ILLINOIS POLLUTION CONTROL Board
January 23,
1992
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Complainant,
)
AC 89-215
Docket A
& B
v.
)
(Administrative Citation)
(IEPA No.9926-AC)
ONER THOMAS,
)
Respondent.
MR. RICHARD
C. WARRINGTON JR.., ASSISTANT COUNSEL, APPEARED ON
BEHALF OF COMPLAINANT.
MR. STEPHEN F. HEDINGER, APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE Board
(by B. Forcade):
This matter comes to the Board on an Administrative Citation
filed by the Illinois Environmental Protection Agency (“Agency”)
pursuant to the Illinois Environmental Protection Act
(ttActtt).
(Ill. Rev. Stat.
1989,
ch.
111 1/2,
par. 1001 et.
seq.)
The
citation was filed October 5,
1989, and alleges that Respondent,
Oiner Thomas, the operator of a facility located in Shelby County,
Illinois is in violation of Section 21(q)
(1)
of the Act for
causing or allowing open dumping of waste that results in litter.
A Petition for Review was filed with the Board on November
1,
1989.
A hearing was held on July 27,
1990,
in Shelbyville
which neither party attended.
A second hearing was held on
July 19,
1991.
The Agency filed its post hearing Brief on
September 16,
1991
2
and respondent filed his post hearing brief
on September 30,
1991.
DISCUSSION
Section 31.1 of the Act provides that “the
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.
1989,
ch.
111 1/2, par.
1021.)
Section 21(p)
of the Act applies
to sanitary landfills permitted under the Act while Section 21(q)
1
An Agency motion for continuance had not been received by
the Hearing Officer or Board in time to cancel the hearing.
2
The Agency filed a motion for leave to file instanter with
its brief.
The motion is granted.
129—34 1
2
applies to all dump sites.
The administrative citation issued
against Mr. Thomas alleges violation of subsection
(1)
of Section
21(q).
Section 21(q) provides that:
21.
No person shall:
q.
In violation of subdivision
(a) of this Section, 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.”
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 and must also prove that
the open dumping resulted in litter, or other specified conduct
at the dump site.
Pursuant to Section 31.1(d) (2)
of the Act,
if
the record demonstrates that such violation occurred then the
Board must adopt an order finding a violation and impose the
specified penalty.
Respondent has two defenses to an
administrative citation.
The first is to show that the violation
did not occur; the second that it occurred but was due to
uncontrollable circumstances.
(Ill. Rev.
Stat.
1989,
ch.
111
1/2,
par.
1031. 1(d) (2).)
Therefore, the initial inquiry in this
case is whether Mr. Thomas’ conduct constitutes causing or
allowing open dumping which resulted 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.”
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2, par.
1003.24.)
Section 3.31 of the Act defines “refuse” as “waste.”
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2. par.
1003.31.)
Section 3.52 defines
“waste”
as,
inter alia,
“garbage....
or other discharged ma~teria1
....“
(Ill. Rev.
Stat.
1989,
ch.
111 1/2, par. 1003.53.)
In St. Clair County v. Louis
I. Mund, AC 90—64, August 22,
1991,
______
PCB
_____,
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.)
The Board further held
that the word “litter” as used in Section 21(q) (1)
of the Act
does include refuse or debris dumped on private property with the
consent of the owner of such property.
129—342
3
Mr. Thomas
is the present owner of several parcels of ground
in Shelbyville, Shelby County,
Illinois.
The property consists
of the south half of three adjoining lots (numbered 2,
3, and
4)
and the whole of the fourth adjoining lot (numbered 5)
all
located along the north side ‘of the undeveloped Second Street
corridor.
The property and the open dump site relevant to this
matter are located generally south of south First Street,
east of
the railroad tracks, and west of the Kaskaskia River.
(Tr. at
34.)
Mr.
Thomas’ property and the open dump site are accessible.
through a private access road.
On August 9,
1989,
Mr. Allyn Colantino,
Agency field
inspector,
inspected this site in response to neighbors’
complaints that certain wastes were being dumped that could cause
harmful run—off into the river.
At hearing,
Mr. Colantino
testified that he surveyed and photographed the open dump site
which he estimated was 300 square foot in size.
He identified
the material on the site as “mostly demolition waste in addition
to dimensional lumber, shingles,
metal, tin, tires, white goods,
rugs,
linoleum.”
(Tr. at
6.)
Also present were large pieces of
concrete.
(Tr. at 10.)
Mr. Colantino made several site sketches
at the area, which he included in the Agency’s inspection report
package.
Also included
in the package were the photographs,
a
map from the County Clerk’s office and a taxbill for Mr. Thomas
property.
(Tr. at 8.)
The Agency inspection report was
introduced as an exhibit at the hearing.
Respondent argues that the Agency inspector did not
“directly observe” Mr. Thomas violating the Act but that “all
he
observed was the existence of items placed in a ravine,
but
he did not see who placed them there,
or the circumstances of the
placement.”
Section 31.1(b)
states that an administrative
citation may be issued when the Agency or its delegate “on the
basis of direct observation” determines that there
is a violation
of Section 21(p)
or
(q).
The Board has consistently held that
the direct observation of an open dump,
supported by affidavit
and photographs,
is sufficient basis for determining that a
violation of Section 21(a)
has occurred.
The Board finds that
Mr. Colantino has presented sufficient evidence to prove he
directly observed an open dump on Mr. Thomas’ property.
Respondent then argues that the site is not an open dump
because the Agency did not prove that the items at the site were
“waste”.
Respondent contends that the Agency must provide proof
of the prior origin of the items to prove they are “waste” and
cites
J.
R.
Bliss.
Inc.
v.
I.E.P.A.,
138 Ill.App.3d 699,
485 N.E.
2d 1154
(5th Dist.
1985)
(proof of the prior use or origin of
a
substance must be present to establish that a substance is
a
“waste”)
in support of this argument.
The photographs submitted
by the Agency clearly show that the items at the site have been
used for their primary purpose already and do not appear to have
originated at the site.
In addition, the photographs show that
129—343
4
the items are not sorted or stacked as if for reuse or further
use but dumped in jumbled piles.
The Board finds that the Agency
photographs provide proof that the items constitute “waste”.
Respondent lastly argues that the Agency failed to prove
that the items at the site constitute litter as defined by the
Agency.
At hearing, the Agency inspector referred to the
definition of litter in the Litter Control Act, effective January
1,
1974.
(Ill.
Rev.
Stat.
1990 supp.,
ch.
38, par. 86—1 et seq.)
Respondent argues that the Chapter 38 definition of litter as
“any disbarded, used,
or unconsumed substance or waste”
is equal
to the Act’s definition of “waste” and makes a nullity of Section
21(q) (1).
The Board finds this argument unpersuasive because the
Respondent is using only one phrase of the Chapter 38 definition
of litter to support this argument.
Chapter 38 also states that
“litter” may include “anything else of an unsightly or unsanitary
nature, which has been discarded, abandoned or otherwise disposed
of improperly.”
(Ill. Rev. Stat.
1990 Supp.,
ch.
38, par.
86-3.
See,
St. Clair County v.
Louis
I. Mund, AC 90-64, August 22,
1991,
P.C.B.
Based on the evidence presented, the Board concludes that
Complainant has demonstrated that open dumping, which resulted in
litter, has occurred on the Respondent’s property.
The Board
must now consider whether Mr. Thomas caused or allowed such open
dumping.
During cross—examination, Mr. Colantino testified that based
on the City’s map and the tax bill, part of the open dump and
portions of the access road are located on Mr.
Thomas’
property.3
(Tr.
at 20-22,
34.)
Respondent has not contested the Agency’s
proof of ownership.
With reference to the access road,
Mr.
Colantino stated that “(at
the entranceway there was
a’ cable
that was lying on the ground.
It was not locked.
I had no
problem with restriction as to entry into the property.”
(Tr. at
9.)
Neither did he see any signs indicating restricted access.
(Tr. at 16,
23.)
Respondent argues that the Agency did not prove that Mr.
Thomas had control over access to the site.
In support of this
argument he claims that the Agency inspector’s site map depicts
the access road entranceway with the cable as located on the
north half of lot
2 which Mr. Thomas does not own.
Respondent
therefore concludes that he is not responsible for another
owner’s omissions.
This argument ignores the fact that both of
the Agency inspector’s site maps indicate that the rest of the
access road traverses land owned by Mr. Thomas.
In fact,
it is
~
Mr. Colantino noted at the hearings that the site
sketches he drew were not very accurate in depicting the property
boundaries.
(Tr. at 22)
129—344
5
undisputed by Respondent that the final part of the road leading
onto the dump site is on lot
5.
Mr. Thomas owns all of 1~t5.
Respondent clearly has control over access to the open dump site.
Respondent also claims that the Agency did not prove but
only inferred that Mr. Thomas caused or allowed open dumping.
The Board has previously considered many cases interpreting the
“cause or allow” language.
In IEPA v.
A.
J. Welin, PCB 80-125,
May 13,
1982,
47 PCB 7, the Board stated that the “cause or
allow” language
of
Section 21(a)
includes “passive conduct
which
amounts to acquiescence sufficient to find a violation.”
~,
also,
EPA v. Village of Port Byron,
PCB 72—67, October 24,
1982,
6 PCB 9; EPA v. Dobbeke et al., PCB 72—130, August 22,
1972,
5 PCB 219; EPA v. Village of Darnad, PCB 74—381, March
6,
1975,
16 PCB 13; and EPA v. Maney et al., PCB 79-262, August 31,
1980,
39 PCB 363.
The Appellate Courts of Illinois have also interpreted the
“cause or allow” language contained in various sections of the
Act.
The “cause or allow” language of Section 12(a) •of the Act
was interpreted by the Third District Appellate Court to mean
that the owner of a property has a duty,
imposed by legislation,
to take all prudent measures to prevent pollution.
Any efforts
to control pollution go to the issue of mitigation, not to the
primary issue of liability.
Freeman Coal Mining Corp. v.
IPCB,
21 Ill.App.3d 157,
313 N.E.2d. 616
(1974).,
In Bath.
Inc.
v.
IPCB,
10 Ill.App.3d 507,
294 N.E.2d 778
(1973), the Fourth District
held that when determining whether burning had been caused or
allowed,
“knowledge,
intent or scienter is not an element of the
case to be established by the Agency)
at the hearing before the
Board).”
The Fifth District relied upon the Bath rationale in
a
subsequent case involving “cause or allow” in regard to water
pollution.
In Meadowlark Farms v. IPCB,
17 Ill.App.3d 851,
308
N.E.2d 829
(1974), the alleged polluter argued that it was
unreasonable to expect
a mere owner to exercise control over or
prevent pollution,
especially when the owner
is unaware of the
pollution.
The court stated that the “Act is malum prohibitum,
no proof of guilty knowledge or inens rea
is necessary to a
finding of guilt.”
This theory was reiterated by the Third
District in Perkinson v.
IPCB,
187 Ill.App.3d 689,
546 N.E.2d 901
(1989).
In Perkinson the court stated that it was “controlled by
the long line of precedent in Illinois which holds
that. the owner
of the source of the pollution causes or allows the pollution
within the meaning of the statute and is responsible for that
pollution unless the facts established the owner lacked the
capability to control the source
.
.
.
or had undertaken
extensive precautions to prevent vandalism or other intervening
causes.”
Based on the facts presented in this case and the legal
principles outlined by this Board and the Courts, .we conclude
129—345
6
that Mr. Thomas did
“cause or allow” the open dumping described
in this proceeding.
The Board’s final inquiry is whether Mr.’ Thomas has shown
that the violation resulted from uncontrollable circumstances.
If the Board so finds, then no violation would be found and no
penalty imposed.
(Ill. Rev.
Stat.
1989,
ch. 111 1/2,
par.
1031.1(d)(2).)
The record raises no basis for a conclusion of
uncontrollable circumstances.
The record shows that Mr. Thomas,
as owner of the land carrying the access road, has either taken
no preca~itionsto stop trespassers and illegal dumpers
(if the
cable is owned by someone else) or has made only a minimum effort
by installing a cable gate with no lock and no maintenance.
Therefore,
the Board finds that the violations did not result
from uncontrollable circumstances and Mr. Thomas is in violation
of Section 21(q)(1)
of the Act.
CONSTITUTIONAL ISSUES
Respondent’s Brief of September 30, 1991 raises several
constitutional issues.
The Respondent cites Section 4(d)
of the
Act as restraining the Agency to inspections in accordance with
constitutional limitations in support of his argument that the
Agency conducted an illegal search.
The Board finds this
argument unpersuasive since Section 4(c) and 4(e) grant to the
Agency both the authority and the duty to inspect and investigate
violations of the Act or Board regulations.
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2,
pars.
1004(c)
and(e).)
Section 4(e) also
specifically references the Agency’s duty to issue administrative
citations.
Respondent next argues that this cause should be dismissed
because the administrative citation: proceedings are criminal
proceedings which the Board does not have the authority to
prosecute.
In support of this argument Respondent states that
the fixed amount of the penalty in administrative citation cases,
as provided for in Section 42(b)(4), indicates a punitive instead
of a civil penalty.
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2, par.
1042
(b) (4).)
In addition, Respondent states that the Agency’s
reliance upon the definition of litter found in the Litter
Control Act,
Ill.
Rev.
Stat.
1989,
ch.
38, par. 86—1 et. seq.,
constitutes a prosecution of a crime.
Respondent does not cite
any case law in support of his arguments.
The Act describes the
penalty for administrative citations as a ‘civil penalty’.
As
there is no case law supporting Respondent’s argument contesting
this description, and since the Board does not have the authority
to review its enabling statute, the Board does not find this
proceeding need be dismissed because it is criminal in nature.
Neither does the Board find that the Agency reliance on a
definition contained in a different Act, alter the language
arid
intent of the Environmental Protection Act.
129—346
7
In support of his final argument that the administrative
citations penalty is an unconstitutional violation of the
separation of powers, Respondent relies upon two Supreme Court of
Illinois cases.
City of Waukegari v. PCB,
57 Ill.2d 170,
311
N.E.2d 146
(1975)
and Southern Illinois Asphalt Co.
v. PCB,
60
Ill.2d 204,
326 N.E.2d 406
(1975) both concerned the, provision of
the Act in Section 42(a)
that provides for the imposition of a
discretionary monetary penalty by the Board.
The Supreme Court
in both cases found that the Board’s authority under 42(a) did
not violate the constitutional separation of powers, because of
the prot~ctiveguidelines in the Act
(Ill. Rev.
Stat.
1989,
ch.
111 1/2,
par.
1033
(c)) and the opportunity for judicial review
(Ill. Rev.
Stat.
1989,
ch.
lii 1/2,
par. 1041).
The cases are
distinguishable from the matter presently before the Board in
that the penalty provision at issue here is not discretionary,
but ministerial.
The statute contains the equation to be used
(#
of violations x $500)
and the Board merely makes the final
calculation.
The Supreme Court has held that a ministerial type
of penalty is constitutional.
~,
Dept.
of Finance v.
Gandolphi, 375 Ill.
237,
30 N.E.2d 737
(1940); Dept.
of Finance
v.
Cohen,
369 Ill.
510,
17 N.E.2d 327
(1938).
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
(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.
1989,
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 statement of costs,
129—347
8
supported by affidavit, With the Board and with service upon Mr.
Thomas.
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
August
9,
1989,
of Ill.
Rev.
Stat.
1989,
ch.
111 1/2,
par.
1021(q)
(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:
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.
Penalties unpaid after the due date shall accrue
interest pursuant to Section 42(g)
of the Illinois
Environmental Protection Act.
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 Omer Thomas.
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
Omer Thomas.
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.
129—348
9
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1989,
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.
IT IS SO ORDERED.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the abov
Opinion and Order was
adopted on the
~
day of
__________________,
1992,
by a
vote of
£—c
.
/
Control Board
129—349
