ILLINOIS POLLUTION CONTROL BOARD
July
1,
1993
SANGAMON
COUNTY
DEPARTMENT OF
)
PUBLIC
HEALTH,
)
Complainant,
AC
92—79
v.
)
DocketA&B
)
(Administrative
Citation)
LEE HSUEH
(SPRINGFIELD/HSUEH)
)
(SCDPH-92-AC-20)
Respondent.
MR. ROBERT SMITH, ASSISTANT STATE’S ATTORNEY, APPEARED ON BEHALF
OF COMPLAINANT;
MR.
LEE HSUEH APPEARED PRO SE.
OPINION
AND
ORDER OF THE BOARD
(by B. Forcade):
This matter comes to the Board on an Administrative Citation
filed by the Sangamon County Department of Public Health
(County)
pursuant to the Illinois Environmental Protection Act
(Act)
(415
ILCS 5/1 et.
seq.).
The citation was filed on November 12,
1992,
and alleges that respondent,
Lee Hsueh, the owner of property in
Sangamon County violated Sections 21(p)(1) and 21(p)(3)
of the
Act by causing or allowing open dumping of wastes that resulted
in litter and open burning.
Mr. Hsueh filed a petition for review with the Board on
December 14,
1992.
Hearing was held February 8,
1993 in
Springfield,
Illinois.
Members
of the public attended the
hearing.
No briefs were filed in this matter.
BACKGROUND
On October 29,
1992,
Jerry Ferguson, Waste Management
Specialist with the Sangamon County Department of Public Health,
inspected Mr. Hsueh’s property located on West Jefferson Street
in Springfield,
Illinois.
The property is a heavily wooded area
on a sharp,
steep hill with
a
lot of weed growth.
(Tr. at 23.)
The property consists of 6.5 acres located behind some apartment
buildings.
(Tr.
at 117.)
Upon inspecting the property,
Mr. Ferguson observed two
deteriorating car batteries.
(Tr.
at 14,
Exh.
5.)
He also
observed materials piled on the ground among ashes and other
burnt debris consisting of roofing shingles, some bed springs and
some metal strapping.
(Tr.
at 14,
Exh.
5.)
In several others
spots,
Mr. Ferguson noticed piles of debris including paint cans,
a buried 55 gallon drum,
lumber, aluminum scraps and roofing
shingles.
(Tr.
at
15,
Exh.
6
& 7.)
He also observed unlicensed,
2
inoperable vehicles on the property.
(Tr. at 16, Exh.
8.)
Mr.
Ferguson did not observe anyone burning any materials.
(Tr. at
32.)
The inspection was in response to an investigation that was
forwarded to the County from the Illinois Environmental
Protection Agency
(Agency).
(Tr. at 11.)
The Agency issued an
Administrative Warning Notice to Mr. Hsueh in April of 1991.
(Tr.
at 11,
Exh.
3.)
This notice instructed Mr. Hsueh to clean up his
property before May 28,
1991.
(Tr. at 11,
Exh.
3.)
Mr. Hsueh
denies receiving the Administrative Warning Notice but admits he
did receive a letter from the Agency requiring him to clean up
the area.
(Tr. at 112.)
In response to this letter, Mr. Hsueh
hired a tenant to remove debris from the area in April of 1991.
(Tr. at 102.)
The tenant removed several truckloads of debris
from the property in April of 1991.
(Tr. at 102.)
Mr. Hsueh does not contest that the items shown in the
photos were on his property at the time of the inspection.
(Tr.
at 113.)
However,
he notes that the weeds grow to over five feet
tall making
it difficult to see any debris.
(Tr. at 78.)
Ava
Pellizzari,
a tenant of Mr.
Hsueh, testified that the pile of
burned material has been on the property for at least four years.
(Tr. at 85.)
Mr. Hsueh introduced a series of photographs taken
on January 24,
1993,
to show that his property was cleaned up
after receiving the citation.
(Tr.
at 94,
Exh. 10 thru 30.)
In
December of 1992,
Mr. Hsueh wrote to the County,
informing them
that he had cleaned up the property and requesting reinspection
to see if any additional work was needed.
(Tr. at 34, Exh.
9.)
Mr. Hsueh argues that he cannot have the unlicensed vehicles
towed away because he
is not the owner of the vehicles.
(Tr.
at
28.)
Mr. Hsueh argues that he cooperated with the Agency and
cleaned up the property when he was first warned of the problem.
in 1991.
(Tr.
at 117.)
He maintains that the remaining debris
is
very little compared to what was hauled away in 1991.
(Tr.
at
117.)
He contends that due to the incline on the property it is
difficult to remove debris from the area.
He also notes that due
to the size of the property and the growth of vegetation in the
area,
it is difficult to see the debris.
(Tr. at 117.)
Mr. Hsueh
also notes that the items are not his and he did not dump them at
the site.
(Tr.
at 117.)
He believes that some of the
items have
been there for many years.
(Tr.
at 117.)
He further argues that
the County did not consider the history of the site before
issuing the citation.
Mr. Hsueh notes that he had contacted the
Agency to reinspect the property.
(Tr. at 117.)
He also notes
that he assumed the clean up was satisfactory because he did not
hear otherwise from the Agency.
(Tr.
at 117.)
3
DISCUSSION
Mr. Hsueh argues that he has cleaned up the property
subsequent to the issuance of the citation.
However, the Board
has previously held that post-citation activities of the citation
recipient are not material to the Board’s review pursuant to
Section 31.1(d) (2)
of the Act.
(In the matter of:
Lincoln
Chamber of Commerce
(May 25,
1989), AC 89-26.)
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
Wrictht
(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 Grubaucrh (October
16,
1992), AC
92-3.)
The issue before the Board is whether the property on the
date of the inspection shows a violation of the Act.
Section 31.1 of the Act provides that the prohibitions
specified in “Section 21 of this Act shall be enforceable either
by administrative citation under this Section or as otherwise
provided in this Act.”
Section 21(o)
of the Act applies to
sanitary landfills permitted under the Act while Section 21(p)
applies to all dump sites.
The administrative citation issued
against Mr.
Hsueh alleges violation of subsection
(1) and
(3)
of
Section 21(p).
Section 21(p)
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;
3.
open burning;
Section 21(a)
of the Act sets forth a general prohibition against
open dumping by providing that “njo
person shall cause or allow
the open dumping of any waste.”
These sections of the Act establish 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 unless,
“.
.
.the person appealing the citation has shown that the
violation resulted from uncontrollable circumstances.”
(Section
31.1(d) (2)
of the Act.)
Therefore, the initial inquiry in this
4
case is whether Mr. Hsueh’s conduct constitutes causing or
allowing “open dumping.”
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.”
Section 3.31 of the Act defines “refuse” as “waste.”
Section 3.53 defines “waste” as,
inter alia,
“garbage
...
or
other discarded material...
•It
The photos of the site taken by, Mr. Ferguson clearly show
the consolidation of refuse.
The photos show piles of waste on
the property.
Mr. Hsueh admits that refuse was present on the
property at time of the inspection.
The Board must next determine if the record supports a
conclusion that the open dumping resulted in litter.
In ~
Clair County v.
Arthur Fields
(August 22,
1991), AC 90-64,
the
Board adopted the definition of litter as found in the Litter
Control Act.
(415 ILCS 105/3
(1992).)
The Litter Control Act
defines litter as:
any discarded used or unconsumed substance or waste.
“Litter” may include but is not limited to, any
garbage, trash, refuse, debris, rubbish, grass
clippings,
.
.
.abandoned vehicle.
(u.)
The pictures of the site clearly show litter in several
locations on the property.
The litter is comprised of discarded
materials including roofing materials,
lumber, and other
miscellaneous items.
Having found that open dumping resulting in litter occurred
at the site, the Board must determine whether Mr. Hsueh “caused
or allowed” the open dumping.
Mr Hsueh contends that he did not
dump the material or allow anyone else to dump material at the
site.
However, the Board has previously held that “allow”
includes present inaction on the part of the landowner .to remedy
a previously caused violation.
(EPA v. Robert Wheeler (January
10,
1991),
AC 90-42; EPA v. A.J. Welin (May 13,
1982), PCB 80—
125,
47 PCB 07.)
The Board has held that passive conduct amounts
to acquiescence sufficient to find a violation of Section 21(a)
of the Act.
(EPA
V.
Dobbeke et al.
(August 22,
1972),
PCB 72-130,
5 PCB 219.)
In Freeman Coal Mining Corp.
v.
IPCB
(3rd Dist.
1974),
21 Ill.
App.
3d 157,
313 N.E.2d 616, the court stated that
the Act
is malum prohibitum and no proof of guilty knowledge or
mens ~
is necessary for 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”
open
5
dumping in that the owner allows the illegal situation to
continue.
Based on the facts presented in this case and the legal
principles outlined by this Board and the Courts, we conclude
that Mr. Hsueh did “cause or allow” the open dumping described
in this proceeding which resulted in litter.
Therefore,
Mr. Lee
Hsueh has violated Section 21(p) (1)
of the Act.
The above violation is based on the presence of refuse and
the abandoned vehicles on Mr. Hsueh’s property.
However, the
Board notes that the presence of either refuse or the abandoned
vehicles would be sufficient to support a finding of violation.
Concerning the allegation of open burning, the operative
provision of the Act, Section 31.1(b), provides:
Whenever Agency personnel or personnel of a unit of
local government to which the Agency has delegated its
functions.
.
.
on the basis of direct observation,
determine that any person has violated any provision...
(415 ILCS 5/31.1(b).)
The statute by its terms does not require that the fire itself be
observed, but instead that direct observation support a
conclusion that fire occurred at the site.
Thus,
the Board has
found that the Act clearly allows the complainant to prevail on a
claim of open burning even where the inspector does not
specifically see the burning material or smoke during the
inspection.
(IEPA v.
Gordon
(February 7,
1991), AC 89-165.)
However, the County must make some showing that the burning did
occur at the facility issued the administrative citation.
(u.)
The question
is whether such a factual showing has been made in
this particular proceeding.
Based on the evidence presented, the Board concludes that
complainant has not demonstrated that open burning has occurred
on the respondent’s property.
While the photos taken during the
inspection clearly show burnt and charred materials there
is
nothing in the photo to indicate that the materials were burned
on site.
There
is no indication of burning on the surrounding
vegetation.
The vegetation is growing among the burnt debris.
Further,
Mr. Ferguson did not supply any testimony concerning his
observations to lead this Board to conclude that the material was
burned on site.
Mr. Ferguson did state that he could not
determine when the material had been burnt.
(Tr. at 32.)
The final question the Board must consider is whether Mr.
Hsueh has shcwn that the violation 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
6
finds, then no violation would be found and no penalty imposed.
(Section 31.1(d) (2)
of the Act).
The Board finds that Mr. Hsueh
has not presented any uncontrollable circumsta’~ces.
Mr. Hsueh argues that he is unable to remove the abandoned
vehicles from the property because a towing company will not tow
the vehicles away without the title.
(Tr. at 28.)
He asserts
that he has provided the County with the names of the owners of
the vehicles but the County has not taken any action against the
owners.
(Tr.
at 28.)
The Board finds that Mr. Hsueh has not proven his inability
to remove the vehicles
is an uncontrollable circumstance.
The
Board notes that Mr. Hsueh has not presented any documentary or
testimonial evidence to support his verbal assertion that he
cannot have the vehicles removed from his property.
In addition,
he has not identified if his efforts to remove the vehicles
occurred prior to or after the issuance of the administrative
citation.
The Board also notes that Mr. Hsueh did not present
any other actions that he pursued to remove the vehicles or
prevent them from being abandoned on his property.
The Board notes that the legislature specifically included
abandoned vehicles
in the definition of litter.
If Mr. Hsueh’s
assertion,
that title to the vehicle is required before this
Board can require removal of the vehicle in an administrative
citation proceeding,
is correct, the removal of abandoned
vehicles would be extremely hindered.
In a similar manner, Mr.
Hsueh cannot shift the burden of accomplishing clean up
activities to the government by providing them with the names and
phone numbers of purported owners of abandoned materials.
The difficulties that Mr. Hsueh encountered with the Agency
and the County do not amount to uncontrollable circumstances.
The provisions of the Act do not require that a warning be given
prior to issuing an administrative citation.
Also the difficulty
of removing debris from this site due to the incline and the
growth of vegetation does not present an uncontrollable
circumstance.
PENALTIES
Penalties in administrative citation actions of the type
here brought are proscribed by Section 42(b)(4)
of the Act,
to
wit:
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
7
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; except that if
a unit of local government issued the administrative
citation, 50
of the civil penalty shall be payable to
the unit of local government.
(415 ILCS 5/42(b) (4).)
Respondent will therefore be ordered to pay a civil penalty
of $500 based on the violation as herein found.
For purpose of
review, today’s action
(Docket A) constitutes the Board’s final
action on the matter of the civil penalty.
Respondent
is also required to pay hearing costs incurred by
the Board and the County.
The Clerk of the Board and the County
will therefore be ordered to each file a statement of costs,
supported by affidavit,
with the Board and with service upon Mr.
Hsueh.
The County
is also instructed to indicate to whom payment
of the hearing costs is to be directed.
(See San~amonCountY
v.
Gerald Miller (June
3,
1993), AC 92-37.)
Upon receipt and
subsequent to appropriate review, the Board will issue a separate
final order
in which the issue of costs is addressed.
Additionally, Docket B will be opened to treat all matters
pertinent to the issue of costs.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
The Board hereby finds that Lee Hsueh was in violation
Section 2l(p)(l)
of the Environmental Protection Act on
October 27,
1991 by causing or allowing open dumping
that resulted in litter on his property in Springfield,
Illinois.
2.
Lee Hsueh shall pay the sum of five hundred dollars
($500)
within 30 days of the date of this order.
Such
payment shall be made by certified check or money order
payable to:
James D.
Stone, Director
Sangarnon County Department of Public Health
200 South 9th Street
Springfield,
IL 62701
8
Lee Hsueh shall also write his Federal Employer
Identification Number or Social
SE~tcurityNumber on the
certified check or money order.
Any such penalty not paid within the time prescribed
shall incur interest at the rate set forth in
subsection
(a) of Section 1003 of the Illinois Income
Tax Act,
(35 ILCS 5/1003
(1992)),
as now or hereafter
amended,
from the date payment is due until the date
payment is received.
Interest shall not accrue during
the pendency of an appeal during which payment of the
penalty has been stayed.
3.
Docket A in this matter is hereby closed.
4.
Within 30 days of this order, the County shall file a
statement of its hearing costs,
supported by affidavit,
with the Board and with service upon Lee Hsueh.
Within
the same 30 days, the Clerk of the Pollution Control
Board shall file a statement of the Board’s costs,
supported by affidavit and with service upon Lee Hsueh.
Such filings shall be entered in Docket B of this
matter.
5.
Lee Hsueh is hereby given leave to file a
reply/objection to the filings as ordered in paragraph
4 of this order within 45 days of this order.
IT IS SO ORDERED.
J. Anderson concurred.
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1992))
provides for the appeal of final orders of the Board
within 35 days.
The Rules of the Supreme Court of Illinois
establish filing requirements.
(See also 35
Ill.
Adin. Code
101.246, Motions for Reconsideration.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certi2~that the abo~op4nion and order was
adopted on the
/“
day of
________
vote of
~‘-~
________
1993, by a
Dorothy N. ,G~fnn, Clerk
Illinois P6jlution Control Board