ILLINOIS POLLUTION CONTROL BOARD
    October 24,
    1991
    ILLINOIS ENVIRONMENTAL PROTECTION
    )
    AGENCY,
    )
    Complainant,
    )
    AC 90-91
    Docket A
    & B
    v.
    )
    (Administrative Citation)
    (IEPA No.529—90-AC)
    BERNARD
    LEITSCHUH,
    )
    )
    Respondent.
    MR. RICHARD C. WARRINGTON JR., ASSISTANT COUNSEL, APPEARED ON
    BEHALF
    OF
    COMPLAINANT
    MR.
    BERNARD
    LEITSCHUH,
    RESPONDENT,
    APPEARED
    PRO
    SE
    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
    (“Agencytt)
    pursuant to the Illinois Environmental Protection Act
    (hereinafter “the Act”)
    (Ill. Rev.
    Stat.
    1989,
    ch.
    111 1/2,
    par.
    1001 et.
    seq.).
    The citation was filed November 26,
    1990,
    and
    alleges that Respondent,
    Bernard Leitschuh, the operator of a
    facility located in Montgomery County, Illinois
    is in violation
    of Section 21(q)
    (1) and 21(q)
    (3) of the Act for causing or
    allowing open dumping of waste that results in litter and results
    in open burning.
    A Petition for Review was filed with the Board on December
    21,
    1990.
    Hearing was held on July 12,
    1991,
    at the Montgomery
    County Courthouse in Hillsboro, Illinois.
    Mr. Richard
    Warrington,
    Jr., appeared on behalf of the Agency; Mr. Bernard
    Leitschuh appeared pro
    Se.
    Opening and closing statements and
    the filing of Briefs were waived at hearing.
    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.
    1021.1)
    Section 21(p)
    of the Act applies
    to sanitary landfills permitted under the Act while Section 21(q)
    applies to all dump sites.
    The administrative citation issued
    against Mr. Leitschuh alleges violation of subsections
    (1) and
    (3) of Section 21(q).
    Section 21(q)
    provides that:
    126—k7
    2
    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;
    *
    *
    *
    3.
    opening burning
    Section 21(a)
    of the Act sets forth a general prohibition against
    open dumping by providing that “no
    person shall cause or allow
    the opening 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, 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 impose 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.
    Therefore, the initial inquiry in this
    case is whether Mr. Leitschuh’s conduct constitutes causing or
    allowing “open dumping which resulted in litter and open
    burning.”
    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 material
    ....“
    (Ill. Rev. Stat.
    1989,
    ch.
    111 1/2, par.
    1003.53)
    At hearing the Respondent,
    Mr. Leitschuh,
    stipulated that he
    had discussed the charges with the Agency and the charges in the
    complaint were true and correct.
    The complaint was issued as a
    result of an inspection of the property by the Environmental
    Protection Agency on September 27,
    1990.
    Based on the admission of the Respondent at the hearing, the
    Board concludes that the Respondent caused or allowed open
    dumping of waste, which resulted in litter and open burning.
    Therefore,
    Mr. Leitschuh is in violation of Section 21(q)
    (1)
    and
    21(q)
    (3) of the Act.
    126—628
    3
    The Board must consider whether Mr. Leitschuh has shown that
    the violation resulted from uncontrollable circumstances.
    This
    is the only showing provided in the statute that allows the Board
    to excuse any violation.
    If the Board so finds, then no
    violation would be found and no penalty imposed.
    (see Section
    31.1(d)
    (2)
    of the Act).
    The record raises no basis for a conclusion of
    uncontrollable circumstances.
    The Board finds that the
    violations did not result from uncontrollable circumstances.
    Therefore,
    Mr. Leitschuh is in violation of Section 21(q)
    (1) and
    21(q)
    (3)
    of the Act.
    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 $1,000 based on the violations 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,
    supported by affidavit, with the Board and with service upon Mr.
    Leitschuh.
    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
    126—629
    4
    conclusions of law in this matter.
    ORDER
    1.
    Respondent is hereby found to have been in violation on
    September 27,
    1990, of Ill. Rev. Stat.
    1989,
    ch.
    111
    1/2, par.
    1021(q)
    (1) and 1021(q)
    (3).
    2.
    Within 45 days of this Order Respondent shall, by
    certified check or money order, pay a civil penalty in
    the amount of $1,000 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.
    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 Bernard Leitschuh.
    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
    Bernard Leitschuh.
    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.
    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.
    126—630
    5
    I, Dorothy M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Order was
    BOard, hereby certi~vthat the ~
    ,
    1991,
    by a
    adopted on the
    ~-~Z
    day of
    ___________________
    vote of
    ~7—O
    .
    Doro~M.nëC~e
    /~‘/
    rk’
    Illinois
    lution Control Board
    126—63 1

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