ILLINOI.S POLLUTION CONTROL BOARD

November

8, 1973

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB 72-78

GIL MIRANDA, d/b/a JO-LOCK AUTO

WRECKERS,

Respondent.

Nicholas

G. Dozoryst II, Assistant Attorney General

for the EPA

Gil Miranda appeared on his own behalf

OPINION AND ORDER OF THE BOARD

(by

Mr.

Henss)

Respondent operates an automobile wrecking and salvage yard

in Lockport, Illinois.

The Environmental Protection Agency filed

a Complaint alleging that Respondent repeatedly operated his

business in such manner as

to cause or allow the open burning of

refuse and automobile appurtenances.

Respondent’s acts, according

to the Complaint,

were violations of Section 9(a)

and 9(c)

of the

Environmental Protection Act,

Rules 2-1.1 and 2-1.2 of the Rules

and Regulations Governing the Control of Air Pollution,

and

Rule 3.05 of the Rules and Regulations for Refuse Disposal Sites

and Facilities.

A hearing on this matter was originally scheduled for May 1,

1972 but was continued and rescheduled by the hearing officer for

June

5,

1972 because Miranda said he had not yet retained an

attorney.

On June

5,

1972,

Miranda failed to appear for the hearing

and attempts

to contact him by telephone were

unsuccessful since

the business phone had been disconnected.

In Miranda’s absence, the Agency presented its case which

rested solely on the testimony of Agency Investigator William

Zenisek.

Zenisek testified that he had investigated Respondent’s

place of business on April

29, 1970 and observed “about 4 burned

automobiles,

car bodies”.

One or two of the automobile hulks

were observed still smoldering

(6/5/72,

R.

5)

.

After receiving

a

complaint from the Will County Health Department,

Zenisek returned

to the site on March

23, 1971 where he observed “some cushions

burning”, and “the emission of very dense black smoke” at about

4:15 p.m.

He also noticed

“a second area that had been burned

10—5

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—2—

out”.

This appeared to be

a “burned out pile of salvage material”.

Zenisek suspected that the burned out area was the burn which had

been mentioned by the Will County Health Department

(6/5/72,

R.

9)

On April

28, 1971 the Agency sent a letter advising Respondent

that his activities were probable violations

of the law which

prohibits open burning.

Zenisek returned to the salvage yard on April

30, 1971

to

investigate dense black smoke coming from the site.

On that date

he saw the burning and smoldering remains of approximately five

burned out automobile cushions and three burned out tires.

Zenisek’s

report

(Agency Exhibit #4)on the investigation shows that he talked

to Al Usery, one of Respondent’s employees.

The report states:

“Mr.

Usery was surprised that there was burning

in the scrap yard and immediately spoke to one

of the workers to get water and extinguish the

fire.

Mr. Usery said that they try to be careful

to prevent fires but they occasionally have an

accidental fire in the yard which they try to

extinguish as soon as possible with water.

When

I left the site the fire was fairly well extinguished.”

On December

20,

1971,

at 4:35 p.m.,

Zenisek returned to the

site where he observed a small pile of material burning and what

appeared to be

a newly installed incinerator device.

As shown in

Agency Exhibit #5, dark smoke was coming from the stack of the

incinerator and a small

fire was burning in the salvage yard.

The

record does not indicate what actions Zenisek took after he dis-

covered

the fire on this date.

At the conclusion

of the Zenisek testimony,

the Agency moved

for a summary judgment and requested a penalty in the amount of

$1,000.

However,

the hearing officer reopened the record on

June

8,

1972 and Miranda appeared without counsel and pleaded his

own case.

He stated that he had not deliberately burned anything

at the site except in an incinerator which had not been used since

“one of them told us we couldn’t use it”.

Miranda indicated that

it was possible that some of his employees had set small fires

in

the winter time for warmth without his knowledge.

He said that

his operation generally closes at 4:00 p.m. and that he didn’t know

how the fires which had been observed after 4:00 p.m.

could have

started.

Respondent testified that after the Agency sent him the

warning he had issued orders prohibiting any fires.

On one occasion Miranda had observed smoke coming from

automobiles which another firm had delivered to his salvage yard

about 2 hours earlier.

Ills statement,

however, did not indicate

whether the automobiles were smoldering at the time of delivery

or if Respondent’s employees were responsible for the fire.

Miranda

10—6

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—3—

also offered to present data showing that the price he received

for his salvage materials was about 90~per 100 lbs. instead of

the 95~per 100

lbs.

payable for burned out automobiles.

He

received less income since he didn’t burn.

A later hearing

established that Miranda did send the data

to Assistant Attorney

General Nicholas Dozoryst but the stubs were never entered

as

evidence by either party.

Respondent stated several times that he did not burn for

salvage.

He indicated that a nearby tire business had caused

several

fires on his property and that one fire at night could

have been caused by vandalism.

Miranda testified that he has ceased operation at the salvage

yard and has released all employees.

He has reduced his automobile

inventory from 400 to 70 and will either sell

the operation or

continue as a parts operation only.

Nothing in the record proves that Miranda “caused or allowed”

open burning for the express purpose of disposing of unsalvageable

materials.

No proof was adduced to refute Respondent’s claim that

the open burning was accidental, caused by an adjacent business

firm,

or caused by vandalism.

There is no evidence that Respondent

failed to extinguish fires when he became aware of them.

The Agency failed to produce one shred of solid evidence to

prove that Respondent’s incinerator was operating outside the

Regulations.

We have only vague testimony alluding to the incin-

erator operation,

two photograohs,

one having the notation

“unapproved incinerator”.

This type of evidence is not sufficient

to prove

a violation.

Finally, although Pespondent was charged with a violation of

the Refuse Disposal Regulations, we find not the slightest hint in

the record that Respondent was operating or had operated a refuse

disposal

site.

Thus,

the Board is compelled to find that the Agency failed to

prove its case on any of the charges.

Accordingly,

all charges

against Gil Miranda are hereby dismissed.

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, h~rebycertify the above Opinion and Order was

dopted

this

t

day of

~

1973 by a vote of ____to~