’s

own land,

alone, is unlawful under the Pollution Control Act.

This position goes well beyond

the Board’s precedents

and the legislative intent of the

Act’s administrative citation procedure.

It is unreasonable to

expect a landowner, such as the

respondent, to

anticipate reasonably that

while depositing

the abandoned mobile homes

on

his

ownland for the~purposeof recycling

and reusing some of the materials and

disposing of the

rest was permissible under

the Litter Control

Act, it would be unlawful under the Pollution

Control Act,

especially where

the Board has held that the Litter Control Act’s definition of

“litter” controls in administrative citation cases brought under the Pollution Control Act.

Surely,

the legislature intended

the Pollution

Control

Act

to

remediate

and

prevent

damage to the en~’ironment,

so definition ofterms

under theAct that result in finding a violation

of the Act withoUt

a showing

of damage or injury

to

the environment certainly exceeds

the

legislative intent~and

constitutes an abuse ofdiscretion.

As a result, the administrative citation filed against therespondent should be dismissed.

H.

If

applied

to

the

respondent

as

the

complainant

urges.

the

Act

would

be

unconstitutionally vague in failing to give him

reasonable notice of what constitutes

creating an

open dump on one’s own land and what constitutes littering on one’s own property.

A basic

tenet of due

process is

that

a

citizen must

be

able to

reasonably

ascertain

whether an act that he is contemplating is lawful or not.

---

The respondent argued the

complainant’s position,

that

depositing

the

abandoned

mobile homes

on

one’s

own land,

while lawful under

the

Litter Control Act,

is

unlawful

“littering” under the Pollution Control Act even though the Pollution

Control

Act relies on

the

Litter

Control Act for the

definition

of “litter, denies due

process

because it

prevents

a

landowner, such as the respondent, from being able to reasonable

ascertain whether his

conduct

is lawful or not.

(Resp. Memo, 29

—

33)

The complainant responds that the definition of “litter”

was upheld against vagueness

challenge

by

the

Court

of

Appeals

for

the

Fourth

Appellate

District7

and

then,

rather

disingenuously,~that

the

Pollution

Control

Act

“pertains

to

littering

in

an

open

dumping

context”, where the complainant contends, “proof

of dumping

is

all

that must

be

shown”,

while the Litter:Control Act

“speaks

to

other types of littering

violations”. (Complainant’s

Post-Hearing/Closing Argument,

5)

The interpretation urged by

the complainant would

render the Act

unconstitutionally

vague because the:reasonable landowner would not be fairly apprised that his

conduct, lawful

under the Litter ~ControlAct,

was unlawful under the

Pollution Control Act even though

no

discharge, emission or entry into the environment occurred.

If “proof

of dumping is

all

that

must be shown”

to

constitute a violation of the Pollution

Control Act

in the respondent’s

case,

the

statute

is

rendered

vague

and

ambiguous

because

the

reasonable

landowner

cannot

reasonably ascert~iin

what he may put on his own land and what or when he cannot do so.

I.

The~

board must interpret “disposal site”, “open dump” and/or “litter”

in

a

way

that does

not ignore the

notions

of

scattering freely

or emitting

into

the

environment

and

causing some

harm to

others,

therefore,

the

evidence presented by

the complainant does

not

establish a violation ofthe act by any conductof the respondent.

Where thelegislature has provided guidelines for determining

what constitutes “litter”,

as it has in the Litter Control Act, the complainant is required to adhere to those guidelines.

It is

not free to determine for itself that the abandoned mobile

homes moved from his

mobile home

---

park,

at the direCtion of the Illinois Department of Public Health, onto the site, also owned by

the respondent ana located about one mile away, constituted unlawful pollution.

The respondent argued

that

the

legislature has

provided clear

guidelines

and

the

complainant’s use of the administrative citation process under the Pollution

Control Act,

if

upheld by the BOard,

amounts

to

delegating to

the

executive branch,

the complainant in

this

case, the authori~’to

determine what constitutes unlawful pollution. (Resp. Memo, 29

—

34)

The complainant does not respond to

this

argument,

except to say, again, that there are

no legislative requirements that the

material

deposited at the site spread,

scatter freely or be

emitted

into

the’~nvironmentand

that

“proof

of dumping

is

all

that

must

be

shown”.

(Complainant’s Post-Hearing/Closing Argument,

5)

It has been shown already that

the legislature intended

that,

to

be

an

“open dump”

the

abandoned mobile homes at the site must also be placed in

such

a way that either the debris

itself is free to enter into the environment, orthat constituents ofthe materials may be emitted or

discharged into thi environment.

Similarly, with respect to

“litter”, the legislature said

that if it

occurs only

on the

alleged offender’s

own private property,

and

the accusation

is

unlawful

“dumping”,

the ~iliegedlyoffending stuff must be shown to “create a public health or safety

hazard, a public nuisance, or a fire hazard”.

And, alternatively, if the

accusation is

that the stuff

is being

unlawfufly “accumulated”,

it must be

shown that the

stuff also constitutes

a “public

nuisance” or that”~it“may be blown or otherwise carried by

the natural

elements

on

to

the real

property of another person”.

These criteria show clearly that the complainant is

required to

prove

something

more

than merely that the respondent placed or deposited abandoned mobile homes

on

his

own land.

That something hiore, under the Pollution

Control

Act,

is

that pollution

actually occurs

as

a

result of the resp~dent’s actions.

Miller

y

Tllinois’~~”~”~

Control

Board

767

T1lAnn~d16(1

(4th

fist

1Q94~

---

The record is not only devoid ofevidence of any form ofemission into or damage to

the

environment by~the

respondent’s act of depositing the abandoned mobile homes

on

his

own

land, but the inspector’s own testimony defies such a finding. (Tr. 24)

J.

The complainant

undermines the

Administrative

Citation process

and,

therefore,

exceeds the limit~of its

discretion given

by

the

legislature under the Pollution

Control Act by

bringing two (2) charges for the same act.

Under the Administrative Citation process, a

single

violation can

only be given a single

fineand allowing the complainant to

charge multiple

fines

under the process for the single

act

of depositing the abandoned mobile homes

on

his

own property, without

more, exceeds the

limits ofdiscretioii afforded by the legislature

The respdhdent argued that the complainant’s chargingofiniiltiple offenses

in

this case

for the single act~fdepositing

the abandoned mobile homes on his own property exceeds the

authority

and

discretion

afforded

to

the

complainant

by

the

legislature

because

the

administrative citation procedure was designed to

limit the fines

that the Board

could assess

m

these cases.

(RespL Memo, 35

—

36)

The complainant argues, “multiple charges for the same offense

is

acceptable and prior

Board precedent;hàs allowed it.” (Complainant’s Post-Hearing/Closing Argument, 6)

But, the complaint’s position is untenable and represents an improper attempt to

sustain

two charges for the same act of placing the abandoned mobile

homes on the

site.

This

sort of

punitive

approach was

the sort

of thing the

legislature

surely

intended

to

avoid when

it

established the administrative citation

procedure for enforcing the Pollution

Control Act.

It

should not be countenancedin

this case.

K.

The~complainant’sposition in

this

case

renders

the

Pollution

Control

Act

constitutionally infirm under due process. separation ofpowers and vagueness principles.

The respondent incorporates

expressly

as though full set out here the arguments made

in

Respondent’~MemorandumSupporting

Petition

to

Contest

Administrative

Citation

---

concerning potential

constitutional

infirmities

resulting

if the

Pollution

Control

Act

is

interpreted in this case in the manner urged by the complainant

(Resp

Memo,

33

—36)

Nothing

contained

in

the

complainant’s

Post-Hearing

Brief/Closing

Argument

overcomes those

arguments or cures the infirmities resulting from its positions

Iv

CONCLUSION

The administrative citation filed against the respondent in

this

case

overreaches

the Act

and,

unless

repressed

by dismissal by

the Board,

can

foster nothing but

disrespect for

an

importantlaw.

::1

The respondent did

nothing more than

move

mobile homes

that others

had abandoned

in his

mobile home park one mile away onto the site, his

own private property,

isolated from

residential propefties, for the purpose of dismantling

them,

recycling the recyclable materials,

reusing the re-usable materials, and discarding ofthe remainder to

the local landfill.

When the

complainant’s inexperienced inspector demanded removal ofthe materials from the site or face

enforcementproQeedings under the Act, the respondent complied as soon as practicable.

It was

not

soon enough~forthe

complainant,

which filed

an

administrative

citation

against the

respondent without bothering to

find out

why the material was not removed sooner.

A clearer

case of overzealousness is hard to imagine

The greater weight ofthe evidence contained in therecord does not support

any

finding

that dischargeint~

the environment occurred or that public nuisance, health, safety or fire hazard

resulted from the respondent’s

activities.

Finding

that

the respondent violated the

Pollution

Control Act, under the facts and circumstances of this

case,

is

not support by the

evidence and

would constitute Ian abuse of discretion.

---

For

all

of

the

foregoing

reasons, the

administrative

citation in

this

case

should

be

dismissed.

Datea this

31st day ofJanuary, 2005.

EGON KAMARASY, Respondent

~

Attorney forrespondent

LAW OFFICES OF GREGORY A. VEACH

3200 Fishback Road,

P. 0.

Box

1206

Carbondale IL

62903-1206

Telephone:

(618) 549-3132

Telecopier:

(618) 549-0956

e-mail: gveach@gregveachlaw.com

Attorney for respondent

---

OR

I GINA

L

CLERK’S OFFICE

DE~LARATION

OF

SERVIQLW~OIS

IVIAl

L

Pollution Control Board

I, theundersigned, declare:

I am over eighteen (18) years of age, employed in the County of Jackson, State of

Illinois, in which county the within mailing occurred, and not a party to the subject cause.

My business address is:

3200 Fishback Road, P. 0. Box

1206,

Carbondale, Illinois

62903-

1206.

I served the following

document,

Respondent’s

Post-Hearing Brief

(AC 04-63), of

which true and correct copies thereof in the cause are affixed, by placing the

original and

four (4) copiessthereofin an envelope addressed as follows:

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

State of‘Illinois Center

100 West Randolph Street

Suite 1P-~500

Chicago IL

60601-3218

and one (1) copy in

an envelope addressed as follows:

Jackson County State’s Attorney

JacksonCounty Courthouse, 3d Floor

Murphysboro IL

62966

ATTN. Daniel Brenner, Assistant State’s

Attorn~y

Each en\l’elope was then sealed and with the postage thereon fully prepaid deposited

in theUnited States mail by me at Carbondale, Illinois, on January

31,2005.

I declare under penalty ofperjury that the foregoing is true and correct.

---

Executed on January 31, 2005 at Carbondale, Illinois.

~fSignature)

~12J

LAW OFFICES OF GREGORY A. VEACH

3200 Fishback Road

P. 0.

Box

1206

Carbondale IL

62903-1206

Telephone:

(618) 549-3132

Telecopier:

(618) 549-0956

e-mail: gveach@gregveachlaw.com

---

01~1’G/NAL

ATTORNEY AT

LAW

3200

FISHBACK ROAD

P.O.

Box

1206

CARBONDALE,

1L62903-1206

~EC~V~D

Licensed

in California and

Illinois

.

CLERK’S

~

Telecopier

:

(618) 549-0956

Telephone: (618) 549-3132

FE~03 2O~

e-mail

: gregveach@gregveachlaw.com

STATE OF

ILJNOIS

January 31, 2005

Pollution Control

k3oard

Hon. Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

State of Illinois Center

100 West Randolph Street, Suite 11-500

Chicago IL

60601-3218

Re:

County of Jackson

v. Egon Kamarasy

In Proceedings before the Illinois Pollution Control Board

AC 2004-063

DearMs.Gunn:

Enclosed, please find for filing in the above-referenced matter an original and four (4) copies of

the Respondent’s POst-Hearing Brief, with attached Declaration of Service by Mail.

Please return one

ç~i)

copy, file-stamped, in the enclosed, return envelope.

Please call if there

is any problem with this request.

Thank you for yo4~~

consideration.

Sincerely,

enclosures

cc

:

Jackson County State’s Attorney

GAV/mac