ILLINOIS POLLUTION CONTROL BOARD
    October 27,
    1994
    SANGAMON
    COUNTY,
    )
    )
    Complainant,
    )
    v.
    )
    AC
    93—42
    )
    (Administrative Citation)
    NORMAN
    CLARK
    AND
    BRENDA
    )
    (SCDPH-93-AC-9)
    BERTRAND,
    )
    Respondents.
    ROBERT SMITH,
    SANGAMON COUNTY ASSISTANT STATE’S ATTORNEY,
    APPEARED ON BEHALF OF
    SANGAMON
    COUNTY;
    NORMAN
    CLMU( AND
    BRENDA
    BERTRAND APPEARED
    PRO
    SE.
    OPINION
    AND
    ORDER OF THE BOARD
    (by
    G.
    T.
    Girard):
    This matter comes before the Board upon an administrative
    citation filed by Sangamon County
    (County) pursuant to Section
    31.1 of the Illinois Environmental Protection Act
    (Act)
    (415 ILCS
    5/31.1
    (1992)).
    The citation was filed on September 13,
    1993,
    and alleges that respondents, Norman Clark,
    and Brenda Bertrand,
    as owners of property located in Sangamon County,
    Illinois, have
    violated Section 21(p) (1)
    and
    (3)
    of the Act.
    Specifically, the
    Agency alleges that the respondents violated Section 21(p) (1)
    by
    causing or allowing open dumping of waste resulting in litter,
    and Section 2l(p)(3) by causing or allowing open dumping of waste
    resulting in open burning.
    Respondents filed a letter with the Board requesting a
    hearing on September 23,
    1993.
    Accordingly,
    a hearing was held
    on February 2,
    1994,
    in Springfield,
    Illinois, before the Board’s
    hearing officer, Deborah Frank.
    No members of the public
    attended the hearing.
    The County presented one witness, Mr. Allen Alexander,
    Solid
    Waste Specialist with the Sangamon County Department of Public
    Health who inspected the site.
    Mr. Clark and Ms. Bertrand
    testified on their own behalf.
    Complainant’s brief was filed on
    February 9,
    1994,
    and respondents’ brief was filed on February
    10,
    1994.
    Complainant’s reply brief was filed on February 18,
    1994, and respondents’ reply brief was filed on March 3,
    1994.
    For the reasons enunciated below,
    the Board finds no
    violation to have occurred in this case.
    APPLICABLE
    LAW
    The administrative citation issued against respondents
    alleges violations of subsection
    (1) and
    (3)
    of Section 21(p)
    of
    2
    the Act.
    Section 21(p) provides that no person shall in
    violation of 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;
    *
    *
    *
    3. open burning;
    *
    *
    *
    Section 3.24 of the Act (415 ILCS 5/3.24) 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”.
    The Act defines “refuse” as “waste”, where
    “waste”
    is defined in Section 3.53 of the Act as “garbage...or
    other discarded material...”
    (415 ILCS 5/3.53).
    The Board has adopted the definition of litter used in the
    Litter Control Act.
    (See St. Clair County v. Louis Mund,
    (August
    22,
    1991), AC 90-64).
    “Litter” means any discarded, used or
    unconsumed substance or waste and may include:
    ...any garbage,
    trash,
    refuse, debris...or anything else of
    an unsightly or unsanitary nature which has been discarded,
    abandoned or otherwise disposed of improperly.
    (415 ILCS 105/3)
    Pursuant to Section 31.1(d) (2)
    of the Act, the County bears
    the burden of proof in this case.
    (415 ILCS 5/31.)
    Also,
    pursuant to Section 31.1(d) (2)
    of the Act,
    if the Board finds
    that the alleged violation occurred, then the final order issued
    shall include a finding of violation, and shall impose the
    penalty of $500 per violation as specified in subdivision
    (b) (4)
    of Section 42 of the Act.
    BACKGROUND
    This action concerns property on Sandhill Road in
    Springfield Township, Sangamon County.
    The proPerty is owned by
    Norman Clark and Brenda Bertrand (Tr. at 13)
    and has been
    1
    The transcript in this proceeding will be cited as “Tr.
    at
    “;
    the administrative citation is unnumbered therefore the
    page numbers are established beginning with 1 and the citation
    3
    assigned EPA site code number 1678220072.
    At hearing, County
    employee Allen Alexander testified that he inspected the property
    on August
    2,
    1993,
    and believed it to be in violation of Section
    21 of the Act.
    (Tr.
    at 6.)
    Mr. Alexander stated that he had
    previously inspected the property before August
    2,
    1993, and
    spoken to Mr. Clark on the telephone to inform him that the
    problems must be taken care of by the end of July 1993.
    (Tr. at
    5.)
    Mr. Alexander submitted an affidavit attached to the
    administrative citation which stated that the inspection report
    he completed “is an accurate representation of affiant’s
    observations” with respect to the subject property.
    The inspection report attached to the administrative
    citation has checks in the blanks opposite “causing or allowing
    litter” and “causing or allowing open burning” under the heading
    of
    “Site Observation”.
    Also attached to the citation is a page
    headed “Summary of Apparent Violations”.
    Under that heading,
    Mr.
    Alexander indicates that open burning was checked because:
    This apparent violation was marked on the checklist
    because open burning and/or evidence of open burning of
    waste was observed at the site.
    (AC at 11.)
    On a second page also titled “Summary of Apparent Violations”,
    Mr. Alexander indicated that causing or allowing litter was
    checked because “demo
    sic)
    and other materials dumped at the
    site”.
    (AC at 12.)
    The County specifically alleges that the following materials
    were dumped on the property:
    demolition debris, including
    dimensional lumber, boards, and boards with nails sticking out of
    them; what appears to be parts of window frames; boxes;
    carpeting; and other construction material.
    (Tr. at
    6,
    10 and
    11.)
    Attached to the inspection report are several pictures
    which, according to Mr. Alexander, picture the dimensional
    lumber,
    a piece of carpeting,
    and burned areas.
    (Tr. at 10—11;
    Compl.
    Exh.
    5.)
    At hearing, Mr. Clark testified that his property was first
    inspected on June 2,
    1993, by the Sangamon County Department of
    Public Health, and that thereafter he proceeded to clean up the
    property.
    (Tr. at 52.)
    Mr. Clark testified that there was no
    “permanent dumping” on the site.
    (Tr. at 14.)
    Specifically, he
    testified that he intended to use the materials allegedly dumped
    at his property:
    the lumber was to be used to construct a
    12’ X
    16’ storage shed and the carpet was used as a safe area for his
    three children under age four.
    (Tr. at 14,
    15, and 16.)
    Concerning the open burning, Mr. Alexander testified that
    will
    be
    cited
    as
    “AC
    at
    “.
    4
    “there was a large scorch area where it appeared that such things
    as dimensional lumber and other demolition debris had been
    burned” at the site.
    (Tr. at
    6,
    44-45.)
    Mr. Alexander described
    the photograph of the burn area to show some of the ashes and
    debris in that area.
    (Tr. at 11.)
    He further testified that he
    believed that burning occurred at the property based on his
    opinion of the size of the burn area,
    and because the ashes made
    it appear that “things such as dimensional lumber...boxes and
    things of that nature had been burned at the site”.
    (Tr. at 12.)
    Mr. Clark’s testimony concerning open burning was limited to
    statements that he was clearing the woods, giving some of the
    timber away,
    and burning the trees and shrubbery.
    (Tr. at 21.)
    He cited the open burning provisions of the Act in support of his
    burning activities.
    (Tr. at 28-29.)
    In later testimony, Mr.
    Clark stated that he did not burn dimensional lumber on his
    property.
    (Tr. at 31.)
    DISCUSSION
    Section 31.1(d) (2) specifically provides that if there is a
    review requested for an administrative citation the “burden of
    proof shall be on the Agency or unit of local government”.
    Thus,
    the County bears the burden of proof and must demonstrate that
    the alleged violations occurred.
    In this proceeding the County’s
    evidence consists of the inspection report, photographs, and
    testimony of the inspector.
    The Board will examine the evidence
    with ~respectto each alleged violation.
    First, the County alleges that the respondents caused or
    allowed open dumping resulting in litter.
    (AC at 2.)
    The
    inspection report indicates that on the site were “demo materials
    and other materials dumped at the site”.
    (AC at 12.)
    Mr.
    Alexander testified that he saw various pieces of construction
    debris at the site as well as carpet.
    (Tr. at
    6,
    10 and 11.)
    However, Mr. Clark testified that the lumber was to be reused at
    the site and that the carpet was
    a safe area for his children to
    play while he worked at cleaning the site.
    (Tr. at 14,
    15, and
    16.)
    The only non-testimonial evidence is the photographs taken
    at the site which show lumber stacked in disarray and a carpet
    spread out in the area.
    The Board is not persuaded that the violation of open
    dumping resulting in litter occurred.
    The evidence does not
    support Mr. Alexander’s interpretation of the site.
    Mr. Clark’s
    testimony is supported by the photographs.
    Although the lumber
    is in disarray there is no indication that the lumber has been
    finally disposed.
    The Board further notes that the photograph
    shows only used lumber and no other materials which would lead
    the Board to find that open dumping leading to litter occurred.
    Further, the inspector’s photograph of the carpet shows that it
    was spread out on the ground which is supportive of Mr. Clark’s
    5
    testimony that it was a play area for his children, rather than
    Mr. Alexander’s interpretation that it was disposed.
    Therefore,
    the Board finds that the County has not proven that open dumping
    resulting in litter occurred.
    In adjudicating the County’s allegation that open dumping
    resulting in open burning occurred (AC at 2),
    the Board is placed
    in a difficult position.
    The evidence brought forward by the
    County alleging violation supports both the County’s allegations
    and Mr. Clark’s defense.
    A further complicating feature is that
    the Board’s hearing officer found at hearing that Mr. Clark’s
    testimony on open burning was not credible.
    While the Board
    regards this credibility finding seriously, we will not find Mr.
    Clark in violation based solely on this ruling.
    Rather, we will
    disregard Mr. Clark’s testimony on this issue
    in his defense, and
    will,
    instead, determine if the County’s evidence is sufficient
    to find a violation,
    since the burden of proof is on the County
    in this case.
    The Board finds that the County has failed to carry the
    burden of proof by establishing that open dumping leading to open
    burning has occurred.
    The inspection report indicates that Mr.
    Alexander made a legal conclusion that open dumping resulting in
    open burning occurred, but the inspection report does not include
    the specific observations that led to that conclusion.
    The
    photographs do not support a finding of open dumping leading to
    open burning.
    The only evidence of open dumping leading to open
    burning is the testimony of Mr. Alexander at the Board hearing,
    when he remembered details of the ashes,
    including the
    allegations that nails were found.
    In summary, the evidence
    collected contemporaneously with the inspection supports Mr.
    Clark’s defense, while the inspector’s testimony at hearing
    supports a finding of violation.
    Therefore, the County did not
    carry its burden of proof
    in this proceeding.
    For the foregoing reasons and based on the facts presented
    in this case, the Board finds that the respondents did not
    violate Section 21(p) (1)
    or 21(p) (3) of the Act on August
    2,
    1993.
    This opinion constitutes the Board findings of fact and
    conclusions of law in this matter.
    ORDER
    The administrative citation
    (AC 93-42)
    is hereby dismissed
    against respondents Norman Clark and Brenda Bertrand,
    for the
    reasons given above.
    IT IS SO ORDERED.
    6
    Chairman Claire
    A. Manning and Board Member Marili McFawn
    concurs.
    Board Members 3. Theodore Meyer and Ron C. Flemal dissent.
    Section 41 of the Environmental Protection Act (415 ILCS
    5/40.1) provides for the appeal of final Board orders within 35
    days of service of this decision.
    The Rules of the Supreme Court
    of Illinois establish filing requirements.
    (But see also,
    35
    Ill. Adm. Code 101.246, Motions for Reconsideration.)
    I, Dorothy M.
    Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above opinion and order was
    adopted
    on, the
    ~?7~
    day of
    ((~‘/-~
    ,
    1994,
    by a
    vote of
    .i~/~-
    ~
    /
    (
    ——
    I
    -~
    Dorothy H. G~3r~h,Clerk
    Illinois Pollution Control Board

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