ILLINOIS POLLUTION CONTROL BOARD
August 22,
1991
ST. CLAIR COUNTY,
Complainant,
AC 90—67
(Dockets A
&
B)
V.
)
(Administrative Citation)
TIMOTHY
E. DOCTOR d/b/a
MACLAIR ~SPHALT, INC.,
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
Timothy Doctor on July 31,
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.
11.
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 as well as thr~ecompanion cases.
(St.
Clair County v. Louis Nund, AC 90-64,
St. Clair County v. Arthur
Fields, AC 90—65,
and St. Clair County v.
Sandra L. Petroff, AC
90-66)
At hearing, Mr. Doctor filed a Motion to Dismiss the
Citation and a Motion to Dismiss Violation A(i)
(the littering
violation).
The issues presented in the Motions are the only
issues raised in the appeal.
For the reasons enunciated below
the Board finds Mr. Doctor
in violation of Section 21(q) (1)
and
(3)
BACKGROUND
The citation was issued to Timothy Doctor as present
owner/operator of Maclair Asphalt,
Inc.
The said 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/Nund and is
designated with the site code No.
1638190005.
The facility is
owned/operated by Mr. Louis Mund.
(see St. Clair County v. Louis
Mund,
AC 90-64).
On the basis of an inspection conducted by Pamela
S. Quandt
115—405
2
and David L. Walchshauser on May 9,
1990,
St. Clair County
determined that Timothy Doctor 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 Timothy Doctor is subject to a civil penalty of $1000 for
the violation.
Timothy Doctor 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 ins
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 observed violation.
Ill. Rev. Stat.
1990 supp.,
ch.
111 1/2, par.
1031.1
125—406
3
*****
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 SE~ction21 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
There were two Motions filed at a consolidated hearing on AC
90—65, AC 90-66 and AC 90—67.
The first was 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.
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 Motion.
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.
It should first be noted that the following exchange
occurred at hearing between Mr. Doctor’s 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.
125—407
4
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 that
you just placed,
legal arguments
you just made, what would your
complaints be with respect to the
count on litter?
Ms.
Keeley:
Will
(sic)
plead out to the charge.
Thus,
Mr. Doctor’s attorney consented to judgement on the
violation of Section 21(q) (3)
(open burning)
and agreed to
consent to judgement on the violation of Section
21(q) (1)
if the
Board found against the Respondent on the Motion to Dismiss
Violation A(1) filed at hearing.
These statements appear to
negate the arguments set forth in the Motion to Dismiss the
Citation.
Therefore, the Board denies the Notion to Dismiss the
Citation.
The Motion 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.
(Notion p.
1—2)
The Notion further argues that the “area of the alleged
violations was privately owned by Louis Mund” and Respondents had
Mr. Nund’s permission to dump and burn.
(Motion p. 2).
Therefore,
the Respondents argue, that the open dumping could not
result in “litter”.
125—408
5
The County responds to the arguments set forth in the Notion
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 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.
1990
supp.,
ch.
38, par. 86—3)
The Litter Control Act predates Section
(1). ~
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:
refuse of any kind or any object or substance
which tends to pollute, mar or deface into,
upon or about:.
.
.
Any private property
without the consent of the owner or occupant
The Litter
Control Act was
effective January
1,
1974;
Section 21(q)
was effective August 31,
1988.
125—409
6
of such property.
(Motion 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
necessary.
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, “(sjtatutes 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 Matter 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 definition 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 21(q) (1)
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.
Because the Board holds that “litter” includes the refuse
placed on Mr. Mund’s land with his knowledge and consent, the
Board denies the Motion to Dismiss Violation A(1) and finds Mr.
Doctor in violation of Section 21(q) (1)
of the Act.
In addition,
due to statements made on behalf of Mr. Doctor at hearing the
Board finds Mr. Doctor in violation of Section 21(q)(3)
of the
125—410
7
Act.
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 May 9,
1990, of Ill.
Rev.
Stat.
1990 supp.,
ch.
111 1/2, par.
1021(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.
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.
125—411
8
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 abov~Opinion and Order was
adopted bn the
~
day of
~
,
1991,
by a
vote of
2’~-(~
.
Dorothy N. fiunn, Clerk
Illinois Pollution Control Board
125—4 12