ILLINOIS POLLUTION CONTROL BOARD
November 2, 1995
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
)
) AC 95-6
v.
) (IEPA No. 815-94-AC)
) (Administrative Citation)
A-RELIABLE AUTO PARTS AND
)
WRECKERS, INC. a/k/a SCRAP
)
PROCESSORS,
)
)
Respondent. )
MELANIE A. JARVIS, ASSISTANT COUNSEL, APPEARED ON BEHALF OF
THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY;
VINCENT BRIZGYS APPEARED ON BEHALF OF THE RESPONDENT.
INTERIM OPINION AND ORDER OF THE BOARD (by E. Dunham):
This matter is before the Board pursuant to a petition
for
review of an administrative citation timely filed by
respondent,
A-Reliable Auto Parts and Wreckers, a/k/a Scrap Processors, on
February 17, 1995. Respondent requested review of an
administrative citation issued by the Illinois Environmental
Protection Agency (Agency) on January 18, 1995 and filed with
the Board on January 20, 1995. The Environmental Protection
Act (Act) allows parties 35 days from the date of service of
an administrative citation in which to appeal. (415 ILCS
5/31.1 (b)(4)(1994).) The Board accepted the petition for
review on February 23, 1995 and set the case for hearing.
Hearing was held before Hearing Officer Deborah Frank on July
19, 1995 in Chicago, Illinois. No post-hearing briefs were
filed.
The administrative citation alleges violations of
Sections 21(p)(1) and (3) of the Act (415 ILCS 5/21(p)(1) and
(3) (1994).) which carry statutory civil penalties of $500
each, for a total
penalty of $1,000 if the Board finds that such violations
occurred. For the reasons set forth below, the Board affirms
the finding of the investigation by the Agency that
respondent, A-Reliable Auto Parts and Wreckers, a/k/a Scrap
Processors, has violated Sections 21(p)(1) and (3). The Board
finds respondent liable for $1,000 and any associated hearing
costs incurred by the Agency and the Board.
2
FACTS
Respondent is the present owner and operator of the site
in question, located in Blue Island in the County of Cook.
(Tr. at 7.)
1
The site is commonly known to the Agency as Blue
Island/Scrap Processors (Comp. at 1) and is currently an
automobile salvage yard. (Tr. at 13.) The site does not have
an Agency Operating Permit and is designated by Site Code No.
0310240029. (Comp. at 1.) The administrative citation alleges
that respondent violated Sections 21(p)(1) and (3) of the Act
by causing or allowing open dumping in a manner which resulted
in litter and open burning.
The administrative citation is based upon a December 13,
1994 inspection of the site by James Haennicke. Mr. Haennicke
is employed by the Agency primarily as a field inspector. (Tr.
at 6.) Mr. Haennicke also inspected the site on a prior
occasion, August 16, 1994, in response to a complaint to the
Agency. (Tr. at 7).
According to Mr. Haennicke, at the time of the December
13th inspection, there was evidence of open burning in a pile
of refuse on the ground and in a barrel. (Tr. at 11.) The
pile of refuse on the ground was, itself, offered as evidence
of open dumping so as to cause or allow litter. (Tr. at 12.)
Mr. Haennicke gave testimony attesting to the presence of the
remains of at least one tire in the refuse on the ground, and
at least one used oil filter in the barrel. (Tr. at 11, 13-
19.)
Mr. Don Gottschlich, General Manager of A-Reliable Auto
Parts and Wreckers, a/k/a Scrap Processors, admitted that
there was at least a remnant of a tire in the refuse on the
ground, and at least one oil filter in the barrel referred to
in the complaint (Tr. at 24.) Mr. Gottschlich, testified that
A-Reliable disposes of approximately 9 tons of tires a week
through a tire shredder in Ford Heights. (Tr. at 22.) The
company disposes of used oil filters with waste handled by a
waste hauler. (Tr. at 23.) Mr. Gottschlich testified that it
is against company policy to dispose of tires or oil filters
through burning. (Tr. at 21-24.) Mr. Gottschlich stated that
employees are instructed that no tires or oily debris are to
1
References to the hearing transcript are denoted by Tr.
at_____. References to the administrative citation complaint
are shown as Comp. at _____.
3
be burned in warming barrels and that only used pallets are to
be burnt. (Tr. at 25.)
Mr. Gottschlich stated that he could not determine how
the tire parts were placed in the warming barrel. (Tr. at 24.)
He stated that the probable source of the tire and oil filter
was the father of the owner, who had started a fire to keep
warm while working on a cold day. (Tr. at 24.) Mr.
Gottschlich stated that the father of the owner was not a
company employee, but that he was granted a small area in
which to perform recycling activities on the property. (Tr. at
24-27.)
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 order which imposes no penalty. (415 ILCS
5/31.1(d)(2) (1994).)
The administrative citation issued against A-Reliable
Auto Parts and Wreckers, a/k/a Scrap Processors alleges that
Section 21(p) subsections (1) and (3) of the Act were
violated. Sections 21(p)(1) and (3) provide 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;
* * *
3. open burning;
(415 ILCS 5/21(p)(1) and (3) (1994).)
Section 21(a) of the Act sets forth a general prohibition
against open dumping by providing that "[n]o person shall
4
cause or allow the open dumping of any waste". (415 ILCS
5/21(a) (1994).)
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 (1994).)
Section 3.31 of the Act defines "refuse" as "waste". (415
ILCS 5/3.31 (1994).) Section 3.53 of the Act defines "waste"
as, inter alia, "garbage...or other discarded material,
including solid, liquid, industrial, commercial, mining and
agricultural operations, and from community activities..."
(415 ILCS 5/3.53 (1994).)
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 or unconsumed
substance or waste. "Litter" may include, but is
not limited to, any garbage, trash, refuse, debris,
rubbish, grass clippings or other lawn or garden
waste, newspaper, magazines, glass, metal, plastic
or paper containers or other packaging construction
material, 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.]
The Act defines "open burning" as "the combustion of any
matter in the open or in an open dump." (415 ILCS 5/3.23
(1994).)
Respondent argues that the burning took place on a very
small portion of a several acre site, and that the person
responsible for the burning and the litter was outside the
control of the respondent company. Respondent argues that the
burning and dumping were not intentionally set for the purpose
of disposing of refuse and therefore, there is no violation.
(Tr. at 30; See People v. Joliet Ry. Equipment Co. (3d Dist.,
5
1982), 108 Ill. App. 3d 197, 205, 63 Ill. Dec. 842, 438 N.E.2d
1205, Wasteland, Inc. v. IPCB (3d Dist., 1983), 118 Ill. App.
3d 1041, 75 Ill. Dec. 143, 456 N.E. 2d 964.) In Joliet Ry.
Equipment Co., the court held that the accidental or
incidental starting of a fire of wooden materials on rail cars
when metal on the cars was being dismantled with cutting
torches did not constitute open burning of waste as defined in
the Act. In Wasteland, the court found no open burning
violation because there was no evidence that the fires were
intentionally set for the purpose of disposing of refuse.
The Board finds that in the instant matter the fires were
intentionally set. Respondent does not contend that the fires
were unintentional or accidental but asserts that the fire and
the smoldering debris were from warming barrels used at the
facility. (Tr. at 25.)
Joliet Ry. Equipment Co. and Wasteland are both cited in
Pielet Brothers' Trading v. IPCB (Fifth Dist., 1991) 217 Ill.
App. 3d 125, 159 Ill. Dec. 991, 576 N.E. 2d 914. In Pielet
Brothers' the court found an open burning violation where
trespassers burned the rubber insulation from copper wiring to
retrieve the underlying wire. The court held that Pielet
Brothers' was aware of the burning but took no action to stop
the burning and therefore, allowed such operation to occur on
its premises.
The Board has held that passive conduct amounts to
acquiescence sufficient to find a violation of Section 21(a)
of the Act. (EPA v. Dobbeke et al. (August 22, 1972), PCB
72-130, 5 PCB 219.) In Freeman Cool Mining Corp. v. IPCB
(3rd Dist. 1974), 21 Ill. App. 3d 157, 313 N.E. 2d 616, the
court stated that the Act is malum prohibitum and no proof
of guilty knowledge or mens rea is necessary to a finding of
guilt.
The photos presented by the Agency and attached to the
complaint show that part of a tire, oil filter and other
unidentifiable materials were disposed at the facility through
burning. (Exh. 1.) The photos show the smoldering debris was
improperly dumped onto the ground. The improper disposal of
these discarded materials result in litter. The photos also
show the burning of these materials in the open resulting in
an open burning violation.
The Board finds respondent in this matter was aware of
the use of warming barrels on the facility and the improper
burning of waste in those barrels. In the facts admitted in
this case, someone intentionally started a fire. In that
fire, someone had to have placed at least part of a tire, and
at least one used oil filter. The tire and used oil filter
were discarded materials within the meaning of the Act. The
6
Board finds that the actions taken by respondent to prevent
the disposal of waste in the warming barrels was inadequate as
the inspection by the Agency demonstrates that such acts
continued.
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), and resulting in
open burning in violation of Section 21(p)(3) of the Act.
Respondent has not presented any uncontrollable
circumstances to cause the Board not to impose a penalty in
this matter.
PENALTY AND COSTS
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) (1994).)
In the Board's final order in this case, respondent will
be ordered to pay a civil penalty of $1,000 based on the
violations as found. Further, pursuant to Section 42(b)(4) of
the Act, respondent is also required to pay hearing costs
incurred by the Board and the Agency. Those costs are not
contained in the record at this time. Therefore as part of
this interim order, the Clerk of the Board and Agency are
ordered to each file a statement of costs, supported by
affidavit, with the Board and with service upon respondent.
This interim opinion constitutes the Board's interim
findings of fact and conclusions of law in this matter. A
final order will be issued pursuant to the interim order which
follows.
INTERIM ORDER
1. Respondent, A-Reliable Auto Parts and Wreckers,
7
a/k/a
Scrap Processors, is hereby found to have
violated 415
ILCS 5/21(p)(1)and (3) (1994) on December
13, 1994.
2. The Illinois Environmental Protection Agency is
hereby
directed to file a statement of its hearing
costs,
supported by affidavit, with the Board and with
service
on the respondent, A-Reliable Auto Parts and
Wreckers, a/k/a Scrap Processors, within 14 days of
this order. Within the same 14 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 respondent, A-Reliable Auto Parts and
Wreckers, a/k/a Scrap Processors.
3. Respondent, A-Reliable Auto Parts and Wreckers,
a/k/a
Scrap Processors, is hereby given leave to file
a reply
to the filings ordered in paragraph 2 within 14
days of
receipt of that information, but in no case
later than
40 days after the date of this order.
4.
After the deadline for filing such information and
reply thereto has expired, the Board will issue a final
order assessing the statutory penalty, and making the
appropriate award of costs.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution
Control
Board, hereby certify that the above interim opinion and order
was adopted on the ______ day of _________________, 1995, by a
vote of _________.
________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board