ILLINOIS POLLUTION CONTROL BOARD
October 16,
1992
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
)
v.
)
AC 92-5
)
(Docket A
&
B)
)
(IEPA No.
63—92—AC)
RONALD D. RAWE and
)
(Administrative Citation)
RETHA
M.
RAWE,
)
)
Respondents.
RICHARD WARRINGTON,
JR. APPEARED ON BEHALF OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY;
ROBERT MUELLER APPEARED ON BEHALF OF THE RESPONDENTS.
OPINION
AND
ORDER OF THE BOARD
(by B.
Forcade):
This matter comes before the Board on an administrative
citation filed by the Illinois Environmental Protection Agency
(Agency) pursuant to the Illinois Environmental Protection Act
(Act).
(Ill.
Rev.
Stat.
1991 ch.
111 1/2,
par. 1001 et.
seq.)
The citation was filed January 31,
1992, and alleges that
respondents, Ronald Rawe and Retha Rawe
(Rawes), are the owner
and/or operator of a facility located in Greene County,
Illinois
and have violated Section 21(p)
(1)1
of the Act by causing or
allowing open dumping of waste that results in litter on their
property.
A petition for review was filed with the Board on March
4,
1992.
Hearing was held on July 10,
1992.
No briefs were filed
in this matter.
FACTS
S. Dale Elenberger,
a field inspector with the Agency,
first
inspected the site on February 18,
1989,
in response to a
complaint.
(Pr.
at 7.)
The Agency sent a letter to the Rawes as
a result of this inspection.
(Pr. at 7.)
No response was
received.
(Pr.
at 7.)
Periodic inspections were done at the site
between September of 1990 and November of 1991.
(Tr. at 7.)
As a
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.
OI36-O~3I
2
result of Mr. Elenberger’s inspection on November 30,
1991, an
inspection report was submitted which resulted in the filing of
this administrative citation.
(Tr. at 8,
Comp. Exh.
1.)
Site
three was first discovered during the November 30,
1991
inspection.
(Comp.
Exh. 1.)
The Agency has a record on this site
that dates back to 1972.
(Tr. at 26.)
From his inspection of the property, Mr. Elenberger observed
three different areas containing waste on the property.
(Pr. at
9.)
Area 1 contains everything from roofing shingles to
refrigerators, to bottles and cans.
(Pr. at 11.)
There is
evidence that burning has occurred in this area as shown by the
ashes and charred cans.
(Pr. at 11.)
Area
2 is to the west of
area
1 and contains waste similar to the waste in Area 1.
(Tr. at
13,
Comp.
Exh.
1.)
Area
3 is located south of Area 1 and
contains automobiles that are partially covered.
(Tr. at 13,
Comp.
Exh.
1.)
Each area is located in a ravine.
(Pr.
at
12)
Area
1 is approximately 64 x 60 feet and Area
2 is approximately
60 x 40 feet.
(Comp.
Exh.
1.)
Approximate dimensions of area
3
were not provided in the inspection report but from the
photograph it appears to be smaller than the other two sites.
An
earthen berm separates area
1 and area 3.
(Tr. at 32.)
Violet and Charles Rawe purchased the property in 1948
(Tr.
at 44) and transferred the property to their ‘son, Ronald and his
wife Retha in 1978.
(Pr. at 35.)
The deed transferring the
property describes the parcel as follows:
The West Half of the Northwest Quarter of Section 35,
Township 11 North, Range 13 West of the Third Principal
Meridian which lies South of Carroliton and Newport Road,
containing 29.75 acres, more or less.
(Comp. Exh.
1.)
Violet Rawe testified that when the property was purchased
the northern boundary was Newport Road, which at that time was a
hay pressed road,
and the fence line was along the earthen berm.
(Tr. at 44—45.)
Ronald Rawe also testified to the fence line or
property line of the property running along the earthen berm.
(Pr. at 36.)
At several points in the transcript,
the witness indicated a
point on a exhibit when testifying.
(Tr.
at 22, 23,
25,
36 and
38.)
While some of the exhibits were marked showing the general
area referenced,
the markings did not provide a clear, indication
of what the witness was indicating.
It is necessary that all
references to exhibits by witnesses be clearly marked because the
Board is not present at the hearing.
Without clear and precise
markings the Board cannot determine what the witness was
indicating.
01 36-Ot&32
3
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 unless,
“...the person appealing
the citation has shown that the violation resulted from
uncontrollable circumstances.”
(Section 31.1(d) (2).)
Before
reaching a determination on whether there was a violation of the
Act, the Board must first determine if the Rawes are the owners
or operators of the property in question.
Ownership of Property
Mr. Elenberger determined that the property was owned by
Ronald Rawe and Retha Rawe based on an aerial photograph from the
Supervisor of Assessment’s Office of Greene County.
(Tr. at 16.)
Mr. Elenberger also consulted a plat book at the Agency to locate
the owner of the property.
(Pr. at 17,
Comp. Exh.
1.)
He also
obtained the deed to the property from the Recorder of Deeds
Office.
(Tr. at 18,
Coinp. Exh.
1.)
The Rawes do not dispute that the area designated as area 3
is their property.
However, the Rawes contend that the fence
line of their property is along the earthen berm and that area
1
and area 2 are not located within their property.
(Tr. at 36.)
They assert that they have never exerted any control over the
property containing areas
1 and 2.
(Tr. at 37.)
Mr. Rawe also
notes that he pays taxes on 29.75 acres which does not include
area 1 and 2.
(Tr. at 37,
40.)
Mr. Rawe states that Carroilton-
Newport Road which is listed as the northern boundary of his
property on his deed has been relocated over the years after
being washed out into the ditch.
(Pr. at 42.)
The Rawes also
argue that the curvature of the road on the plat maps and the
sketch of the site by Mr. Elenberger are different.
(Tr. at 22-
23, 28—31.)
The Rawes further contend that area 1 and area
2 are
located within the right-of-way of the Carrollton-Newport road.
(Tr. at 46.)
The Board finds that the Agency has failed to show that the
property containing area
1 and area
2 is owned by the Rawes.
While the plat maps indicate that the Rawes are the owners of the
property, the Rawes have provided testimony that persuasively
disputes the accuracy of the description of the land on the plat
map.
The deed is clear that the Rawes own the property located
south of the location of the Carrollton-Newport Road at the time
the description of the land was drafted.
The Rawes provided
testimony that the road has been moved since that time.
The
01 36-O~33
4
Agency has presented no testimony to rebut the Rawes contention
that the Carrollton-Newport Road has been relocated and the
property line of the Rawes’ property is the earthen berm adjacent
to the old location of the Carrollton-Newport Road.
The Rawes contend
that-when
the
property.
was
originally
purchased in 1948, the property line was designated as along the
earthen berm.
The Rawes have acted in accordance with this
property line, exerting no control over the area beyond the
earthen berm.
The curvature of the road and the slope of the
ravine area are consistent with the Rawes’ contention that prior
roads have been washed out and subsequently moved to the north.
The evidence does not support a finding that Ronald and
Retha Rawe are the owners of the property containing area
1 and
area 2.
Because the Agency has not proven that the Rawes are the
owners of area
1 and area 2, the Board does not find a violation
against the Rawes concerning these two areas.
The Rawes have admitted that they are the owners of the
property containing the partially buried automobiles designated
as area 3.
Therefore, the Board will next look at the record to
determine if the Rawes have violated Section 21 of the Act
concerning area 3.
Violation of Act
The administrative citation issued against the Rawes alleges
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 “(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.”
(Ill. Rev.
Stat.
1991,
cli.
111 1/2, par.
1003.24.)
Section 3.31 of the Act defines “refuse” as “waste.”
(Ill.
Rev.
Stat.
1991,
ch.
111 1/2,
par. 1003.31.)
Section 3.53 defines
“waste” as,
inter alia,
“garbage
...
or other discarded material
.“
(Ill. Rev.
Stat.
1989,
ch.
111 1/2, par. 1003.53.)
01 36-0t43~
5
In St.
Clair CountY v. Louis !4und (August 26,
1991), AC 90-
64, the Board adopted the definition of litter contained in the
Litter Control Act.
(Ill. Rev.
Stat.
1990 Supp.,
Ch.
38,
par. 86-
1 et seq.)
“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.,
cli.
38, par’86.3)
The automobiles in area
3 on the Rawes property are considered as
litter based on the above definition.
Mr. Rawe testified that the automobiles in area 3 were
placed there by his father in the late 1960’s to prevent soil
erosion.
(Tr. at 39.)
He testified that his father had discussed
the placement of automobiles in the gully to stop erosion with a
representative of the Environmental Protection Agency, who
informed him that it would not hurt anything.
(Tr. at 39.)
He
testified that neither he nor any member of his family has put
anything in area 3 other than the automobiles.
(Tr.
at 39.)
He
argues that because the automobiles were placed there prior to
the enactment of the Environmental Protection Act there is no
violation.
As a general rule, prospective application of statutes is to
be preferred to retroactive,
or retrospective application.
(Rivard v. Chicago Fire Fighters Union
(1988),
122 I1l.2d 303,
522 N.E.2d 1195.)
If a particular statute can be characterized
as punitive and has an ex post facto effect, retroactive
application is not allowed.
(Peoile v
Shumpert
(1989),
126 Ill.
2d 344,
533 N.E.2d 1106.)
Where a statutory amendment involves
prior activity or a certain course of conduct, the law to be
applied is the provision in effect at the time the course of
conduct occurred.
(Galesbura Cottaae Hosnital v. IEPA (August 13,
1992), PCB 92—62.)
The Board agrees with Mr. Rawes contention that the “cause”
language in Section 21 of the Act cannot be applied retroactively
to actions that occurred prior to the effective date of the Act
because it deals with a certain course of conduct.
The evidence
supports a finding that the automobiles were placed at the site
prior to the enactment of the Act.
The automobiles are older
models and are almost completely covered.
At the time that the
automobiles were placed at the site the Act had not been enacted.
Therefore, the Board does not find that the Rawes caused litter
in area
3 in violation of the Act
01 36-OL~35
6
A violation of Section 21 of the Act can also be found for
“allowing”
litter.
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 Corn.
v. IPCB (3rd Dist.
1974),
21 Ill. App.
3d 157,
313 N.E.2d 616, the court stated that the
Act is maluin prohibituin 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 Rawes contend that the autos were placed at the site to
control erosion with the approval of the -Agency in the late
1960’s.
The Agency has not presented any evidence to rebut the
Rawes contention.
In closing arguments, the attorney for the
Rawes acknowledged that the representation was made by a
representative of some state agency.
(Tr. at 47.)
The Board
notes that the Agency did not exist prior to 1970.
‘Therefore,
any representation made concerning the use of automobiles to
control soil erosion was not made by the Agency.
From the
testimony it is not evident what the representation was or who
made it.
The definition of litter includes abandoned vehicles.
The
presence of the autos on the site and the failure of the Rawes to
take action is sufficient to find a violation of the “allow”
language of Section 21 of the Act.
The Board finds that the
Rawes allowed litter on their property in violation of the Act.
Uncontrollable Circumstances
The final question the Board must consider is whether the
Rawes have 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.
(see Section 31.1(d) (2)
of the Act).
No evidence was presented concerning any uncontrollable
circumstances.
Therefore the Board does not find any
uncontrollable circumstances.
Therefore,
the Board finds the
Rawes in violation of Section 21(p) (1)
of the Act for allowing
litter in area 3.
0136-01436
7
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; 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 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
Ronald Rawe and Retha Rawe.
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
November 30,
1991 of Ill. Rev. Stat.
1991,
ch.
111 1/2,
par.
1021(p) (1).
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:
0136-01437
8
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,
(Ill. Rev.
Stat.
1991,
cli.
120, par. 10—1003),
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
statement of its hearing costs, supported by affidavit,
with the Board and with service upon Ronald Rawe and
Retha Rawe.
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 Ronald Rawe and Retha Rawe.
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.
Board
Members
N. Nardulli and J. Theodore Meyer dissented.
Board Members J. Anderson,
J.
C. Marlin and G. Tanner Girard
concurred.
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.)
0136-01438
9
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above o~in~~n
order
was
adopted on the ______________day of_________________________
1992,
by a vote of
5—~
lerk
Illinois ~a~tion
Control Board
01360’439
