ILLINOIS POLLUTION CONTROL BOARD
April
6,
1995
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
AC 94—96
Complainant,
(IEPA No. 697—94-AC
)
v.
)
AC 94—97
(IEPA No.
698-94-AC)
M.K.
O’HARA
CONSTRUCTION,
)
(Consolidated)
INC., KENNETH O’HARA
AND
(Administrative Citations)
MADALYN
O’HARA,
)
Respondents.
MS. MELANIE JARVIS, ASSISTANT COUNSEL, APPEARED ON BEHALF OF THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.
MR. KENNETH O’HARA
AND
MRS. MADALYN O’HARA APPEARED PRO SE.
INTERIM OPINION
AND
ORDER OF THE
BOARD
(R.C.
Flelual):
This matter is before the Board pursuant to a petition for
review of two administrative citations timely filed by
respondents, M.K. O’Hara Construction,
Inc.,
Mr. Kenneth O’Hara,
and Mrs. Madalyn O’Hara
(collectively O’Hara), on December 16,
1994.
O’Hara requests review of the administrative citations
issued by the Illinois Environmental Protection Agency (Agency)
on October 24,
1994 and filed with the Board on December 2, 1994.
Pursuant to the Environmental Protection Act
(Act)
(415 ILCS 5/1
et seq.)
parties may appeal an administrative citation within 35
days of the date of service of the citation.
(415 ILCS 5/31.1
(b) (4) (1992).)
On February 16,
1995 the Board accepted the petitions for
review, consolidated AC 94—96 and AC 94—97 for the purposes of
hearing, and set the cases for hearing.
Hearing was held before
Hearing Officer Michael L. Wallace on February 22,
1995 in
Virginia,
Illinois.
No post-hearing briefs were filed.
Today,
on its own motion, the Board hereby further
consolidates these two cases for the purpose of decision.
Each administrative citation alleges a single violation of
Section
21(p) (1)
of the Act (415 ILCS 5/21(p) (1)) which carries
a
statutory civil penalty of $500 each if the Board finds that such
violations occurred,
for a total penalty of $1000.
For the
reasons set forth below, the Board today will find two violations
based upon the Agency’s allegations that respondents, M.K. O’Hara
Construction,
Inc., Mr. Kenneth O’Hara and Mrs. Madalyn O’Hara,
have violated Section 21(p)(1)
at both locations.
The Board will
2
find respondents liable for $1000 and any associated hearing
costs incurred by the Agency and the Board.
FACTS
O’Hara is the present owner and operator of the sites
in
question,
located in the County of Cass.
The first site,
subject
of AC 94-96,
is commonly known to the Agency as the
Beardstown/O’Hara #3
(Site #3) and is designated with Site Code
No.
0170150020.
(AC 94-96 Complaint at 1.)
Site #3 is located
approximately one mile south—southwest of Beardstown, off Highway
100.
(Tr. at 6.)
The second site,
subject of AC 94—97,
is
commonly known to the Agency as the Beardstown/O’Hara #4
(Site
#4) and is designated with Site Code No.
0170150021.
(AC 94-97
Complaint at 1)
Site #4 is located east of Beardstown near the
City limits.
(Tr.
at 6.)
Site #3 has a salvage license’ from
the Secretary of State.
(Tr. at 29—30.)
However, neither site
has an Agency Operating Permit allowing it to conduct dumping
operations.
(AC 94-96 Complaint at 1; AC 94—97 Complaint at 1.)
The administrative citations allege that O’Hara violated Section
21(p) (1)
of the Act at both Sites #3 and #4 by causing or
allowing open dumping in a manner which resulted in litter.
The administrative citations are based upon inspections of
Sites #3 and #4 on October 24,
1994 by William Walkeribach.
Mr.
Walkenbach is a field inspector employed by the Agency.
(Pr. at
5.)
Mr. Walkenbach also inspected Sites #3 and #4 on two prior
occasions, May 5,
1994 and August 15,
1994.
Mr. Walkenbach was
accompanied by Mr. Charles King on the May 5,
1994 inspection
(Tr. at 34-43), and by Mr. John Senjan on the August 15,
1994
inspection
(Tr. at 43-48).
At the Board’s February 22, 1995
hearing Mr. Walkenbach, Mr. King, and Mr. Senjan each presented
testimony regarding their observations of litter at the two
O’Hara sites2.
It is unclear from the record whether all or only a part
of Site #3 is governed by the salvage yard license.
Regardless,
salvage yards have been previously cited for violations of
Section 21(p) (1).
IEPA v. Bill Hammond (April 22,
1993), AC 92-
62,
141 PCB 285, Sangamon County v. Ruth Ann She~~ardand Steve
Sheppard (November 4,
1993), AC 93—6,
141 PCB 293.
2
The Board notes that the witnesses also raised several
issues not encompassed in the definition of litter
(e.g.,
presence of vectors).
Inasmuch as this citations is solely
directed to the matter of litter, the Board will not further
address these extraneous issues.
3
In reference to Site #3, Mr. Walkenbach testified that as a
result of his first inspection on May 5,
1994, the Agency sent an
Administrative Warning Notice to O’Hara on June 7,
1994
(Pr.
at
23,
29,
33; Complaint’s Exhibit 5.)
Mr. Walkenbach thereafter
reinspected Site #3
on August 15,
1994 and found matters in
generally the same condition as on the previous inspection.
(Pr.
at 8.)
The administrative citation at issue for Site #3 is the
result of the third and final inspection conducted by Mr.
Walkenbach on October 24,
1994.
Mr. Walkenbach was accompanied
by an employee of O’Hara,
Mr. Richard Lashbrook, on the October
24th inspection.
(Tr. at 9.)
At hearing Mr. Walkenbach
testified that Site #3 was in substantially the same condition as
it was on the August 15th inspection.
(Pr. at 9.)
According to
Mr. Walkenbach’s testimony and the seven photographs taken during
the October 24,
1994 inspection of Site #3, the following items
were among those scattered about the property: drums, including
one orange and white drum labeled “Exxon Univolt N61”, with a
hazardous waste warning notice
(Pr.
at 11; Photo #7); demolition
debris and cardboard (Pr.
at 11—12; Photos #7,8,9); two metal
containers of unknown material, possibly asbestos insulation
(Tr.
at 13; Photo #11); tractor tires and other tires holding water
(Tr. at 13; Photo #13);
and roofing and railroad ties (Walkenbach
Memorandum attachment to Citation).
In reference to Site #4, Mr. Walkenbach testified that as a
result of his first inspection on May 5,
1994,
the Agency sent an
Administrative Warning Notice to O’Hara on June 6,
1994
(Pr. at
23,
29,
33; Complaint’s Exhibit 6.)
The administrative citation at issue for Site #4
is also the
result of the third and final inspection conducted by Mr.
Walkenbach on October 24,
1994.
(Pr. at 14.)
At hearing Mr.
Walkenbach testified that Site #4 was in pretty much the same
condition on October 24,
1994 that it had been on the August 15th
inspection.
(Pr. at 15.)
According to Mr. Walkenbach’s
testimony and the nineteen photographs put into evidence from the
October 24th inspection of Site #4, the following items and
materials were among those scattered about the property: metal
and tires
(Pr. at 16—18; Roll 97, Photo #1,2,4,5,10,11 and Roll
98, Photo #3); old rusty vehicles (Tr. at 19—20; Roll 97, Photo
#9,10 and Roll #98, Photo #1); part of a box trailer and a semi—
truck trailer with no axle (Tr. at 19-20; Roll 97, Photo #11);
pipes and metal with insulation
(Pr. at 20; Roll 97, Photo #13);
propane tanks
(Pr. at 21; Roll 98, Photo #3); broken battery case
and battery
(Pr.
at 22—22; Roll 98, Photo #3,7,8); and a mattress
(Pr. at 22; Roll 98, Photo #8).
Mr. King, who is a field investigator and Environmental
Protection Specialist
3 employed by the Agency, testified to
conditions at both Sites #3 and #4 as found during the May 5,
4
1994 inspections.
(Pr. at 34-43.)
Mr. King affirmed the
presence of the materials observed by Mr. Walkenbach, with the
addition of a dry transformer and broken batteries found at Site
#3
(Pr. at 37), and televisions and broken appliances found at
Site #4
(Tr. at 38—39).
Mr.
Senjan, who is a solid waste inspector and Environmental
Protection Specialist 1 employed by the Agency, likely affirmed
Mr. Walkenbach’s general observations regarding conditions at
both Site #3 and #4 as observed by the pair on August 15,
1995.
(Pr. at 43—47.)
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 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 ordering which imposes no
penalty.
(415 ILCS 5/31.l(d)(2)
(1992).)
The administrative citation issued against O’Hara alleges
that Section 21(p)
subsection
(1)
of the Act was violated at each
site.
Section 21(p)(1) provides 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;
(415 ILCS 5/21(p)(1)
(1992).)
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”.
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.
5
(415 ILCS 5/3.24
(1992).)
Section 3.31 of the Act defines “refuse” as “waste”.
(415
ILCS 5/3.31
(1992).)
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
(1992).)
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.
(415 ILCS 105/3
(1992).)
Defenses
Next the Board must consider whether O’Hara has shown that
the alleged violations resulted from uncontrollable
circumstances.
This is the only showing provided in the statute
that allows the Board to excuse any violation.
If the Board so
finds, then no violations would be found and no penalty imposed.
(see 415 ILCS 5/31.1(d)(2)
(1992).)
O’Hara presented several arguments at hearing.
First,
O’Hara claims that it is now cleaning the site and properly
disposing of the material at issue.
However, the Board has held
that post-citation activities of the citation recipient are not
material to whether a violation had occurred and accordingly to
the Board’s review of the citation.
(In re: Lincoln Chamber of
Commerce
(May 25,
1989), AC 89—26,
99 PCB 325.)
The Board has
previously held that removal of the litter after the issuance of
an administrative citation does not restrain the Board from a
finding of violation.
The Act, by its terms, does not envision a
properly issued administrative citation being dismissed or
mitigated 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 the site is not a mitigating factor
under the administrative citation program.
(IEPA
V.
Dennis
Grubaucih (October
16,
1992), AC 92-3,
136 PCB 425.)
6
O’Hara also contends that the property contained many of the
items characterized as litter when purchased by O’Hara
(Pr. at
49), and that most of the abandoned vehicles on the property are
not O’Hara’s but rather were placed there by a tenent
(Tr.
at 50-
51).
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.)
In Freeman Cool Mining Cori.
v. IPCB (3rd Dist.
1974), 21 Ill.
App. 3d 157, 313 N.E. 2d 616,
the court additionally observed that the Act is
malum prohibitum
and no proof of guilty knowledge or
mens
rea is necessary to a
finding of guilt.
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.
O’Hara presented other explanations why the property was in
such observed condition,
including: 90
of the material was
salvageable
(Tr. at 25-26); the big trailer and box trailer were
being used for storage
(Tr.
at 26); they have been very busy
(Tr.
at 26); and they accepted a lot of washing machines and stoves to
prevent them from being dumped along the roadside
(Tr. at 56)
*
The Board finds no uncontrollable circumstances in this matter.
CONCLUSION
Based on its review of the pertinent provisions of the Act
and the definitions of open dumping and litter, the Board finds
that opening dumping resulting in litter occurred at both Sites
#3 and #4, as of October 24,
1994 as evidenced in the
administrative citations and testimony offered by the Agency.
The presence of the litter on the site and the failure by
the owner to take action is sufficient to find a violation of the
“allow” language of Section 21 of the Act.
The Board finds that
O’Hara allowed litter on the property in violation of the Act.
The Board further finds that none of the explanations
offered for the presence of litter justify a finding of
uncontrollable circumstances. O’Hara accordingly is found to have
violated the open dumping provisions of the Act, and this Board
will accordingly affirm the Agency’s determination of violation
and assessment of penalty.
PENALTY AND COSTS
Penalties in administrative citation actions are prescribed
by Section 42(b) (4)
of the Act which states:
7
In an administrative citation action under Section 311
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)
(1992).)
In the Board’s final order in this case,
O’Hara will be
ordered to pay a civil penalty of $500 for each violation as
found, totalling $1000.
Further, pursuant to Section 42(b) (4) of
the Act, O’Hara 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 respondents.
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,
M.K. O’Hara Construction,
Inc., Kenneth 0‘Hara,
and Madalyn O’Hara, are hereby found to have violated 415
ILCS 5/21(p) (1) (1992)
at Beardstown/O’Hara #3 and
Beardstown/O’Hara #4 on October 24,
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
respondents, M.K. O’Hara Construction,
Inc., Kenneth O’Hara,
and Madalyn O’Hara, 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 respondents, M.K. O’Hara
Construction,
Inc., Kenneth O’Hara, and Madalyn O’Hara.
3.
Respondents,
M.K. 0‘Hara Construction,
Inc., Kenneth 0‘Hara,
and I4adalyn O’Hara, 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.
8
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
7—o
.
Dorothy M.4~unn,Clerk
Illinois ~6llution Control Board