ILLINOIS POLLUTION CONTROL BOARD
    September 12,
    1991
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Complainant,
    v.
    )
    AC 91—17
    (Docket A
    &
    B)
    (IEPA No.
    159-91—AC)
    RONALD
    FLDMAN,
    d/b/a FELCO
    )
    (Administrative Citation)
    COMPANY,
    Respondent.
    MR. RICE~RDWARRINGTON,
    JR., APPEARED ON BEHALF OF COMPLAINANT.
    MR. GERALD
    E.
    FRANK APPEARED ON BEHALF OF RESPONDENT.
    OPINION AND ORDER OF THE BOARD
    (by J.C. Marlin):
    This matter
    is before the Board on an Administrative Citation
    filed by the Ilinois Environmental Protection Agency (“Agency”)
    pursuant
    to the Illinois Environmental Protection Act
    (hereinafter
    “the Act”)
    (Ill.
    Rev. Stat.
    1990 Supp.,
    ch. lll~,
    par.
    1001 et
    seq).
    The citation was issued April
    8,
    1991 and
    alleges that Respondent Ronald Feldman d/b/a Felco Company
    (“Feldman”)
    is
    in violation of Section 2l(q)(l) of
    the Act
    for
    causing or allowing open dumping of wastes that resulted in
    litter.
    A Petition
    for Review was filed ~iiththe Board on May 7,
    1991.
    Hearing was held July
    22,
    1991 at
    the State of
    Illinois
    Center, Chicago,
    :llinois.
    Mr.
    Aaron Taylor testified on behalf
    of the Agency.
    Mr.
    Feldman
    testified in his own behalf.
    No
    nembers of
    the public were present at hearing.
    BACKGROUND
    Mr.
    Feldman
    is
    the present owner
    of a parcel
    of ground
    located
    in southern Cook County, Illinois.
    The property
    is
    directly off the access ramp for the Calumet Expressway and U.S.
    30.
    The site,
    of undescribed size and shape,
    is located at the
    end of an access road.
    On February
    6,
    1991,
    Mr. Aaron Taylor,
    Agency field inspector,
    inspected this site.
    A prior inspection
    of November
    13,
    1990 resulted in Mr. Feldman being issued an
    Administrative Warning Notice
    (AWN)
    specifying that corrective
    action was required at the site.
    (Complaint).
    The Agency
    received no response
    to the AWN.
    (Complainant’s Exh.
    1.)
    The
    initial
    inspection was conducted in response
    to a call from Felco
    Company
    to participate
    in
    the Agency’s used tire cleanup program.
    126—115
    2
    APPLICABLE LAW
    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.”
    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 Feldman alleges violation
    of Section 21(q)(l).
    Section 2l(q)(l) provides that no person
    shall:
    In violation of subdivision
    (a)
    of the 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:
    ***
    1.
    litter;
    Section 21(a)
    of the Act sets forth the general prohibition
    agai~stopen dumping by providing that,
    “(nb
    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).
    A
    Respondent has two defenses to an Administrative Citation.
    The
    first
    is
    to show that the violation did not occur;
    the second
    that
    t occurred but was due
    to uncontrollable circumstances.
    Ill. Rev.
    Stat.
    1989,
    ch. lll~,par. lO3l.l(d)(2).
    DISCUSSION
    Mr.
    Taylor
    testified that, upon arriving at
    the site,
    he
    observed
    a “few thousand tires scattered about,
    some construction
    debris, old furniture, scrap metal and Landscape waste.
    (R.8)
    Mr. Tayloi took photographs which were appended to the filed
    citation.
    (Comp. Exh.
    1
    —
    3;
    R.16)
    Some
    of the tires appeared
    to have been set on fire.
    (R.10)
    Mr.
    Taylor testified that
    a “rope gate” stretched across the
    access road at its beginning.
    The metal cable was suspended
    between two poles,
    but was down.
    A sign was tacked on a tree
    which said “No dumping, No hunting, No fishing, No trespassing.”
    Mr.
    Taylor did not observe any additional fencing or barriers.
    He did not observe anyone present at the site.
    (R.l2)
    Upon questioning by Respondent’s attorney,
    Mr. Taylor
    stated
    that
    “he had no evidence at all that
    Mr.
    Feldman
    actively
    126—116
    3
    allowed someone to use this site as
    a dump”
    or that Feldman
    allowed third parties
    to use
    it as
    a dump.
    (R.15)
    Taylor
    admitted that the access road was the only access
    to the site.
    (R.19)
    When questioned about an additional sign on the guardrail
    stating “No trespassing”, as shown
    in pictures taken by Mr.
    Feldman,
    Mr. Taylor stated he did not remember seeing
    it.
    Ronald Feldman, of 70 North street,
    Park Forest,
    Illinois,
    testified that he is
    a principal of Felco Company and the owner
    of the site
    in question.
    (R.22)
    He stated that he has never
    knowingly allowed anyone
    to use the site as
    a dump site.
    Felco
    restricted access
    :o the site,
    he testified,
    through the
    placement of the cable running across
    the access
    road.
    (R.25)
    It has been there many years,
    he stated.
    (R.26)
    On examination
    by the Agency attorney, Mr. Feldman testified
    that the cable ha.~a lock on
    it.
    The key is kept at the office.
    ANALYSIS
    The Respondent argues
    at hearing that the evidence presented
    snows that he took all
    reasonable steps to secure this property
    and that the Agency’s case
    is, therefore,
    insufficient as a
    matter of law.
    In essence,
    the Respondent argues that he did not
    “cause or allow” dumping to take place on his property within the
    meaning of the statute.
    The Agency countered that the “testimony
    of
    a
    loose cable
    and
    of potential access around
    it indicates
    that Mr. Feldman... allowed..,
    an open dump and litter...”
    The uncontroverted evidence
    is that the site contained
    a
    substantial amount
    of debris which constitutes litter.
    The
    evidence also shows that access
    to the site
    is limited
    to a
    single road that was intended
    to
    be restricted by a locked cable
    strung between a post and a guardrail at
    the beginning of the
    site’s access road, but that on the day of inspection,
    the cable
    was down.
    At least one sign
    is present which states that litter
    and trespassing are prohibited.
    Mr. Feldman testified that he
    has not allowed the site
    to be used as a dump site.
    We conclude that, on the evidence presented,
    Mr. Feldman
    caused or allowed the open dumping of waste
    on his property.
    Waste
    is certainly present.
    c’7hile no testimony was presented
    that Respondent actively caused the waste,
    the Agency inspector
    testified that, on the day of the inspection,
    the cable was not
    hooked up, thereby allowing him full access
    to the site.
    The
    amount of refuse on the site indicates that others also found
    ready access.
    The evidence
    is therefore sufficient to
    demonstrate that Mr. Feldman did not adequately restrict access
    to this site and thereby allowed open dumping resulting in
    litter.
    Additionally
    the Board finds that the Respondent has not
    126—117
    4
    demonstrated that the violation was due
    to uncontrollable
    circumstances.
    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
    February
    6,
    1991 of Ill. Rev.
    Stat.
    1990 Supp.,
    ch. lll~,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 $500.00 payable
    to the Illinois Environmental Protection Trust
    Fund.
    Such payment shall be sent to:
    Illinois Environmental Protection Agency
    Fiscal Services Division
    2200 Churchil Road
    Springfield,
    Illinois
    62706
    Respondent shall also place his Federal Employee Identification
    Number or Social Security Number upon the certified check
    or
    money order.
    Any such penalty not paid within the time prescribed shall
    incur
    interest at the rate set forth
    in subsection
    (a)
    of Section
    1003 of
    the Illinois Income Tax Act,
    (Ill. Rev.
    Stat.
    1989,
    ch.
    120, par.
    10—1003), from the date payment
    is due until the date
    payment
    is received.
    Interest shall
    not accrue during the
    pendency of an appeal, during which payment of the penalty
    is
    stayed.
    .
    Docket A in this matter
    is closed.
    4.
    Within
    30 days of this Order,
    the Agency shall file a
    statement
    of
    its hearing costs,
    supported by an affidavit,
    with
    the Board and with service upon Respondent.
    ~Jithinthe same
    30
    iays,
    the Clerk of
    the Pollution Control Board snall file
    a
    statement of the Board’s costs, supported by affidavit and with
    service upon Respondent.
    Such filings shall
    be entered in Docket
    B
    in 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. lll~,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.
    126—118
    5
    IT IS SO ORDERED.
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Opinion and Order was
    adopted on the
    /~tZ~ day of
    c~/7~~
    ,
    1991, by
    a vote of
    7-~
    ~
    •
    ~
    ~
    /~.
    ~
    ~Dorothy M., ~unn, Clerk
    Illinois ~dllution Control Board
    126—119

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