ILLINOIS POLLUTION
CONTROL
BOARD
March 16,
1995
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
AC 94—73
V.
)
(IEPA No. 415—94-AC)
(Administrative Citation)
STACY B. HESS,
)
)
Respondent.
MELANIE A. JARVIS, ASSISTANT COUNSEL, APPEARED ON BEHALF OF THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY;
STACY B. HESS
APPEARED
PRO SE.
INTERIM OPINION
AND
ORDER OF THE BOARD
(by R.C. Flemal):
This matter is before the Board pursuant to a petition for
review of an administrative citation timely filed by respondent,
Stacy B. Hess,
on September 16,
1994.
Respondent requested
review of an administrative citation issued by the Illinois
Environmental Protection Agency (Agency) on August 16,
1994 and
filed with the Board on August 18,
1994.
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) (1992).)
The Board accepted the petition for
review on October
6,
1994 and set the case for hearing.
Hearing
was
held before Hearing Officer Deborah Frank on January 26,
1994
in Washington,
Illinois.
No post-hearing briefs were filed.
The 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 if the Board finds that such a
violation occurred.
For the reasons set forth below, the Board
affirms the finding of the Agency that respondent, Stacy B. Hess,
has violated Section 21(p) (1).
The Board finds respondent liable
for $500 and any associated hearing costs incurred by the Agency
and the Board.
FACTS
Stacy B. Hess is the present owner and operator of the site
in question, located in the County of Tazwell.
(Tr. at 7.)
The
site is commonly known to the Agency as the Washington/Hess
Property (Complaint at
1) and was previously a used
car/truck/tire/tractor junkyard
(Tr. at 8 and 29).
The site does
not have an Agency Operating Permit and is designated by Site
Code No.
1798180017.
(Complaint at 1.)
The administrative
2
citation alleges that Mr. Hess violated Section 21(p)(1) of the
Act by causing or allowing open dumping in a manner which
resulted in litter.
The administrative citation is based upon a June 20,
1994
inspection of the site by Robert Eugene Figge.
Mr. Figge is
employed by the Agency primarily as a field inspector.
(Tr. at
6.)
Mr. Figge also inspected the site on two prior occasions,
May 9,
1990 and September 29,
1992’.
According to Mr. Figge there were approximately three
thousand tires on the site during his 1990 inspection.
(Tr. at
8.)
As a result of that inspection,
on June 13, 1990 the Agency
sent an Administrative Warning Notice to Mr. Hess.
(Tr. at 9
-
10;
Pet. Exhibit 1.)
Mr. Hess replied on July 11,
1990 and
listed the actions he intended to undertake to remove the tires.
(Tr. at 10; Pet.
Exhibit 2).
Between 1990 and 1992 Mr. Hess transported most of the tires
to the Archer Daniels Midland facility in Decatur to burn as tire
derived fuel.
(Tr. at 8.)
Approximately fifteen hundred tires
remained at the site at the time of the September 29,
1992
inspection.
(Tr. at 9.)
Thereafter, on October 27,
1992 the
Agency sent Mr. Hess an Enforcement Warning Notice alleging
apparent violations of Section 21(a),
21(d), 21(p),
55(a),
55(c),
55(d),
and 55.6(b)
of the Act, and 35 Ill. Adm. Code 848.202(b)
and 848 .202 (c).
(Pet.
Exhibit 3.)
The Agency received Mr.
Hess’s response dated November 9,
1992 which included
documentation of tire disposal, general questions about the
enforcement notice proceeding and responses Mr. Hess claimed to
have previously sent to the Agency.
(Tr. at 12;
Pet. Exhibit 4.)
Mr. Figge testified that he had not seen the attached letters
(dated February 17,
1992 and July 11,
1990) prior to receiving
Mr. Hess’s November 23, 1992 initial response.
(Tr. at 12.)
The
Agency replied on December 8,
1992 and requested a more specific
timetable for tire removal, and informed Mr. Hess that “while
tires on rim are not addressed under Part 848 of the Regulations
or Section 55 of the Act they are still considered a solid waste
as per Section 21(p) of the Act”.
(Pet. Exhibit
5.)
The Agency
and Mr. Hess continued correspondence until the June 20,
1994
inspection.
(Tr. at 13
-
14.)
1
During the hearing
(Pr. at 11), Mr. Figge refers to his
second inspection of the site as occurring on June 29,
1990 and
June 29,
1992.
The Board assumes he is referring to the
September 29,
1992 inspection because there is no documentation
of any inspection occurring at the site on June 29, 1990 or June
29,
1992.
3
The administrative citation at issue is a result of the
third and final inspection conducted by Mr.
Figge.
At hearing
Mr. Figge testified that no substantial change had taken place at
the site between the 1992 and 1994 inspections.
(Tr. at 9; see
also Tr.
at 15.)
According to the narrative attached to the
administrative citation, and as supported by the twelve
photographs taken during the June 20,
1994 inspection of the
site,
approximately fifteen hundred tires remained scattered
around the property.
The majority of the tires were tractor
tires on the rim.
(Narrative at 1.)
Mr. Hess testified to many reasons why the site was in the
condition it was:
he was doing the best he could to remove the
tires
(Tr. at 30), 1993 was one of the wettest years on record
and the tires are located on low land (Tr. at 30; Pet.
for
Review), he planned to ask for an extension to remove the tires
(Tr. at 30; Pet. for Review), his full-time job required him to
work twelve to eighteen hours seven days a week since June,
1994
(Tr. at 30—31), he has had to farm seven hundred acres of corn
and soybeans (Pet.
for Review), and he inherited the problem
because the tires were on the property when he bought it.
(Tr.
at 36; Pet.
for Review).
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 ordering which imposes no
penalty.
(415 ILCS 5/31.l(d)(2)
(1992).)
The administrative citation issued against Mr. Hess alleges
that Section 21(p)
subsection
(1) of the Act was violated.
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).)
4
Section 21(a)
of the Act sets forth a general prohibition
against open dumping by providing that “no
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.
(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.
(Ill. Rev. Stat. 1990 supp., ch.
38, par.
86.3) (415 ILCS
105/3.)
Mr. Hess was the owner of the property at the time of the
June 20,
1994 inspection at issue in this administrative
citation.
It is irrelevant that he was not the owner of the
property when the Agency initially began its investigations in
1990.
The twelve photographs taken by Mr. Figge during the June
20,
1994 inspection reveal many tires on and off the rim.
(Tr.
at 16—22;
Site Photographs 1-12.)
Mr. Hess offered no testimony
or evidence to contradict the accuracy of Mr. Figge’s photographs
or interpretation of the site.
At hearing Mr. Hess admitted that
approximately fifteen hundred tires were on the site
(Tr. at 37)
during the June 20,
1994 inspection.
However, throughout the hearing and during correspondence
with the Agency, Mr. Hess argues that the tires on site are not
5
in violation because the majority of the tires are on the rim.
Mr. Hess cites to the Used Tires provisions of the Act (415 ILCS
5/53
(1992))
for the definition of “used tire” and “tire storage
site”,
as well as for legislative intent.
(Tr. at 34
-
36.)
In
contrast to these Sections of the Act, the administrative
citation at issue does not allege violations of the Used Tires
provisions of the Act.
It alleges violations of Section 21(p)
of
the Act, open dumping resulting in litter.
At hearing Melanie
Jarvis asked Mr. Hess whether he knew he was cited “under the
litter section of the Act, 21(p), and not under the disposal of
tires?” to which Mr. Hess replied in the affirmative.
(Tr. at
41.)
Ms. Jarvis clearly testified that the Agency had filed a
complaint of a Violation of Section 21(p)
of the Act.
(Pr. at
45—46.)
The Agency did not allege a violation of the Used Tires
provisions of the Act and was under no obligation to do so under
these circumstances.
The tires are litter alleged to be in
violation of 21(p).
This is not an issue of first impression
before the Board.
Used tires have been found to be litter in
violation of Section 21(p) (1)2 in five previous Board opinions:
IEPA v
Sickles,
(September 17,
1992) AC 92—47,
136 PCB 83; IEPA
v.
Sickles,
(July 30,
1992) AC 92—47,
135 PCB 223; IEPA v.
Hillebrenner,
(May 21,
1992) AC 92—16,
133 PCB 559; IEPA
V.
Loveless,
(August 13,
1992) AC 91—31,
135 PCB 367; and
IEPA
v.
Sprincrman,
(May 9,
1991) AC 90—79,
122 PCB 147.
In iillebrenner,
the litter included 500 tires in a ravine on rural property.
(Hillebrenner, 133 PCB 559.)
In Sorinaman, a portion of the
litter was an uncovered tire pile.
(Sorinaman,
125 PCB 151.)
In
Loveless, Hammond, and Sickles, used tires were merely among the
litter found “open-dumped” on the site during inspection.
(Loveless,
135 PCB 371; Hammond, Slip Op. at 2; and Sickles,
135
PCB 223 and 136 PCB 83.)
In Hammond infra, the Board affirmed
the Agency’s issuance of an administrative citation for “open
dumping” of used tires and other various types of waste at a
junkyard.
The tires at the site were rimmed and unrimmed, and
located without cover in haphazard piles around the property.
(See generally, Hammond,
Slip op. at 2.)
The Agency is not prohibited from alleging used tires on a
site are waste resulting in litter in violation of Section 21(p)
simply because there exists another provision in the Act which
addresses used tires
((415 ILCS 5/53
(1992)).
The Agency clearly
choose to file an administrative citation alleging violations of
Section 21(p) of the Act and to identify the discarded used tires
as litter in that citation.
2
Section 21(p) (1) was formerly codified as Section 21(q) (1)
and therefore
a
number
of the cases
are brought under Section
21(q)(1).
6
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)
of the Act.
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)
(1992).)
In the Board’s final order in this case,
respondent will be
ordered to pay a civil penalty of $500 based on the violation 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, Stacy B.
Hess,
is hereby found to have
violated 415 ILCS 5/21(p) (1)
(1992) on June 20,
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, Mr. Stacy Hess, 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, Mr. Stacy Hess.
7
3.
Respondent,
Mr. Stacy Hess,
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.
Board Member
3.
Yi concurred.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify ~j~t the above interim opinion and order
was adopted on the
/&~ day of
~?7~
~
,
1995, by a
vote of
7—ô
Dorothy M. ,ç~unn, Clerk
Illinois Pollution Control Board