ILLINOIS POLLUTION CONTROL BOARD
August
13,
1992
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
AC 91—31
V.
)
Dockets A
& B
(Administrative Citation)
RANDALL LOVELESS,
)
(IEPA No.
305-91-AC)
)
Respondent.
MR.
JAMES
G.
RICHARDSON, ASSISTANT COUNSEL APPEARED ON BEHALF OF
COMPLAINANT.
MR.
BRENT CAIN, APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE3OARD
(by J.C. Marlin):
ThIs
matter
is
before
the
Board
on
an
appeal
of
an
Administrative Citation
(AC)
filed by the Illinois Environmental
Protection Agency
(Agency) pursuant to the Illinois Environmental
Protection Act
(Act)
(Ill. Rev. Stat.
1991,
ch.
ill 1/2, par. 1001
et seq.).
The citation was filed June 24,
1991 and alleges that
respondent Randall Loveless violated Sections 21(q)(1),
(3),
(4)
and
(5)
of the Act1 for causing or allowing open dumping of waste
that resulted in litter, open burning, the deposition of waste in
standing
or
flowing
waters
and
the
proliferation
of
disease
vectors.
Respondent filed a petition for review with the Board on July
22,
1991.
At a hearing held November
18,
1991 at the Nacoupin
County Courthouse, Carlinville, Illinois, Dale Elenberger testified
on behalf of complainant and Randall Loveless testified in his own
behalf.
The Agency filed its post-hearing brief on December 11,
1991; the respondent on January
6,
1992.
The Agency also filed a
reply brief on January 13,
1992.
LEGAL FRAMEWORK
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”.
1
Section 21 of the Act was amended by P.A.
87-752, effective
January 1,
1992.
As a result, subsections 21(p) and
(q) of
the Act were re—lettered,
tt2l(o)*I
and “21(p)”, respectively.
0135-0367
2
Section 21(q)
of the Act provides that:
No person shall:
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;
2.
***
3..
open burning;
4.
deposition
of
waste
in
standing
or
flowing
waters;
5.
proliferation of disease vectors.
These sections
of the Act establish that,
in
order
to seek
enforcement
by way
of
the
administrative
citation
process
for
violations of Section 21(q),
the Agency must establish that the
person caused
or allowed open dumping resulting
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 imposing the specified penalty
unless,
“..
the person appealing the citation has shown that the
violation resulted from uncontrollable circumstances”.
Section
31.1
(d)
(2)
of the Act.
PRELIMINARY ISSUES
Service of Process
Loveless
objected
at
hearing
to
the
service
of
this
Administrative Citation and requested a continuance.
Service was
faulty,
he
argued,
because
the
inspection
report,
routinely
attached to the citation,
was not served upon him.
(Tr.5)
Mr.
Elenberger testified that it was (Tr.10—l5); Mr. Loveless testified
that, it was not.
(Tr.16-19)
The hearing officer overruled the
request,
ruling that the evidence presented was
insufficient to
rebut
the
presumption
of
proper
service
as
indicated
by
Elenberger’s testimony and the affidavit of service.
He also found
that the fact that the matter was filed in June of 1991 showed that
ample opportunity existed for the respondent to obtain the report,
through
discovery.
(Tr.24)
The
hearing
officer’s
ruling
is
affirmed.
In addition to the points made by the hearing officer,
the Board
observe-’ that the AC
states,
in
a prominent position
(page
1, paragrapz
~,
last sentence on the double—spaced page) that
a “copy of the inspection report setting forth the results of such
April
23,
1991
inspection
is attached hereto and made
a
part
0135-0368
3
hereof”.
(Resp.
Exh.
1)
The
inspection
report
is
a
22
page
document2 of which only 2 pages are
a narrative description of the
inspection.
Half of the remaining pages are inspection photos,
site sketches and maps and
a quit claim deed,
and the other half
“summary of violation pages with check off spaces beside possible
violations.
Even if service of this document had not been made,
the
40 minute continuance granted during the course
of hearing
(Resp.
Brief
p.
1),
provided
ample
time
for
review
of
this
document.
Offers of Proof
The respondent also submitted two offers of proof at hearing.
The first concerned the issue of the Agency’s practice of serving
or not serving other area farmers with administrative citations for
similar
conduct.
(Tr.57-60)
The
second
involved
subsequent
remedial measures at the site.
(Tr.75-79)
We affirm the hearing
officer’s ruling that both types of evidence are irrelevant to the
issue
of
whether
Mr.
Loveless
caused
or
allowed
any
of
the
enumerated acts on the date alleged.
DISCUSSION
This matter began nearly two years ago.
On August 23,
1990,
Mr.
S.
Dale
Elenberger,
Agency
field
inspector,
conducted
an
inspection of
a site located
in Brushy Mound Township,
Macoupin
County,
Illinois.
(Resp.
Exh.
4)
The site is
a farming operation
owned by respondent Randall Loveless and lies south of Carlinville,
at approximately
the intersection
of County Road
1400 North and
1615 East.
(Tr.28)
During this inspection,
Mr.
Elenberger noted
apparent violations of Sections 2(a), 21(d),
and 21(q)(1)
and
(5)
of the Act,
which are respectively open dumping,
operation of
a
waste disposal site without a permit, and operation of an open dump
resulting in litter and in proliferation of disease vectors (flies
were observed on dead cattle).
These were communicated
to Mr.
Loveless
in
an
administrative warning notice
dated
October
22,
1990.
(Resp.
Exh.
3,
4)
In November,
1990,
after communication with Mr.
Elenberger,
Mr. Loveless wrote the Agency that he had “ceased all open dumping,
open
burning,
and dumping
in standing
or
flowing water
at
the
site”.
(Resp.
Exh.
5)
Heexplained that much of the debris was the
result of clean up operations after
a severe storm
in May,
1989;
that the cattle carcasses were usually picked up by
a rendering
service but were disposed of by burial with six inches of cover if
21n numbering the exhibit with a number stamp the Agency did
not number the third page contained in the exhibit, which appears
to be a duplicate of page 000002.
0135-0369
4
not picked up within
24
hours’ during hot weather.3
Mr.
Loveless
explained that shingles and other debris had been hauled away, and
that tires in excess of what the operation needed for holding tarps
on bunker sites would be sent to a landfill,
although some tires
might also be stored in one of the feedlot sheds.
The site was inspected again on January
3,
1991;
no written
complaint was made as
a result of this inspection.
(Tr. 48)
The
site
was
again
inspected
on
April
23,
1991.
This
inspection
generated
the
administrative
citation
being
contested
here,
alleging violations of Sections 21(q) (1),
(3),
(4)
and
5 of
the
Act.
In testimony at hearing Elenberger stated that he observed a
pit with water standing
in it.
The pit was located just west of
County Road 1400
North.
The
inspection report describes
it
as
roughly
54
feet
by
51
feet
in
size.
As
described
in
Mr.
Elenberger’s
testimony,
and
as
portrayed
in
photographs
taken
during the inspection,
tires,
damaged lumber,
plastic trash bags
filled with unknown contents, roofing shingles and pieces of metal
roofing’ material
lined
the
sides
of
the
pit
and
were
in
the
standing water.
None of the
items were arranged
in an orderly
manner or were covered, he stated.
(Tr.35)
(Pet.
Exh.
1,
p.
16-20)
The respondent has a farming operation of nearly two thousand
acres.
(Tr.
83)
The respondent characterized the vast majority of
the observed material as waste which came from his own farm.
(Tr.
87)
He testified that the pit was man-made and
is routinely used
for disposing of waste.
(Tr.88)
Loveless testified that he does
not provide daily cover for the wastes but covers it “weather and
time permitting”.
To do otherwise would not be “cost effective”.
(Tr.83)
Loveless argues that the wastes observed
are riot”litter”.
(Respondent’s Brief, pp. 2—3)
“Litter” means any discarded used or
unconsumed substance or waste and may include:
any garbage, trash,
refuse, debris,
rubbish, grass
clippings,
or
other
lawn
or
garden
waste,
newspaper,
magazines, glass,
metal, plastic or paper containers or
other packaging construction material, abandoned vehicle
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 Board has adopted this definition,
found
in
the Litter
Control Act,
in St.
Clair County
v.
Arthur
Fields-, AC 90-95,
3me
disposal
onsite
of animal carcasses is
not at issue
in
the present action.
0135-0370
5
PCB
—
(August 22,
1991).
Respondent has presented no arguments
which persuade the Board to reach a different result here.
We find
that
the
tires,
lumber,
trash
bags
and
shingles
discarded
in
Loveless’ pit and the separate pile of charred shingles constitute
“litter”.
The respondent also contends that he is allowed to dispose of
the waste generated by his own activities on-site.
(Res.Br., p.
2)
The Act states that no permit is required for any person conducting
a
waste
storage,
disposal
or
treatment
operation
for
wastes
generated
by
such
person’s
own
activities
which
are
stored,
treated,
or disposed within the site where generated
(Ill.
Rev.
Stat.
1991,
ch.
lii
1/2,
par.
l021(d)(l)).
Likewise a permit
is
not needed for the composting of landscape waste generated by such
person’s activities and disposed of on—site.
Ill. Rev. Stat.
1991,
ch.
111
1/2,
par.
1022
(r).
The Act also states that
a person
engaged in agricultural activity who
is disposing of solid waste,
acquired 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.
Ill. Rev. Stat.
1991,
ch. 111 1/2,
par. 1021 (d)(3).
Mr.
Loveless
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.
The lack
of
a permit
for the activity
or notice requirements are not
at
issue
in
this
administrative
citation.
(emphasis
added)
No
exception exists for the open dumping of any waste which results in
litter, open burning or any other result enumerated in Section 21
(q)
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.
Respondent’s testimony
indicates that from time
to time
a
cover is applied to the waste generated on—site.
The respondent
testified that he provides cover
as weather and manpower allow.
While
we
are
cognizant
that
many
farming
cperations
have
traditionally disposed of wastes in this manner,
we are also aware
that
improper
disposal
practices
constitute
a
threat
to
the
environment.
The evidence clearly shows that cover has not been
applied to the waste for some time.
A large amount of accumulated
waste stands in the pit open to the elements.
We also note that
shingles were disposed some distance from the pit.
While we are
not addressing here the issue of whether the pit is subject to the
daily cover requirements in the Board’s landfill regulations,
we
find
that
the
infrequency
of
cover
has
led
to
prohibited
conditions.
Therefore, we conclude that Mr. Loveless violated Section 21(q) (1)
of the Act relating to open dumping resulting in litter.
0135-0371
6
Regarding
the
charge
of
open
dumping
resulting
in
waste
deposition in standing water, Mr. Loveless has testified that the
collected water at the bottom of his pit resulted from rainfall and
was regularly pumped into a nearby lagoon.’
The lagoon is used to
dispose of animal waste.
(Tr. 77—78)
While not addressing the issue
of whether Board regulations
allow
such pumpage,
our reviewof the exhibits and record shows
that this “pit” contained a substantial amount of standing water at
the time of the April 23,
1991 inspection,
as well as at the time
of the initial inspection on August 23,
1990.
The amount of water
in the pit in April, 1991 indicates that it had not been pumped out
recently.
Mr.
Loveless does not contest the fact that there was waste
and standing water in the pit.
Mr. Loveless’ arguments that there
is
little
or
no water
in the pit at
other
times when seasonal
conditions are warm and dry, that the pit does not supply any water
source, that some of the waste could have been generated by a third
party and that no tests had been performed to determine whether
“contamination was occurring”
(Resp.
Brief
3)
are not relevant to
the questions presented to the Board in an administrative citation,
which
are
1)
wh~cher the
alleged violations
occurred,
and
2)
whether they were the result of uncontrollable circumstances.
The
actions of third parties are not “uncontrollable circumstances” for
these purposes.,
Section 21(l)(4) does not require that the Agency
prove that contamination of ground or surface water has resulted
from the presence of litter in standing water;
if contamination is
proven, this results in another statutory violation (e.g.
Section
12(a)),
in addition to
a
Section 21(q)(4)
violation.
The Board
finds that open dumping of wastes resulted in the deposition of
wastes in standing waters in violation of Section 21(a) (4)
of the
Act.
Mr. Elenberger also testified that he examined an area south
of the first
area,
approximately ten
by fifteen
feet
in
size,
containing
roofing
shingles,
which
were
stuck
together.
The
shingles were charred and ashes were present on the ground.
(Tr.
39—40)
Mr.
Loveless testified that a roofing contractor had dumped
the shingles there with his .permission following a storm
in 1989
which damaged the roof of the Loveless house.
(Tr. 88)
The purpose
of the open burning was to rid the site of lumber scraps prior to
burial.
(Resp.
Exh.
5)
Respondent allowed this “unknowingly of
the regulations.”
(u.)
Based upon the testimony given on this point we find that the
respondent caused or allowed open burning on his property.
The
respondent testified that a contractor placed the shingles at the
spot that
they were apparently
burned.
The
Act
forbids
open
dumping resulting in open burning.
Open dumping is clearly shown
7
to have taken place; open burning was the result.
Therefore, we
find that respondent violated Section 21(q) (3) of the Act.
Finally,
Mr.
Elenberger
inspected an area northwest of the
pit.
The area contained earthen berms which held a large pile of
tires,
he stated.
The dimensions of this tire pile approximated
twenty seven feet long by seventy feet wide by fifteen feet high.
(Tr.
42)
The tires were uncovered.
Elenberger testified that he
observed, water standing in the tires and adult mosquitoes flying
about them.
He also observed mosquito larvae in some of the tires.
(Tr.
43)
Mr.
Elenberger
stated that during
his
inspection
he
talked to the respondent.
The respondent stated that the tires
were going to Pana, Illinois but that the people who were to take
them were going to. charge him to do so.
(Tr. 46)
Upon examination
by Mr.
Richardson,
respondent testified that the tires came from
his operations and also from area filling stations.
(Tr.91)
The respondent testified he uses the tires in farm operations.
He covers livestock feed with polyurethane sheets.
The tires,
he
stated,
are used to kee” the sheets from blowing.
If the
silos
were full, he stated, he would need all the tires that he has.
(Tr.
80)
In his written letter response to the Agency’s administrative
warning
notice
(Resp.
Exh.
5),
Mr.
Loveless stated
he did
not
believe he would need all the tires for tarps, but might store some
in his sheds or haul them away.
(u.)
We conclude that respondent has violated the Act by causing or
allowing
the
open
dumping
of
tires
which
resulted
in
the
proliferation of disease vectors.
A tire pile of the dimensions
found contains hundreds of tires.
The manner in which these tires
are stored on site viblates the prohibitions contained in the Act
and in Board regulations.
The tires are uncovered,
contain water
and have produced a breeding ground for mosquitoes.
In our opinion
in R88-24 Managing Scrap Tires Accumulations
for the Control
of
Mosquitoes (April 27, 1989), we anticipated the use of tires in the
manner
Mr.
Loveless
described,
but we
concluded,
however,
that
proper use requires altering the tires to prevent accumulation of
water
by
such
means
as
longitudinal
slitting
and
stacking.
(Opinion,
p.
23)
We also note that these
tires
exceed
20
in
number, the number of unaltered tires
exempted from the management
standards of Section 55(a) (3) of the Act for like farm operations.
Therefore, we find that respondent has violated Section 21(q) (5) of
the Act.
Finally,
as discussed above,
we do not find that any of the
proven
violations
result
from
uncontrollable
circumstances.
Therefore, we find that Mr. Loveless has violated Section 21(q) (1),
(q)(3),
(q)(4)
and (q)(5)
of the Act.
PENALTIES
0135-0373
8
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
(q)
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
$2,000 based
on the violations as herein found.
For purpose of
review,
today’s
action
(Docket
A)
constitutes the Board’s
final
ãcUon 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
statement
of
costs,
supported by affidavit,
with the Board and,with service upon Mr.
Loveless.
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,.
Finally, the Board notes Loveless’ arguments that the Agency
“gives farmers no guidelines as to what they expect them to do and,
in this case,
there is no indicia that the Respondent was warned,
nor
given
any guidelines
as
to what
to
do with said warning”.
Noting that the Agency
first
agreed,
but then reconsidered
and
declined, to meet with Loveless’ counsel on the site after issuance
of
the
citation,
Loveless
charges
that
the
Agency
“is
more
concerned
about
getting
its.. .penalty
than
any
other
matter”.
(Resp. Brief
4)
The record clearly
indicates that Loveless received Agency
guidance concerning violations and their correction after the first
site inspection.
iolations persisted through reinspections
in
January and April,
4.991.
Once this citation was filed, the Agency
had no duty to provide additional onsite “guidance”.
The penalty
0135-03713
9
in
this
matter
has
been
pursued
and
imposed
as
the
statute
requires.
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
23,
1991,
of
Ill.
Rev.
Stat.
1991,
ch.
111
1/2,
pars.
1021(q)
(1),(q)(3),
(q)(4)
and 1021(q)
(5).
2.
Within
45
days
of
this
order
Respondent
shall,
by
certified check or money order, pay a civil penalty in
the
amount
of
$2,000
payable
to
the
Illinois
Environmental Protection Trust Fund.
Such payment shall
be sent to:
Illinois Environmental Protection Agency
Fiscal Service Division
2200 Churchill Road
P.O. Box 19276
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,
ch.
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
a
statement of its hearing costs,
supported by affidavit,
with the Board and with service upon Randall Loveless.
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
Randall
Loveless.
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
0135-O37~
10
of this order within 45 days of this Order.
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, Motion for Reconsideration,
and Castenada
v.
Illinois Human Rights Commission (1989), 132 Ill.2d 304, 547 N.E.2d
437.)
IT IS SO ORDERED.
J. Theodore Meyer dissented.
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was ado,pted
on the
/
day of
&~-~-_~-t.-
,
1992,
by a vote of
~ ‘1.
(.1
0135-0376
Ii
Control Board
