ILLINOIS POLLUTION CONTROL BOARD
April
26, 1990
ST. CLAIR COUNTY1,
Complainant,
AC 89—109
v.
)
Docket A &
B
(Administrative Citation)
GUY MARLIN,
)
County No.
89-9
SC
(Fairview Heights)2
Respondent.
MR. DENNIS HATCH, ASSISTANT STATE’S ATTORNEY, APPEARED ON BEHALF
OF PETITIONER ST. CLAIR COUNTY.
MR. JANES J.
GOMRIC APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J. Marlin):
This
matter
comes
before the Board upon an Administrative
Citation filed pursuant
to the authority vested
in the Illinois
Environmental Protection Agency and delegated
to St. Clair County
pursuant
to Section
4(r)
of
the Illinois Environmental Protection
Act
(“Act”)
(Ill.
Rev. Stat.
1987,
ch.
111 1/2, par.
1001
et
seq.).
The citation was filed June
6,
1989 and alleges
that
Respondent, Guy Marlin,
the owner/operator
of
a facility located
in St. Clair County,
Illinois is
in violation of Sections 21(q)
of the Environmental Protection Act
(Act)
concerning open burning
and dumping.
Ill.
Rev. Stat.
ch.
111
1/2, pars.
l021(q)(l),
1021(q) (2).
A Petition
for Review was filed with
the Board on July
3,
1989.
Hearing was held September
1,
1989 at
the St. Clair County
Courthouse, Belleville,
Illinois.
Several witnesses
testified
concerning
this dispute.
Mr. Don Brannon, Mr. Michael Mitchell
and
Mr.
John Kraska testified on behalf of St. Clair County.
Mrs.
Margaret Marlin and Mr. Kevin Sweeney
testified on behalf of
Respondent, Guy Marlin.
~1though
present
at the hearing
Guy
1
The Board has amended
the caption of this case from In the
Matter
of:
Fairview Heights/Marlin,
to the above
in order
to
properly reflect
the Complainant and Respondent.
2
The Board wishes
to
note that Guy Marlin,
Respondent,
is not
a
relative of Dr. John
C.
Marlin, author
of this Opinion and
Order.
1 I1)—!f25
2
Marlin did not testify. The filing of briefs was waived at
hearing
in
favor
of
closing
arguments.
APPLICABLE LAW
Section
21
of
the
Act
provides,
in
pertinent
part,
the
prohibition upon open dumping of waste.
It
states:
Section
21
No person shall:
a.
Cause
or
allow
the
open
dumping
of
any
waste.
*
*
*
q.
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;
2.
scavenging;
3.
open burning;
*
*
*
The Respondent was charged with two violations of this Section of
the Act;
one for violating subparagraph q(l) and the second for
subparagraph q(3).
BACKGROUND
Guy Marlin and his wife Margaret Marlin are the co—owners
of
property
in Fairview Heights,
Illinois
(R.
69).
They purchased
the property
in 1976 from the Small Business Administration
(SBA)
(R.
69).
The property had been used as
a mine prior
to the
SBA acquiring
it
in bankruptcy.
It was then used as
a dump by
a
variety of persons,
including
St. Clair County,
according
to Mrs.
Marlin
(R.
70—71). The Marlins acquired
it for use
as
a salvage
yard and later made their
home on the property
(R.
71).
Toward
that
end,
the Marlins had made various improvements
to
the
property,
includinc removing debris from a lake which
is situated
upon
it and removing scrap from the grounds
(R.
73—74).
The
grounds presently contain scrap metal,
wood, barrels,
brick and
concrete,
carpeting,
soda cans,
paper and bottles
(R.
84—96).
110—
26
3
ALLEGED VIOLATIONS
Don Brannon, Supervisor
of the Environmental Protection
Program for St.
Clair County Health Department,
testified on
behalf of the County
.
He stated that
in response
to a phone
call from Mike Mitchell,
of
the St. Clair County Maps and
Planning Department,
he accompanied Mitchell
to the Marlin
property on March
27,
1989,
to perform a
joint
inspection
(R. 15—
16).
Pam Quandt,
a trainee from Brannon’s office accompanied
them.
The group found
the site contained
a home with
a lak~and
salvage yard area
to the rear.
Seventeen photos were taken of
the property and items on
it
(R.
19—20).
Brannon said he discovered smoldering barrels on the site
which contained wire.
Holes had been punched
in the sides of the
barrels
(R.
20).
In one area of the dump a tree was scorched but
no fire was present
(R.
21).
An inspection of the accumulated
debris
in the area revealed wood,
scraps,
two—by—fours and other
lumber, construction debris and household waste such as bottles,
cans and paper
(R.
22).
Photos were taken of
these scattered
piles
(Exh.
1—17).
Another area of
the dump contained
roofing
shingles and scrap tires
(R.
23—24).
Brannon said he talked
to
the Marlins
that day.
Mrs. Marlin stated that
a Mr. Klopmeier
had brought some
rubble in as
fill
(R.
26—27,
88).
Brannon
admitted that he did not know the condition of the property or
how the property had been used before the Marlins purchased
it
(R.
31—32).
He also admitted that
it
is not against
the law to
burn landscape waste on ones own property
(R.
39).
Michael
S.
Mitchell, testified
that he has the job of
enforcing zoning ordinances and received the initial complaint
about
the Marlins
(R. 47-48).
He drove past
the site and
observed a salvage yard.
He
then obtained
a search warrant
to
inspect
the property.
The inspection revealed accumulated scrap
and burned wires
in barrels
(R.
49,
50).
Mitchell did not know
the condition or ownership of the property prior
to the Marlin’s
ownership.
Mitchell has not viewed the property since
the March
27th inspection
(R.
58—60).
Mr. John
J.
Kraska,
a contractor
from the area,
also
testified on behalf of the county.
He owns one hundred and ten
acres of neighboring property
(R.
61).
He wrote
a letter to Mr.
Mitchell about
the “junk
yard”
he observed at
the Marlin site
(R.
64).
Kraska observed different
types of debris accumulating
on
the Marlin right—of-way
that
he had not observed before
(R.
65,
67)
Mrs. Margaret Marlin,
wife of
the respondent,
testified on
his behalf.
Mrs.
Marlin stated that during their ownership of
the property she and her husband had done much
to clean
it
up
CR.
72—74).
This was confirmed by a stipulation
to
that
effect
entered
into by
the parties
(R.
101-102).
She also
testified
1 1~—427
4
that after
the initial inspection she performed a clean—up of the
property
(R.
77—78).
She stated that
instead of
the county
returning
to re—inspect the property as she requested,
a Sheriff
served them with the administrative
citation
(R.
78).
She denied
that her husband operated a burning process
to recover scrap
wire.
She admitted
that the wire
in the barrel
identified
by
Brannon and Mitchell had been burned but stated that neither she
nor her husband had burned
it
(R.
80).
Mrs.
Marlin also admitted
that Klopmeier was allowed to deposit brick and concrete on the
site
(R.
88).
She testified that the site contained piles of
aluminum,
barrels, cylinders, water meters, scrap,
“rebar”,
carpeting and cans
(R.
90).
She contended that after
the
inspection she and other workers separated these materials
into
piles and had much of
it removed
(R.
90—91).
Mrs. Marlin
testified that Brannon advised her
that demolition debris such as
concrete and fill from construction could be brought
in as
long
as
it was clean
(R.
97—98).
However, she
later admitted that she
was told at
a pre—enforcement conference
that
the Illinois
Environmental Protection Agency required
a permit for that
activity.
She testified she did not apply
for
that permit
“because we have not allowed anybody
to bring
a truck of
anything
in until
we find out exactly what the law
is concerning
it”
(R.
98—99)
Kevin Sweeney was the final witness
for Respondent.
Sweeney
is married
to Mrs. Marlin’s daughter.
He lives
on the property
adjacent
to the Marlin’s
(R.
103).
He occasionally works
for
them
(R.
106).
He
testified that
the Marlin’s
do not burn rubber
off wires at that site.
He admitted lighting the barrel which
was burning on the Marlin property on March
27,
1990,
and stated
he did this on his own
(R.
104).
He
lit the fire with five or
six ounces
of gasoline taken from
a can
“for the cut—off
saw’
(R.
110).
Sweeney admitted that burning
the rubber coating off the
wire was common practice in the early 70’s in order
to
recover
the wire.
He believed this was still
the proper method when he
lit the fire
(R.
108).
He also stated,
“that
stuff was partially
burned when
I first saw it”
(R.
110).
Sweeney stated that
he
was
not working
for the Marlin’s on the day he
lit the barrels
(R.
111)
PRELIMINARY ISSUES
At hearing Mr. Hatch,
the attorney
for the Respondents,
objected to the “jurisdiction”
of the Board over
this
proceeding.
He claimed that
the caption of
the proceedings did
not identify the party
that the Marlin’s believed actually made
the initial complaint.
That patty,
it
is argued,
was
no longer
interested
in the proceeding and therefore the proceeding should
not go forward.
In an administrative citation proceeding
the
proper party complainant
is the Agency or unit of local
government which
has been delegated
the enforcement role pursuant
to Section 4(r)
of
the Act.
(Ill.
Rev.
Stat.
1987,
di.
Ill
1/2,
par.
1001 et
seq.)
The Board therefore finds
that
St. Clair
11O—42S
5
County
is a proper party complainant
in this cause.
The Hearing Officer also allowed
the parties
to preserve the
question of admissibility of certain testimony
through offers of
proof.
The Respondent wished
to introduce evidence regarding
the
Isnown violative condition of various other properties whose
owners did not receive administrative citations from Mr. Brannon
(R.
36—38).
The Respondent also wished
to introduce evidence of
the value of the Marlin property as
improved through cleaning and
scrap removal
(R.
81-83) and a newspaper article concerning
opinions on the permissibility of dumping concrete in landfills
(IL
100).
The Hearing Officer reserved the admissibility of
this
evidence
for the Board to determine.
The Board finds
that none
of
these matters has relevance
to the issue
to be decided,
namely,
whether
the violation alleged
in the administrative
citation occurred and,
if so, whether the violation was due
to
uncontrollable circumstances.
This testimony and evidence
is
therefore stricken.
FINDINGS OF VIOLATIONS
Based upon the evidence before the Board,
the Board finds
that the respondent Guy Marlin has violated Sections 2l(q)(l) and
(3) of the Act by causing or allowing open dumping which resulted
in litter and open burning at
the site.
As we said in our recent decision
in Lefton Iron and Metal
v. City of East
St.
Louis,
PCB 89—53
(April
12,
1990):
Section
21(a)
of
the Act provides
that
“no
person
shall cause
or
allow
the open dumping
of any waste.”
(Ill.
Rev.
Stat.
1987,
ch.lll
1/2,
par.
1021(a).)
The
Act
is
malum
prohibitum
so
that
the
owner’s
lack
of
knowledge
of
the
dumping
is
no
defense.
(Meadowlark Farms,
Inc.
v.
PCB,
17
Ill. App.
3d
851,
308
N.E.2d
829,
836
(5th
Dist.
1974.)
The
owner
of
the
source
of
the
pollution
“causes
or
allows”
the
pollution
within
the
rneanin.g
of
the
statute
and
is
responsible
for.
that
pollution
unless
the
facts
establish
the
owner
either
lacked
the
capability
to control
the source or had taken
extensive precautions
to
prevent
intervening
causes.
(Perkinson
v.
PCB,
187
Ill.
App.
3d
689,
543 N.E.2d 901,
903
(3d Dist.
1989))
The Board considers
the derivitive prohibitions of
subparagraph
(q)
of Section
21
to be guided by the same principles.
The Board
notes
that
the Act provides
for defenses
to findings of
violations
in administrative citations cases.
First,
the Board
must find
that
the alleged violation occurred.
Second:
1
1 fl—42~
6
•
.
.
if
the
Board
finds
that
the
person
appealing
the
citation
has
shown
that
the
violation
resulted
froni
uncontrollable
circumstances,
the Board shall
adopt
a final
order which makes no finding
of violation and
which
imposes
no
penalty.
Ill.
Rev.
Stat.
1987,
ch.
111 1/2,
par.
lO3l.l(d)(2).
The Respondents, however,
have not argued that the violations
resulted from uncontrollable circumstances.
They primarily rely
on the subsequent clean—up efforts as justifying
relief from the
administrative citation.
DISCUSSION
The record
is
replete with
instances
of litter which has
accumulated at
the site.
At least one witness testified that
some of
it was new, although
this conclusion was disputed by Mrs.
Marlin.
it
is apparent that the Marlins allowed construction
debris to be dumped upon their property.
Evidence that some
persons considered this permissable misses the mark
as
far as
establishing
a defense
to the administrative citation.
Therefore,
a finding
that open dumping
at the site resulted
in
litter and was not due
to uncontrollable circumstances
is
supported by the evidence.
Likewise,
the evidence
is uncontroverted
that Kevin Sweeney,
a relative and sometime employee
of respondent’s,
ignited
the
barrel of wire on the day of the inspection.
Although Sweeney
stated he was not employed by the Marlins
that day,
he admitted
that he considered burning
the wire
in the barrel
to be the
proper way
to recover wire,
recovery being
in furtherance of
the
salvage yard’s purpose.
The barrel was vented
by slits
in its
sides, evidence that
it was intended to
be used for burning.
Mr.
Sweeney stated the wire
in the barrel was already burnt before he
lit
it.
The site also contained
trees which were charred, also
evidence
that some type of burning was conducted on the property.
The Board therefore finds
that
open burning occurred
at
the
site.
The respondent’s primary defense
no this charge
——
lack
of
master/servant
relationship
——
is not particularly convincing.
It
is more credible that,
given Sweeney’s status
as family member
and sometime employee,
the burning was allowed by respondent.
Therefore,
a finding
that respondent allowed open dumping at
the
site which resulted
in open burning
is supported
by
the evidence.
This finding
in no way should
be construed as
implying
that
a salvage yard cannot operate without violating the open dumping
provisions
of the Act.
l1()—430
7
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
(p)
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
make
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.
1987,
ch.
111
1/2,
par.
1042(b) (4).
Respondent will therefore be ordered to pay a civil penalty
of $1,000 based on the two violations as herein found.
For
purposes 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 County.
The Clerk of
the Board and the County
will, therefore be ordered
to each file
a statement of costs,
supported by affidavit, with the Board and with service upon Guy
Marlin.
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
March
27,
1989,
of
Ill.
Rev.
Stat.
1987,
oh.
111 1/2,
pars.
lO2l(c)(l) and 102l(q)(3).
2.
Within
45 days of this Order Respondent
shall, by
I 10—431
8
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 Services Division
2200 Churchill Road
Springfield,
Illinois 62706
3.
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 Landfill Citation
Fund.
Such payment
shall be sent
to:
Paul Haas
County Collector
#10 Public Square
Belleville,
IL
62220
4.
Docket A
in
this matter
is hereby closed.
5.
Within
30 days
of
this Order,
St. Clair County shall
file a statement
of its hearing costs,
supported
by
affidavit,
with the Board and with service upon Guy
Marlin.
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 Guy Marlin.
Such filings
shall
be entered
in
Docket
B of this matter.
6.
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.
1987,
oh.
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 filinc requirements.
IT
IS SO ORDERED.
Board Member
11. Dumelle concurred.
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that
the above Opinion and Order was
adopted on the
~
day of
.
,
1990,
by a
vote
of
7— ~
.
Dorothy M.’Gunn,
Clerk
Illinois Pollution Control Board
110—432