ILLINOIS POLLUTION CONTROL BOARD

October 16,

1992

ILLINOIS ENVIRONNENTAL

PROTECTION AGENCY,

)

Petitioner,

)

V.

)

AC 92—3

(Dockets A

& B)

)

(Administrative Citation)

DENNIS GRUBAUGH,

)

)

Respondent.

RICHARD C. WARRINGTON,

JR., APPEARED ON BEHALF OF PETITIONER.

DENNIS GRUBAUG1

APPEARED PRO SE.

OPINION

AND

ORDER OF THE BOARD

(by G.

T.

Girard):

On January 27,

1992,

the Illinois Environmental Protection

Agency

(Agency)

filed an administrative citation alleging that on

November 21,

1991, an on—site inspection of respondent’s property

disclosed violations of Section 21(p) (1) and 21(p) (3)

of the

Illinois Environmental Protection Act

(Act).

(Ill. Rev.

Stat.

1991,

ch.

111 1/2 par.

1021.)

On February 25,

1992, the Board

received a letter from the respondent which the Board construed

as a request to review the issuance of the citation.

Hearing was

held on May 22,

1992 in Vandalia, Illinois.

No members of the

public attended.

APPLICABLE

LAW

Section 31.1(d) (2) of the Act provides that if a petition

for review is

filed a hearing shall be held.

Section 31.1(d) (2)

further states:

If, based on the record, the Board finds that

the alleged violation occurred,

it shall

adopt a final order which shall include the

administrative citation and findings of

violation as alleged in the citation, and

shall impose the penalty specified is

subdivision

(b)(4)

of Section 42.

However,

if the Board finds that the violation

resulted from uncontrollable circumstances,

the Board shall adopt

a final order which

makes no finding of violation and which

imposes no penalty.

Section 21(p)

of the Act prohibits any person from causing

0136-Oe25

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2

or allowing open dumping which leads to:

(1)

litter

(3) open burning

BACKGROUND

On November 25,

1991,

Mr. Kenneth Mensing arrived at

respondent’s property to inspect the site.

Mr. Mensing testified

at hearing that:

Well, what

I saw was an area behind a metal

storage building, an area approximately

twenty-five feet by fifteen feet, probably a

maximum height of somewhere between three and

four feet, mainly

a

large pile of ashes

intermixed, and amongst the ashes were

partially remnants sic.

Within this pile

there was wood, plastic,

metal, bricks, kind

of

a combination of building demolition

waste, business or shop type waste, and some

materials that would be characterized as

household type waste.

(Tr.

at 6-7)

Mr. Mensing also took several pictures which depict the site.

(See Complainant Exh.

1 at 6—8.)

Mr. Grubaugh does not deny that waste was present and that

burning had occurred at the site.

However, Mr. Grubaugh

maintains that the materials burned on the site were domicile

waste.

Mr. Grubaugh stated that he believed that such burning

was acceptable under the Board’s regulations and the Act.

Mr. Mensing testified that he had “no problem stating that

some of the material there was of a household nature and was

generated on site.”

(Pr. at 12.)

However, Mr. Mensing further

testified that his observation and statements made by Mr.

Grubaugh led him to believe that some of the waste was from a

demolition project.

(Tr. at 12.)

DISCUSSION

The sole defense set forth by Mr. Grubaugh in this matter is

whether or not the materials on Mr. Grubaugh’s property were

domicile waste.

Domicile waste is defined at 35 Ill. Adm. Code

237.101 of the Board’s rules as “any refuse generated on single—

family domiciliary property as a result of domiciliary

01 36-O~26

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3

activities.

The term excludes landscape waste,

garbage and trade

waste.”

(35 Ill.

Adm. Code 237.101).

The Board notes that Section 237.120(b) allows for domicile

waste to be burned in unrestricted areas on the site where the

waste

is generated.

The-Board

further notes thatthe ~Agencydoes

not maintain that the area in which Mr. Grubaugh lives is a

restrictec~area.

However, Mr. Mensing testified that the wood at

the

site

“appeared

to

be

old

construction

type

lumber”.

(Tr.

at

33.)

He

further

testified

that

the definition of domicile waste

does

not

include

“things

like

construction

debris

for

remodeling”.

(Tr. at 32.)

Mr. Grubaugh attempted on cross examination to elicit

testimony in support of his position.

Mr. Grubaugh questioned

Mr. Mensing on “what

is there in these piles that you can

actually say that it came from outside site rather than

residential.”

(Pr.

at 13-14.)

Mr. Nensing stated that:

As

I testified to earlier,

for one,

I think

the volume of the ash material, there is more

than would be accounted for by domicile waste

and remodeling waste from

a porch or

something like that.

There were bricks,

an

old sink,

and boards and just

—

—

but

I am

coupling that with the fact that you told me

personally that materials from off—site were

brought there and burned.

(Pr. at 14.)

Mr. Grubaugh then asked if the size of the ash pile could be

explained by the fact that domicile waste had been burned there

for approximately 10 to 12 years.

(Tr. at 15.)

Mr. Mensing

states that ash building up over ten or fifteen years would not

look like the ash at the site:

“ashes

from a pile ten years

old would not be fresh, fluffy and all white.

The ash pile had

not seen rain.”

(Tr. at 15.)

In addition, Mr. Grubaugh testified that approximately a

year and a half ago the front porch was removed from the house

and “the rest of the house was remodeled last fall, and the

siding was put on during the winter”.

(Pr. at 24—25.)

Mr.

Grubaugh states that he had intended to have the area cleaned up

“long before that but we got busy” with his tree removal

business.

Mr. Grubaugh testified that the area has since been

cleaned up.

The material described by Mr. Mensing and shown

in the

photographs clearly goes beyond mere domicile waste.

In

addition, the size of the ash pile would appear to indicate that

a recent large burn had taken place.

Thus, the Board finds that

the waste pile on the Grubaugh property included waste which was

nondomicile waste.

Therefore,

Mr. Grubaugh was in violation of

01 36-Ot~27

---

4

Section 21(p)(3)

of the Act.

The Board also notes that Mr. Grubaugh did not present any

evidence on the alleged violation of Section 21(p)(l),

litter.

Mr. Grubaugh only argued that the pile was domicile waste.

There.fore, the

Board

finds

Mr-.

Grubaugh--a~1so in

violat-ion

of

Section

21(p)

(1)

of the Act.

The Board notes that although Mr. Grubaugh had cleaned up

the site,

such actions are not

a mitigating factor under the

administrative citation program.

The statute sets forth the fine

to be imposed

($500 for each violation)

and the Board must impose

that fine.

This opinion constitutes the Board’s findings of fact and

conclusions of law.

ORDER

1.

Respondent is hereby found to have been in

violation on November 21,

1992, of Ill. Rev.

Stat.

l991,ch.

111 1/2,

par.

1021(p) (1) and

(3).

2.

Within 45 days of this Order Respondent

shall,

by certified check or money order, pay

a civil penalty in the amount of one thousand

dollars ($1,000) payable to the Environmental

Protection Trust Fund,

and shall be sent by

First Class mail to:

Illinois Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

P.O. Box 19276

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),

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 is stayed.

3.

Docket A in this matter is hereby closed.

4.

Within 30 days of this Order, the County

shall file a statement of its hearing costs,

supported by affidavit,

with the Board and

0136O~28

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5

with service upon Respondent.

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 the Respondent.

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

(Ill.Rev.Stat.

1991,

ch.

111 1/2, par.

1041) provides for the

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 M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the ~x~ye opinion and order was

adopted on the

/~

~-

day of

~

1992,

by a vote of

7~c.

~

Dorothy N.4unn,

Clerk

Illinois c~6llutionControl Board

0136-01429