ILLINOIS POLLUTION CONTROL BOARD
February 7, 2002
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
MARSHALL PEKARSKY,
Respondent.
)
)
)
)
)
)
)
)
)
)
AC 01-37
(IEPA No. 141-01-AC)
(Administrative Citation)
MICHELLE M. RYAN APPEARED ON BEHALF OF THE AGENCY; and
PETER ALEXANDER APPEARED ON BEHALF OF MARSHALL PEKARSKY.
OPINION AND ORDER OF THE BOARD (by S.T. Lawton, Jr.):
On April 16, 2001, pursuant to Section 31.1(b) of the Environmental Protection Act (Act)
(415 ILCS 31.1(b) (2000)), the Illinois Environmental Protection Agency (Agency) filed with the
Board an administrative citation to Kishwaukee Auto Parts, which is located in Rockford,
Winnebago County. The administrative citation, based on a March 7, 2001 inspection, alleges
that the respondent caused or allowed the open dumping of waste in a manner that resulted in
litter. These activities were in alleged violation of Section 21(p)(1) of the Act (415 ILCS
5/21(p)(1) (2000)). On May 18, 2001, respondent filed a petition for review of the
administrative citation pursuant to Section 31.1(d) of the Act (415 ILCS 31.1(d) (2000)), denying
that it was operating an open dump. The Board finds that respondent allowed open dumping that
resulted in litter under 415 ILCS 5/21(p)(1). However, the Board does not find that respondent is
in violation of the Act because “uncontrollable circumstances” created by extreme weather
prevented him from cleaning up the site within the 90-day grace period specified in the Agency’s
administrative citation warning notice (ACWN).
See
415 ILCS 5/31.1(d)(2) (2000).
PRELIMINARY MATTERS
Complainant moved at the hearing on October 29, 2001, that the name of the respondent
be changed from Kishwaukee Auto Parts to Mr. Marshall Pekarsky, who is a co-executor of the
estate that owns the site, as well as the current operator of Kishwaukee Auto Parts. Tr. at 34, 45.
Mr. Pekarsky has held this position since the death of his father, Abe Pekarsky, in November
1995. Complainant stated at hearing that Kishwaukee Auto Parts is a non-entity. Complainat
further alleged that Mr. Pekarsky was appropriately served and notified of this matter. Tr. at 49.
Mr. Pekarsky testified at hearing on this matter, and had no objection to the motion. Comp. Br. at
2; Tr. at 49. The hearing officer granted the motion. Tr. at 50. The above caption reflects that
Mr. Pekarsky is the appropriate respondent in this matter.
2
BACKGROUND
At the October 18, 2001 hearing on this matter, Mr. Kaare Jacobsen, Agency inspector,
testified concerning the nature of Kishwaukee Auto Parts, and his inspections of the site. Mr.
Jacobsen stated that the site at issue is a salvage yard, where automobiles are scrapped for parts
to be sold to auto stores. Tr. at 11. The site is located at 601 Harrison Avenue, Rockford,
Winnebago County. Adm. Cit. at 1.
1
Mr. Jacobsen testified that he first conducted a tire inspection at the site on October 19,
2000, where he saw municipal waste, landscape waste, recyclable material, and soil saturated
with oil. Tr. at 11-12. As a result of the inspection, the Agency sent the respondent an ACWN,
giving him 90 days, or until February 20, 2001, to clean up the site. Tr. at 20-22. The ACWN
specifically states that the respondent “may be subject to substantial civil penalties if [he] fail[s]
to comply with the terms of this [ACWN], and are found to be in violation of the [Act].” ACWN
at 1.
2
Mr. Jacobsen testified that he estimated it would take 45 days to dispose of the waste at the
site. Tr. at 23.
Mr. Jacobsen testified that he conducted a follow-up visit on February 21, 2001, which
was the original date by which he alleged the respondent was supposed to have cleaned up the
site. Tr. at 13. Although Mr. Jacobsen stated 90% of the waste that he previously saw on the site
was disposed of, there were remains of solid waste still on the site. Tr. at 14-15. Mr. Jacobsen
stated that snow obscured his view of the progress of the site cleanup on that date. Tr. at 26.
However, he alleged that he saw waste, including a refrigerator, tire, recyclable metal, remains
from a huge waste pile, as well as landscape waste. Tr. at 15.
Mr. Jacobsen stated at hearing that he returned to the site on March 7, 2001, when he
could more clearly see oil-saturated soil, landscape waste, building material, municipal waste,
and other waste in piles on the site. Tr. at 16-17. Specifically, Mr. Jacobsen testified that he saw
sheet metal, wooden two-by-fours, a large cooler or heater, landscape waste mixed with building
material and metal parts, used pallets, and inserts from grease guns. Tr. at 17-18. Mr. Jacobsen
testified that he did not see any new refuse in his February and March, 2001 inspections. Tr. at
25. He noted on his inspection checklist that respondent was allegedly in violation of Sections
21(a), 21(d)(1) and 21(p)(1) of the Act (415 ILCS 5/21(a), 21(d)(1), 21(p)(1) (2000)), and 35 Ill.
Adm. Code 812.101(a). Tr. at 19.
When questioned by counsel for the respondent, Mr. Jacobsen testified that it snowed
three weeks after he issued the ACWN, in the first week of December. Tr. at 26. Mr. Jacobsen
stated that he could not decipher what was on the site because of snow coverage. Tr. at 26. He
testified that the snow made it difficult to see what respondent had cleaned up on the site. Tr. at
13. Mr. Jacobsen also testified that the condition of the site looked like a long-standing problem.
1
On April 16, 2001, the Agency filed an administrative citation against Kishwaukee Auto Parts,
which is referred to as “Adm. Cit. at ___.”
2
The Agency issued an Administrative Citation Warning Notice to Kishwaukee Auto Parts on
November 22, 2000, which is referred to as “ACWN at ___.”
3
Tr. at 30. When asked whether he could identify any waste that was younger than 15 years old,
Mr. Jacobsen stated that the landscape waste might qualify as newer waste. Tr. at 31. Mr.
Jacobsen indicated that he did speak with Mr. Pekarsky about problems that he was having in
cleaning up the site. Tr. at 28.
At hearing, Mr. Pekarsky testified that the estate of Abe Pekarsky, his late father,
currently owns the site of Kishwaukee Auto Parts. Tr. at 33. Mr. Abe Pekarsky passed away on
November 19, 1995. Tr. at 33-34. Prior to 1995, Mr. Marshall Pekarsky testified that he neither
had control over, nor allowed any refuse to be dumped at the site. Tr. at 34. When Mr. Abe
Pekarsky died, Mr. Marshall Pekarsky became co-executor of his estate, and took over the
operation of Kishwaukee Auto Parts. Tr. at 34.
Mr. Pekarsky still operates Kishwaukee Auto Parts at the site, where he recycles car
parts. Tr. at 34. Prior to his father’s death, he worked in the store for the business. Pekarsky
stated that the yard was a separate part of the business. The store catalogues car parts, and the
yard distributes available parts to consumers. Tr. at 41-42.
Mr. Pekarsky testified that the site was frozen from a week after Mr. Jacobsen’s first visit
in November 11, 2000 [sic] through the first days of March 2001. Tr. at 35. Mr. Pekarsky stated
that he had to stop his remediation efforts largely because of the weather. Tr. at 39. He testified
that he could not continue to remediate the site because of the three-month freeze. Tr. at 39. He
also stated that he “couldn’t send guys out to freeze themselves with any of the other piles,”
which he has since removed. Tr. 36. Despite the freeze, Mr. Pekarsky said at hearing that he
removed the majority of a pile of rubbish, measuring 15 feet in height and depth by February 21,
2001. Tr. at 35. Mr. Pekarsky also testified that the estate is insolvent, and that he owes $36,000
in real estate taxes for the site, which he could not afford. Tr. at 36. Due to the cost and weather
conditions, Mr. Pekarsky stated at hearing that he was unable to clean up the site by February 21,
2001.
As of the October 29, 2001 hearing, Mr. Pekarsky alleges that he continues to remediate
the site. Tr. at 43. He testified that he obtained a larger dumpster to fill with regular waste from
his business and the waste remaining on the property, and hired someone to pick up waste and
loose tires dispersed around the yard. Tr. at 38. Mr. Pekarsky states that he finished
approximately 95% of the cleanup by the date of the hearing. Tr. at 43.
ARGUMENTS
The Board summarizes the arguments raised by the parties in the section below. The
arguments mainly center on two issues: (1) whether respondent allowed the open dumping of
waste; and (2) whether the Agency was estopped from bringing a citation against the respondent
in that the violation resulted from “uncontrollable circumstances” within the meaning of Section
31.1(d)(2) of the Act (415 ILCS 5/31.1(d)(2) (2000).
Complainant
4
Complainant states that it proved that Mr. Pekarsky allowed open dumping on the site.
Comp. Mot. at 2. Complainant points to the fact that Mr. Pekarsky is the co-executor of his
father’s estate since 1995, which includes the site.
Id.
Mr. Pekarsky has operated Kishwaukee
Auto Parts since his father’s death, and had control of the site at the time of the inspection on
March 7, 2001.
Id.
Prior to becoming co-executor of the estate, Mr. Pekarsky worked at the
counter of the store at the site, and advised whether employees should buy or sell automobiles.
Id.
Complainant argues that Mr. Pekarsky is liable under the Act even if he did not actively
allow the waste to accumulate on the property because “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.” Comp. Br. at 3, citing
IEPA v. Rawe, AC 92-5, slip op. at 6 (Oct. 16, 1992) [sic]. Even though Mr. Pekarsky does not
hold legal title to the site, complainant states that he is in control over the operation of
Kishwaukee Auto Parts and remediation efforts at the site. Comp. Br. at 3. Moreover, Mr.
Pekarsky removed 95% of the waste remaining at the site by the October 18, 2001 hearing date.
Complainant argues that if Mr. Pekarsky could remove 95% of the waste by this date, then he
could have removed all of the waste in the five years that he controlled the site. Comp. Br. at 3.
Respondent
Respondent argues that complainant failed to prove that Mr. Pekarsky allowed any waste
or litter to accumulate at the site. Tr. at 46. Respondent states that the litter resulted from
uncontrollable circumstances, in that respondent had no control over the past dumping of waste
at the site prior to when he became executor of his father’s estate.
See
415 ILCS 5/31.1(d)(2)
(2000). Respondent alleges that he had no control over his appointment as executor of his
father’s estate. Resp. Br. at 4. Respondent also argues that there is no evidence that new trash or
refuse was deposited on the site prior to 1985. Resp. Br. at 3. Respondent points to testimony
by Mr. Jacobsen that the refuse could have been 10 to 15 years old, and that he could not identify
new waste deposited on the site since the 1980’s. Resp. Br. at 3, citing Tr. at 26. Consequently,
respondent argues that complainant charged the wrong entity with violations of the Act.
Respondent contends that complainant’s reliance on Rawe, AC 92-5, slip op. at 6, is
misplaced. Respondent argues that the “Board legislated the words ‘allowed to remain’ into
Section 5/21(p)[, and that c]learly had the legislature intended this, it would have so stated in the
statute.” Resp. Br. at 5. Respondent states that the Act is quasi-criminal in nature because it
allows for the imposition of substantial fines and penalties. As a result, respondent argues that
the Act should therefore be strictly interpreted.
Id.
Respondent contrasts Section 21(p)(1) of the
Act (415 ILCS 5/21(p)(1) (2000)) with the Litter Control Act (415 ILCS 105/1 et seq. (2000)),
which mentions the “leaving of litter.”
Id.
Respondent states that the exclusion of such language
in Section 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2000)) shows the legislative decision not to
extend it to such circumstances.
Id.
Respondent further distinguishes Rawe from this case in that the Rawes owned the
property where the litter remained. Resp. Br. at 5. Respondent argues that Mr. “Pekarsky did
5
not create the litter, does not own the land on which the litter already existed, and was
unwillingly appointed co-executor of the totally insolvent estate.” Resp. Br. at 5.
Respondent also contends that Mr. Pekarsky did not have a full 90 days from the date of
the ACWN (November 22, 2000) to the date of issuance of the citation on February 21, 2001, to
remediate the site, due to extreme weather conditions. Tr. at 47. Respondent states that he could
not have cleaned up the site within the given time frame because of the extent of snow and ice on
the ground between December 2000 and March 2001. Despite the limitations, respondent argues
that he still made an effort to remediate 90% of the waste on the site during the 90-day
compliance period stated in the ACWN. Resp. Br. at 2. Respondent contended that, after
decades of waste accumulation and months of extreme weather, that the 90-day window was
inappropriate. Tr. at 47.
DISCUSSION
This matter involves two issues that the Board addresses below. First, the Board
determines whether the respondent’s actions constitute an allowance of open dumping, in
violation of Section 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2000)). Second, the Board
discusses whether the Agency is estopped from bringing an administrative citation against the
respondent on March 7, 2001, for violating Section 21(p)(1) of the Act (415 ILCS 5/21(p)(1)
(2000)). The Board specifically addresses whether the unique circumstances of the extreme
weather in this case amounts to uncontrollable circumstances that prevented the respondent from
having 90 usable days to clean up the site and resulted in this citation.
Allowance of Open Dumping Under Section 21(p)(1) of the Act
The first issue before the Board is whether respondent’s failure to remove waste that
accumulated on the site constitutes an allowance of open dumping under Section 21(p) of the Act
(415 ILCS 5/21(p) (2000)). Complainant argues that Mr. Pekarsky allowed the open dumping of
waste, resulting in litter, in violation of 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2000)).
Respondent contests that he could not have allowed open dumping of waste because the waste
was deposited on the site prior to when he became co-executor of the site, and operator of
Kishwaukee Auto Parts in 1995.
This issue is directly addressed in County of Will v. Utilities Unlimited, Inc., AC 97-41,
slip op. at 5 (July 24, 1997). In Utilities Unlimited, the Board found an agent of the utilities
company to have violated Sections 21(p)(1) and (3) of the Act (415 ILCS 5/21(p)(1), (3) (2000)),
when he did not clean up litter that others had deposited on the site. A person can cause or allow
a violation of the Act without knowledge or intent. Utilities Unlimited, AC 97-41, slip op. at 5,
citing People v. Fiorini, 143 Ill.2d 318, 574 N.E.2d 612 (1991). The Board said, in pertinent part
that:
[P]resent inaction on the part of the landowner to remedy the disposal of waste
previously placed on the site constitutes “allowing” litter in that the owner allows
the illegal situation to continue. (citation omitted) In this case, [respondent]
Petrekis admitted that ‘[a]s designated agent for this utility company, I’m in
6
charge.’ Tr. at 60-61. As such Petrekis was the operator of the site and had the
ability to control the site. Utilities Unlimited, AC 97-41, slip op. at 5.
The same situation is present in this case. Since 1995, Mr. Pekarsky has been the
operator of Kishwaukee Auto Parts, and co-executor of the site where the open dumping
occurred. Mr. Pekarsky is the proper respondent in this matter, as agreed upon in the oral motion
by complainant and respondent during the October 29, 2001 hearing. Mr. Pekarsky has control
over the site, and has left the litter that had previously been dumped on the site to remain on it
after he became executor of his father’s estate in 1995. Such inaction qualifies as an
“allowance” under 415 ILCS 5/21(p)(1) (2000).
See also
IEPA v. M.K O’Hara Construction,
Inc.
et al.
, AC 94-96, AC 94-97, slip op. at 6 (Apr. 6, 1995).
Promissory Estoppel.
The second issue before the Board is whether the Agency is estopped from bringing the
citation for the March 7, 2001 violation because extreme winter conditions that allegedly
prevented the respondent from cleaning up the site within 90 days of the ACWN, constitute a
defense of “uncontrollable circumstances” under 415 ILCS 5/31.1(d)(2). The defense would
exonerate respondent from liability for open dumping litter on the site, in violation of Section
21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2000)). This argument can be broken down into two
separate inquiries. The first is whether the respondent is entitled to the 90 days between the
ACWN and the issuance of an administrative citation to clean up the site. The second is whether
uncontrollable circumstances prevented the respondent from remediating the site within this
timeframe.
The ACWN is not a statutory element of the administrative citation process. It is a tool
used by the Agency to encourage compliance with the Act. However, the respondent properly
alleges elements of promissory estoppel concerning his reliance on the 90-day period specified
by the Agency in the ACWN. “The doctrine of promissory estoppel may be applied when a
party reasonably and detrimentally relies on the words or conduct of another.” People v.
Douglas Furniture of California, PCB 97-133, slip op. at 5 (May 1, 1997), citing Browns
Furniture v. Wagner, 171 Ill. 2d 410, 431, 665 N.E.2d 795, 806 (1996). “An essential element of
. . . estoppel is that in reliance on the representation of another, the party asserting the estoppel
must have done or omitted some act or altered his position in such a way that he would be
injured if the other person is not held to the representation on which the estoppel is predicated.”
IEPA v. Pielet Brothers Trading, Inc., AC 88-51, slip op. at 9 (July 13, 1989), quoting
Department of Public Works & Buildings v. Exchange National Bank, 31 Ill. App. 3d 88, 334
N.E.2d 810 (1975).
“The party who asserts estoppel must prove the requisite elements of estoppel by clear,
precise, and unequivocal evidence.” Douglas Furniture, PCB 97-133, slip op. at 5 (citation
omitted). The doctrine should only be invoked under compelling circumstances so as not to
defeat the operation of public policy.
Id.
“A party seeking to estop the government must prove
at least two elements: (1) an affirmative act on the part of the government entity, and (2) the
inducement of substantial reliance by the affirmative act.” Douglas Furniture, PCB 97-133, slip
7
op. at 5. “[A] party seeking to estop the government must show that the affirmative act was of
the public body itself, rather than the unauthorized or mistaken act of a ministerial officer.”
Id.
The respondent’s allegations fall under this doctrine because he alleges extreme weather
prevented him from using the 90 days granted by the Agency in the ACWN to clean up the site.
Resp. Br. at 4, 6. The Board finds that this argument is compelling. First, the Agency practice in
this specific type of administrative citation action is to customarily grant respondents time to
remediate problems on a particular site. The ACWN form states in bold print on the front page
that respondents “may be subject to substantial civil penalties if [they] fail to comply with the
terms of this [ACWN], and are found to be in violation of the [Illinois] Environmental Protection
Act.” ACWN at 1. On the same page, the ACWN stated that the respondent in this matter must
“remove all waste to a permitted landfill or transfer station by February 20, 2001.” ACWN at 1.
The Agency also provided testimony that confirmed its customary usage of the 90-day
remediation window. Mr. Jacobsen specifically stated that the ACWN “indicates that we will
give them 90 days to complete the task that we asked them to do, if not, they would be subject to
go to an [administrative citation] . . . .” Tr. at 22.
The Board notes that the final page of the ACWN contains a statement in normal print
under the heading of “Potential Sanctions” that states the “Agency may, without further notice
and regardless of any future activities to achieve compliance, file an Administrative Citation
before the Illinois Pollution Control Board pursuant to Section 31.1 of the Act [415 ILCS 5/31.1
(1994)].” ACWN at 3. However, the Board does not find this disclaimer effective in preventing
estoppel of the Agency to issue an administrative citation, in light of the overwhelming evidence
that the 90-day grace period is usual and customary. Both Agency testimony and the ACWN
itself represent in conspicuous language that the respondent has 90 days to clean up the site
before the Agency will issue an administrative citation. The Board accordingly finds that
respondent proves the element of reliance under promissory estoppel because the ACWN
constitutes an affirmative act on the part of Agency that induced substantial reliance by the
respondent on the standard 90-day window granted in the ACWN.
“The Board has previously held that Agency actions can lead to an improperly issued
citation.” IEPA v. Southern Pacific Railroad, AC 90-59, slip op. at 4, (Mar. 28, 1991), citing
IEPA v. Jack Wright, AC 89-227 (Aug. 30, 1990). In Wright, the Board found that the Agency
did not properly issue the administrative citation for open dumping litter because the field
inspector made assurances that the respondent would not be found in violation of the Act if he
cleaned up the site within 30 days. Wright, AC 89-227, slip op. at 7.
3
Similarly, the Board held
in Pielet that the Agency was estopped from finding violations because it made representations to
the respondent Pielet that it “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, AC 88-51,
slip op. at 9.
3
The Board notes that the respondent in Wright did not raise the promissory estoppel argument
in so many words. However, the Board found similarly that the Agency’s representations barred
it from issuing an administrative citation. The Board reaches the same result in this case.
8
In this case, the Agency made representations to the respondent that if he cleaned up the
site within 90 days, the Agency would not issue an administrative citation. The respondent
detrimentally relied on the availability of the full 90 days to clean up the site.
The circumstance distinguishing and complicating this case from the usual administrative
citation case before the Board is the Agency’s ACWN. The violation alleged here is a violation
of Section 21(p)(1) of the Act: “allow[ing] the open dumping of waste in a manner which results
in any of the following occurrences at a dump site: litter.” 415 ILCS 5/21(p)(1) (2000). Under
the Section 31.1(b) administrative citation process (415 ILCS 5/31.1(b) (2000)), an Agency
inspector can go to the site and issue an administrative citation if he sees litter on the day of the
inspection. The Board then determines whether “the violation occurred” on that day, and finds a
violation and assesses a penalty unless the violation on that day “resulted from uncontrollable
circumstances.” This process would be strictly according to statute.
See
415 ILCS 5/31.1
(2000).
Here, the Agency’s issuance of the ACWN introduced an element of confusion. The
specific language of the citation directing respondent to “remove all waste . . . by February 20,
2001” (ACWN at 1), arguably changes the focus of the Section 31.1(b) inquiry from whether
litter was present on the site on a specific day, to whether a full cleanup was completed during
the grace period. The question becomes not whether uncontrollable circumstances caused the
presence of litter on the inspection date, but whether respondent’s failure to complete its removal
of pre-existing litter within the ACWN’s stated time period was the result of uncontrollable
circumstances.
The respondent proves that, in reality, he did not have 90 days from the date of the
ACWN to remediate the site. Respondent alleges that extreme winter weather created an
uncontrollable circumstance, pursuant to Section 31.1(d)(2) of the Act (415 ILCS 5/31.1(d)(2)
(2000)) that prevented him from cleaning up the site prior to the Agency inspections on February
21, 2001 and March 7, 2001. Section 31.1(d)(2) of the Act states in part that:
If the Board finds 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. 415
ILCS 5/31.1(d)(2) (2000).
The respondent alleges that the winter storm in December 2000 and extreme conditions
of ice and snow until March, 2001 created uncontrollable circumstances under Section 31.1(d)(2)
of the Act (415 ILCS 5/31.1(d)(2) (2000)). Specifically, the respondent points to testimony by
Mr. Jacobsen, stating that he could not decipher what was on the site during his February 21,
2001 visit, due to the snow coverage. Tr. at 26. The respondent further alleges that the ground
froze in the first week of December, three weeks after Mr. Jacobsen’s initial visit, and did not
thaw until early March 2001. See Tr. at 26, 35.
The respondent states that, despite the frozen ground, he still was able to remove 90% of
the waste on the site by February 20, 2001. Tr. at 36. Respondent stated that he began to
prepare to remove more of the waste, but could not continue because of the freeze. Tr. at 39. He
9
contends that he did not have the time to finish cleaning up the site, and could not send workers
out to freeze in an effort to handle any more of the waste. Tr. at 36.
The complainant did not refute the respondent’s allegations of extreme weather. In fact,
Mr. Jacobsen agreed that the ground froze in early December, three weeks after his initial visit.
Mr. Jacobsen stated that he estimated the respondent needed 45 days from the ACWN to
remediate the site. Tr. at 23. When Mr. Jacobsen testified about his visit on February 21, 2001,
he stated that the snow still covered the site, and that you could hardly tell what waste was left on
the site because of the snow. Tr. at 15, 22. He stated that he “went out there and there was snow
cover on the ground, which was hard to realize what was done or not.” Tr. at 13.
Complainant’s argument focuses instead on the fact that respondent had since 1995 to
clean up the litter from the site. Complainant states that if the respondent can clean up 95% of
the waste on the site in seven months, then it surely could have cleaned up all of it within the five
years that he had control over the site. Pet. Br. at 3. This argument does not address the issue of
whether the respondent was given the full 90-day period to remediate the site, in accordance with
the ACWN.
The Board previously held that an owner and operator of a landfill that violated Section
21(p)(12) of the Act (415 ILCS 5/21(p)(12) (1988)), demonstrated that the violations resulted
from uncontrollable circumstances. St. Clair County v. J & R Landfill, Inc., AC 89-18, slip op.
at 11 (May 10, 1990). This case differed from others where the Board found weather did not
provide a defense under Section 31.1(d)(2) of the Act in that J & R landfill provided unrebutted
testimony that the ground at the landfill was unworkable.
Id.
In cases where Section 31.1(d)(2)
did not afford respondents a defense from violations of the Act, the Board found that either the
weather did not bar cleaning up the site, or that the circumstances that impeded remediation
efforts were foreseeable.
See
County of Ogle v. Rochelle Disposal Service, AC 92-26, slip op. at
4 (May 20, 1993); County of Ogle v. Rochelle Disposal Service, AC 92-64, slip op. at 5 (Aug.
26, 1993) (citation omitted).
In this case, the Board finds that the December 2000 snowstorm, and subsequent freeze
until March 2001, creates a sufficient uncontrollable circumstance to exonerate respondent from
violating Section 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2000)). The Board takes judicial
notice that Illinois experienced record snowfall and bitter temperatures in the winter of 2000.
See
Midwest Regional Climate Center (last modified Mar. 29, 2001) <http://mcc.sws.uiuc.edu/>;
CNN.com Weather: Record cold spell brings big freeze to Great Lakes (last modified Jan. 6,
2001) <http://www.cnn.com/2001/WEATHER/01/06/winter/index.html>; CNN.com Weather:
Storm with blizzard-like conditions rages across U.S. Plains (last modified Jan. 30, 2001)
<http://www.cnn.com/2001/WEATHER/01/30/plains.snowstorm.02/index.html>. According to
the Midwest Regional Climate Center (MRCC), Illinois experienced its single coldest December
in 106 years, and Rockford received a record snowfall of 30.1 inches in that month alone.
MRCC, (last modified Mar. 29, 2001) <http://mcc.sws.uiuc.edu/>. The severity of the
snowstorm and long freeze created a unique unforeseeable situation that barred respondent’s
remediation efforts. The snow coverage and ground freeze in this matter are not refuted by the
complainant, whose witness testified that he could not “decipher” what was on the site during his
February 21, 2001 visit because of the snow. Although the ground thawed shortly before the
10
Agency’s return visit on March 7, 2001, the Board finds that the prior months of extreme
weather did not afford the respondent the opportunity to clean up the remaining waste on the site
within the ACWN’s 90-day grace period.
Based on the foregoing, the Board finds that the Agency is estopped from issuing this
administrative citation under the specific fact circumstances. The Agency issued an ACWN,
which gave the respondent 90 days to clean up the site. The Agency inspector, Mr. Jacobsen,
testified that if the site was cleaned up within this time frame, that the Agency would not issue
the respondent the administrative citation. The ACWN itself stated that failure to clean up the
site within the 90 days would result in an administrative citation. The respondent proved that it
could not have fulfilled the terms of the 90-day remediation mandate in the ACWN due to
extreme winter conditions. Without the use of the full 90 days granted by the ACWN, the
respondent did not have the opportunity to complete the cleanup necessary to avoid the issuance
of the administrative citation. Despite the record temperatures and snowfall that allowed in
reality approximately 30 days to remediate the site, the Agency issued the respondent an
administrative citation for a violation on March 7, 2001.
The Board finds that the citation that was issued on March 7, 2001, directly resulted from
the respondent’s failure to clean up the site in accordance with the ACWN. The uncontrollable
circumstances of extreme weather was the direct cause of the resulting violation, as defined in
Section 31.1(d)(2) of the Act (415 ILCS 5/31.1(d)(2) (2000)) because it deprived the respondent
of utilizing the 90 days granted to him in the ACWN, and avoiding the issuance of the citation.
Accordingly, the Board makes no finding of violation and imposes no penalty for the violation of
Section 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2000)). This case is dismissed and the docket
is closed.
The Board notes that the 90-day grace period provided to respondents in an ACWN is
specific to the administrative citation process. This does not preclude the Agency from bringing
an enforcement action under such circumstances, which is not bound by the same specific
statutory and customary constraints as an action under Section 31.1 of the Act.
See
415 ILCS
5/31.1 (2000); Wright, AC 89-227, slip op. at 5-6.
This opinion constitutes the Board’s findings of fact and conclusions of law.
ORDER
The Board dismisses this administrative citation, finding that the violation resulted from
“uncontrollable circumstances” within the meaning of Section 31.1(d)(2) of the Environmental
Protection Act. 415 ILCS 5/31.1(d)(2) (2000). This docket is closed.
IT IS SO ORDERED.
Chairman C.A. Manning and Board Member R.C. Flemal dissented.
Section 41(a) of the Environmental Protection Act provides the final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
11
order. 415 ILCS 5/41(a) (2000);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
12
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on February 7, 2002, by a vote of 5-2.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
