ILLINOIS POLLUTION CONTROL BOARD

August 30,

1990

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Complainant,

AC 89—304

v.

)

(Administrative Citation)

)

IEPA No. 10085-AC

G

& M WRECKING CO.,

INC.

)

)

Respondent.

PAUL

K. JAGIELLO, APPEARED ON BEHALF OF COMPLAINANT; and

GEORGE

D. GILLEY, APPEARED ON BEHALF OF RESPONDENT.

OPINION

AND

ORDER OF THE BOARD

(by J. Anderson):

This matter comes before the Board on the December 29,

1989

filing of an Administrative Citation,

pursuant to Section 31.1 of

the Illinois Environmental Protection Act

(“Act”), by the

Illinois Environmental Protection Agency (“Agency”).

The

citation alleges one violation of Section 21(q) (3)

of the Act and

was served on

G

& N Wrecking Co.,

Inc.

(“G & N”)

on December 28,

1989.

On January 16,

1990, G

& N filed an Answer to

Administrative Citation and Petition for Review.

A hearing was

held on May

1,

1990,

at the State of Illinois Center.

Three

witnesses testified concerning this dispute.

Mr. James

Haennicke,

a field inspector with the Agency’s Land Pollution

Control Division,

testified on behalf of the Agency.

Mr. Gordon

Martin,

President of G

& M,

and Mr. Joseph Masterson,

an employee

of G

& M, testified on behalf of C

& M.

Also present was one

member of the public who declined to make a statement.

The

filing of briefs was waived at hearing

in favor of closing

arguments.

BACKGROUND

G

& N

is the current owner of property located in Calurnet

City,

Cook County,

Illinois.

In 1980 or 1981,

G

& M entered into

an agreement with the mayor and first ward alderman of Calumet

City to demolish several buildings on the property and cover the

remaining concrete and brick debris

(R.

27,

30,

32).

Sub-

sequently,

the City was unable to pay G

& M pursuant to the

demolition contract

(R.

34-35).

G

& M then purchased the site

and,

prior to October 31,

1989,

tore down the buildings and

covered the remaining debris

(R.

35).

ALLEGED VIOLATION

On the morning of October

31,

1989,

at approximately 10:30

~I!

ST 7

---

2

a.m.,

Mr. Haennicke was conducting

a drive-by inspection of the

site and noticed smoke emanating from

it

(R.

8—9).

Upon arriving

at the site,

Mr. Haennicke passed a man,

a supposed gate guard

(R.

21).*

The guard neither spoke to Mr. Haennicke nor prevented

him from entering onto the property

(R.

21).

Mr. Haennicke then

witnessed and photographed two individuals standing beside a fire

that appeared to contain burning plastic

or rubber coated wire

(R.

10;

Pet.

Exs.

1,2,3).

The .photographs indicate that the fire

was next to

a cement building foundation

(R.

19).

There were no

standing portions of the building on the foundation,

and only

minor debris

(rocks and stones)

surrounded the foundation

(R.

19).

The first individual did not give his name to Mr.

Haennicke,

but stated that he was from out of state visiting

friends and that he did not know who started the fire

(R.

18;

Narrative Inspection Report and Affidavit attached to

Administrative

Citation).

He also stated that there were a total

of three individuals

on the site and that the gate guard was

often drunk and did not pay much attention to the site

(R.

21;

Narrative Inspection Report and Affidavit attached to

Administrative Citation).

Mr. Haennicke immediately had the

other individual extinguish the fire after he informed both

individuals that open burning was illegal

(R.

9-10;

Pet.

Exs.

2,3; Narrative Inspection Report and Affidavit attached to

Administrative Citation).

At hearing,

Mr. Martin stated that the persons in the

photographs were not employees of G

& N, that he did not

recognize the persons

in the photographs,

and that he did not

authorize anyone to dump or burn on the site

(R.

27-29).

When

asked to identify the burning material depicted

in the

photographs,

Mr. Martin testified that

it could have been rubber

insulated copper wire

(R.

28).

He then stated that although he

did not know where the wire came from,

it could have come from

one of the demolished buildings

(R.

28—29).

With regard to the

measures taken to keep people off the property,

Mr. Martin

indicated that he put a steel gate and fence across the front of

the property and blocked a missing portion of the fence with dirt

(R.

36-38).

He also stated that he did not believe that

it was

necessary to place

a fence around the entire perimeter of the

site or around the concrete foundation because the site was

located at the end of

a road

(R.

36-38).

Finally, Mr. Masterson,

an employee of G

& N, testified on behalf of the company.

He

stated that although he had been at the site on occasion,

he had

no reason to visit the site

(R. 40).

He also testified that Mr.

Martin was in charge of the site

(R.

40).

DISCUSSION

*There

is a discrepancy in the record as to whether the guard was

sitting

in or near a trailer

(R.

21; Narrative

Inspection Report

and Affidavit attached to Administrative Citation).

11

‘~—37’~

---

3

Section 31.1 of the Act provides that “t)he

prohibitions

specified in subsections

(p) and

(q)

of Section 21 of this Act

shall be enforceable either by administrative citation under this

Section or as otherwise provided in this Act.”

Section 21(p)

of

the Act applies to sanitary landfills permitted under the Act

while Section 21(q)

applies to all dump sites.

The

administrative citation issued against G & M alleges violation of

Section 21(q) (3).

Section 21(q) (3) provides that no person

shall:

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:

3.

open burning;

Section 21(a)

of the Act sets forth the general prohibition

against open dumping by providing that,

“no

person shall cause

or allow the open dumping of any waste.”

Before a respondent can be held liable pursuant to Section

21(q), the Board must find

1)

that the respondent caused or

allowed open dumping and

2)

that the open dumping resulted in one

or more of the occurrences specified in Section 21(q).

It

follows that the Agency has some burden to show that the open

dumping of waste occurred, the respondent caused or allowed the

open dumping, and that the open dumping resulted

in one or more

of the occurrences specified in Section 21(q).

Ill.

Rev.

Stat.

1989,

ch. l1l~,par.

l031.l(d)(2).

Thus, the initial inquiry in

this case is whether the Agency made a sufficient showing with

regard to the question of whether open dumping occurred.

In the instant case,

Mr. Martin admitted, and the evidence

is uncontroverted,

that there was a fire on G

& M’s property

(R.

33;

Pet.

Exs.

1,2,3).

The Agency presented no definitive

evidence at hearing, however,

to support an allegation of open

dumping.

In

fact, when C & N’s attorney asked that the record

reflect that there was no indication of dumping,

the Agency’s

attorney stated,

“If wire was there and it was being burned,

I

would assume the wire would have to be dumped.”

(R.

11)

Although the Board is

riot saying that the Agency can never

present valid assumption of open dumping

in an administrative

citation case,

we do note that,

in order to be valid,

the

assumption must be supported by the facts

of the case.

Here,

Mr.

Haennicke witnessed two unidentified men standing next to a small

pile of what appeared to be burning rubber-coated copper wire.

The photographs indicate that the pile was no larger than a small

II 4--870

---

4

leaf pile,

and that the site was relatively clear of debris.

The

Board is at a loss to understand how these circumstances,

standing alone,

support an assumption of open dumping.

There is

no indication

in the record of where the wire came from, who put

it next to the foundation,

or whether the wire can even be

classified as a disposed waste.

In addition to the above, there are two factors that

bolster the Board’s conclusion that the Agency did not adequately

meet its burden with regard to the open dumping.

First,

not only

did Mr. Haennicke not adequately question the two unidentified

men,

he did not even attempt to question the supposed gate guard.

Second,

Mr. Haennicke comments at hearing indicate that there was

not enough factual support on the issue of open dumping:

Q

(Mr. Gilley,

C

& M’s attorney)

And your

inspection completes itself as site

observation,

just causing or allowing open

burning only,

is that correct?

A

(Mr. Haennicke)

Correct.

(R.

21)

Pursuant to the administrative citation process set forth

in

the Act,

a person may not be held to have violated the subsection

prohibiting open burning without first being found to have caused

or allowed open dumping.

Based upon the facts presented in this

case,

the Board cannot say that G

& M caused or allowed open

dumping.

Accordingly, the Board cannot and will not conclude

that C

& M violated Section 2l(q)(3)

of the Act as alleged by the

Agency.

This Opinion constitutes the Board’s findings and fact and

conclusions of law in this matter.

ORDER

The Board finds that the Illinois Environmental Protection

Agency failed to establish that C

& N

Wrecking Co.,

Inc.

violated Ill. Rev.

Stat.

1989,

ch.

111½,

par.

1021(q) (3) on

October 31,

1989.

Accordingly, this case

is dismissed.

Section 41 of the Environmental Protection Act,

Ill.

Rev.

Stat.

1989,

ch.

111½ par.

1041, provides for appeal of final

Orders of the Board within 35 days.

The Rules of the Supreme

Court of Illinois establish filing requirements.

IT IS SO ORDERED.

Board member J.

Dumelle concurred.

Board members J. Theodore Meyer and B.

Forcade dissented.

I

1

~-~fl

---

5

I,

Dorothy N. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was

adopted on the

J~c~-

day of

~eiLi~-/-

,

1990,

by a vote of

~

~.

~

Dorothy N.(~unn, Clerk

Illinois Pällution Control Board

114-881