ILLINOIS POLLUTION CONTROL BOARD

March 25,

1993

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Complainant,

)

 AC 92—41

)

 (Docket A

&

B)

LAKEWOOD HOMES

&

)

 (IEPA No.

 260-92-AC)

DEVELOPMENT CO.,

 INC.

)

 (Administrative Citation)

Respondent.

TODD RETTIG

AND

GREG RICHARDSON APPEARED ON BEHALF OF THE

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY;

DOUGLAS

HANCOCK,

CALUWAERT,

 PANEGASSER, HANCOCK

 & SCHOUSEN

APPEARED ON BEHALF OF THE RESPONDENT.

OPINION

AND

ORDER OF THE BOARD

 (by B. Forcade):

This matter comes before the Board on a petition for review

of an administrative citation filed by the Illinois Environmental

Protection Agency

 (Agency) pursuant to the Environmental

Protection Act

 (Act).

 (415 ILCS 5/1001

~g.

 (1992).)1

The

citation was filed on May 26,

 1992 and alleges that respondent,

Lakewood Homes

 & Development Co,

 Inc.

 (Lakewood),

 as the owner of

property located in Northlake, has violated Section 21(p) (1)

of

the Act by causing or allowing open dumping of

 waste resulting in

litter on the property.

Lakewood filed a petition for review with the Board on June

29,

 1992.

 A hearing was held on October

1,

 1992,

 at which no

members of the public attended.

 The parties presented closing

arguments at hearing and no briefs were filed in this matter.

BACKGROUND

The property is a vacant lot, consisting of about two acres

of land, situated behind 5223 W. Lake St.

 (Tr.

 at 10.)

The

property is located in Northlake,

 Illinois.

 (Tr. at 10.)

The

property is bounded by a quick change oil service and Lake St. on

the south,

 another vacant lot on the west,

 a residential area on

the east and Hirsch Street to the north.

 (Tr. at 13.)

The administrative citation resulted from the inspection of

the property on March 31,

 1992,

 by Warren Weritz, Environmental

‘

 The Act was previously codified at Ill. Rev.

 Stat.

 1991,

ch.

 111 1/2 par.

1001

L~0-O273

2

Protection Specialist with the Agency.

 On the southeast corner

of the property, he observed a pile of landscape waste about 10

feet wide and 60 feet long.

 (Tr. at 14.)

 He testified that the

pile contained wood chips,

 brush weeds and some grass.

 (Tr. at

14.)

 Northwest of the landscape waste,

 Mr. Weritz noticed a pile

of bricks, wood panels and wood debris about 50 feet by 50 feet.

(Tr. at 15.)

 In the center of this pile was an old pick up

truck.

 (Tr.

 at 15,

 Comp.

 Exh.

3.)

 He described the condition of

the bricks as broken, weathered and some had moss growing on

them.

 (Tr. at 16.)

 He found the wood was also weathered and

other pieces of wood were in advanced stages of decomposition.

(Tr. at 16.)

 He testified that the truck was in a state of

disrepair and rusting.

 (Tr. at 16.)

 He further noted that

graffiti had been painted on the truck and trees were growing out

of the truck.

 (Tr. at 16.)

 Near the pile of bricks, he

discovered some wire cages that were twisted and rusting.

 (Tr. at

17.)

 Mr. Weritz also saw a pick up truck with a trailer

containing landscape waste on the property.

 (Tr.

 at 18.)

Complainant’s exhibit two shows a rusty storage tank on the

property.

 (Tr. at 25.)

Mr. Weritz described the material as being indiscriminately

dumped at the site and not protected from the elements.

 (Tr.

at

15,

17

&

 18.)

 Mr. Weritz did not observe anyone dumping waste on

the property and doesn’t know who dumped the materials at the

 site.

 (Tr. at 18

&

 35.)

 Mr. Weritz noted that there is no

fencing around the property except some to the east around some

of the neighboring residential properties.

 (Tr.

 at 19.)

Mr.

Weritz also testified that it

 is difficult to determine the exact

boundary of the west end of the property, which is adjacent to

another vacant lot.

 (Tr.

 at 19.)

 From a for sale sign on the

property, Mr. Weritz traced the property to Terrance

Tranchitella.

 (Tr. at 21.)

Mr. Tranchitella is president and sole stockholder of

Lakewood.

 (Tr. at 41.)

 He purchased the property in October of

1988.

 (Tr.

 at 41.)

 Mr. Tranchitella testified that the wire

cages,

 shown in complainant’s exhibit 1, are located on the

adjacent property.

 (Tr. at 44.)

 Mr. Tranchitella stated that the

storage tank, piles of bricks and pick up truck were on the

property when he purchased the property.

 (Tr. at 44

&

 45.)

As

for the landscape waste dumped on the property and the trailer of

landscape waste, Mr. Tranchitella reports that these resulted

from actions by a neighbor.

 (Tr. at 46.)

 Mr. Tranchitella

testified that the dumped landscape waste and the trailer have

subsequently been removed from the property.

 (Tr.

 at 47.)

DISCUSSION

The Act establishes that,

 in order to seek enforcement by

way of the administrative citation process for violations of

01 ~O-027k

3

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.”

 (415 ILCS 5/31.1(d) (2)

 (1992).)

The administrative citation issued against Lakewood alleges

violation of subsection

(1)

 of Section 21(p)

 of the Act.

 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;

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 defines “waste” as,

 inter alia,

 “garbage

...

 or other

discarded material, resulting from industrial, commercial, mining

and agricultural operations

“

 (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

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.)

Mr. Tranchitella claims that the wire cages are located on

the adjacent property.

 From the evidence presented the Board is

unable to determine the exact location of the property boundaries

or the location of the wire cages in respect to the property

line.

 Therefore,

 the Board makes no finding concerning the wire

cages.

01 L~Q-U275

4

Mr. Tranchitella admits that he is the owner of the property

inspected by Mr. Weritz on March 31,

 1992.

 He further admits

that the bricks, truck, wood,

 storage tank and landscape waste

were on his property at the time of the inspection.

The Board finds that open dumping of waste occurred on the

property that resulted in litter.

 The items observed on the

property are discarded materials constituting litter.

Mr. Tranchitella contends that because the landscape waste

has been removed from the property after the administrative

citation was issued there is no violation of the Act.

 The Board

has previously held that removal of the litter after the issuance

of an administrative citation does not

 negate a violation.

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 Wright (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 Grubaugh (October 16,

 1992), AC

92—3, ____PCB

Mr. Tranchitella argues that there is no violation since the

debris was located on the property when he purchased the property

and he did not place the debris on the property.

 Therefore he

contends that he has not caused or allowed litter in violation of

the Act.

 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 Core.

 IPCB

 (3rd Dist.

 1974),

21 Ill. App. 3d 157, 313 N.E.2d 616, the court stated that the

Act is malum prohibituin 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” litter in

that the owner allows the illegal situation to continue.

The presence of the litter on the site and the failure by

the owner to take action is sufficient to find a violation of the

“allow” language of Section 21 of the Act.

 The Board finds that

Lakewood allowed litter on the property in violation of the Act.

Having found a violation, the Board must consider whether

 Lakewood has shown that the violation resulted from

uncontrollable circumstances.

 This is the only showing of

mitigating circumstances provided in the statute that allows the

Board to excuse any violation.

 If the Board so finds, then no

violation would be found and no penalty imposed.

 (see 415 ILCS

U

 ~o-0276

5

5/31.1(d) (2)

 (1992).)

The evidence indicates that Mr. Tranchitella failed to take

any action to control the dumping of refuse on his property.

At

the time that Mr. Tranchitella purchased the property the storage

tank,

 piles of bricks and pick up truck were already on the

property.

 However, Mr. Tranchitella has taken no action to

properly remove these items from the property during the time he

has owned the property.

 The property is so situated that it is

easily accessible.

 In his defense Mr. Tranchitella admitted that

from time to time without his knowledge or consent, third parties

will dump and litter the premise causing violations.

 (Pet.

 at 2.)

However, Mr. Tranchitella has not erected a fence around the

property to limit access or taken any other action to discourage

others from open dumping.

 (Tr. at 59.)

 The Board finds that Mr.

Tranchitella had control over the circumstances that resulted in

the violation and does not find any uncontrollable circumstances.

 Therefore, the Board finds Lakewood in violation of Section

21(p) (1)

 of the Act for allowing litter.

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 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).)

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 Agency.

 The Clerk of the Board and the Agency

will therefore be ordered to each file a statement of costs,

supported by affidavit, with the Board and with service upon

Lakewood.

 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.

01 L~O-0277

6

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

1.

 Respondent is hereby found to have been in violation on

March 31,

 1992 of 415 ILCS 5/21(p) (1)

 (1992)

2.

 Within 45 days of this order respondent shall, by

certified check or money order, pay a civil penalty in

the amount of $500 payable to the Illinois

Environmental Protection Trust Fund.

 Such payment

shall be sent to:

Illinois Environmental Protection Agency

Fiscal Service Division

2200 Churchill Road

Springfield,

 Illinois

62706

Respondent shall include the remittance form and write

the case name and number and their social security or

federal employer identification number 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))2, as now or hereafter

amended, from the date of 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 Agency shall file a

statement of its hearing costs,

 supported by affidavit,

with the Board and with service upon Lakewood Homes

&

Development Co.,

 Inc.

 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 Lakewood Homes

 & Development Co.,

Inc.

 Such filings shall be entered in Docket B of this

matter.

5.

 Respondent is hereby given leave to file a

reply/objection to the filings as ordered in paragraph

 Previously codified at Ill. Rev.

 Stat.

 1991,

ch.

 120,

par. 10—1003.

~o-0278

7

4 of this order within 45 days of this order.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act

 (415 ILCS

5/41

 (1992)) provides for appeal of final orders of the Board

within 35 days.

 The Rules of the Supreme Court of Illinois

establish filing requirements.

 (But see also 35

 Ill.

 Adm. Code

101.246, Motions for Reconsideration, and Castenada v. Illinois

Human Rights Commission

 (1989)

 132 Ill.

 2d 304,

 547 N.E.2d 437;

Strube v. Illinois Pollution Control Board

 (3d Dist. March

15,

1993),

No.

 3—92—0468,

 slip op.

 at 4—5.)

I, Dorothy M.

 Gunn,

 Clerk of the Illinois Pollution Control

Board, hereby certify that the above opinion and order was

adopted on the

 day of__________________________

1993, by a vote of

~

~

 I~.~

Dorothy M. G~nn,Clerk

Illinois Pollution Control Board

01 ~~Q-0279