ILLINOIS POLLUTION CONTROL BOARD
December 17,
1992
)
)
COUNTY OF MADISON,
)
)
Complainant,
)
V.
)
AC 91—55
)
(02—91)
VERNON ABERT,
)
(Administrative Citation)
)
Respondent.
NELSON F. METZ, ASSISTANT STATE’S ATTORNEY FOR MADISON COUNTY
APPEARED
ON
BEHALF
OF THE COMPLAINANT.
JANE
E.
UNSELL,
ESQ.,
APPEARED
ON
BEHALF
OF THE RESPONDENT.
OPINION
AND
ORDER
OF THE BOARD
(by J.
C.
Marlin):
This action was initiated on December 16, 1991 by the filing
of an administrative citation
(AC)
by the County of Madison
(County).
The AC was filed pursuant to Section 31.1 of the
Illinois Environmental Protection Act (Act):
The authority to
issue
ACs was delegated to the county pursuant to Section 4(r)
of the Act.
(Ill.
Rev.
Stat. 1991,
ch.
111 1/2, par. 1031.1 and
1004 (r).)
The AC charges Vernon Abert with operating an open
dump by “causing or allowing litter
(Section
21(q) (1)
of the Act)
in violation of Ill. Rev.
Stat.
1985,
Supp. 1986,
ch.
111 1/2,
par. 1021
(p) (5)
.‘
(AC at 2.)
On, January 2,
1992, the Board
received Abert’s petition to review the issuance of the citation.
Hearing on this matter was held on August 20,
1992 at the
Bethalto Village Board Chambers, 213 North Prairie Street,
Bethalto, Madison County,
Illinois.
BACKGROUND
The property subject to this complaint was being purchased
by Mr. Abert from Mr. Paul Rupert at the time of the citation.
The property is located in Madison County and is known as I.D.
Number 119840010. At the time of the alleged violation, Mr. Abert
had control of the property.
On July 1,
1992, before the date of
the instant citation, the Madison County inspector,
Mr. Thomas
Hawkins, visited the Abert property and found that Abert was
causing or allowing the development or operation of a solid waste
management site without a permit, and he observed litter.
Hawkins later talked to
Abert about the inspection and
Abert
said he would clean it up.
Abert cleaned the property by having
the litter hauled to a local landfill at a cost of $2100.00.
On
October 2,
1991,
Hawkins returned to the Abert property, found
the property had been cleaned up and .issued a general compliance
0138~0179
2
letter.
On November 13,
1991, Hawkins investigated the property
again and allegedly found open dumping leading to litter and open
burning going on at the site.
The AC flowing from the November
13,
1991,
inspection is the subject of this appeal.
The testimony at hearing focused mainly on open dumping
resulting in open burning even though this was not charged by the
County.
Very little testimony was given concerning the charges
of operating a sanitary landfill without
a license or open
dumping leading to litter.
ISSUE
At hearing, Hawkins testified that on November 13,
1991, he
received a complaint about the Abert property and went out to
investigate.
(Tr. at 11-12.)
Hawkins observed Mr. Joe Williams
~tendinga fire composed of glass, metal, cardboard,
wood,
paper,
and landscape waste on the Abert property.
.(Tr. at 8.)
Hawkins
entered pictures of the fire as complainant’s exhibit
1 at
hearing.
(Pr. at 8.)
Hawkins also testified that Williams told
him he was working for Abert and that he was burning the waste
from cleaning the property.
(Tr. at 9.)
In addition, Hawkins
testified that Williams told him that Abert knew about the fire
and had been out to the property earlier that day.
(Tr. at
9 and
13.)
In conclusion, Hawkins testified that he filled out an
inspection report alleging litter and open burning.
(Tr. at 9.)
In contrast, Abert testified that Williams was hired, as an
independent contractor and asked to clean—up the barn on the
property and to take the waste out in back of the barn.
(Pr. at
19.)
Abert testified that he intended to take the waste to the
Alton dump later as he had done in the past.
(Tr. at 21.)
Abert
also testified that, he was not aware of the fire since he was at
the site in the morning before it was started.
(Pr. at 20.)
The next person to testify at hearing was Williams.
He
testified that Abert did not tell him to burn the waste.
(Tr. at
25.)
In fact,
he testified that Abert asked him to remove the
waste and to place it outside.
(Pr. at 26.)
Williams also
testified that there was never any discussion between him and
Abert about burning the waste and that Abert was only on the
scene for about 10 or 15 minutes in the morning on the day of the
incident.
(Tr. at 26.)
In addition, Williams testified that he
did not tell Hawkins that Abert was aware of the fire.
(Pr. at
28.)
Williams testified that Abert aaked him to clean the barn
but did not tell him to burn the waste materials.
(Tr. at 28.)
DISCUSSION
The County charged in its AC that Abert:
operated said open dump by causing or allowing
0138-0180
3
litter
(Section 21(q) (1) of the Act)
in violation of
Ill.
Rev.
Stat.
1985,
Supp. 1986,
ch.
111 1/2, par.
1021
(p) (5).
(Comp.
at,
2.)1
Section 21(q) (1)
of the Act prohibits a person from causing
or allowing the open dumping of waste in a manner which results
in litter.
Section 21(p) (5) prohibits any person from conducting
a sanitary landfill without a permit in such a way that it causes
uncovered waste which remains at the conclusion of any operating
day.
The County’s allegations are unclear.
The County’s AC
seemed to charge Abert with open dumping causing litter in
violation of operating a sanitary landfill without daily cover.
However, the form of the complaint was so confusing, that it was
unclear exactly what the County was charging.
Section 31.1 of the Act to requires notice be given to a
party against whom a formal complaint is filed.
Section 311
states in pertinent part that,
...the (county), shall issue and serve upon the person
complained against a written notice, together with a
formal complaint, which shall specify the provision of
this law...under which, such person is said to be in
violation, and
a statement of the manner in, and the
extent to which such person is said to violate the law
The County’s complaint, however unclear, did give Abert
notice that he was charged with operating a sanitary landfill
without daily cover and open dumping resulting in litter.
However, despite the fact that the inspection report and all the
testimony at hearing alleges open burning, the County failed to
charge Abert with open burning.
Therefore, open dumping
resulting in open burning is not at issue in this case.
Finally, the Board emphasizes the importance of citing to
correct sections of the statute and suggests the County obtain a
current form of the statute.
Many laws have been changed since
the 1986 supplement cited by the County.
1Section 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(0)
and 21(p)
respectively.
The County’s AC reflects the pre-amendment section numbers.
0138-0181
4
Although the
County’s charge that Abert was conducting a
sanitary landfill without a permit,
in violation of Section
21(p) (5) of the Act, gives Abert sufficient notice,
it does not
apply. ~In IEPA
V.
IPCB et al., 186 Ill. App.
3d 995,
542 NE.2d
1141
(1989), the appellate court affirmed the Board’s finding
that a “sanitary landfill” includes only sites permitted by the
Illinois Environmental Protection Agency
(Agency).
(a.,
at
1000.)
The Board reasoned that if a person is conducting a
sanitary landfill without a permit that the site is not a
sanitary landfill as defined by the Act.
(~.,
at 1001.)
Thus,
the Board explained,
since one can not be issued an
administrative citation for violating 21(p) unless they are
operating
a sanitary landfill,
it is improper to charge
unpermitted sites with this violation.
(u.,
at 1001.)
Therefore, the Board finds that in this case, Abert did not
violate Section 21(p)(5) of the Act.
The Board must next examine whether Abert violated Section
21(q)(i)
of the Act which prohibits a personfrom causing or
allowing the open dumping of waste in a manner which results in
litter.
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 3.53 defines “waste” as,
inter alia,
“garbage.
.
.
or other discarded material.”
In an appellate court case similar to the instant case,
after demolishing two buildings, John Vander burned demolition
debris.
(IEPA
V.
IPCB et a?., 219 Ill. App.
3d 975, 579 N.E. 2d
1215 (1991).)
Vander was charged with open dumping resulting in
litter and open burning.
The question before the appellate court
was the definition of open dumping.
The court
in the Vander case explained that mere
consolidation of refuse does not constitute open dumping.
The
court held that open dumping occurs when,
“refuse is consolidated
at a disiosal site that does not fulfill sanitary landfill
requirements.”
(~.,
at 978, citing Ill. Rev. Stat.
1989,
ch.
111
1/2 par. 1003.24.)
The court went on to state that a site
becomes a disposal site when the waste is disposed of in such a
way that it enters the environment,
is emitted into the air, or
is discharged into water.
(u.,
at 979, citing Ill. Rev. Stat.
1989,
ch.
111 1/2, par. 1003.08.)
In tne case at hand, the refuse from Abert’s barn was
consolidated and burned.
The burning caused some of the refuse
to be emitted into the air.
Hawkins testified that in among the
items in the fire on the Abert property was glass, metal,
cardboard, wood,
paper, and landscape waste.
Although the County
did not charge Abert with open dumping leading to open burning,
it was only after the waste materials on Abert’s property were
burned that Williams’ actions could be construed as open dumping.
0138-0182
5
The Board notes that the inspection report prepared by
Hawkins states,
“Waste should be put in containers or dumpsters
until transfer to permitted landfill.”
(Inspection Rep. at 3.)
The Board cautions Hawkins that a person may consolidate waste
outside of his barn as long as the site where he consolidates it
does not become a disposal site that does not fulfill sanitary
landfill requirements.
(Vander at,
979.)
In other words, a
person need not place the waste directly into containers, as long
as the waste is disposed of properly before the area where it is
stacked becomes a disposal site.
Having found that open dumping existed, the next question
before the Board ‘is whether the open dumping resulted in litter.
In St.
Clair County v. Louis Mund,
(August 26, 1991), AC 90—64,
the Board adopted the definition of litter contained in the
Litter Control Act.
This definition states:
litter means any discarded,
used or unconsuined
substance or waste.
Litter may include, but is not
limited to any garbage,
trash, refuse, debris...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.)
The items Hawkins testified to seeing burning at the Abert
property fit the first portion of the litter definition.
They
were waste.
However, the definition goes on to state that in
order to be litter, the waste must be discarded, abandoned,
or
otherwise disposed of improperly.
Abert testified that he
intended to dispose of the waste properly by taking it to a
landfill’.
Yet, the waste was burned by Williams and was
therefore, disposed of improperly.
In this situation, the
improper disposal by burning caused the waste materials to become
litter.
Thus, because the waste was burned
(although open
burning is not charged) the actions at the Abert property on
November 13, constitute open dumping of waste in a manner which
resulted in litter.
Under Section 21 of the Act,
a violation occurs if one
causes or allows the open dumping which resulted in litter.
The
testimony establishes that Williams set fire to the pile of
waste.
However, the testimony concerning whether Abert knew
about the fire was conflicting.
Both Abert and Williams
testified that Abert told Williams to clean the barn and to stack
the waste outside.
Williams also testified that prior to Hawkins
arriving at the property he had not told Abert about burning the
waste.
In contrast, Hawkins testified that Williams told him
that Abert knew about the fire.
Given the conflicting evidence,
the Board .does not find that the County. has. shown by clear and
0138-0183
6
convincing evidence that Abert caused open dumping resulting in
litter.
Having determined that Abert did not cause the open dumping
resulting in litter, the Board must next determine whether Abert
allowed the violation.
.
Abert testified that he told Williams to
stack the waste on the outside in back of the barn.
In addition,
Abert testified that it was his intent to put the waste in his
truck and take it to the Alton dump.
Although Abert did not
specifically tell Williams not to burn the waste, Williams was
exceeding the directions given to him by Abert when he burned the
waste.
In fact, Williams in his testimony stated that he and
Abert did not have a discussion about him burning the waste but
did discuss the fact that Abert wanted the waste stacked behind
the barn.
The Board believes Abert’s instructions were adequate.
Given the circumstances of this case, the Board finds that Abert
did not allow the violation.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board finds that Abert did not violate sections 21(q) (1)
and 21(p) (5)
of the Act.
Therefore,
this AC is dismissed.
IT IS SO ORDERED.
R.
C. Flemal dissented.
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.
Adm. Code 101.246, Motions for Reconsideration,
and Castenada v. Illinois Human Rights Commission
(1989), 132
Ill. 2d 304, 547 N.E.2d 437.)
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution
Control Board, hereby certify that the above opinion and order
was adopted on the
,7~-
day of
_____________________
1992, by a vote of
___________________
c7~i~tZ~
Dorothy M.(~unn,Clerk
Illinois Pollution Control Board
O138-Qi&~