ILLINOIS POLLUTION CONTROL BOARD
February
7,
1991
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
Complainant,
v.
)
AC 89—156
Docket A
& B
(Administrative Citation)
JOHN A. GORDON,
)
(IEPA No. 9758—AC)
Respondent.
MR. WILLIAM SELTZER, ASSISTANT COUNSEL, APPEARED ON BEHALF OF
COMPLAINANT
MR. JOHN A. GORDON, RESPONDENT, APPEARED PRO SE
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 July 13,
1989,
and
alleges that Respondent,
John A. Gordon, the owner and operator
of a facility located in Jackson County,
Illinois is in violation
of Section 21(q) (1) and 21(q) (3)
of the Act for causing or
allowing open dumping of wastes that result
in litter and result
in open burning.
A Petition for Review was filed with the Board on July
13,
1989.
Hearing was held November
3,
1989,
at the Community Center
in Carbondale,
Illinois.
No members of the public were present.
Mr. Gerald Steele and Mr. William Ryan testified for the Agency;
Respondent offered no testimony.
Closing Arguments were made on
the record at hearing.
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. 111 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. Gordon alleges violations of
subsections
(1) and
(3)
of Section 21(q).
Section 21(q)
provides
that no person shall in violation of Section 21(a)
of the Act:
118—309
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;
***
3.
open burning;
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. Gordon’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. ill 1/2, par.
1003.31.)
Section
3.53 defines
“waste” as,
inter alia,
“garbage
...
or other discarded material
.“
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2, par.
1003.53.)
At hearing complainant’s witness, William C.
Ryan,
testified regarding a site inspection he made of Mr. Gordon’s
facility on May 18,
1989.
The facility is called the Jackson
County PTL River Terminal.
It is a coal-loading terminal where
coal from various mines is brought in by truck and loaded onto
barges;
it also has limited sand and gravel operations.
The
facility is permitted as coal-mine-related activities through the
mine pollution control program of the Agency.
The facility is
just over fours acres, but Mr. Jackson and Jackson County River
Terminal own surrounding land totalling about ten acres.
(R.
11-
13).
Mr. Ryan also provided several photographs of the site
inspection which were introduced as exhibits,
as well as a site
sketch.
(Pet. Exs.
1-9).
During the inspection Mr. Ryan observed
118—3 10
3
the dumping of some demolition debris and a pile of some burnt
tires.
While Mr. Ryan was inspecting the site he observed two
trucks, approximately ten ton trucks, dumping demolition debris.
Mr. Ryan believes the debris came from the demolition of the post
office in Gorham.
The debris was characterized as a lot of wood
and paper,
some old siding,
some bricks.
Mr. Ryan observed four
piles of debris in one area and five piles
in another.
There
were various piles of debris at four different areas within the
site, approximately 80 or 90 tons of material in total.
(R.
36-
64,
85).
In addition, Mr. Ryan observed a pile of burnt tires.
Based
on his observations Mr. Ryan concluded that the tires were
burned, and were burned on—site.
Mr. Gordon did not take the stand to testify, nor did he
call any witness on his behalf.
He did,
however,
cross examine
witnesses on several issues and posed objections to certain
statements of the witnesses.
Primarily,
Mr. Gordon’s questions
and objections focused on the basis for a conclusion that he
owned the land in question.
Mr. Gordon established that the
Agency witness
Mr.
Steele, had not reviewed any deeds, or maps,
or property descriptions to support the conclusion that the land
was owned by Mr. Gordon.
(R.
21-22).
He also established that
the Agency witness,
Mr. Ryan,
had never scaled off of any map in
the office to determine the property lines or coal-loading permit
lines for this facility.
(R.
101).
In addition, Mr. Gordon
raised questions regarding the conclusion that the tires were
burned on site,
establishing that the witness did not see any
fire or smoke during the site inspection.
(R.
68-71;
108-111).
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
undisputed testimony is that Mr. Gordon owns the property upon
which the dumping occurred.
Mr. Steele of the Agency testified
that Mr. Gordon owned the property in question.
(R.
13,21,22)
This was based on statements made to him by Mr. Gordon and based
on the coal loading facility permit Mr. Gordon holds for the
facility.
(R. 21,22).
Mr. Ryan has been inspecting the facility
for about ten years and testified that the facility has a current
permit for 4.06 acres and a permit application pending for
10
acres which states Mr. Gordon
is the owner of the property in
question
(R.
107-108), and that each of the photographs depicting
the various debris piles shows a piece of property included
within the 10 acres of the permit application perimeter or within
the perimeters of the 4.06 acres of the current permit Mr. Gordon
holds.
(R.
56—62).
Lastly,
Mr. Gordon alluded, through
questions, to the prospect that the material might be subject to
reclamation.
He did not provide any testimony that the material
was intended for recycling,
and did not raise this matter in
closing argument.
The Board finds that the Agency need not
118—3 11
4
establish lack of recycling or reclamation capabilities as part
of their case in chief.
In addition, the Agency here has
provided testimony that the operation was not consistent with
reclamation or salvage.
(R.
125-131).
The Board must now consider whether Mr. Gordon caused or
allowed such open dumping.
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 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 malum 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 issu
of liability.
Id.
at 621.
See also, County of Jackson v. Don
Taylor, AC89—258, January 10, 1991;
IEPA v. Robert Wheeler, A
90-42, January 10,
1991; and Perkinsori
v.
IPCB,
187 Ill.
App. 3d
689,
546 N.E.2d 901
(1989).
Based on the facts presented in this case and the legal
principles outlined by this Board and the Courts, we conclude
that Mr. Gordon did “cause or allow” the open dumping described
in this proceeding.
Therefore,
Mr. cordon is in violation of
Section 21(q) (1)
of the Act.
The second question is whether the record supports a
conclusion that the open dumping resulted in open burning on N
Gordon’s property.
For the reasons stated below, the Board fi
that the record supports the conclusion that the tires are on
Gordon’s property and that the tires are burnt.
The operative provision of the Act,
Section 31.1(b),
provides:
Whenever Agency personnel
...
on the basis of
direct observation, determine that any person
has violated any provision...
The statute by its terms does not require that the fire itse
observed, but instead that direct observation support a
118—3 12
5
conclusion that fire occurred at the site.
Thus, the Board
believes that the Act clearly allows the Agency to prevail on a
claim of open burning even where the inspector does not
specifically see the burning material or smoke during the
inspection.
However, the Agency must make some showing that the
burning did occur at the facility issued the administrative
citation.
The question is whether the Agency has made such a
factual showing in this particular proceeding.
This factual
determination must be based on a review of the testimony of Mr.
Ryan and an evaluation of the photograph of the burned tires.
(Pet.
Ex. 2).
Mr. Ryan stated:
Okay.
There
is absolutely no question
in my
mind that
it
tthe tires
was burned because
there was obvious partially burnt and charred
tires
in there.
In
terms
of
where
it
was
burned,
the
indications that
I have that it was burned in
this
area
are
the presence
of
ash material
amongst the tires,
which was different than
the ash material in the
-
-
well, the ash that
was brought on site from CIPS, which is in the
surrounding area.
And the fact that some of
the
tires
—
-
to
include
one
here
in
the
photograph
tPet.
Ex.
2
-
-
showed charred
-
and
ashed
-
type
edges
and
some
of
the
partially burnt tires showed some protruding
steel bands on them, and there was steel bands
in concentric rings that, in my opinion, would
not have been that perfect or that formed had
it
been transported
to
the site
and dumped
there.
So utilizing that information,
I drew
the conclusion that they were burned on site.
(R.
71-72).
See also,
Mr.
Steele’s testimony
(R.
124—125; 133—134)
Mr. Gordon did not provide any testimony on this issue.
As Mr.
Gordon has presented no evidence or argument rebutting the
evidence presented by the Agency, the Board finds that in this
case the Agency has met its burden of proof
in demonstrating that
the alleged violations occurred.
Therefore,
the Board concludes
that the tires were burned on site and that Mr. Gordon is in
violation of Section 21(q)(3) pertaining to open burning.
The final question the Board must consider is whether Mr.
Gordon 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).
118—3 13
6
The record raises no basis for a conclusion of
uncontrollable circumstances.
The Board finds that the
violations did not result from uncontrollable circumstances.
Therefore,
Mr. Gordon is in violation of Section 21(q) (1)
and
21(q) (3)
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
of
$
1000 based on the violations 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.
Gordon.
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
118—3 14
7
1.
Respondent is hereby found to have been in violation on
Nay 18,1989,
of Ill. Rev. Stat.
1989,
ch.
111 1/2,
par.
1021(q) (1) and 1021(q) (3).
2.
Within 45 days of this Order Respondent shall,
by
certified check or money order, pay a civil penalty in
the amount of $1000 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 John Gordon.
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
John Gordon.
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. 11l~,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.
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
7~
day of
~~—‘i~
,
1991,
by a
voteof
c~~—c
Dorothy N. ,4(inn, Clerk
Illinois Pollution Control Board
118—315
.
.