ILLINOIS POLLUTION CONTROL BOARD
August 22,
1991
ST. CLAIR COUNTY,
Complainant,
AC 90—65
v.
)
(Dockets A
&
B)
(Administrative Citation)
ARTHUR
FIELDS
d/b/a
ARTHUR
)
FIELDS
COMPANY,
Respondent.
DENNIS HATCH APPEARED ON BEHALF OF THE COUNTY.
ANN
FOHNE KEELEY APPEARED ON BEHALF OF THE RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by B.
Forcade):
This
matter comes before the Board upon a petition for review
of an administrative citation (“citation”)
filed by Arthur Fields
on July 30,
1990.
The citation was issued on July
5,
1990, by St.
Clair
County
pursuant
to
Section
31.1
of
the
Environmental
Protection Act
(Ill. Rev.
Stat. 1990 supp.,
ch.
111 1/2, par.
1001
et seq.)
(the Act)
and
a delegation agreement with the Illinois
Environmental Protection Agency
(the Agency) under Section 4(r) of
the Act.
The citation,
received by the Board
on July 20,
1990,
cited two violations of Section 21 of the Act.
On May 17,
1991,
hearing
was held in Belleville,
St. Clair County,
Illinois on this
case and three companion cases
(St. Clair County v. Louis Mund, AC
90-64,
St.
Clair County v.
Sandra
L.
Petroff,
AC 90-66,
and ~
Clair
CountY
v.
Timothy
E.
Doctor,
AC
90-67).
At hearing,
Mr.
Fields’
attorney
filed
a Motion
to
Dismiss Violation
A(i)
(the
littering violation).
No motions were filed regarding the open
burning citation.
The issues presented in that motion are the only
issues raised in the appeal.
For the reasons enunciated below the
Board finds Mr. Fields in violation of Section 21(q) (1)
and
(3).
BACKGROUND
The
citation
was
issued
to
Arthur
Fields
as
present
owner/operator of Arthur Fields
Company.
The company deposited
waste in
a
facility located
in St.
Clair County,
Illinois.
The
facility is operated without an Agency permit and is commonly known
to the Agency as Sugar Loaf/Mund and
is designated with the site
code No. 1638190005.
The facility is owned/operated by Louis Nund
(AC 90—64).
125—389
2
On the basis of an inspection conducted by Pamela
S.
Quandt
and
David
L.
Walchshauser
on
May
9,
1990,
St.
Clair
County
determined that Arthur Fields had deposited waste in the facility
in
a manner which resulted in violation of Section 21(q) (1)
and
(3).
The county subsequently issued
a citation on July
5,
1990
for violation of Section 21(q) (1)
and
(3)
and noted that Arthur
Fields is
subject to a civil penalty of $1000 for the violation.
Arthur Fields then timely
filed
a petition
for review with the
Board.
APPLICABLE
LAW
Section 21(q)
of the Act provides,
in part,
that:
No person
shall
in violation of subdivision
(a)
of Section
21,
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;
*****
3.
open burning;
Ill.
Rev.
Stat.
1990 supp.,
ch. 111 1/2, par.
1021
Section 31.1 of the Act sets forth the procedural aspects of
an administrative citation.
Section 31.1 provides,
in part, that:
a)
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 by this Act.
b)
Whenever
Agency
personnel
or
personnel
of
a
unit
of
local
government to which the Agency has
delegated its functions pursuant to
subsection
(r) of Section 4 of this
Act,
on
the
basis
of
direct
observation,
determine
that
any
person has violated any provision of
subsection
(p) or
(q) of Section 21
of this Act, the Agency or such unit
of. local
government may
issue
and
serve
an
administrative
citation
upon
such
person
within
not
more
than
60 days after the date of the
125—390
3
observed violation.
Ill. Rev. Stat.
1990 supp., ch. 111 1/2, par. 1031.1
*****
Penalties in action of the type here brought are prescribed
by Section 42(b)(4) of the Act which provides:
In an administrative citation action under Section 31.1
of ,this
Act,
any person
found
to have
violated
any
provision of subsection
(p) or
(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
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.
1990 supp.,
ch.
111
1/2., par.
1042(b) (4).
DISCUSSION
Mr.
Fields’ Petition for Review states that:
I had a subcontract with the prime contractor,
(Maclair Asphalt Co.,
Inc.)
St.
Clair County
V.
Timothy E.
Doctor, AC 90-67,
to remove and
dispose
of
these
trees,
the other
four
(4)
people who received the citations were passive
participants
with
no
knowledge
of
my
operations.
(Pet.
p.
1).
Thus,
Mr. Fields appears to be admitting culpability with regards
to the open dumping.
In
addition,
the
following
exchange
occurred
at
hearing
between Mr.
Fields’ counsel and the Board’s Hearing Officer:
Professor Schoenberger:
With respect to the other violation,
what’s your client’s position?
Ms.
Keeley:
We will plead out to the charges of
open burning.
Professor Schoenberger:
Okay.
Now it’s my understanding that-
the attorneys have agreed to submit
the matter of whether littering is
a valid count,
under state
law,
to
the Illinois Pollution Control Board.
Should the Pollution Control
Board
decide adverse to you on the plead
125—3 9 1
4
that you just placed, legal arguments
you
just
made,
what
would
your
complaints be with respect
to
the
óount on litter?
Ms. Keeley:
Will
(sic)
plead out to the charge.
Thus, Mr. Fields’ attorney consented to judgement on the violation
of Section 2l(q)(3)
(open burning)
and consented to judgement on
the violation of Section
21(q)(1)
if the Board found against the
Responde~iton the Notion filed at hearing.
A Motion
to Dismiss the violation
of Section
21(q) (1)
was
filed at a consolidated hearing on AC 90-65,
AC 90-66 and AC 90-
67.
The County objected to the filing of the Motion on the grounds
that the Motion was not timely.
The County cited to the Board’s
procedural rules to support its position.
The County also argued
that there has been no showing that material prejudice would result
if a deviation from the timeliness rule was not allowed.
However,
material prejudice could occur.
-
The County is correct that the Respondents’ Motion to Dismiss,
as
a motion preliminary to hearing under the Board’s procedural
rules,
was untimely filed.
However, the Motion articulates
the
Respondents
sole
defense
at
hearing.
Therefore,
despite
any
untimeliness
in the filing,
the Board must address the arguments
set forth in the Notion.
In addition, we note that,
the Board’s
Hearing Officer allowed the County time to respond to the Motions
filed
at
hearing,
thus
allowing
the
County
an
opportunity
to
present its arguments on the issues.
The Notion to Dismiss Violation challenges the
issuance of
the citation for litter based on the definition of
litter.
The
Motion states that “litter”
is not defined in the Act. Respondent
points to the definition
of
“litter”
in Black’s Law Dictionary
Fifth Edition which states:
•
.
.
dumping,
throwing, placing, depositing,
or leaving,
or causing to be dumped,
thrown,
deposited or left any refuse
of any kind or
any
object
or
substance
which
tends
to
pollute, mar or deface
into, upon or about:
I)
Any public
street,
highway,
alley,
road,
right-of-way, park or other public place,
or
any lake,
stream, water course, or other body
of water,
except by direction of some public
officer
or
employee
authorized
by
law
to
direct or permit such acts;
or
II) Any private property without the consent
of
the
owner
or
occupant
of
such property.
(Motion p.
1-2)
125—392
5
The Notion further argues that the “area of the alleged violations
was privately owned by Louis Mund” and Respondents had Mr. Mund’s
permission
to dump
and
burn.
(Motion
p.
2).
-
Therefore,
the
Respondent
argues,
that the
open
dumping
could
not
result
in
“litter”.
The County responds to the arguments set forth in the Motion
by citing to the definition of
“litter” contained
in the Litter
Control Act effective January 1,
1974.
Ill. Rev. Stat. 1990 supp.,
ch.
38,
‘par.
86—1 et seq..
“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 pater
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.
1990 supp.,
ch.
-
38,
par.
86—3.
The Litter Control Act predates Section
(q)
~.
Thus,
when
the General Assembly adopted
Section
21
(q)
(1)
of the Act
it
already
had
defined
“litter”.
“Unless
context
of
a
statute
indicates otherwise, words or phrases that were used in a prior act
pertaining to same subject matter will be construed to be used in
same
sense.”
Jones
v.
Illinois
Department
of
Rehabilitation
Services,
504
F.
Supp.
1244.
The
Litter
Control
Act
clearly
pertains to
“litter”; thus,
the definition of “litter” the Board
should look to is the definition found in Chapter 38.
The
American
Heritage
Dictionary.
Second
College
Edition
(1982), defines “litter” as
“a disorderly accumulation of objects
esp.
(sic)
carelessly discarded waste materials or scraps”.
The
verb “littering”,
“littered” or “litters”
is defined by the same
source as:
“2. To make untidy by discarding rubbish carelessly and
3. To scatter about”.
“Words used in a statute are to be given
their
ordinary
and
popularly
understood
meaning.”
Kozak
v.
Retirement
Board
of
the Firemen’s Annuity
and Benefit
Fund
of
Chicago,
69
Ill. Dec.
177,
95
Ill.
2d 211, 447 N.E.
2d 394 at 396
(1983).
The ordinary and popular meaning of the word “litter”
also supports the finding of violation under Section 21
(q)
(1).
Section 21(q) (1) of the Act would be virtually meaningless if
the word “litter” was defined to exclude:
1
The Litter
Control Act was
effective
January
1,
1974;
Section 21(q) was effective August 31,
1988.
12 5—393
6
refuse
of
any kind or any object or substance
which tends
to pollute, mar or deface
in to,
upon
or
about:.
.
.
Any
private
property
without the consent -of the owner or occupant
of such property.
(Notion p.
1-2)
Open
dumping
would
almost
never
lead
to
“litter”
on
private
property and the prohibition of Section 21(q) (1) would seldom be
necessaiy.
Using respondent’s definition, an owner or occupant of
property
could
never violate
the
litter
provisions
of Section
21(q) (1).
Such owner or occupant would be liable for violation of
the 5 remaining prohibitions of Section 21(q).
It is well settled
that in interpreting statutes,
“s)tatutes
should be construed so
that the
language
is not rendered meaningless
or superfluous.”
People v. Singleton,
82 Ill. Dec. 666, 469 N.
E.
2d 200, 103 Ill.2d
336.
Therefore,
“litter” must be defined in a manner which gives
meaning to the statute.
Adopting the definition put forward by the
Respondent would not do so.
The
Board
has
not
explicitly
adopted
the
definition
of
“litter” used in Chapter 38.
Neither has the definition cited by
the Respondent been adopted or rejected.
However,
the Board has
upheld a citation, issued under Section 21(p) (12),
for “litter” on
the site of a landfill.
(In the Natter of:
Dan Heusinkved, AC 87-
25, January 21,
1988).
The Board stated in that opinion that:
the interpretation placed upon Section 21(p)
(12)
by
the
Agency,
which
is
that
it
is
a
violation of that Section of the Act to fail
to daily collect and contain litter within the
site
boundaries,
is
the
correct
interpretation.
(Heusinkved,
p.
5.)
-
Thus,
the Board has explicitly held that litter can occur on the
site of a landfill.
The Board’s finding in Heusinkved is contrary
to the de.finition cited by the Respondent.
The definition of “litter” cited by the Respondents in these
four cases does not apply to “litter” as used in Section 21(q)
(1)
of the Act.
If the Board were to hold that the definition cited
by the Respondent
is applicable,
the effect would
be
to
render
Section 2l(q)(l)
virtually meaningless.
In
addition,
the Board
has previously held that “litter” can occur on a
landfill site.
The General Assembly has adopted
in Chapter
38
a definition
of
“litter” which would give Section 21(q) (1)
meaning and the Board
hereby adopts that meaning.
Therefore,
the Board holds 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.
12 5—394
7
Because the Board holds
that “litter”
includes
the refuse
placed on Mr. Mund’s land with his knowledge and consent, the Board
denies the Notion to Dismiss Violation A(l) and finds Mr.
Fields
in violation of Section 21(q) (1) of the Act.
In addition, due to
statements made by Mr. Fields in his Petition for Review,
as well
as statements made on his behalf at hearing,
the Board finds Mr.
Fields in violation of Section 21(q) (3)
of the Act.
This
Opinion constitutes
the Board’s
findings
of
fact
and
conclusi,ons of law in this matter.
ORDER
1.
Respondent
is
hereby
found
to have
been
in
violation on Nay
9,
1990,
of Ill.
Rev.
Stat.
1990 supp.,
ch.
111 1/2,
par.
lO2l(q)(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 Landfill Citation Fund.
Such payment shall be sent to:
Paul Haas
County Collector
#10 Public Square
Belleville,
Il 62220
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.
1990 supp.,
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 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.
125—395
8
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.
Section
41
of
the
Environmental
Protection
Act
(Ill.
Rev.
Stat.
1990
supp.,
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,
do hereby
certify that the~aboveOpinion and Order
was
adopted on the
___________
day of ~
,
1991, by a vote
of
2-C)
dorothy M.
unn, Clerk
Illinois Pollution Control Board
125—39 6