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)(l) 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 be burned in
warming barrels and that only used pallets are to be burnt.
(Tr.
at 25.)
1
References to the hearing transcript are denoted by Tr.
at
.
References to the administrative citation complaint are
shown as Comp.
at
_____
3
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 cause
or allow the open dumping of any waste”.
(415 ILCS 5/21(a)
(1994).)
4
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 Rv. Eciuipment Co.
(3d Dist.,
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.
EcTuipment 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.
5
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 Core.
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 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.
6
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, 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.
7
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
~7—~•
day of
~/7c~z’~Lc~
,
1995, by a
vote of
_______.
-)
~
A~.
~
Dorothy M.,4unn, Clerk
Illinois p~91llutionControl Board