ILLINOIS POLLUTION CONTROL
BOARD
January 10,
1991
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
Complainant,
)
v.
)
AC 90—42
Docket A
& B
(Administrative Citation)
ROBERT WHEELER, d/b/a Wheeler
)
(IEPA No. 233—90—AC)
Trucking,
Respondent.
MR. WILLIAN SELTZER, ASSISTANT COUNSEL, APPEARED ON BEHALF OF
COMPLAINANT
MR. ROBERT WHEELER APPEARED PRO SE ON BEHALF OF RESPONDENT
OPINION AND ORDER OF THE BOARD
(by B. Forcade):
This matter comes to the Board on an Administrative Citation
filed by the Illinois Environmental Protection Agency (“Agency”)
pursuant to the Illinois Environmental Protection Act
(hereinafter “the Act”)
(Ill. Rev.
Stat.
1989, ch.
111 1/2,
par.
1001 et.
seq.).
The citation was filed June 7,
1990, and alleges
that Respondent, Robert Wheeler,
the operator of a facility
located in Fulton County, Illinois
is in violation of Section
21(q) (1)
of the Act for causing or allowing open dumping of
wastes that result in litter.
A Petition for Review was filed with the Board on July,
11,
1990.
Hearing was held September 14,
1990,
at the Fulton County
Courthouse in Lewistown,
Illinois.
Mr. Lawrence Dutton testified
for the Agency; Mr. Robert Wheeler testified for Respondent.
Complainant’s Closing Argument was filed October 29,
1990;
Respondent’s Closing Argument was filed November 21,
1990.
DISCUSSION
Section 31.1 of the Act provides that “the
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.”
(Ill. Rev.
Stat.
1989,
ch.
ill 1/2, par.
1031.1.)
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 Mr. Wheeler alleges violation of
subsection
(1)
of Section 21(q).
Section 21(q) provides that no
person shall
in violation of Section 21(a)
of the Act:
118—55
2
cause or allow the open dumping of any waste
in a manner which results in any of the
following occurrences at the dump site:
1.
litter;
Section 21(a)
of the Act sets forth a general prohibition against
open dumping by providing that “no
person shall cause or allow
the open dumping of any waste.
These sections of the Act establish that,
in order to seek
enforcement by way of the administrative citation process for
violations of Section 21(q), the Agency must establish that the
person caused or allowed open dumping and must also prove that
the open dumping resulted in litter, open burning or other
specified conduct at the dump site.
If the record demonstrates
that such violation occurred then the Board must adopt an order
finding a violation and impose the specified penalty unless,
“...the person appealing the citation has shown that the
violation resulted from uncontrollable circumstances.”
Section
31.1(d) (2). of the Act.
Therefore, the initial inquiry in this
case is whether Mr. Wheeler’s conduct constitutes causing or
allowing “open dumping.”
Section 3.24 of the Act defines “open dumping” as “the
consolidation of refuse from one or more sources at a disposal
site that does not fulfill the requirements of a sanitary
landfill.”
(Ill. Rev.
Stat.
1989,
ch.
111 1/2,
par.
1003.24.)
Section 3.31 of the Act defines “refuse” as “waste.”
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2, par.
1003.31.)
Section 3.53 defines
“waste”
as,
inter alia,
“garbage
...
or other discarded material
•1t
(Ill. Rev.
Stat.
1989,
ch.
111 1/2, par.
1003.53.)
At hearing complainant’..s witness,. Mr. Dutton, testified
regarding a site inspection he made of Mr. Wheeler’s facility on
April 10,
1990.
Mr. Dutton also provided several photographs of
the site inspection which were introduced as exhibits.
During
the inspection Mr. Dutton observed numerous piles of various
wastes in a number of spots.
The wastes included asphalt,
carpeting, construction debris,
lumber, and a gray material which
could have been fly ash. The debris piles consisting of scrap
metal, truck parts and pieces of hose and pipe were not included
in the administrative citation since they may have originated
from the trucking operations on site.
(R.
13-21;
Ex.
1-7).
Mr.
Wheeler admitted that much of the described debris was located on
his property and had been brought there from other locations.
(R.
33—34)
On August 9,
1990,
Mr. Dutton re-inspected the site.
A
major amount of clean up had been done,
but the site was not
118—56
3
completely clean
(R.
25).
Mr. Dutton conducted another
inspection on September 12,
1990, two days prior to hearing, and
the site was clean.
(R.
28)
Based on the evidence presented, the Board concludes
Complainant has demonstrated that open dumping, which resulted in
litter, has occurred on the Respondent’s property.
The Board
must now consider whether Mr. Wheeler caused or allowed such open
dumping.
Mr. Wheeler admits that the dumping occurred on his
property, but denies that he allowed the improper dumping.
For
several years Mr. Wheeler has allowed dirt and concrete to be
dumped on his property by three trucking contractors who haul
material from, among other places, the new prison construction
site in Canton,
Illinois.
The other materials were dumped there
without his consent.
Mr. Wheeler does not feel this dumping is
his responsibility because he did not authorize it.
(R.
31-35;
40—41).
The Board has previously considered many cases interpreting
the “cause or allow”
language.
In one of the early cases the
Board specifically addressed the claim of the respondent that he
did not specifically allow the activity,
as well as reviewing
earlier Board holdings on the issue.
In IEPA v. A.J. Welin, PCB
80-125, May 13,
1982,
at pages 5—6, the Board stated:
The
evidence
provided
by
the
Agency
and
Welin’s
witnesses
established
that
foundry
sand, sand cores and construction material are
present at the Respondent’s site.
These types
of materials constitute solid waste pursuant
to Chapter
7 definitions.
Pursuant to Rules
201 and 202 of this same Chapter, development
and operating permits are required when solid
wastes are deposited at a site,
as they were
in this case.
EPA v. Rafacz Landscaping and
Sod Farms. Inc., PCB 72—196,
6 PCB 31
(October
24,
1972).
Moreover,
the
“cause
or
allow”
language of Rules 201 and 202(a)
of Chapter
7
precludes the argument that the materials were
brought
upon
Welin’s
property
without
his
permission and that no permit
is,
therefore,
needed.
The Board has repeatedly held that it
is
the
responsibility
of
the
landowner
to
insure that his
land
is being used properly
and is not subject to nuisance dumping.
EPA
v.
Dobbeke
et
al.,
PCB
72—130,
5
PCB
219
(August
22,
1972);
EPA v.
Village of Karnak,
PCB 74—381,
16 PCB
13
(March 6,
1975); EPA
V.
Manev et al., PCB 79-262,
39 PCB 363
(August
31,
1980)
118—57
4
Section 21(a)
of the Act reads:
“No person
shall.
.
.
cause or allow the open dumping of any
other
refuse
in
violation
of
regulations
adopted by the Board.”
The Respondent
has
testified that he never permitted anyone to
dump.
However,
the
photographs
and
the
testimony of numerous Agency witnesses clearly
establish that
refuse has been dumped
on a
massive scale which involved the use of heavy
equipment.
The Agency has offered no evidence
that the Respondent, who travelled frequently
and was usually away from the site, actively
permitted
open
dumping
or that
he actually
caused the dumping.
However,
the Board has
previously held that “allow” includes inaction
on the part of the landowner.
The Board finds
that the Respondent’s passive conduct amounts
to acquiescence sufficient to find a violation
of Section 21(a)
of the Act.
EPA v.
Dobbeke
et
al.,
PCB
72—130,
5
PCB
219
(August
22,
1972).
Assuming good faith on the part of Welin and
total
lack
of
knowledge
about
any
dumping
activities,
he is still liable for violations
of the Act.
EPA v. Village of Port Byron, PCB
72-67,
6 PCB
9
(October 24,
1972); Meadowlark
Farms
Inc.,
v.
Illinois
Pollution
Control
Board,
17 Ill. App. 3d 851, 308 N.E.2d 829, at
836
(1974);
Bath,
Inc.
v.
Illinois Pollution
Control Board, 17 Ill. App. 3d 507, 294 N.E.2d
778
(1973).
Although
the
Respondent
has
claimed that there has been no indication of
regular dumping activities
at the
site,
the
evidence
indicates
otherwise.
The
Respondent’s
own witness,
James
F.
Cordray,
has even admitted dumping cement,
dirt,
and
excavating materials at the site during the
time period
of the
Complaint.
(R.
405—406).
Additionally,
there
is no question that the
site did not have requisite permits, thereby
violating
Section
21(d)
previously
Section
21(e)
of the Act.
The meaning of the phrase “cause or allow”, as used in
Section 12(a)
of the Act, has been determined by the Illinois
Appellate Court, Third District,
in Freeman Coal Mining Corp.
v.
Illinois Pollution Control Board, 21 Ill. App.
3d 157,
313,
N.E.2d 616
(1974).
In Freeman, the petitioner was an owner of a
coal mine that maintained a mine refuse pile.
Rainfall upon the
118—58
5
pile resulted in an acidic contaminant which washed into an
unnamed waterway causing water pollution.
Id. at 618.
The
petitioner argued that it could not be held liable for “allowing
such discharges because the discharges were the result of a
natural force beyond the control of the petitioner” Id. at 619.
In its decision in Freeman, the court restated that the Act is
inalum prohibitum and no proof of guilty knowledge or mens rea is
necessary to a finding of guilt.
The court went on to say, that
the fact that the discharges were unintentional, or occurred
despite efforts to prevent them,
is not a defense.
The owner of
the property that creates the pollution has a duty,
imposed by
the legislation, to take all prudent measures to prevent the
pollution.
The efforts by the landowner to control or treat the
pollution go to the issue of mitigation, not to the primary issue
of liability.
Id.
at 621.
In Bath,
Inc.
v.
IPCB,
10 Ill.
App.
3d 507,
294 N.E.2d 778
(1973), the Fourth District was faced with the issue of whether
respondents had caused or allowed burning at page 781:
On
the
issue
of
the
finding
as
to
the
existence
of
underground
burning,
the
petitioners assert that neither they or other
witnesses knew the cause
of the underground
burning,
and
implicit
in
their
argument
is
that a violation cannot be predicated upon the
existence
of
burning
in
the
absence
of
a
finding
that
the
petitioners
by
their
affirmative
act
caused,
or
intended,
the
burning.
This
argument
is
not
persuasive.
The
rule
prohibits
burning
except
in
an
approved incinerator and the balance of the
rules relate
to
a handling
of the refuse
in
the landfill so as to eliminate burning.
It
is not an element of a violation of the rule
that the burning was knowing or intentional.
We hold that knowledge,
intent or scienter is
not an element of the case to be established
by the Environmental Protection Agency at the
hearing
before
the
Pollution
Control
Board
upon
the
issue
of
burning.
In
this
connection, see 46 A.L.R.3d 758, and the cases
there collected.
A more detailed explanation of the rationale was provided by
the Fifth District in a subsequent case involving “cause or
allow”
in regard to water pollution.
In Meadowlark Farms v.
IPCB,
17 Ill. App.
3d 851,
308 N.E.2d 829
(1974), the Court
stated at pp. 836—837:
Petitioner
further
argues
that
it
has
not
caused, threatened or allowed the discharge of
118—59
6
contaminants
within
the
meaning
of
section
12(a)
of the Act
(Ill.
Rev.
Stats.
1971,
ch.
111
1/2
1012(a)).
Petitioner contends that
its mere ownership of the surface estate from
which
the
discharge originates
is
the
only
relationship to the
transaction
responsible
for
the
discharge
and
that
to
except
the
petitioner
to
exercise
control
to
prevent
pollution
would
be
unreasonable.
In
conjunction,
the petitioner
states that
its
lack
of
knowledge
that
the
discharge
of
contaminants was occurring is a defense to the
complaint.
We find these
arguments without
merit.
To clarify this issue,
it should be
noted
that
the
petitioner
was
charged
with
causing
or
allowing
the
discharge
of
contaminants so as to cause or tend to cause
water pollution in Brushy Creek and tributary
in
violation
of
Section
12(a)
of
the
Environmental Protection Act and certain rules
of SWB-14 of the Sanitary Water Board’s rules
and regulations.
Petitioner was not charged
with
creating
the
refuse
piles
or
with
responsibility
for
the
operation
of
the
Peabody 43 mine which resulted in the creation
of
the
refuse
pile.
The Pollution Control
Board
merely
found
that
the petitioner had
ownership
of
the
surface
rights
of
the
property
which
was
the
source
of
the
violation,
that the evidence showed that the
pollution had its source on that property and
that fish were killed, and that the petitioner
had
the
capability
of
controlling
the
pollutional discharge.
Therefore, petitioner
was found to have violated section
12(a)
of
the Act, as well as violating the other rules
and regulations
related to water pollution.
The findings of the Board were correct.
We
have
found
that
the
petitioner
was
the
owner
of
the
refuse
piles
which
were
the
source
of the pollutional
discharge,
but to
see how the petitioner violated the Act,
we
must look to the Act itself.
Section 12(a),
which
petitioner
was
found
guilty
of
violating,
states that:
“No person shall:
(a)
Cause or
threaten or allow the discharge of
any contaminants into the environ-
ment in any State so as to cause or
tend
to
cause
water
pollution
in
118—60
7
Illinois, either alone or in combi-
nation
with
matter
from
other
sources,
or
so
as
to
violate
regulations or standards adopted by
the
Pollution
Control
Board
under
this Act;
*
*
*~
Petitioner admits that seepage from the refuse
pile containing
AND
had created a flow in the
tributary
of
Brush
Creek
and that the fish
died
as
a
result
of
the
AND
seepage.
Furthermore,
soon
after
the
petitioner
was
given notice of its violation,
Ainax Coal Co.,
a division of the petitioner’s parent company,
investigated
the
charges
and
began
an
abatement program.
The unquestioned pollution
proves
sufficiently
that
the
petitioner
allowed the discharge within
the meaning
of
section 12 (a).
Petitioner’s so-called lack of knowledge that
the
discharge
existed
provides
no
defense.
The
Environmental
Protection
Act
is
inalum
prohibitum,
no proof
of guilty knowledge or
inens rea
is necessary to a finding of guilt.
In
Bath,
Inc.
v.
Pollution
Control
Board
(1973),
10
Ill.
App.
3d 507,
284 N.E.2d
778,
the Fourth District Appellate Court was faced
with this
precise
issue with regard
to air
pollution.
Bath,
Inc.
the
owner
of
a
landfill,
was found
in violation of
certain
rules and regulations dealing with landfills,
was
fined
$2000,
and
ordered
to
stop
underground burning in violation of the Refuse
Disposal Law
(Ill.
Rev.
Stat.
1967,
ch.
111
1/2,
Sections
471—476).
Under section 49(a)
Sic
of
the
Environmental
Protection
Act
(Ill. Rev. Stat.
1971,
ch. 111 1/2 1049(c) the
Refuse Disposal Law remained in effect.
The
defendant
Bath
&sserted
that
it
had
no
knowledge
of
the
cause
of
the
burning
and
argued
that
a
violation
could
not
be
predicated upon the existence
of
burning
in
the absence of a finding that the defendant by
its
affirmative
act caused
or
intended the
burning.
The
rule
which
was
violated
prohibited
burning
except
in
an
approved
incinerator.
That court found that it was not
an element of the violation that burning was
knowing
or
intentional,
and
therefore
held
that knowledge,
intent or scienter was not an
element of the case to be established by the
118—6 1
8
E.P.A.
at
a
hearing
before
the
Pollution
Control Board upon the issue of burning.
This
rule
has
also
been
applied
in
other
jurisdictions with regard to water pollution.
(State
v.
Kinsley
(Gloucester
County
Ct.
1968),
103
N.
J.
Super.
190,
246
A.
2d 764,
aff’d
(Super.
Ct. 1969),
105 N.
J. Super.
347,
252
A.
2d
224.)
We
feel
that
the
same
reasoning applies here; that knowledge is not
an element of a violation of section 12(a) and
lack of knowledge is no defense.
More recently, this theory was reiterated by the Third
District in Perkinson v.
IPCB,
187 Ill.
App.
3d 689,
546 N.E.2d
901
(1989)
at 336:
In Hindinan v. Environmental Protection A~encv
(5th Dist.
1976)
42 Ill. App.
3d 766,
1
Ill.
Dec.
481,
356
N.E.2d
669,
the
operator
of
landfill site was held accountable for a fire
that was not started by either the operator or
his
employees.
The
court
relied upon
the
Meadowlark
Farms case and upon Bath,
Inc.
v.
Pollution Control
Board
(4th
Dist.
1973)
10
Ill.
App.
3d 507,
294 N.E.2d
778,
and ruled
that a violation is not predicated upon proof
of guilty knowledge or intentional harm.
In
the Bath
case,
the owner
of
a
landfill was
held to be responsible for underground burning
even though the cause was unknown and not the
result of the owner’s affirmative act.
The case before us is controlled by the long
line of precedent in Illinois which holds that
the
owner
of
the
source
of
the
pollution
causes
or
allows- the
pollution
within
the
meaning of the statute and is responsible for
that pollution unless
the
facts
established
the
owner
either
lacked
the
capability
to
control the source,
as
in Phillips Petroleum
or
had
undertaken
extensive
precautions
to
prevent vandalism or other intervening causes,
as in Union Petroleum.
Here Perkinson plainly
had control of the lagoons and the land where
the
pollution discharge occurred.
The PCB
concluded that he is liable for the pollution
that had its source on his land and in a waste
facility
under
his
control.
Under
well—
established Illinois
law,
that is sufficient
to
support
a
finding of
a violation of
the
Environmental Protection Act.
118—62
9
Based on the facts presented in this case and the legal
principles outlined by this Board and the Courts, we conclude
that Mr. Wheeler did “cause or allow” the open dumping described
in this proceeding.
Therefore,
Mr. Wheeler is in violation of
Section 21(q)(1)
of the Act.
The final question the Board must consider is whether Mr.
Wheeler has shown that the violation resulted from uncontrollable
circumstances.
This is the only showing provided in the statute
that allows the Board to excuse any violation.
If the Board so
finds, then no violation would be found and no penalty imposed.
(see Section 31.1(d) (2)
of the Act).
The record discloses that over the last two years Mr.
Wheeler has repeatedly discovered material that did not meet the
description of clean fill, yet he continued to allow the
contractors to dump material on his property
(R.
40-41), and
there is nothing in the record explaining why no other actions
could have been taken-—why taking measures designed to restrict
or discourage the dumping or access were beyond Mr. Wheeler’s
control.
The Board finds that the violations did not result from
uncontrollable circumstances.
Therefore,
Mr. Wheeler is in
violation of Section 21(q) (1)
of the Act.
PENALTIES
Penalties in administrative citation actions of the type
here brought are proscribed by Section 42(b) (4)
of the Act, to
wit:
In
an
administrative
citation
action
under
Section 31.1 of this Act, any person found to
have violated any provision of subsection
(p)
of Section 21
of this Act shall pay a
civil
penalty
of
$500
for each
violation of
each
such
provision,
plus
any
hearing
costs
incurred by the Board and the Agency.
Such
penalties
shall
be
made
payable
to
the
Environmental Protection Trust Fund to be used
in accordance with the provisions of “An Act
creating the
Environmental
Protection
Trust
Fund”, approved September 22, 1979 as amended;
except
that
if
a
unit
of
local
government
issued the administrative citation, 50
of the
civil penalty shall be payable to the unit of
local government.
Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par.
1042(b) (4)
Respondent will therefore be ordered to pay a civil penalty
118—63
10
of
$
500 based on the violation as herein found.
For purpose of
review, today’s action (Docket A) constitutes the Board’s final
action on the matter of the civil penalty.
Respondent is also required to pay hearing costs incurred by
the Board and the Agency.
The Clerk of the Board and the Agency
will therefore be ordered to each file a statement of costs,
supported by affidavit, with the Board and with service upon Mr.
Wheeler.
Upon receipt and subsequent to appropriate review, the
Board will issue a separate final order
in which the issue of
costs
is addressed.
Additionally, Docket B will be opened to
treat all matters pertinent to the issue of costs.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
Respondent is hereby found to have been in violation on
April
10,
1990,
of
Ill. Rev.
Stat.
1989,
ch.
111 1/2,
par.
1021(q)(1).
2.
Within 45 days of this Order Respondent shall,
by
certified check or money order, pay a civil penalty in
the amount of $500 payable to the Illinois
Environmental Protection Trust Fund.
Such payment
shall be sent to:
Illinois Environmental Protection Agency
Fiscal Service Division
2200 Churchill Road
Springfield, Illinois
62706
3.
Docket A in this matter is hereby closed.
4.
Within 30 days of this Order, the Agency shall file a
statement of its hearing costs, supported by affidavit,
with the Board and with service upon Robert Wheeler.
Within the same
30 days,
the Clerk of the Pollution
Control Board shall file a statement of the Board’s
costs,
supported by affidavit and with service upon
Robert Wheeler.
Such filings shall be entered in
Docket B of this matter.
5.
Respondent is hereby given leave to file a
reply/objection to the filings as ordered in paragraph
4 of this order within 45 days of this Order.
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1989,
ch. l11~,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.
118—64
11
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby cert~ythat the a
ye Opinion and Order was
1991, by
a
vote of
7O
adopted on the
/O~’
day of
__________________
lerk
Illinois P0
ution Control
118—65
