ILLINOIS POLLUTION CONTROL BOARD
February 1,
1996
MONTGOMERY COUNTY,
)
ILLINOIS,
Complainant,
v.
)
AC 95—43
)
(Administrative Citation)
CLIFFORD CRISPENS,
)
JACQUELINE R.
CRISPENS
)
AND LINE PILOT BUNGEE,
)
INC.,
Respondents.
INTERIM OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
On June 12,
1995,
complainant,
Montgomery County
(County)
filed an administrative citation against Clifford Crispens,
Jacqueline IL Crispens and Line Pilot Bungee,
Inc.
The
administrative citation alleges that respondents violated
Sections 2l(p)(1),
and 21(p)(3) of the Environmental Protection
Act
(Act).
(415 •ILCS 5/21(p) (1)
and 21(p)(3)(1994).)
The County
is vested with the authority to bring such a citation pursuant to
Section 311 of the Act
(415 ILCS 5/31.1)
and a delegation
of
authority agreement with the Illinois Environmental Protection
Agency
(Agency)
statutorily authorized
in Section
4(r)
of the
Act.
(415 ILCS 5/4(r).)
Respondent Clifford Crispens filed a timely petition for
review on June 12,
1995.
Hearing was held in this matter on
December 18, 1995
in Hillsboro,
Nontgomery County, Illinois
before Chief Hearing Officer, Michael L. Wallace.
Respondent,
Clifford crispens, appeared
pro Se,
and counsel for the County
also filed its appearance.
No members of the general public made
a statement at hearing,
and no briefs were filed in this matter.
For the reasons set forth below, the Board dismisses Line
Pilot Bungee,
Inc.
as a respondent, and finds Jacqueline R.
Crispens,
as an owner of the site, and Clifford Crispens,
as an
operator of the site,
in violation of Sections 21(p) (1) and
21(p) (3)
by allowing open dumping in a manner resulting in litter
and by allowing open burning of refuse on the site.
FACTS
The property at issue in this matter is located in the City
of Litchfield, Montgomery County, Illinois (hereinafter,
“site”).
Situated on the north side of Illinois Route
16 and west of
Sportsman’s Park,
the site is commonly known to the Agency as
2
Litchfield/ Crispens and is designated
as Site No.
1350400026.
(AC at 1.)’
On March 24,
1995, Weldon Kunzeman of the Montgomery County
Health Department inspected the site.
(Tr.
at
6.)
Mr. Kunzeman
testified at hearing that he observed and took photographs of
refuse and burned areas at the site.
(~th..)
Based upon Mr.
Kunzeman’s inspection, the County issued an administrative
warning notice on March 30,
1995.
(Tr. at 8.)
The notice was
mailed to Clifford Crispens, Jacqueline R.
Crispens, as well as
Line Pilot Bungee,
Inc., the current trustee of the property as
recorded at the County Assessor’s office.
(Tr. at 7—8.)
The
notice indicated that the property was to be cleared of the waste
on or before June 2,
1995 by disposing of the waste in a
permitted landfill.
(Tr. at 8-9.)
Mr. Kunzeman further testified that he returned to the site
on April
10,
1995,
and observed an even larger burn area,
indicating that the refuse was burned rather than hauled to a
permitted landfill.
(Tr.
at 9-11,
33.)
Based upon these
observations, the County issued a citation alleging violations
of
Sections
21(p)(l)
and 21(p)(3) of the Act.
(AC at
2.)
On June
12,
1995, the Board received a letter from
Respondent Clifford Crispens which stated “~please
accept this
letter as my
‘Petition for Review’”.
Crispens’ petition for
review was timely filed but did not raise any jurisdictional
objections.
Clifford Crispens offered his narrative statement at
hearing.
(Tr. at 39-44.)
Mr.
Crispens contended that none of
the respondents in this matter are the current landowners of the
site at issue.
(Tr.
at 39.)
He testified that in 1992 he sold
the site to a land trust, the beneficiaries of whom are his three
adult children.
(j~)
Mr. Crispens further testified that his son was involved in
a construction project and “at our direction”, one of his son’s
employees placed construction debris at the site with the
intention to burn the debris and recycle the wood.
(Tr. at 41,
48,
50,
51.)
Mr. Crispens stated that the phrase “at our
direction” meant “my son, myself and my daughtors~I.
(Tr.
at 51.)
Mr. Crispens testified that he first became aware of the
situation after receiving the administrative notice, whereupon he
notified his son.
Mr. Crispens stated that, despite having
nothing to do with the dumping and burning of waste on the site,
he chose to respond to the notice by letter and by appearing at
the hearing.
(Tr.
at 49.)
1The filed
administrative citation will be referenced as (AC at
.)
and
the transcript will be referenced as (Tr.
at
_.).
3
DISCUSSION
Regulatory Framework
The Act establishes that in order to seek enforcement by way
of the administrative citation process for violations of Section
21(p), the Agency,
or local governing body, 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.
(415 ILCS 5/31.1(d) (2)
(1994).)
If the record demonstrates that such violation occurred
then the Board must adopt an order finding a violation and impose
the specified penalty of $500 for each 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.
(~~)
The administrative citation issued against respondents
alleges violations
of subsections
(1) and
(3)
of Section 21(p)
of
the Act, which provides that 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;
or
(3) open burning
(415 ILCS 5/21(p) (1) and
(3).).
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 tultii.
the requirements
of a sanitary landfill.
(415 ILCS 5/3.24.)
Section 3.31 of the Act defines “refuse” as
“waste”.
(415 ILCS 5/3.31.)
Section 5.53 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.)
In St. Clair County v. Louis Mund
(August 22,
1992), AC 90-
64,
125 PCB 381, the Board adopted the definition of “litter”
contained in the Litter Control Act:
4
“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.
(415 ILCS
105/3.)
Finally,
for purposes of this case, Section
3.26 of the Act defines “person” as:
“any individual, partnership, co-partnership,
firm,
company, corporation, association,
joint stock company,
trust, estate, political subdivision,
state agency,
or
any other legal entity,
or their legal representative,
agent or assigns.”
(415 ILCS 5/3.26) (emphasis added).
flefenses
Respondent, Clifford Crispens,
(Crispens)
argued that prop~s
service was not achieved in this matter because none of the named
respondents are owners of the site;
therefore the named
respondents are not proper parties in this matter, and the Board
has no personal jurisdiction over them.
The County argued that,
according to the current warranty of deed on file at the
Montgomery County Assessor’s office, the trustee of the site is
Line Pilot Bungee,
Inc. for Jacqueline
R. Crispens and Clifford
D. Crispens located at 310 East Main Street, Apt.
F, Mount Olive,
Illinois 62029.
(Tr.
at
12,
15.)
Therefore,
the respondents are
the proper parties in this matter.
Alternatively, the County
argued that prior to hearing, respondents never challenged
jurisdiction due to improper notice.
(Tr.
at 57.)
Further, Mr.
Crispens had responded to the administrative citation notice and
to the citation itself, and admitted to the violations at
hearing, thereby subjecting himself to the Board’s jurisdiction.
(IL..
at 57.)
As
a preliminary
matter, the Board notes that respondent,
Clifford Crispens, never challenged personal jurisdiction within
the statutorily-mandated time frame.
If
a respondent wishes to
contest personal jurisdiction he must do so “prior to the filing
of any other document by the moving participant or party”.
(35
Ill.
11dm.
Code 101.243
(1994).)
This provision allows
a party to
challenge the Board’s jurisdiction without actually submitting to
it.
(Thomas Sneed and Barbara Sneed v.
Frank Farrar, First Bank
& Trust Company,
(February 25,
1993) PCB 91-183,
139 PCB 481.)
Once an objection is made, the party may participate in the
proceeding while preserving the objection.
(J4L at 485.)
5
Clifford Crispens requested that his June 12,
1995 letter be
construed as a petition.
A petition is considered a document as
defined in 35 Ill. Adm. Code 101.101.
Crispens’ petition was
filed prior to any objection to the Board’s jurisdiction in this
matter; therefore, we find that Clifford Crispens waived his
right to challenge jurisdiction due to improper notice.
In
addition, the Board notes that Mr. Crispens responded to the
administrative notice, appeared at hearing and stated that he was
taking responsibility for this matter, thereby subjecting himself
to the Board’s jurisdiction.
The threshold question,
then,
is
whether the County properly served the administrative notice and
the administrative complaint to respondents, the trustees of the
site in question.
As previously set forth, the Act includes a trust in its
definition of “person”.
This case involves a land trust, and it
is well-settled law that true ownership in a land trust lies with
the beneficiary, while title lies with the trustee.
(Azar v. Old
Will Falls Condo. Ass’n,
228, Il1.App.3d 753,
593 N.E.2d 583
(1st
Dist.
1992).)
The only attribute ascribed to the trustee is the
legal title of the property, while the beneficiary retains all
other aspects of ownership.
(j~ at 697,
593 N.E.2d at 586.)
The court in Azar further explained that “ownership is comparable
to control and denotes an interest in real estate other than that
of holding title thereto.”
(j4~)
The Board has also recognized that trustees are not culpable
under the Act.
(See
Sançramon County v. The Illinois National
Bank of springfield,
n/k/a First of America Trust Company, Trust
No. 894—6418—002, and Ray Landers (May 21, 1992), AC 92—30,
133
PCB 569; IEPA v. Wayne D. Molen and Farmers
& Merchants State
Bank (January 25, 1990), AC 89—196,
107 PCB 219.)
In the instant matter, Clifford Crispens and Jacqueline R.
Crispens,
as husband and wife, deeded the site in question on May
14, 1992 to Line Pilot Bungee,
Inc.,
as trustee.
(Exh.
#4.)
Since Line Pilot Bungee,
Inc.
is a trustee only,
it cannot be
considered an owner or operator under the Act and therefore the
Board cannot assert jurisdiction upon it.
Line Pilot Bungee,
Inc.
is accordingly dismissed from this matter.
At
hearing,
Crispens testified that
his three
children
were
the primary beneficiaries of the trust, and that his wife,
Jacqueline R. Crispens, was the secondary beneficiary.
(Tr.
at
45, 47.)
Specifically referring to his wife,
he stated:
“~ijf,
for example, the children were to expire all at the same time,
the trust would ultimately go to her.”
(Tr. at 47.)
Therefore,
Jacqueline R.
Crispens,
as secondary beneficiary to the land
trust, has an ownership interest in the land at issue and is a
proper party in this matter.
Since the administrative notice was
mailed and the complaint personally served at her current address
as recorded at the county tax office, proper service was achieved
6
as to Jacqueline
R. Crispens.
(Tr.
at
8,
16; AC at Certificate
of Service
.
)
In terms of Clifford Crispens,
it is evident that,
as
trustee, he cannot be considered an owner of the site in
question.
However, the Act contemplates culpability for persons
who exert control over property as operators of the property.
(IEPA v. Stacy
B.
Hess,
(March 16,
1995) AC 94—73.)
At hearing
Crispens testified that his son was involved in a construction
project and “at our direction”, his son’s employee placed
construction debris at the site with the intention to burn the
debris.
(Tr. at
41,
48,
50,
51.)
Crispens stated that the
phrase “at our direction” meant “my son, myself and my
daughters”.
(Tr.
at 51.)
Crispens also stated that he chose to
respond to the notice by letter and to appear at the hearing.
(Tr.
at 49.)
Finally,
Crispens admitted to taking responsibility
by investigating the site and making arrangements with his son to
have the debris removed.
(Tr. at 58.)
Based upon his admissions
at hearing, we find that Clifford Crispens was an operator of the
site.
Therefore proper service was achieved when he received the
administrative notice and citation at his current address as
recorded at the county tax office.
Having found respondents Jacqueline R. Crispens to be an
owner and Clifford D.
Crispens to be an operator of the site,
we
also find each to have allowed the violations of open dumping and
open burning to occur.
The Board has held that passive conduct
amounts to acquiescence sufficient to find a violation of the
Act.
(Illinois Environmental Protection Agency v. Bill Hammond
(April 22,
1993), AC 92-62,
141 PCB 285; EPA v.
Dobbeke et al.
(August 22,
1972), PCB 72-130,
5 PCB 219.)
Additionally, the Act
is malum prohibitum and no proof of guilty knowledge or mens rea
is necessary to a finding of guilt.
(Freeman Coal Mining Corp.
v. IPCB
(3rd Dist.
1974),
21 Ill.
App. 3d 157,
313 N.E.
2d 616.)
Present inaction on the part of the landowner to remedy the
disposal of waste that was previously placed on the site,
constitutes “allowing” litter in that the owner allows the
illegal situation to continue.
(IEPA v. M.K. O’Hara
Construction, Inc., Kenneth O’Hara and Madalyn O’Hara
(April
6,
1995)
AC 94—96/94—97.)
The Board must next consider whether respondents Jacqueline
R. Crispens and Clifford Crispens have shown that the alleged
violations resulted from uncontrollable circumstances.
As
previously set forth,
a showing of uncontrollable circumstances
is the only way the Board can excuse a violation of the Act.
If
the Board so finds, then no violations would be found and no
penalty imposed.
At hearing, Clifford Crispens claimed that he was unaware of
the open dumping and burning until he received the administrative
7
notice.
(Tr.
at 39-40.)
He further testified that the remaining
debris was raked up and delivered to a landfill on April
10,
1995,
as outlined in his April
12, 1995 letter to Mr. Kunzeman.
(flJ
The administrative citation was also issued on April
10,
1995; therefore,
Crispens maintains that the site was cleaned up
in a timely manner.
The Board has held that post-citation activities of the
citation recipient are not material to whether a violation had
occurred and to the Board’s subsequent review of the citation.
(In re:
Lincoln Chamber of Commerce
(May 25,
1989), AC 89-26,
99
PCB 325.)
By its terms, the Act does not envision dismissal or
mitigation of a properly issued administrative citation 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 a site is not a mitigating factor under the
administrative citation program.
(IEPA v.
Dennis Grubaucrh
(October 16, 1992), AC 92—3,
136 PCB 425.)
In this case, the County’s inspector observed that
additional open dumping and open burning had occurred between
March 24, 1995 and April
10,
1995,
after the Crispens received
notice of the violations.
(Tr.
at 33.)
Mr. Crispens admitted
that the debris was delivered to the site by his son’s employee
“at our direction” and was disposed of with the intention of
burning it.
(Tr.
at 51.)
Based upon these observations and
admissions, the Board finds that respondents Clifford Crispens
and Jacqueline R. Crispens allowed open dumping and open burning
on the site after receiving notice of these violations.
Further,
despite the fact that the remaining debris was properly disposed
on the same day the citation was issued,
we do not find any
evidence of uncontrollable circumstances to excuse these
violations of the Act.
CONCLUSION
Based upon its review of the pertinent provisions and
definitions of the Act,
the Board finds that open dumping which
resulted in litter, as well as open burning, occurred at the site
as evidenced in the administrative citation and testimony offered
by the County.
The presence of litter on the site, the testimony of an
intention to burn the litter, and evidence of burning the litter
aftsr rsceiving an administrative warning notice is sufficient to
find a violation of the “allow” language of Section 21 of the
Act.
The Board finds that respondents Clifford Crispens and
Jacqueline R. Crispens allowed litter and burning to occur on the
site in violation of the Act.
The Board further finds that none of the explanations
offered by respondents justify a finding of uncontrollable
B
circumstances.
Accordingly, the Board will affirm the Agency’s
determination of violation and assessment of penalty but only as
to respondents, Clifford Crispens and Jacqueline R.
Crispens.
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
(0)
or
(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 the Environmental
Protection Trust Fund Act 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.
(415 ILCS 5/42(b) (4).)
In the Board’s final order in this case, Clifford Crispens
shall be ordered to pay a civil penalty of $500 for each
violation as found, totalling $1,000.
Further, pursuant to
Section 42(b)(4)
of the Act, Clifford and Jacqueline
R. Crispens
are also required to pay hearing costs incurred by the Board and
the County.
Those costs are not contained in the record at this
time.
Therefore,
as part of this interim order, the Clerks of
the Board and County are ordered to each file a statement of
costs, supported by affidavit,
with the Board and with service
upon Clifford and Jacqueline R.
Crispens.
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.
Respondents, Clifford Crispens and Jacqueline R.
Crispens, are hereby found to have violated 415 ILCS
5/21(p) (1) and
(p) (3) (1994)
on April
10,
1995.
2.
The County of Montgomery is hereby directed to file a
statement of its hearing costs, supported by affidavit,
with the Board and with service on respondents,
Clifford Crispens and Jacqueline R.
Crispens, within 14
days of service 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
9
affidavit, and with service upon respondents, Clifford
Crispens and Jacqueline P.
Crispens.
3.
Respondents, Clifford Crispens and Jacqueline R.
Crispens, are 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
~
,
1996,
by a
vote of
7~
.
~
(L-~
Dorothy M.4’~unn,Clerk
Illinois ~b1lution Control Board
