ILLINOIS POLLUTION CONTROL BOARD
March 28,
1991
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Complainant,
v.
)
AC 90-59
(Doc. A &
B)
)
IEPA Case No. 299—90—AC
(Administrative Citation)
SOUTHERN PACIFIC RAILROAD,
Respondent.
WILLIAM SELTZER APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY;
W.
E. VAN HOOK APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by R.
C. Flemal):
This matter comes before the Board upon
a petition for
review of an administrative citation
(I~citationu)filed by
Southern Pacific Railroad
(uRailwayhl)
on July
16, 1990.
The
citation was issued on July
9,
1990,
by the Illinois
Environmental Protection Agency
(“Agency”) pursuant
to Section
31.1(d)
of the Illinois Environmental Protection Act
(“Act”)
(Ill.
Rev.
Stat.
1989,
ch.
1lJ,
par.
1001
et seq.).
Hearing was held on October
23,
1990
in Springfield,
Illinois;~no members
of public attended.
The Agency presented
one witness, Allyn Colantino,
field investigator
for the
Agency.
W.
E. Van Hook
testified on behalf of the Railway.
The
parties elected not to file briefs,
standing on their closing
arguments.
For the reasons discussed below,
the Board finds
that
the Railway violated Section 2l(q)(l)
of the Act.
The transcript
is cited as
“R.
at
_____“;
The petition for
review
is cited as
“Pet.
p.
_________“.
120—315
—2—
BACKGROUND
The citation was issued to the Railway as the owner of a
tract of land located
in Sangamon County,
Illinois.
The tract of
land is designated with Site Code No. 167000006 by the Agency and
is not a permitted landfill.
The site
is commonly known to the
Agency as Auburn/Southern Pacific R.R..
On the basis of an inspection conducted by Allyn Colantino
on May 14,
1990, the Agency determined that the Railway had
operated the facility in violation of Section 21
(q)
(1) and
noted that the Railway was subject
to a civil penalty of
$500.00
for the violation.
The Railway then timely filed a petition for
review with the Board.
APPLICABLE LAW
Section 21(q)(l) of the Act states:
No person shall
in violation of subdivision
(a)
of Section 21, 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 31.1 of the Act sets forth the procedural aspects of
an administrative citation.
Section 31.1 provides,
in part,
that:
a)
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 the Act.
b)
Whenever Agency personnel or personnel of a unit of
local government
to which the Agency has delegated
its functions pursuant
to subsection
(r)
of Section
4 of this Act,
on the basis of direct observation,
determine that any person has violated any
provision of subsection
(p)
or
(q) of Section 21 of
this Act,
the Agency or such unit of local
government may issue and serve an administrative
citation upon such person within not more than
60
days after the date of the observed violation.
d)
If Based on the record,
the board finds
that the
120—316
—3—
alleged violation occurred,
it shall adopt a final
order which shall
include the administrative
citation and findings of violation as alleged in
the citation and shaill impose the penalty
specified in subdivision
(b)
(4)
of Section
42.
However,
if the Board find that the person
appealing the citation has shown that the violation
resulted from uncontrollable circumstances,
the
Board shall adopt
a final order which makes no
finding of violation and which imposes no penalty.
Penalties
in actions of
the type here brought are prescribed
by Section 42(b)(4) of the Act which provides:
In an administrative citation action under
Section 31.1 of this Act, any person found to
have violated any provision of subsection
(p)
or
(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 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. lll~,
par. l042(b)(4).
DISCUSSION
The Railway property was initially inspected
in January of
1990.
At that time the inspector noted a violation and an
administrative warning notice
(AWN)
was issued.
(R.
at
7).
According to the Agency inspector,
“the gist of the
administrative warning noted” was that the Railway “had 60 days
to clean up the property”.
(R.
at
7).
The Railway’s property near Auburn
is easily accessed by the
public.
The littering taking place on the property found at the
inspections, appeared
to be an ongoing process
(R. at 12).
Respondent does not deny that the litter was on the Railway
property.
This administrative citation
is unique
in that the Railway,
asserts that,
in an effort
to comply with the AWN, they were
“preparing
to remove and dispose of the debris on Railway
property when upon the advice of Mr. Ellenberger
an
Agency
employee,
we ceased any further efforts pending the outcome of
a
120—3 17
—4—
pre—enforcement conference with the trespasser who placed the
debris on Railway property.”
(Pet. p.
1).
This position is
supported by
a copy of a letter
to Mr. Glenn Savage of the Agency
dated March 21,
1990
(5 days after the AWN was issued)
from W.E.
VanHook an employee for the Respondent.
That
letter states:
“please advise
if you desire the Railway to remove this debris
now in accordance with the Administrative Warning Notice or
if we
should wait
to determine the remedial actions which will be taken
by the trespasser
as a result of the pre—enforcement
conference.”
(Pet.
p.
1).
The Respondent asserts that the
administrative citation was the first indication the Railway had
received that the Agency wanted the Railway to proceed with clean
up.
The exchange between Respondent and the Agency concerning
the clean up of the site indicates a misunderstanding which was
not cleared up until
after issuance of the citation.
(Pet.
p.
1).
The misunderstanding which existed was that the Agency was
referring to another site near Carlinville which was the subject
of a pre—enforcement conference.
It should be noted that there
is no indication
in the record that the Agency intentionally
mislead the Railway;
nor
is there any indication that Mr.
Ellenberger knew that his comments had been misunderstood.
The
site which is the subject of this administrative citation
is near
Auburn.
The Agency has established that the Auburn site was a place
where open dumping occurred and that the Railway had not tried to
stop such dumping.
The pictures also clearly show litter at the
site.
Further,
the Railway does not deny that open dumping which
resulted
in litter had occurred.
It should also be noted that
the Railway did not argue that the dumping occurred as the result
of uncontrollable circumstances.
Therefore since neither
statutory defense to the administrative citation were arguedby
the Railway,
the key question in this case
is whether the actions
by the Agency were such that the Railway should not be found
in
violation of the Act.
The Board has previously held that Agency actions can lead
to an improperly issued citation
(IEPA v.
Jack Wright, AC 89—227;
August
30,
1990).
In another case,
the Board held that the
Agency’s actions estopped the Agency from issuing a citation
(In
the Matter of:
Pielet Brothers Trading,
Inc.; AC 88—51, July 13,
1989)
In Jack Wright, the Respondent alleged that the Agency
inspector upon inspection
“assured me there would be no problem
with an IEPA fine.”
(Jack Wright,
p.
4).
The Agency’s action led
the Respondent
to believe that the matter would
be closed
if he
Respondent cleaned up the site within
30 days (Jack Wright,
p.
5).
The Board found that “~because
of the assurance made by the
field inspector
.
.
.
the Board
finds
that the administrative
citation was improperly issued”.
(Jack Wright,
p.
7).
120—3 18
—5—
The Board’s decision in Jack Wright was consistent with the
Second District Appellate Court
of Illinois whereby an Agency
agreement not
to bring an enforcement action was held to be
binding on the Agency.
In Modine Manufacturing Co.
v.
Pollution
Control Board,
193
Ill. App.
3d 643,
549 N.E.2d 1379,
140
Ill.
Dec.
507
(1990)
(Modine
I), the Court discusses an unpublished
decision
in Modine Manufacturing Co.
v. Pollution Control Board,
176 Ill. App.
3d 1172
(1988)
(an unpublished order)
(Modine
II).
In Modine
I the Court explained that the Agency,
in Modine
II, had agreed to accept a compliance plan from Modine and to
refrain from bringing an enforcement action.
Modine asserted
that the agreement not to institute enforcement proceedings
for
emission and permit violations barred the enforcement action
brought by the Agency.
In Modine
II,
the Court dismissed the
action for emissions violations and remanded the case to the
Board
to set the penalty on the permit violations.
In discussing
Modine
II the Court further stated “that the EPA had agreed not
to pursue enforcement based on emissions violations but that no
such agreement existed with respect
to permit violations.”
Modine
I
(549 N.E.2d 1381,
140 Ill.
Dec. 509).
In the Pielet
case,
the Respondent argued that under the
common law principles of estoppel, the Agency should be estopped
from punishing the Respondent
for activities the Agency allowed.
(Pielet,
p.
8).
The facts
in the Pielet case relevant
to the
estoppel argument are that the Respondent had several meetings
with the Agency and provided documentation to the Agency such as
a Memorandum and Closure Plan.
The Agency did not inform the
Respondent that the activity the Respondent was undertaking could
be a violation for which a citation could be issued.
The Board
found that the Agency was estopped from finding violations
because the Board believed that
“the record reveals
that the
Agency,
through its representatives, made representation to
Pielet Brothers upon which Pielet Brothers could reasonably have
believed allowed
it
to deposit waste by area fill method
in
certain portions of
the landfill
in addition to those permitted”.
(Pielet,
p.
9).
This case can be distinguished from both Jack Wright and
Pielet.
In Jack Wright,
the Respondent specifically stated at
hearing that the Agency told him that if he cleaned up the site
there would be no problem with the Agency.
The testimony was no
refuted.
In this case,
the Railway does not assert that the
Agency has made such representations.
The transcript at hearing
implies that the administrative warning notice may have led the
Railway to believe that clean up of the site would result
in no
fine.
However, that
is not explicitly stated.
In addition,
the
administrative warning notice was not filed as a part of the
record.
Therefore,
the Board cannot clearly ascertain that the
Agency had led the Railway to believe that clean up would result
in no fine.
In addition, the Agency merely requested that the
Railway hold off on clean up until after a pre—enforcement
conference.
The Agency did not agree
to refrain
from bringing an
enforcement action,
unlike the Modine case.
120—3 19
—6—
This case is also distinguishable from Pielet.
Here, the
Railway asserts that
it was verbally told
ri’bt
to clean up a
site.
The Railway confirmed that conversation with its letter
of
March 21,
1990
(Ex.
1).
The Railway asserts that
it received no
further comment until the citation was issued.
In this case,
the
Respondent
refrained from cleaning up a sit~ebased on the verbal
instructions of one Agency employee
(Mr. Dale Ellenberger).
It
should be noted that Mr. Ellenberger was not the inspector whose
name appears on the inspection report
for the citation at the
Auburn site.
In addition,
it
is not clear
from the record what
position Mr. Ellenberger holds with the Agency.
Further,
the Railway introduced evidence that it had cleaned
up the site by September
4,
1990.
(R.
at
26).
This
is almost
eight months after the initial inspection,
and almost two months
after
issuance of the citation.
The Railway asserts that it
could not move quicker toward clean up because of the bidding
procedure required by the Railway.
(R.
at
25).
Given the
corporate restraints of bidding,
the Railway should have foreseen
that
it could not clean up the site
if required to do so, within
the 60 days given in the administrative warning notice.
Thus
even if the Agency had
immediately clarified the
misunderstanding,
the Railway may not have had the site cleaned
up within the timeframes
set forth
in the administrative warning
notice.
It should be noted
that the Railway admitted that there were
steps which could be taken to prevent open dumping at the site.
Mr.
Van Hook testified that
the Railway would continue to monitor
the area and that “(if
we have problem areas, which
this one may
become one, that we do take steps
to barricade and~prevent
continued access.”
(R.
at
29).
Mr Van Hook indicated that
barricades had been erected along the Railway’s right of way
where trespassing had become a problem.
(R. at 28).
The Railway failed to argue the statutory defenses to an
administrative citation which are that the open dumping did not
occur or that dumping occurred as the result of uncontrollable
circumstances.
In addition the Board does not believe that the
Agency actions were sufficient
to invoke the principal of
estoppel.
Therefore,
the Board finds
that the Railway was
in
violation of Section 21(q)(l) of the Act on May
14,
1990.
ORDER
1.
Respondent
is hereby found to have been in violation
on
May 14,
1990, of Ill. Rev.
Stat.
1989,
ch. ill 1/2,
par.
lO2l(q)(l).
2.
Within
45 days of this Order Respondent shall, by
certified check or money order, pay a civil penalty in
the amount of $500 payable to the Illinois Environmental
Protection Trust Fund.
Such payment shall be sent
to:
120—320
—7—
Illinois Environmental Protection Agency
Fiscal Service Division
2200 Churchill Road
Springfield,
Illinois
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,
(Ill.
Rev.
Stat.
1989,
ch.
120, par 10—1003), from the
date payment is due until the date payment
is
received.
Interest shall not accrue during the pendency
of an appeal, during which payment of the penalty is
stayed.
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 Southern Pacific
Railway.
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 Southern Pacific Railroad.
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. lll~,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.
J.
D.
Dummelle dissents.
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the c~t~dayof
a~~—c_.4.--’
,
1991, by a
vote of
______
~~~)7L
~
Dorothy M.
G,j(nn, Clerk
Illinois Pol’lution Control Board
120—32 1
