ILLINOIS POLLUTION CONTROL BOARD
    December 1,
    1994
    COUNTY OF DUPAGE,
    )
    Complainant,
    V.
    )
    AC 94—92
    (Administrative Citation)
    WASTE MANAGEMENT OF ILLINOIS,
    )
    Respondent.
    ORDER OF THE BOARD:
    (C.
    A.
    Manning)
    This matter comes before the Board on the October 11,
    1994
    filing of an administrative citation by the County of DuPage
    (County) against Waste Management of Illinois
    (WMII)
    for its
    facility know as the Greene Valley Landfill.
    On October 21,
    1994, WMII filed a motion to dismiss the County’s administrative
    citation or alternatively grant review of the administrative
    citation.
    The County filed a response to the motion to dismiss
    on November 3,
    1994.
    On August 10,
    1994, an inspection of the facility was done
    by Dean Olson,
    a County inspector, and Warren Weritz an Illinois
    Environmental Protection Agency (Agency)
    inspector.
    Based on the
    County inspector’s direct observations of that day the County
    alleges that
    WNII,
    the present operator of the facility, violated
    Sections 21(o) (7) and
    (0)
    (10) of the Environmental Protection Act
    (Act).
    (415 ILCS 5/21(0) (7) and (o)(10)
    (1992).)
    Section
    21(o) (7)
    of the Act prohibits landfill owners or operators from
    accepting waste without the necessary permits and Section
    21(o) (10) prohibits acceptance of special waste without the
    required manifests.
    The County specifically alleges that the observed waste was
    generated at the Sportsman’s Park Gun Club
    (Gun Club)
    and on the
    same day of the inspection both the County and the Agency took
    grab samples of the waste at the Gun Club.
    The grab samples
    taken by the County were analyzed by First Environmental
    Laboratory Inc. on August 11,
    1994 and they determined that the
    waste was of a non—hazardous nature.
    Additionally the grab
    samples taken by the Agency were tested at its laboratory and
    also were found to be non—hazardous.
    However, on August 25,
    1994
    the County contacted the Agency and requested the regulatory
    status of soil containing lead shot and broken clay bricks.
    The
    Agency responded that the soil would be considered special waste.
    On October 5,
    1994 the County states it served WMII with notice
    of the administrative citation for violating the above named
    sections of the Act.
    2
    On October 21,
    1994, WMII filed a motion to dismiss the
    administrative citation.
    WMII argues that the administrative
    citation does not “...provide the necessary support for the bare
    allegation of
    ‘special waste’.”
    (Not.
    at 2.)1
    Also, WMII argues
    that the County failed to follow the delegation agreement between
    the Agency and itself and that therefore the administrative
    citation is void.
    Finally,
    WMII
    argues that the administrative
    citation was not based on direct observation as required by
    Section 31.1(b)
    of the Act.
    (415 ILCS 5/31.1(b)
    (1992).)
    WNII
    argues that because the waste in question was accepted at the
    landfill several days before the inspection of August 10,
    1994,
    the County lacks the authority to issue the administrative
    citation based on that inspection.
    In arguing against the motion to dismiss the County cites
    to the Illinois court precedent that
    “..
    .all well-pleaded facts
    are taken as true and all reasonable inferences which can be
    drawn from them should be construed in the favor of the
    nonmovant” and that applying this standard here the motion to
    dismiss should be denied.
    Geick v.
    Kay,
    236 Ill.App.3d 868,
    603
    N.E.2d
    121,
    125
    (2nd Dist.
    1992)
    and Meerbrey v. Marshall Field
    &
    Q~,
    144 Ill.
    2d 535,
    582 N.E.2d 108,
    Ill
    (1991).
    (Res.
    at 1.)
    Additionally, the County states that the administrative citation
    is sufficiently pled and that the arguments raised by WMII are
    appropriate for hearing.
    As to the alleged failure to follow the
    conditions of the delegation agreement, the County argues that
    there is nothing contained in the Act that would cause this
    administrative citation to be void.
    Finally, the County argues
    that it would be impossible to conduct the necessary testing of
    the waste at the site on the day of the inspection in order to
    find these violations through direct observation as suggested by
    WMII.
    Therefore the County concludes that
    WMII “...is imposing a
    set of criteria on complainants which simply does not exist and,
    certainly does not render the administrative citation void.”
    (Res.
    at 4.)
    For the following reasons the Board denies the motion to
    dismiss.
    The pleading is sufficient.
    Since the Board’s
    procedural rules do not set forth relevant standards for motions
    to dismiss, we will determine the instant motion by the same
    principles applied to Illinois Code of Civil Procedure 2-615 and
    2—619 motions to strike or dismiss.
    (735 ILCS 5/2—615 and
    5/2-619.)
    As stated by the County all well-pleaded allegations
    in the complaint are to be taken as true (Import Sales v.
    Continental Bearings,
    (1st Dist.
    1991)
    217 Ill.App.3d 893, 577
    NE.2d
    1205,
    160 I11.Dec.
    634,
    639)
    and a complaint should not be
    dismissed unless it clearly appears that no set of facts could be
    1The motion to dismiss filed by WMII will be referenced
    as
    “Mot.
    at
    “
    and the County response will be referenced as “Res. at
    ‘,
    3
    proven that would entitle a plaintiff to relief (Callaizakis v.
    Astor Development Co.,
    (1st Dist.
    1972)
    4 Ill.App.3d 163,
    280
    N.E.2d 512).
    Based upon these and normal practice standards
    before the Board the complaint is sufficiently pled.
    As to WMII second argument regarding the issue concerning
    the County’s alleged failure to specifically follow its
    delegation agreement,
    there is no Section of the Act or Board
    procedural rules that would void an otherwise properly issued
    administrative citation if a condition of the delegation
    agreement between the unit of local government and the Agency is
    not met.
    While the parties may desire to further brief this
    issue during the course of the proceeding,
    the Board will not
    dismiss this administrative citation at this point.
    Finally, the issue of whether the complaint needs to be
    based on direct observation of the alleged violation has been
    settled in prior Board cases.
    In Sanciamon County v. Lee Hsueh,
    (July
    1,
    1993), AC 92-79, the Board found that inspectors are not
    required by statute to directly observe the violation, such as
    open burning,
    in order to file an administrative citation for
    that violation.
    The Board stated that the Act instead requires
    direct observations to support the finding of a violation of the
    Act.
    In this matter the County inspector will have to show
    through direct observation on August
    10,
    1994,
    that WMII had
    accepted waste that was special waste without having the proper
    permits and manifests.
    Therefore, we deny the motion to dismiss
    and accept WMII’s petition for review.
    This matter will
    therefore proceed to hearing.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board,, hereby cert,4~f?Tthat the above order was adopted on~he
    ~~‘2~-’~
    day of
    ~
    ,
    1994, by a vote of
    /
    —
    ~
    Control Board

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