ILLINOIS POLLUTION CONTROL BOARD

November

4,

1993

SANGAMON

COUNTY,

)

Complainant,

)

 AC 93—6

v.

)

 Dockets A

& B

(SCDPH-93-AC—2)

RUTH

ANN

SHEPPARD

and

)

(Administrative

STEVE

SHEPPARD,

)

Citation)

)

Respondents.

ROBERT L.

 SMITH, ASSISTANT STATE’S ATTORNEY,

APPEARED

ON

BEHALF

OF SANGANON COUNTY

RUTH

SHEPPARD

AND STEVEN

SHEPPARD

APPEARED

PRO SE.

OPINION

AND

ORDER

THE

BOARD

(by

Manning):

This

matter

 before the Board pursuant to a petition for

review

 timely

 filed

by

the

 respondents,

 Ruth Ann

and

 Steven

Sheppard, on February 22, 1993.

 Respondents have requested review

of an administrative citation issued

February

1,

1993

 by Sangamon

County.

 Sangamon County is vested with the authority to bring such

 a citation pursuant to Section 31.1 of the Environmental Protection

Act (Act)

 (415 ILCS 5/31.1) and a delegation of authority agreement

with

the

 Illinois

 Environmental

 Protection

 Agency

 statutorily

authorized in Section 4(r) of the Act.

 (415 ILCS 5/4 (r).) The Board

accepted the petition for review on March 11, 1993 and set the case

for hearing.

 Hearing was held before Hearing Officer Orville

S.

Kahn on May

13,

1993

 in Springfield,

 Illinois.

 No post—hearing

briefs were filed.

The administrative

 citation alleges

a

 single violation of

Section 21(p)(l) of the Act

 (415 ILCS 5/21(p) (1)) which carries a

statutory civil penalty of

 $500

 if the Board finds that such

a

violation occurred.

 For the reasons

 set forth bilow, the Board

affirms the finding of Sangamon County that respondents, Ruth Ann

and Steve

 Sheppard,

 have violated Section

 21(p) (1).

 The Board

finds respondents liable for $500 and any associated hearing costs

incurred by Sangamon County or the Board.

PACTS

Ruth

Ann

Sheppard is the owner of a salvage yard located in

the Village of Berlin, Sangamon County, Illinois.

 (Tr. at 15.) The

property is commonly known to the Agency and Sangamon County

as

• “Berlin/R.ShepparcP’.

 The site is being operated as an auto salvage

•yard.

 (Complaint at

1.)

 The Agency has

 designated the facility

2

with site code no.

1670150004

 and the current operator of the

facility is Steven Sheppard.

 (Tr. at 15.)

The instant administrative citation

 is the second citation

issued to Ruth and Steve

 Sheppard by Sangamon County

 for open

dumping violations at the auto salvage yard.

 On May

14,

 1992,

Sangamon

County

filed

the

first

administrative

citation

with

the

Board

 alleging

a

 single

 violation

of

 Section

 2l(p)(1)

 open

dumping in a manner resulting In litter.

 The respondents failed

to

 file a petition for review and

 on June 23,

 1992,

 the Board

entered a default

 order affirming Sangamon County’s finding of

violation.

 (Sanaamon

 County

v.

 Ruth

Ann

 Sheopard

and

 Steve

Shetmard,

 (June 23,

 1992) AC 92-36,

 134 PCB 371.

 Photographs of

the

 auto

 salvage

 yard

 entered

as

 exhibits

 during

the

 second

administrative citation hearing indicate that a large number of

used tires were among the litter.

 (Def.Exh. #2.)

On December 23, 1992, the Sangaluon County.Department of Public

Health conducted a

 “re-inspection”

of

the

 Sheppard facility to

determine if the facility had been cleaned up.

 (Complaint at 1;Tr.

at 14 and 17.)

 Testifying on behalf of Sangamon County at hearing,

Allen Alexander,

 a Waste Management Specialist for the Sangamon

County Department of Public Health, indicated that he observed a

“large mound” of approximately 50 to 100 tires, both mounted and

unmounted on tire rims, on-site.

 (Tr. at 19.)

Alexander testified that in his opinion the respondents had

caused open dumping resulting in litter because “of the way the

tires were placed on the property.”

 (Tr.

at

 21..)

 He further

stated the tires “did not appear to be stored for any use.

 They

were just mounded together in a pile.”

 (Id.)

 Also, the tire pile

was out in the open where it

 could be rained or snowed

on,

and

there was no coverage such as tarp.

(~J

Jerry Ferguson, also a Waste Management Specialist with the

Sangamon County of Public Health, accompanied Alexander to the site

and

 participated

in

the

 inspection.

His

 testimony

was

substantially similar to Alexander’s: “the tires were open—dumped

on the property.

 They were not covered in any way or properly

stored.”

 (Tr. at 31.)

As a result of the re—inspection, Sangamon County issued the

second administrative citation which is the subject of this opinion

and order.

 The inspection report regarding the December 13,

1992

Sangamon County site visit, entitled “Open Dump Inspection Report,”

indicates

that

Alexander

and

Ferguson

observed

violations

3

Section 21(p) (1)

 of the Act

—

 causing or allowing litter.1

Steve Sheppard offered no testimony during hearing, nor was he

called to testify by Sangamon County; however, Ruth Ann Sheppard

offered testimony

 explaining the origin of the tire mound.

She

testified that as

 a result of the first administration citation

order, Steve Sheppard spent $1700 hauling tires to ADM in Decatur.

(Tr. at

 11..)

 The tire mound was intended “to be left there until

he (Steve Sheppard

 had a full load to go to ADM.”

(J~

and Tr. at

39.)

 Ruth Ann Sheppard explained the tires

are

hauled away from

the auto salvage yard by ADM; however, ADM contacts Steve Sheppard

 to let him know when ADM is “ready for a load (of tires.”

 (Tr. at

41.)

 It was also her testimony that other tire pick—up companies,

such as those in Peoria or Chicago, are too expensive to use. The

salvage yard has to pay the driver, the truck, and the company to

take the tires.

 (Id.)

Sheppard also testified there were approximately 73 tires in

the

pile

and

that

only

were

unmounted.

(Tr.

51.)

The

unmounted tires were dumped on the property from gas stations

 (Tr.

at 41)

 and by people who drive up on the road and dump on her

property

 (Tr. at 52).

 Sheppard testified that the source of the

tires at the salvage yard was the salvage yard business itself

 (Tr.

at 39) and Steven Sheppard’s body shop (Tr. at 39) located down the

street from the salvage yard

 (Tr. at 45).

 She thought the tires

would

be

all

 right

if

 they were

 mounted

 and that

 they

 were

originally

in

 “trouble” because Steven had taken the tires

off

their rims.

 (Tr. at 39.)

She described the buildings on the property as not being big

enough to store tires waiting to be hauled away (Tr. at 39 and 45),

nor was there space for

 a building on the premises

 (Tr.

 at 46).

She did not believe

 it would be practicable to take the time to

store the large number of tires in a building in any event (Tr. at

45).

 She also testified that it would not be cost-effective to put

gate

keep

dumpers

from

dumping

“unrimmed”

tires

her

property

that

they

had tried

once

and

 the effort failed.

(Tr.

43.)

1

Additionally,

the

county

inspector

noted

violations

the

following sections of the Act or regulations:

 Section 807.201 and

807.202

of

the

 Board’s

 regulations

 causing

or

 allowing

the

development and/or

 operation of

a

 solid waste management

 site

without a permit issued by the Agency; Section 21(a) of the Act

causing or allowing the open dumping of any waste; Section 21(d) of

the Act

 conducting any waste-storage, waste-treatment, or waste—

disposal operation without

a

 permit granted by

 the Agency;

and

Section 55(a)

 (general violations section of the Used Tire Act 415

ILCS 5/55 et.seg.).

 None of these alleged violations are before

us in this proceeding,

 however.

4

Ruth

Ann

 Sheppard

 further

 testified

she

 understood

 that

Sangamon County does not want tires “laying around,”

 (Tr. at 40)

but Steve

 Sheppard was

 in the salvage business and there would

always be tires

 at an auto salvage yard

~

 Sheppard also

testified that her son had moved the business to an entirely new

location and on the date of

 inspection,

 December 23,

 1992,

the

property was no longer being used as a salvage yard.

 The premises

were completely cleaned up except for the tire mound

 (Pr. at 41,

47,

52,

 65—66).

 It was Ruth Ann Sheppard’s belief

 that

even if

the Sheppards paid the $500 penalty for the litter violation,

it

would have no effect, because the tire mound is gone and the auto

salvage yard is no longer there.

DISCUSSION

The Act establishes that,

 in order to seek enforcement by way

of the administrative citation process for violations of Section

21(p), 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.

 The only mitigation

of

a

 violation

is

if

“...the person appealing the citation has shown that the violation

resulted from uncontrollable circumstances” in which case the Board

shall

 adopt

 an ordering which

 imposes no

 penalty.

 (415

 ILCS

5/31.1(d) (2)

 (1992).)

The administrative citation issued against Sheppard alleges

that Section 21(p) subsection

 (1) of the Act was violated.

 Section

21(p) (1)

 provides that no person

 shall

 in violation of Section

21(a)

 of the Act.:

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”.

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”.

(415 ILCS 5/3.24

 (1992).)

 Section 3.31 of the Act defines “refuse”

as

 “waste”.

 (415

 ILCS

 5/3.31

 (1992).)

 Section

 3.53

 defines

“waste”

as,

 inter qua,

 “garbage...or other discarded material,

resulting form

 industrial,

 commercial,

 mining

 and agricultural

operations....”

 (415 ILCS 5/3.53

 (1992).)

5

In St. Clair County v. Louis Mund (August 22, 1991), AC 90-64,

125 PCB 381, the Board adopted the definition of litter contained

in the Litter Control Act:

“litter”

means

any

discarded,

used

unconsumed

substance

waste.

“Litter”

may

include,

but

not

limited

to,

any

garbage,

 trash,

 refuse,

 debris...abandoned

 vehicle...or

anything else of an unsightly or unsanitary nature which has

been discarded, abandoned or otherwise disposed of improperly.

(Ill.

 Rev.

 Stat.

1990

 supp.,

ch.

38,

 par.

 86.3.)

 (415 ILCS

105/3).

In five previous Board opinions finding violations of Section

21(p) (1),

 used tires were found to be litter2:

 IEPA v.

 Sickles,

(September 17,

 1992)

 AC 92—47,

 136 PCB 83; IEPA

V.

Sickles,

 (July

30,

 1992)

AC

 92—47,

 135 PCB 223; IEPA v. Hillebrenner,

 (May 21,

1992) AC 92—16,

 133 PCB 559; IEPA v. Loveless, (August 13, 1992) AC

91—31,

 135 PCB 367; and IEPA v. Sprincnnan,

 (May 9, 1991) AC 90—79,

122 PCB 147.

 In Hillebrenner, the litter included 500 tires in a

ravine

on

 rural

 property.

 (Hillebrenner,

133

 PCB at

 559.)

In

sprinaman,

a

 portion

 of the litter was an uncovered tire pile.

(Springman,

 125 PCB at 151.)

 In Loveless, Hammond, and Sickles,

used tires were merely among the litter found “open-dumped” on the

site during inspection.

 (Loveless, 135 PCB at 371; Hammond, Slip

Op. at 2; and Sickles,

 135 PCB at 223 and 136 PCB at 83.)

Further, an auto salvage yard has been previously cited

for

a violation

 of Section

 21(p)(1).

 In Hammond

 infra,

 the Board

affirmed the Agency’s issuance of an administrative citation for

“open dumping” of used tires and other various types of waste at a

junkyard.

 The tires at the site

 were rimmed and unrimmed, were

located without cover in haphazard piles around the property.

(~

generally, Hammond, Slip Op. at 2.)

Causing or Allowing Litter

Mrs.

Sheppard

admits

that

she

the

owner

the

property

inspected

Sangamon

County.

She

further

admits

that

the

tires

were

her

 property at the time of the inspection.

 According to

Mrs.

Sheppard’s

testimony,

her

son

 operates a car salvage yard as

well

garage

 and body shop down the street

 from the

 site.

These

activities

generate

the

tires.

(Pr.

 45.)

 Mrs.

Sheppard

testified that there were no fences or gates around the property to

restrict access.

 According to the inspector Alexander, he believed

open dumping had occurred “because of the way the tires were placed

on the property.”

 (Tr. at 21.)

 Mr. Alexander also stated that the

2Section 2l(p)(1) was formerly codified as Section 21(q)(1)

and therefore a number of the cases are brought under Section

21(q)

(1).

6

tires were

 “just

 mounded

 together

in

a

 pile”.

 (Tr.

at

 21.)

Further,

 Mrs. Sheppard testified that “he

 (her son Steve

 has to

wait for them (ADM

 to call him” before the tires are picked up.

(Tr. at 45.)

 Thus,

 although Mrs. Sheppard claims that the tires

are being

 stored on the property,

 there

 is no regular routine or

schedule for the tires to be picked up.

 Therefore, after reviewing

the evidence, the Board finds that open dumping of waste occurred

on

the

 property

 resulting

in

 litter

in

 violation

of

 Section

21(p) (1) of the Act.

Mrs. Sheppard also points out that the litter had been cleaned

up from the site and numerous tires had been removed from the

property after the first administrative citation was issued.

 Also,

the

 tires

 which

 were

the

 subject

of

 this

 citation

 have

 been

removed.

 However, the Board has previously held that removal of

the litter after the issuance of an administrative citation does

not restrain the Board from a finding of violation.

 The Act, by

its

 terms,

 does

 not envision

a

 properly

 issued administrative

citation

 being

 dismissed

or

 mitigated

 because

a

 person

is

cooperative

 or voluntarily

 cleans

 up the

 site.

 (IEPA

v.

 Jack

Wright (August 30, 1990), AC 89-227, 114 PCB 863.)

 Clean—up of the

site is not a mitigating factor under the administrative citation

program.

 (IEPA

V.

Dennis Grubaugh (October 16, 1992), AC 92—3, 136

PCB 425.)

PENALTY

Penalties in administrative citation actions are prescribed by

Section 42(b) (4) of the Act which states:

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;

 (415

ILCS 5/42(b)(4)

 (1992).)

Respondent will therefore be ordered to pay a civil penalty of

$500 based on the violation as found.

 Further, pursuant to Section

42(b) (4) of the Act, respondents are also required to pay hearing

costs incurred by the Board and the Sangamon County.

 The Clerk of

the Board and Sangamon County will therefore be ordered to each

file a statement of costs,

 supported by affidavit, with the Board

and with service upon respondents.

 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.

7

For the reasons stated in the above opinion, the Board finds

that

the

 respondents,

 Ruth

Ann

 Sheppard

and

 Steve

 Sheppard,

violated Section 21(p) (1) of the Act.

 Accordingly, the respondents

are liable for a penalty of five hundred dollars ($500.00).

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

1.

 Respondents, Ruth Ann Sheppard and Steve

 Sheppard are

hereby found to have violated 415 ILCS 5/21(p) (1)

 (1992).

2.

 Within 30 days of this order, the Respondents shall pay

the sum of five hundred dollars

 ($500.00)

 by check or

money order to the Illinois Environmental Trust

 Fund.

The payment shall be mailed to:

Illinois Environmental Protection Agency

 Fiscal Services Division

2200 Churchill Road

Springfield,

Il.

62706

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,

(35

ILCS 5/1003

 (1992)),

 as now or hereafter amended, from

the

date

payment

is

due

 until

the

 date

 payment

is

received.

Interest

 shall not accrue during the

pendency

appeal

during

which

 payment

the

penalty

has

been

stayed.

3.

 Docket A in this matter is hereby closed.

4.

 Within 30 days of this order, the Sangamon County shall

file a statement

of

 its hearing

 costs,

 supported by

affidavit,

 with

the

 Board

and

 with

 service

on

the

respondents.

 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 the respondents.

 Such filings shall be entered in

Docket B of this matter.

5.

 Respondents

are

 hereby

 given

 leave

to

 file

a

reply/objection

the

costs

submitted

pursuant

paragraph

this

order

within

days

this

order.

ORDERED.

Section

the

Environmental

Protection

Act

(415

ILCS

5/41

(1992).) provides for appeal of final orders of the Board within 35

days.

 The rules of the Supreme Court of Illinois establish filing

requirements.

 See also,

 35 Ill.

 Adm.

 Code 101.246, Motions for

Reconsideration.

I, Dorothy N.

 Gunn,

 Clerk of the Illinois Pollution Control

Board, here)~ycertify that• he above opinion and order was adopted

on

the

 ~-‘-1--~

day

of

_______________

 1993,

by

a

 vote

of

_____.‘

~Dorothy

 Gunn,

 clerk

Illinoi

 ollution Control Board