ILLINOIS POLLUTION CONTROL BOARD

August

30,

1990

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Complainant,

V.

)

AC 89—227

(Administrative Citation)

IEPA No. 9957-AC

JACK WRIGHT,

)

Respondent.

WILLIAM SELTZER APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY;

JACK WRIGHT APPEARED PRO SE.

OPINION AND ORDER OF THE

BOARD

(by J.

C. Marlin):

This matter comes before the Board upon a petition for

review of administrative citation

(“citation”)

filed by Jack

Wright on November

28,

1989.

The citation was issued on October

18,

1989,

by the Illinois Environmental Protection Agency

(“Agency”)

pursuant

to Section 31.1(d) of the Illinois

Environmental Protection Act

(“Act”)

(Ill.

Rev.

Stat.

1989,

Ch.

lll~,par.

1001 et seq.).

Hearing was held on March

22, 1990,

in South Beloit,

Il1inois~ no members of the public attended.

The Agency

presented one witness, Kenneth

Bosie, field investigator for the

Agency.

Jack Wright testified on his own behalf.

The parties

elected not

to file briefs, standing on

their closing

arguments.

For

the reasons given below,

the Board

finds

the

administrative citation was improperly issued and this case

is

dismissed.

BACKGROUND

The citation was issued to Jack Wright as present

owner/operator

of

a facility located in Winnebago County,

Illinois.

The facility

is operated without

an Agency operatLnq

permit and designated with Site Code No. 2010450013.

(The recc~rd

I

The transcript

is cited as

“R.

at

I

1 !~—-A(3

---

—2—

indicates

that the facility was not

in violation of

the Act for

operating without a permit).

The facility

is commonly known to

the Agency as South Beloit/Wright Brothers.

On

the basis of an inspection conducted by Kenneth Bosie on

August

31,

1989,

the Agency determined

that Jack Wright had

operated

the facility

in violation of Section 21(q)(l)

of the

Act.

The Agency subsequently issued a citation on October

18,

1989 for violation of Section 2l(q)(l) and noted that Jack Wright

is subject to a civil penalty of $500.00

for the violation.

Jack

Wright then timely filed a petition

for review with the Board.

APPLICABLE LAW

Section 2l(q)(l)

of

the Act states:

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;

*

*

*

*

*

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 speciEied

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 the 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.

*

*

*

*

*

Penalties

in actions o~the type here brought are prescribed

by Section 42(b)(4) of

the Act which provides:

1

1

~

---

—3—

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.

1989,

ch. lll~,

par.

1042(b)(4).

DISCUSSION

Jack Wright contests the Agency’s finding

of violation,

admitting

that he allowed waste to be deposited on his property,

but claiming that the material brought

to the site does not

constitute litter2.

Therefore,

he reasons

that

he

is not

in

violation of Section

2l(q)(l)

as alleged by the Agency

(R.

at 57—

8).

He also argues that the issuance of

the citation was

improper, and that he should

not be

required

to pay the $500.00

penalty because he has subsequently cleaned

up the site,

removing

materials pursuant

to directives of Agency representatives

(R.

at

36—8).

Mr. Wright makes

no claim that the violations

were the

result of uncontrollable circumstances.

Mr. Wright’s argument

that the issuance of

the citation was

improper

is

two pronged.

First, Mr. Wright alleges

that Mr.

Bosie marked item number one on the “Open Dumping Inspection

Report”

(“Inspection Report”)

in error.

Item number

1 states:

“Causing or allowing litter

(Section 2l(q)(l) of

the Act).”

In

support o~this argument Mr. Wright points

to

item number

8 which

Mr.

Bosie had marked and scratched out.

The Inspection Report

is

attached to the administrative citation and does show item number

8 as scratched out.

Item number

8 states:

“Causing or allowing

the operation of an open dump

so as

to cause or threaten or allow

the discharge of any contaminants

so

as to cause water pollution

in Illinois (Section 12(a) and 12(d)

of the Act).”

Mr. Wright

further pointed out

that

Mr.

Bosie was new

to the Rockford area

and new to

field inspection.

(R.

at

45).

The Board does not

find this argument persuasive.

2

Because of the Board’s finding regarding the issuance of

the

AC.,

the Board will not address

this issue.

I1!-(~~

---

—4—

The second prong of Mr. Wright’s argument

is

that, because

of the cooperation Mr. Wright gave the Agency and his prompt

clean up of the site after the initial inspection,

the $500 fine

should not be issued.

Mr. Wright makes this argument based on

statements he alleges were made by Mr. Bosie

at the time of the

initial inspection

as well as

at

the follow—up inspection.

Mr.

Wright testified that at the initial inspection Mr. Bosie

stated:

“that

if

I did not comply with getting these

items

corrected

I would be subject

to a $500 fine from IEPA.

He stated

that

I had

30 days

to get this work done.”

(R.

at

33)

Mr.

Wright further offered his testimony, concerning the follow—up

inspection,

stating

that:

Mr. Bosie was very pleased and satisfied with the

condition and appearance

of the area.

He was pleased

with the cooperation that

I had shown.

When

I

showed

him the small pile of blacktop and dirt waiting

to be

trucked away he said,

‘j~ust push it over the edge and

cover

it

up.

It isn’t enough

to amount

to anything.’

He assured me there would be no problem with an IEPA

fine.

He said

I would probably hear from the IEPA in

a

few days and all would be okay.

(emphasis added).

(R.

at

36).

Mr. Wright offered,

as evidence of

the actual clean up of

the site,

several photographs

(Resp. Ex.

3 through

11) which show

the site as cleaned up.

In addition,

Mr. Bosie,

the Agency’s

field inspector,

testified that within approximately three or

four days

“most of”

the site “was already cleaned up.”

(R.

at

21

and

27).

In fact,

Mr.

Bosie states several times throughout the

transcript

that the site was cleaned up.

The direct testimony of

Mr. Bosie does not refute or

contradict Mr. Wright’s testimony.

In addition,

the Agency did

not rebut the testimony of Mr. Wright concerning

the statements

made by Mr.

Bosie either

on cross-examination or at closing

arguments.

The sequence of events leading

up to the issuance of the

administrative citation

is

of particular

interest

in this case.

The initial

inspection

of August

31,

1989, occurred when Mr.

Bosie inspected Mr. Wright’s property as

a result

of

a complaint

about

a neighboring property,

which was suspected of disposing of

contaminated sand on Mr. Wright’s property.

Mr. Wright fully

cooperated with the inspection when Mr. Bosie arrived at

the

site.

As a result of that inspection, Mr. Bos~eindicated

in the

“Narrative Inspection Report Document’

Resp.

Lx.

1)

that

he

explained

to Mr. Wright

“that

he was

in violation of

the

Environmental Protection Act which states that no person shall

cause

or allow

the development and operation of

a solid waste

site without

a permit.”

(Resp. Lx.

1

p.

2).

On September

25,

1989,

Mr. Wright

received

a letter from the Agency.

That letter

informed Mr. Wright that his noncompliance

“may result

in either

of the following:

The filing of an enforcement action with the

11

!4—~6

---

Pollution Control Board

.

.

.

and No.

2,

the filing of

a civil

action in the Circuit Court.”

(R.

at

34).

That letter also

mentioned

the administrative citation procedure

and stated that

“this Agency may cause an Administrative Citation

to be filed

further with the Pollution Control

Board with

respect

to such

alleged violations without further notice.”

(R.

at

34).

Mr. Wright

responded on September

25,

1989,

in writing

to

the Agency explaining

that the site had been cleaned up.

(R.

at

35).

Around the first

of October, Mr. Bosie then returned for

the follow—up inspection when he

informed Mr. Wright

that “there

would be no problem with an IEPA fine.”

(R.

at

36).

On October

21, 1989,

Mr. Wright received the administrative citation.

Mr.

Wright continued communicating with the Agency through both phone

calls and letters.

One such letter

from the Agency to Mr. Wright

on November

13,

1889,

informed Mr. Wright that he would

“have

to

clean up the property,

maintain

it

in a proper condition and

refrain from open dumping.”

(R.

at

37).

Section

31.1(a)

states that a violation of Section

21(p)

or

(q) “shall be enforceable either

by an administrative citation

under

this Section or

as otherwise provided by this Act.”

(emphasis added).

The Agency,

therefore,

is bound by its

selection.

Upon discovery of an apparent violation of

Section

21(p)

or

(q)

of

the Act,

the Agency has several alternatives

for

continuing

its enforcement process.

Those alternatives are to

file an administrative citation,

to

formally

(per Section

31(d)

of the Act)

or

informally

seek voluntary compliance.

Voluntary

compliance is often sought as a means of avoiding a formal

enforcement action.

Failure of the pre—enforcernent process under

Section

31(d)

of the Act

is normally followed by

the third

option, a formal enforcement action under

Section 31(a)

of the

Act.

Section 31.1(b)

of the Act provides that

an administrative

citation must

be filed within

60 days of an inspection;

however,

there

is no time limitation on the filing of a formal enforcement

proceeding.

Section

31(a)

of the Act the administrative citation

process

is designed for prompt and efficient enforcement

of

a

limited number of straight—forward provisions of the Act.

The

formal enforcement process

is designed

to cover

all violations

of

the Act and tends

to be more lengthy and legally complex.

In this case the Agency proceeded as

if

it intended

to seek

voluntary compliance.

Mr. Wright was clearly

led

to

believe

that

the matter would be closed

if he cleaned up

the site within

30

days.

However,

the administrative citation was issued near the

end of

the

60 day period despite the fact that the Agency had

proceeded under

the pre—enforcement

track and the site was

cleaned up.

The Board believes that

in this instance the

administrative citation was improperly

issued.

An Agency agreement not

to bring an enforcement action was

held to be binding on the Agency

in the Second District Appellate

I.

1 !~-S(7

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—6—

Court of

Illinois.

In Modine Manufacturing Co.

v.

Pollution

Control

Board,

193 Ill. App.

3d 643,

549 N.E.2d 1379,

140 Ill.

Dec.

507

(1990)

(Modine I),

the Court discusses an unpublished

decision

in Modine Manufacturing Co.

v.

Pollution Control. Board,

176 Ill.

App.

3d 1172

(1988)

(an unpublished order)

(Modine

II).

In Modine

I

the Court explained that the Agency,

in Modine

II, had agreed to accept a compliance plan from Modine and

to

refrain from bringing an enforcement action.

Modine asserted

that the agreement not

to institute enforcement proceedings for

emission and permit violations barred

the enforcement action

brought

by the Agency.

In Modine

II,

the Court dismissed

the

action for emissions violations and remanded the case

to the

Board

to set the penalty on the permit violations.

In discussing

Modine

II the Court further stated

‘1that the EPA had agreed not

to pursue enforcement based on emissions violations but that no

such agreement existed with respect to permit violations.”

Modine

I

(549 N.E.2d 1381,

140 Ill.

Dec.

509).

Mr. Wright’s assertion concerning

the statements made

by the

Agency’s field inspector are persuasive

in light of

the apparent

Agency policy,

at that time,

of

not proceeding with

administrative citations

if the sites were cleaned up.

Indicative of

such policy is that

in 1989 and early 1990,

the

Agency filed motions to dismiss several administrative citations

in which the Agency cited negotiations which had resulted

in

“cleanup of the subject open dump.”

(Illinois Environmental

Protection Agency v.

John Buns,

Jr., AC 89—147, November

2,

1989)

(Buns)

and Illinois Environmental Protection Agency

V.

Raymond Tangman, AC 89—210,

November

2,

1989

(Tangman)).

In

addition

to Buns

and Tangman,

the Agency filed motions

to

dismiss administrative citations where

the site had been cleaned

up in Illinois Environmental Protection Agency

v.

____

Free~ort,AC 89-253, January

11,

1990 and Illinois Environmental

Protection Agency

v.

Kissner Company, AC 89—247,

February

8,

1990.

The communication between the parties during the period from

the inspection

to the issuance of the administrative citation

is

most important

in administrative citation cases.

Communication

is important because the citizens who are being cited with the

administrative citation are often unfamiliar with the Act and

enforcement procedures.

In this case communication

is of special

significance.

As the letter

of September

25,

1989,

stated,

the

Act allows

the Agency to use either

the administrative citation

or

formal enforcement ~roceedings.

A plain

reading

of

the

statute

indicates that the General Assembly did not intend that a

citizen would be charged

for the same violation under both the

administrative citation provisions and the formal enforcement

provisions of the Act for

a specific violation on a given

day.

In this case,

the statements made

by the Agency’s field

inspector,

coupled with the correspondence received from the

Agency by Mr. Wright,

served to confuse Mr. Wright.

Mr. Wright

was informed by the Agency inspector that he had 30 days

to clean

I I!’—3(~$

---

—7—

up the site or he would be subject

to

a $500 fine.

(R.

at

33).

Next

Mr. Wright received the letter of

September

25,

1989;

followed by the statements of the Agency’s inspector at the final

inspection.

Finally,

on October

18,

1989,

he received the

administrative citation; even though,

by the Agency’s own

admission,

Mr. Wright had the site cleaned up within

the

30 days

given him by the inspector.

(R.

at

33).

The Board notes

that

in the formal enforcement process

considerations such as the person’s cooperation and voluntary

clean up of

the site can be considered

in mitigation

of damages

or outright dismissal of

the complaint.

However,

in

administrative citation cases,

Section 31.1

(d)(2)

provides that

no penalty shall

issue

if the Board

finds,

for any reason,

that

the violation did not occur

or that

the violation did occur but

“resulted from uncontrollable circumstances”.

The Act,

by

its

terms, does not envision

a properly issued administrative

citation being dismissed on mitigated because a person

is

cooperative or voluntarily cleans—up the site and the Board does

not find differently today.

The Board does not view today’s decision as limiting the

Agency’s ability to utilize the administrative citation

process.

If an inspector determines

that

a site

is

in violation

the Agency may promptly issue

an administrative citation.

Alternatively,

the Agency may give a person time

to clean up the

site with the decision

to give time being binding upon the Agency

during the specified

time.

If upon reinspection

the site

is

still thought

to be

in violation an administrative citation could

properly issue based upon the reinspection.

The Board considers

these steps

to be a proper exercise of the Agency’s discretion

and authority as granted by the legislature under

the Act.

Because of the assurance made by the field inspector and the

confusion from the simultaneous pursuit

of both pre—enforcement

and administrative citation processes,

the Board

finds

that the

administrative citation was improperly issued and this case

is

hereby dismissed.

This Opinion constitutes

the Board’s findings of

fact and

conclusions

of law in

this matter.

ORDER

For the

reasons explained

in the foregoing Opinion,

the

administrative citation

is hereby dismissed.

IT IS SO ORDERED.

Board Members

B.

Forcade and J.

Theodore Meyer concurred.

I 14—’$6°

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—8—

I,

Dorothy M.

Gunn, Clerk

of the Illinois Pollution Control

Board, hereby certify that

the abqye Opinion and Order was

adopted on the

~

day of

________________,

1990, by a vote

of

7-c.

~27.

~

Dorothy M. G4~1n,Clerk

Illinois Pollution Control Board