ILLINOIS POLLUTION CONTROL BOARD

May 5,

1994

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Petitioner,

)

v.

)

AC 92—86

)

(IEPA No.

658—92-AC)

)

(Administrative Citation)

AL

SEAMAN,

)

Respondent.

MR. JAMES G. RICHARDSON APPEARED ON BEHALF OF THE ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY.

MR. AL

SEAMAN

APPEARED PRO SE.

OPINION

AND

ORDER OF THE BOARD

(by M. McFawn):

This matter is before the Board pursuant to a petition for

review of an administrative citation timely filed by the

respondent, Al Seaman, on January 11,

1993.

The respondent

requested review of an administrative citation filed by the

Illinois Environmental Protection Agency

(Agency)

on December 10,

1992.

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 on January 21,

1993, and set the matter for

hearing.

Hearing was held before Hearing Officer E. Liebermann

April 26,

1993,

in Rockford, Illinois.

No post-hearing briefs

were filed in this matter.

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

finds that Al Seaman did not violate Section 21(p) (1).

FACTS

Al Seaman leases a barn located at 7445 Stephens Road in

Rockton, Winnebago County

(Tr. at 12-13).

The property upon

which the barn is located is owned by a Mrs. Zella Mayer.

(Tr.

at 12.)

The facility is commonly known to the Agency as the

Rockton/Mayer Property.

(Complaint at 1.)

The administrative

citation only names Mr. Seaman as the respondent and alleges that

he violated Section 21(p) (1) by causing or allowing the open

dumping of used tires inside the barn in a manner which resulted

in litter.

---

2

As to the number of tires in the barn, Katherine L. Geyer,

the Agency’s Environmental Protection Analyst who inspected the

property, testified at hearing that she estimated 7000 to 8000

tires total.

(Tr. at

9..)

Seaman testified there are at least

4500 tires on rims and many others without rims,

and that the

total number of tires was approximately 6000 to 6500 tires.

(Tr.

at 19.)

Seaman further testified that the tires are piled on top

of “mounds of hay”

(Tr. at 30-31)

and that the tires had been

collected in the barn since 1988 or 1989

(Tr. at 31—32).

The Agency first inspected the site on April 22,

1992

(Tr.

at 24) and on July 22,

1992, notified respondent of possible

violations of the Environmental Protection Act

(Tr. at 25; Pet.

Exh.1 at 8-22 (Enforcement Warning Notice)).

Seaman was advised

that the accumulation of tires in the barn constituted violations

of the used tire provisions of the Act.

(Pet.

Exh.1 at 8-22.)

Specifically, the Agency notified Seaman that the improper

storage of used or waste tires at a disposal site without the

proper permit were violative of the Board’s used tire storage

regulations and the Act.

The Agency further advised Seaman that

he was in violation of Section 21(p) (1)

of the Act for causing or

allowing open dumping of litter.

(~~)

Upon receipt of the

notification, the respondent and the Agency entered negotiations

to reach a “tire removal” agreement, provided for pursuant to

Section 55.3

of the Used Tires Act; however, for a variety of

reasons agreement was never reached.

(Tr. 25—27.)

The Agency reinspected the site on October 15,

1992,

and

found the site in a substantially similar state and advised

Seaman that the violation still existed.

(Tr. at 7.)

The Agency

found no evidence in its files that Mr. Seaman had provided

receipts to the Agency showing that any of the tires had left the

barn and were going to a permitted disposal site.

(Tr. at 20 and

27.)

Subsequent to the October site-visit,

the Agency issued the

administrative citation which is the subject of this appeal.

No

related action has been brought before the Board for violations

of the used tire provisions of the Act at Title XIV.

The Board

has no knowledge of whether any enforcement action has been

brought in circuit court regarding any such violations.

APPLICABLE LAW

Section 21(p) (1)

of the Act provides,

in part,

that:

No person shall;

p.

In violation of subdivision

(a)

of this

Section, 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

*

*

*

(415 ILCS 5/21(p) (1).)

Section 3.24 of the Act provides,

in

pertinent part, that “open dumping” means 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)

The Board has adopted the definition of “litter” contained

in the Litter Control Act

•

.

.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

St. Clair CountY v. Nund,

(August 22,

1991)

AC 90—64,

125 PCB 381.

DISCUSSION

In determining a Section 21(p)(1) violation of this case,

the Board must decide whether Seaman’s actions of stockpiling

thousands of used tires in a barn constitutes “open dumping”

which resulted in litter.

The burden of proving such a violation

rests upon the Agency to demonstrate that a violation of Section

21(p) (1) took place on the day of inspection.

(IEPA v. Lakewood

Homes

& DeveloPment Co.,

Inc..

(March 25,

1993) AC 92-41,

____

PCB

____.)

If the Agency fails to prove the case,

no citation

shall issue.

Based on the testimony elicited at hearing and the

photographs submitted as part of the investigator’s report

(Pet.

Exh.

1), the barn appears to be in a dilapidated condition.

It

has holes

in the roof

(Tr. at 8), doors and windows are missing

~

and sections of the walls are missing (Inspection Report

at 4).

At hearing, Geyer’s testimony indicated that where the

windows and doors are missing, there is nothing protecting the

inside from the outside elements.

(Tr. at 8.)

Geyer also

testified that the tires were close enough to the openings in the

wall to be exposed to the elements,

i.e., rain and snow.

(Tr. at

---

4

10.)

Thereafter, Geyer testified that she cited Seaman for a

violation of the litter provision of Section 21(p)

based on these

observations, and that her working definition of “litter” is

“anything that has been discarded or has been improperly disposed

of”, this definition having come from the Illinois Revised

Statutes and a recent Board opinion.

(Tr.

10-11.)

DECISION

The Fifth District Appellate Court in Illinois Environmental

Protection Agency v.

Illinois Pollution Control Board (5th Dist.

1991),

219 Ill. App.3d 975,

579 N.E.2d 1215,

162 Ill.Dec.

401,

in

reviewing an administrative citation articulated the test for

determining whether “open dumping” has occurred.

Relying on the

definition of “open dumping” from the Act, the Court found that

“open dumping” happens not when refuse is consolidated at the

point of demolition “but when it is consolidated at a

disposal

site that does not fulfill sanitary landfill requirements.”

(Id.,

at 162 Ill.Dec. 401,

403.)

On that premise, the court held

that there must be “disposal”, which is defined in the Act as

the discharge, deposit,

injection,

dumping,

spilling, leaking or placing of any waste

*~

into

or on any land or water

***

so that such waste

***

maY enter the environment or be emitted into the

air or discharged into any waters,

including

ground waters.”

(Emphasis added)

(415 ILCS 5/3.08)

Here we find no such disposal.

The Agency must demonstrate

how the placement of the used tires in a barn could result in

waste entering the environment.

The evidence presented at

hearing and summarized above does not demonstrate that fact. The

Agency has charged only that the used tires in this case resulted

in litter.

Yet, the Agency has failed to provide evidence

demonstrating how this waste constitutes litter.

The Agency’s

reliance on a single phrase contained within the definition of

“litter” as “anything improperly disposed of”

is not sufficient

to demonstrate that the used tires were disposed, rather than

improperly stored.

Therefore, the Board will dismiss the

allegation charged against Mr. Seaman in the administrative

citation.

In so doing,

we note that our finding

is based on the

record in this case,

and is not to say that the same or similar

facts would not be cognizable as violations under other

provisions of the Act, such as Section 21(p) (5)

or Title XIV:

Used Tires.

---

5

ORDER

The administrative citation, IEPA No.

658—92-AC,

issued to

Al Seaman is hereby dismissed.

IT IS SO ORDERED.

C.

A. Manning dissented.

G. Tanner Girard concurred.

I, Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby cer~~ythat the above opinion and order was

adopted on the

5~-~--day of

__________________,

1994,

by a

vote of

.5—I

Dorothy N.

Illinois

Control Board