ILLINOIS POLLUTION CONTROL BOARD
April 22, 1993
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Petitioner,
v.
)
AC 92—62
(Dockets A
&
B)
BILL HAMMOND,
)
(IEPA No. 403-92-AC)
)
(Administrative Citation)
Respondent.
JAMES G. RICHARDSON APPEARED ON BEHALF OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY;
BILL HAMMOND APPEARED PRO SE.
OPINION AND ORDER OF THE BOARD
(by G.
T. Girard):
This matter is before the Board on an administrative
citation filed by the Illinois Environmental Protection Agency
(Agency) pursuant to the Environmental Protection Act (Act).
(415 ILCS 5/1001 et seq.
(1992).)’
The citation was filed on
September
3,
1992, and alleges that respondent, Bill Hammond
(Hammond)
as owner of property located in Fulton County,
Illinois, has violated Section
21(p) (1) and
(3)
of the Act.
Specifically, the Agency alleges that Hammond violated Section
21(p)(1)
by causing or allowing open dumping of waste resulting
in litter,
and Section 21(p) (3)
by causing or allowing open
dumping of waste resulting in open burning.
A petition for review was filed with the Board on September
18,
1992.
A hearing was held on November
17, 1992,
in the Canton
City Hall, Canton,
Illinois,
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
in question is owned by Hammond
(Tr.
at
8) and
is
located approximately 1.5 miles southwest of Astoria,
Fulton
County,
Illinois
(Tr. at 8).
According to Hammond, he operated a
junkyard at the location for
19 years
(Tr.
at 5).
Hammond moved
a trailer to the site
(Tr.
at
5 and 6), and lived there until
‘The Act was previously codified at Ill.
Rev.
Stat.
ch. 111
1/2 par.
1001 et seq.
OI1~-0285
2
three—and-a-half or four years ago
(Tr.
at 59).
The administrative citation resulted from the inspection of
the property on August
6,
1992,
by Mr.
R. Eugene Figge,
Field
Inspector with the Agency.
According to Mr. Figge the area where
the violations occurred was “approximately 100 feet by 100 feet”.
(Tr.
at 13.)
Mr.
Figge took 12 photographs which were entered
into the record as group exhibit
2.
At the site,
Mr.
Figge
observed accumulations of worn or used tires located in haphazard
piles around the facility
(Tr. at
12.)
Mr.
Figge estimated that
the tires on site totalled 500-600
(Tr.
at 14).
Some of the
tires were on rims and some were off rims
(Tr. at 14).
Various
metals were located around the facility, including an old car
hood
(Tr.
at 12 and 13).
None of the items were protected from
the elements
(Tr.
at 13).
The metals and tires were spread out
across the site
(Tr.
at 14).
Other items included broken glass
and old metal drums
(Tr. at 14).
Mr. Figge described a
deteriorating trailer at the site, with fallen roof and sides
(Tr.
at 15).
The outer covering had been removed or had fallen
off the trailer sides
(Tr. at 15-16).
In addition to the various
metals and tires,
Mr. Figge also testified that there was
“general refuse”, including “wood pieces, some landscape pieces
and glass, various materials”.
(Tr. at 16.)
Mr. Hammond testified that he lived at the site for 19 years
and junked cars
(Tr.
at 20).
According to Hammond, he lived at
the site from 1971 to 1989
(Tr.
at 27).
He stated that he had a
“State of Illinois Junker Certificate”
(Tr. at 20)
that licensed
his junkyard operation until December 31,
1991
(Tr. at 27).
He
testified that no other people dumped stuff on the site
(Tr. at
21).
He moved away from the site three and a half to four years
ago
(Tr.
at 59).
He gave the cars and “stuff” to his son to
clean up
(Tr.
at 21).
His son paid $240 to have 400 tires hauled
from the site in July 1992
(Tr.
at 33).
Mr. Hammond testified
that there were no gates or fences around the property.
(Tr. at
33.)
Other witnesses who testified for respondent included
Hammond’s wife,
Sara
(Tr.
at 45—48); Hammond’s son, Tom Hammond
(Tr. at 34-39), and Hammond’s daughter—in-law, Bonnie
(Tr.
at 48-
51)
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
OR
I -0286
3
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 Hammond alleges
two violations of Section 21(p)
of the Act:
subsections
(1) and
(3) were allegedly violated.
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 “n)o
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 form 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.)
415
ILCS 105/3
Causing or Allowing Liter
Mr. Hammond admits that he is the owner of the property
inspected by Mr. Figge on August
6,
1992.
He further admits that
the tires, car parts,
and old trailer were on his property at the
time of the inspection.
According to Mr. Hammond’s testimony, he
operated a car junking business at the site from 1971 to 1989
that generated the present materials.
He discontinued the car
junking operation in 1989 when he moved from the site.
Mr.
Hammond testified that there were no fences or gates around the
property to restrict access.
According to Agency Inspector Mr.
01 ~
-0287
4
Figge,
“the materials were not organized and it simply appeared
that they had been abandoned”
(Tr.
at 21).
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) (3)
of the Act.
The items observed on the
property and recorded by Mr.
Figge
in photographs
(Agency
photographs
1-12)
are discarded materials constituting litter.
Mr. Hammond contended that because the litter was being
cleaned up slowly and 400 tires had 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 restrain the Board from a finding of 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.)
Causing or Allowing Open Burning
Agency witness,
Mr.
Figge, testified that during his
inspection on August
6,
1992, there was evidence of open burning,
including melted metals,
ashes, and killed vegetation.
(Tr. at
11,12).
Mr.
Figge maintained that Photograph #1 depicted his
observation
(Tr. at 12; Exh.
2).
Mr. Figge also offered
Photograph #11 as evidence of burning, stating that it showed the
“very distinctive wire bead ring on the ground” which remains
after tires are burned
(Tr. at 16—17;
Exh.
2).
Bill Hammond
testified that he did not burn anything on the site
(Tr. at 23).
Tom Hammond took issue with Mr. Figge’s allegation that
Photograph 11 was evidence of recent burning
(Tr. at 24—25).
However, Tom Hammond testified that “we haven’t burned tires
there for
——
it’s been years”.
At another point in his
testimony, Tom Hammond admitted burning a discarded camper top at
the site
(Tr. at 37).
Furthermore, Mr. Figge testified that
during his investigation of the site he reviewed Agency records
and found no evidence that any Agency permit had ever been issued
for this site
(Tr. at 19—20).
Therefore,
after reviewing the
evidence, the Board finds that open burning did occur at this
site in violationof Section 2l(p)(3)
of the Act.
Uncontrollable Circumstances
Having found a violation, the Board must consider whether
Hammond has shown 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
finds,
then no violation would be found and no penalty imposed.
0
141-0288
5
(see 415 ILCS 5/31.1(d)(2)
(1992).)
Bill Hammond and his wife,
Sara, make three arguments that
could be considered as uncontrollable circumstances.
Sara
Hammond testified that there had been two trailers on the site
when they lived on the property.
When the Hammonds moved, her
two nephews took all the aluminum siding off the trailers and the
other valuable parts.
The nephews were “supposed to tear the
rest of
it down for us, but they forgot about doing that”.
(Tr.
at 45
& 46).
Bill Hammond testified at one point in the hearing
that “somebody went in there while
I wasn’t home and dumped a
whole barrel of stuff”.
(Tr. at 24.)
As previously stated,
Mr.
Hammond testified that there were no gates or fences around the
property.
(Tr. at 33.)
Thus,
there has been no attempt to keep
people off the property.
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 Cool 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
rea is necessary to 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
Hammond allowed litter on the property in violation of the Act.
Mr. Hammond’s strongest argument of uncontrollable
circumstances is that the medical emergency precipitated by his
wife’s cancer surgery on May 15,
1992, and subsequent radiation
therapy over several months, did not allow him time to clean up
the property
(Tr. at 47 and 59).
While the Board is sympathetic
to the priorities of
a serious medical situation such as this,
“uncontrollable circumstances” relates to the violation occurring
not to the cleanup after the violation occurred.
Further, with
regard to cleaning up the site, Hammond admits that he moved from
the site three-and-a-half or four years ago.
(Tr.
at 59.)
Therefore, there were about three years available to clean up the
site before his wife’s medical emergency in May 1992.
The Board
does not find any uncontrollable circumstances in this matter.
Therefore, the Board finds Hammond in violation of Section
21(p) (1) and
(3)
of the Act for causing or allowing litter, and
causing or allowing open burning.
PENALTIES
-0289
6
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 $1,000 based on the two violations as herein found.
In view
of the respondent’s recent family medical emergency, payment
of
this penalty will be stayed until May
1,
1994.
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 Mr.
Hammond.
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.
Respondent is hereby found to have been in violation on
April
22,
1992,
of 415 ILCS 5/21(p) (1) and
(3)
(1992).
2.
On or before May
1,
1994, respondent shall,
by
certified check or money order, pay
a civil penalty in
the amount of $1000 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
L
-0290
7
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)),
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 Bill Hammond.
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
Bill Hammond.
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
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) provides for the appeal of final Board orders 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 Casteneda v. Illinois Human
Rights Commission
(1989),
132 Ill.
2d 304,
547 N.E.2d 437.)
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the above opinion and order was
adopted on the
,.-i--~-~
day of
~
,
1993,
by a vote of
‘~~0.
2~-~
Dorothy N.
G3/nn,
Clerk
Illinois P954ution Control Board
0RL0291