ILLINOIS POLLUTION CONTROL BOARD
December
17, 1992
SANGANON
COUNTY,
)
Complainant,
)
AC 92—37
v.
)
DocketA&B
)
(Administrative Citation)
GERALD B. MILLER
)
(SCDPH 92-AC-12)
)
Respondent.
MR. ROBERT L. SMITH
APPEARED
ON
BEHALF
OF
COMPLAINANT,
MR.
GERALD
B.
MILLER
APPEARED
PRO SE.
OPINION
AND
ORDER
OF
THE
BOARD
(by B. Forcade):
This matter comes before the Board on an Administrative
Citation filed by Sangamon County pursuant to the Illinois
Environmental Protection Act
(Act)
(Ill. Rev. Stat.
1991,
ch. 111
1/2, par. 1001 et.
seq.).
The citation was filed May 14,
1992,
and alleges that respondent,
Gerald B. Miller violated Section
21(p) (1)1 of the Act by causing or allowing open dumping of waste
resulting in litter.
Mr. Miller filed a request for hearing with the Board on
June 16,
1992.
Hearing was held September 8,
1992,
in
Springfield, Illinois.
No members of the public participated in
the hearing.
No briefs were filed.
BACKGROUND
On April 10,
1992,
Brian Wood,
a solid waste inspector for
the Sangamon County Health Department,
conducted an investigation
of Gerald B. Miller’s property in Sangamon County.
(Tr. at 6.)
This site was previously inspected on August 23,
1991 and January
21,
1992, along with drive-by inspections between those dates.
(Tr. at 7.)
An administrative warning notice was issued to Mr.
Miller as a result of the August 23,
1991 inspection.
(Exh.
4.)
During the inspection on April
10,
1992,
Mr. Wood drew a sketch
of the site (Exh.
2) and took photographs of the property.
(Exh.
5.)
The site sketch shows the locations where various items were
discovered on Mr. Miller’s property.
(Exh.
2.)
The sketch shows
the locations of cars, trucks, tractors, storm windows, general
household refuse, batteries,
cans, machinery parts, wire, metal
1
Section 21 of the Act was amended by Public Act
87-752,
effective January
1,
1992.
As
a
result,
the
two
subsections
enforceable through the administrative citation process have been
changed from 21(p)
and 21(q)
to 21(o)
and 21(p)
respectively.
185
2
construction materials and bee hives.
(Exh.
2.)
The photos
depict several of these
items.
(Exh.
5.)
Mr. Miller agrees that there is some litter on the property
but does not believe that it constitutes an open dump.
(Tr. at
27.)
Mr. Miller believes that the law does not prohibit him from
keeping automobiles owned by him on his own property.
(Tr. at
21.)
He further states that old farm machinery does not
constitute litter.
(Tr. at 21.)
Mr. Miller also contends that
bee hives do not constitute litter.
(Tr. at 23.)
Mr. Miller
relies on an exception for persons engaged in agricultural
activity for disposal on one’s own property of substances for
used by the owner on his own property.
(Tr. at 22.)
Mr. Miller
contends that he intended to use the storm windows, window
framing, dimension lumber and fencing to put up a building on his
property.
(Tr.
at 23.)
Mr. Miller claims that the county failed
to provide him with instructions on how to file an appeal as
required by law.
(Tr. at 21.)
Mr. Miller also notes that the
administrative citation contains additional items that were not
mentioned in previous warnings.
(Tr. at 22.)
In reply the county notes that the administrative citation
includes instructions on the filing of an appeal.
(Tr. at 25.)
The county further notes that the pictures fxom the inspection
show the condition of the property and are sufficient to prove a
violation.
(Tr. at 30.)
blscussloN
The administrative citation issued against Mr. Miller
alleges a violation of subsection
(1) 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;
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 31.1 of the Act provides
that “(t)he prohibitions specified in subsections
(p) and
(q)
of
Section 21 of this Act shall be enforceable either by
administrative citation under this Section or as otherwise
provided in this Act.”
(Ill. Rev.
Stat. 1991,
ch.
111 1/2,
par.
1031.1.)
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
0138-0186
3
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.
(Section 31.1(d) (2).)
If the reôord 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).)
Therefore,
the initial inquiry in~thiscase is
whether Mr. Miller’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 of the Act defines “waste” as,
inter alia, “garbage
or other discarded material
...
In St. 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:
“Litter” means any discarded used or unconsuined
substance or waste.
“Litter” may include but is not
limited to any garbage, trash, refuse, debris,
rubbish,
grass clippings, or other lawn or garden waste,
newspaper, magazines,
glass,
metal, plastic or paper
containers or other pac~kagingconstruction material,
abandoned vehicle
.
.
.
motor vehicle parts,
furniture,
oil,
.
.
.
.
or anything else of an unsightly or unsanitary
nature, which has been discarded, abandoned or
otherwise disposed of improperly.
Ill. Rev.
Stat.
1991,
ch.
38, par.
86—3.
Mr. Miller argues that some of the items observed on his
property are not “litter”.
(Tr. at 21,
23.)
While it is arguable
that some of the items located on Mr. Miller’s property are not
litter,
it is equally clear that many of the items are litter
based on the above definition.
The photos of the site show
furniture, appliances, abandoned vehicles, cans and other items
throughout Mr. Miller’s property of an unsightly nature which
have been discarded improperly.
The photos are sufficient to
find a violation of the Act.
Mr. Miller. also testified that
there is litter on his property.
(Tr. at 27.)
Mr. Miller contends that he is allowed to dispose of the
waste generated by his own activities on-site.
(Tr. at 22.)
The
Act provides exemptions for some agricultural and on—site
activities.
Exemptions from the permit requirements are not at
issue in this matter.
The Act states that a person engaged in
agricultural activity who is disposing of solid waste, acquired
0138~0167.
4
for use by that person on his own property, and disposed of on
that property in accordance with the regulations or standards
adopted, by the Board, need not notify the Agency concerning the
conduct: of a waste—storage, waste—treatment or waste—disposal
operatiOn.
(Section 21
(d) (3).)
Mr. Miller is mistaken regarding the effect of these
agricultural activity and on—site exemptions.
Any on—site
disposal practice must comply with Board regulations or
standards.
No exception exists for the open’ dumping of any waste
which results in litter, open burning or a’ly other result
enumerated in Section 21
(p) of the Act.
The activities
complained of are prohibited disposal practices by the terms of
the Act and hence do not fall under the listed exemptions.
Section 31.1(b) (4)
of the Act requires an administrative
citation to contain “instructions for contesting the
administrative citation.”
Mr. Miller contends that the citation
did not provide information on the content of an appeal or filing
requirements.
The administrative citation reads as follows:
PROCEDURE
FOR
CONTESTING
THIS
ADMINISTRATIVE CITATION
You have the right to contest this Administrative
Citation,
See Ill. Rev. Stat.
1991,
ch. 111 1/2, par.
1031.1.
If you elect to contest this Administrative
Citation, you must file a Petition for Review with the
Clerk of the Illinois Pollution Control Board.
A copy
of the Petition for Review should be filed with the
Sangamon County Department of Public Health.
Such
Petition for Review must be filed within thirty-five
(35) days of the date of service of this Administrative
Citation, or a default judgement shall be entered by
the Pollution Control Board.
The Petition for Review
may be filed with the Clerk of the Illinois Pollution
Control Board at the State of Illinois Center,
100 West
Randolph, Suite 11—500, Chicago, Illinois,
60601; and a
copy of said. Petition for Review filed with the
Sangamon County Department of Public Health,
200 South
Ninth Street, Room 301, Springfield, Illinois,
62701.
The Board notes that the information on filing an appeal provided
in the citation is not complete,
in that it does not provide,
information on the content of an appeal or filing requirements.
However, the Board finds that the information is sufficient to
notify the reader of the appeal process and the time in which an
appeal is to be filed.
The citation satisfies the requirements
of the statute.
Mr. Miller could obtain additional information
on filing an appeal by contacting the Pollution Control Board or
by referencing the applicable statutes and regulations.
0I38-Q 188
5
The Board must consider whether Mr. Miller 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.
(Section
31.1(d) (2).)
Mr. Miller made no claim of uncontrollable circumstances.
There is no evidence in the record that indicates that any
uncontrollable circumstance was involved
.
in this matter.
The
Board does not find any uncontrollable circumstance to warrant
excusing the finding of violation.
Based on the facts presented in this case,
the Board finds
Mr. Miller in violation of Section 21(p)
of the Act on April 10,
1992.
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 Agenc~y. 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.
Ill. Rev.
Stat.
1991,
ch.
111 1/2,
par.
1042(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 Sangamon County.
The Clerk of the Board will
therefore be ordered to file a statement of costs, supported by
affidavit, with the Board and with service upon Mr. Miller.2
2
Sangamon County filed its affidavit of costs with the Board
on September 16,
1992.
0138-0189
6
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~pertinentto the issue of costs.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
Respondent is herebj found to ‘have been in violation on
April 10,
1992, of Ill. Rev.
Stat. 1991,
ch.
111 1/2
par. 1021(p)(l).
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 Sangamon County
Public Health Department.
Such payment shall be sent
to:
James D.
Stone, Director
Sangamon County
-
Dept of Public Health
200 South 9th St,
Rm.
301
Springfield, Illinois
62701
Respondent shall include the remittance form and write
the case name and number and their social security or
federal Employer Xdentification 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,
(Ill. Rev. Stat.
1991,
ch. 120, par. 10—1003),
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 Clerk of the
Pollution Control Board shall file a statement of the
Board’s
costs, supported by affidavit and with
rvice
upon Gerald
B. Miller.
Such filing 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.
0138-0 190
7
Section 41 of the Environmental Protection Act
(Ill. Rev.
Stat.
1991,
ch.
111 1/2, par 1041) 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.
Adju. Code 101.246, Notions for Reconsideration,
and
Castenada v.
Illinois Human Rights Commission (1989),
132 Iii. 2d
304, 547 N.E.2d 437.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby cert4~.ythat the abo
opinion and order was
adopted on the
/7~4~day of
,
1992,
by a
vote of
?~
~
~.
Dorothy N.
nn, Clerk
Illinois P 1 ution Control Board
0138-Q 191