ILLINOIS POLLUTION CONTROL BOARD
October 24,
1991
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
Complainant,
)
AC 90-91
Docket A
& B
v.
)
(Administrative Citation)
(IEPA No.529—90-AC)
BERNARD
LEITSCHUH,
)
)
Respondent.
MR. RICHARD C. WARRINGTON JR., ASSISTANT COUNSEL, APPEARED ON
BEHALF
OF
COMPLAINANT
MR.
BERNARD
LEITSCHUH,
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
(“Agencytt)
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 November 26,
1990,
and
alleges that Respondent,
Bernard Leitschuh, the operator of a
facility located in Montgomery County, Illinois
is in violation
of Section 21(q)
(1) and 21(q)
(3) of the Act for causing or
allowing open dumping of waste that results in litter and results
in open burning.
A Petition for Review was filed with the Board on December
21,
1990.
Hearing was held on July 12,
1991,
at the Montgomery
County Courthouse in Hillsboro, Illinois.
Mr. Richard
Warrington,
Jr., appeared on behalf of the Agency; Mr. Bernard
Leitschuh appeared pro
Se.
Opening and closing statements and
the filing of Briefs were waived 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.
1021.1)
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. Leitschuh alleges violation of subsections
(1) and
(3) of Section 21(q).
Section 21(q)
provides that:
126—k7
2
No person shall:
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.
opening 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 opening 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. Leitschuh’s conduct constitutes causing or
allowing “open dumping which resulted in litter and open
burning.”
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 3.52 defines
“waste” as, inter alia,
“garbage
...
or other discharged material
....“
(Ill. Rev. Stat.
1989,
ch.
111 1/2, par.
1003.53)
At hearing the Respondent,
Mr. Leitschuh,
stipulated that he
had discussed the charges with the Agency and the charges in the
complaint were true and correct.
The complaint was issued as a
result of an inspection of the property by the Environmental
Protection Agency on September 27,
1990.
Based on the admission of the Respondent at the hearing, the
Board concludes that the Respondent caused or allowed open
dumping of waste, which resulted in litter and open burning.
Therefore,
Mr. Leitschuh is in violation of Section 21(q)
(1)
and
21(q)
(3) of the Act.
126—628
3
The Board must consider whether Mr. Leitschuh 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 raises no basis for a conclusion of
uncontrollable circumstances.
The Board finds that the
violations did not result from uncontrollable circumstances.
Therefore,
Mr. Leitschuh 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
(q) 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 $1,000 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 statement of costs,
supported by affidavit, with the Board and with service upon Mr.
Leitschuh.
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
126—629
4
conclusions of law in this matter.
ORDER
1.
Respondent is hereby found to have been in violation on
September 27,
1990, 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 $1,000 payable to the Illinois
Environmental Protection Trust Fund.
Such payment
shall be sent to:
Illinois Environmental Protection Agency
Fiscal Service Division
2200 Churchill Road
P.O. Box 19276
Springfield, Illinois
62706
Respondent shall include the remittance form and write
the case name and number and their social security or
federal Employer Identification Number on the certified
check or money order.
Penalties unpaid after the due date shall accrue
interest pursuant to Section 42(g)
of the Illinois
Environmental Protection Act.
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 Bernard Leitschuh.
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
Bernard Leitschuh.
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.
111 1/2,
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.
126—630
5
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Order was
BOard, hereby certi~vthat the ~
,
1991,
by a
adopted on the
~-~Z
day of
___________________
vote of
~7—O
.
Doro~M.nëC~e
/~‘/
rk’
Illinois
lution Control Board
126—63 1