ILLINOIS POLLUTION CONTROL BOARD
    October 27,
    1994
    SANGAMON
    COUNTY,
    )
    )
    Complainant,
    )
    V.
    )
    AC 93—42
    (Administrative Citation)
    NORMAN
    CLARK
    and BRENDA BERTRAND,
    )
    )
    Respondents.
    DISSENTING OPINION (by R.C.
    Flemal and J. Theodore Meyer):
    We dissent from the decision of the majority.
    We find that
    the record clearly establishes that open burning was conducted by
    the respondents, and accordingly that the Board should have
    upheld Sangaluon County’s determination of open burning.
    The testimony of Sangamon County’s inspector,
    Mr. Allan
    Alexander,
    is that the burn pile contained remains of
    construction materials:
    Q:
    When looking at the burn piles did you
    observe nails within these piles?
    A:
    Yes,
    I did.
    Q:
    Did you observe pieces of burnt dimensional
    lumber in these piles?
    A:
    Yes,
    I did:
    Q:
    Was this just landscaping waste that was
    burned on the property?
    A:
    No,
    it was not.
    (Tr. at 44—45.)
    It is well established that burning of construction wastes
    in the manner here evidenced constitutes open burning under the
    meaning of the Act.
    (See Illinois Environmental Protection
    Agency v. Illinois Pollution Control Board
    (5th Dist.
    1991),
    219
    Ill.App.3d 975, 579 N.E.2d 215,
    162 Ill.Dec.
    401.)
    The majority apparently does place reliance on its inability
    to identify within the photographic exhibits the nails and lumber
    testified to by Mr. Alexander.
    It is, in fact, customary for the
    complainant in an administrative citation action before the Board
    to present photographic evidence as part of its case—in—chief.
    The majority fails, however,
    to distinguish what is customary
    from what is necessary.
    It is ~
    necessary that the photos show
    anything particular, or that there even be photos, to sustain a
    determination of violation j~there is clear,
    independent
    —2—
    evidence that the violation occurred.
    Here our clear,
    independent evidence is Mr. Alexander’s testimony.
    Even respondent Norman Clark, when first questioned about
    the burning of construction wastes, equivocates about so doing:
    Q:
    You never burnt any dimensional lumber?
    A:
    Not on purpose.
    (Tr. at 31.)
    Finally,
    it is compelling that the hearing officer, who
    personally heard and observed both Mr. Alexander’s and Mr.
    Clark’s testimony,
    should explicitly question Mr. Clark’s
    credibility on the open burning issue.
    (Tr. at 53-54.)
    It is
    indeed unusual that a hearing officer feels compelled to question
    the credibility of any witness.
    That it was done here, and here
    only on the open burning issue, removes from our minds any doubt
    whatsoever that the Board should have sustained the open burning
    count.
    We agree with the majority’s findings that a violation has
    not been demonstrated with respect to the second count, that of
    causing or allowing open dumping that resulted in litter.
    For these reasons, we dissent.
    1)
    C
    1koi~ald~C.Flemal
    Board Member
    J. T~od~reNe~er
    Board\’Member
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify that the above d,issenting opinion was
    submitted on the
    ~
    day of
    ____________________,
    1994.
    /~
    Dorothy H.
    G34~n,Clerk
    Illinois Pollution Control Board

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