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

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