ILLINOIS POLLUTION CONTROL BOARD
July 13,1989
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
)
AC 89—10
)
(IEPA Docket No. 9363—AC)
)
Docket A
JIM LANDERS,
Respondent.
MR. WILLIAM SELTZER,
ESQ., APPEARED ON BEHALF OF THE PETITIONER,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.
MR. JIM LANDERS APPEARED PRO SE.
OPINION AND ORDER OF THE BOARD
(by M. Nardulli):
This matter comes before the Board from a January
24, 1989
request for review of an administrative citation filed by Mr. Jim
Landers
(“Landers”)
on his own behalf.
Mr.
Landers seeks review
of
an administrative citation filed by the Illinois Environmental
Protection Agency (“Agency”)
on January
11
1989.
In the
administrative citation,
the Agency alleged that the Respondent
caused or allowed open dumping at
a facility that he owned and
operated,
resulting
in violation of Section 2l(q)(l) and 21(q)(3)
of the Environmental Protection Act
(“Act”).
Both filings are
pursuant to paragraph 1031.1 of the Act.
Hearing was held
in this matter on April
26,
1989
in the
Clinton County Building.
Two witnesses were called by the
Agency.
The first was the Agency’s field inspector,
Dale
Elenberger
(R.4).
The other was Terry Schumann,
the DeWitt
County Deputy Sheriff
(R.22).
Mr. Landers testified on his own
behalf.
At the conclusion of the hearing,
the hearing officer
established a schedule for filing post—hearing
briefs.
The brief
for the Agency was due on May
24, 1989
(R.38), however
the Agency
has not riled
a brief
to date.
The Respondent was given until
June
7,
1989,
or
eourteen days after
filing of the Agency’s brief
to file his oost-hearing comments.
The Respondent indicated at
hearing
that
he had no
intention to make any post-hearing
comments
(R.38).
101—149
—2—
BACKGROUND
Mr.
Jim Landers
is the owner and operator of a facility
commonly known as the Kenney/Landers facility in DeWitt
County.
On November
16, 1988,
S. Dale Elenberger of the Agency inspected
this facility.
On the basis of the inspection,
the Agency
determined the Respondent had operated the site in violation of
paragraph 102l(q)(l)
and (q)(3) of the Act, to wit:
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 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;
4.
deposition of waste in standing or flowing waters;
5.
proliferation of disease vectors;
6.
standing or flowing liquid discharge from the dump
site.
Accordingly, on January 11,
1989,
the Agency Issued an
administrative citation to respondent
in which a civil penalty of
$500 was assessed for each of the two violations
for
a total
of
$1000,
pursuant to Section 42(b)(4)
of
the Act.
Respondent now contests before this Board the Agency’s
determination of the two violations.
Alternatively,
if the
Agency’s determination of violation are upheld,
the violations
could be found to have
resulted from uncontrollable
circumstances,
thus invoking the “uncontrollable circumstances”
provision of the Act:
If the Board finds that the person
appealing
the citation has shown
that the
violation resulted from uncontrollable
circumstances,
the Board shll adopt
a
final order which makes
no finding of
violation and which imposes
no penalty.
lO3l.1(d)(2) of Act.
101—150
—3—
DETERMINATION OF VIOLATION
In support of
its determination that the respondent caused
or allowed open dumping and open burning,
the Agency submitted
photographs
(Ex.
1 through
21)
taken by Mr. Elenberger during his
site investigation on November
16, 1988.
Mr. Elenberger
testified that
the inspection revealed a number of “smelting” and
open—burning operations at the facility
(R.
9—12,
17,
19—21,
22).
The inspection also revealed a
number of areas where
materials,
including batteries,
had been dumped or improperly
stored
(R.
13—15,
18,
21,
22).
Mr. Elenberger’s testimony was
substantiated by the testimony of Officer Schumann as well as by
the photographic evidence.
Mr.
Elenberger further testified that
he spoke
with
Mr. Landers about the open burning during the
inspection and that
Mr. Landers referred to burning operations
for smelting aluminum and for burning
insulation off
of wire
(R.
25—26).
In his own testimony,
Mr. Landers stated that he burned
tires
to burn weeds on the property and that he “burned copper”
(R.33)
Mr.
Landers did not present an argument that the violations
resulted from uncontrollable circumstances.
He did, however,
argue that much of the improper storage of batteries and the
burning
of insulation were an unavoidable part
of
the scrap
business and that the burning of tires was necessary to his
efforts to clean
up the existing mess
(R.
33—34).
These
statements do not represent an uncontrollable circumstances based
on the Board’s interpretation of this language.
The Board finds
that the Agency has shown that the
Respondent was
in violation of paragraph lO2l(q)(i)
and (q)(3)
of
the Act on November
16,
1988.
The Respondent failed to refute
the proof presented by the Agency and failed to make any argument
of uncontrollable circumstances that resulted in the
violations.
Therefore,
the Board finds
that the Agency’s
determination of violations
of the provision against causing or
allowing open dumping and open burning were correct and hereby
upholds the administrative citation and the penalty imposed.
PENALTIES
Penalties
in administrative citation actions of
the type
here brought are prescribed 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
provisions
of subsection
(p)
of Section
21
of this Act shall pay civil penalty of
$500
for each violation of each such
provision, plus any hearing costs
101—151
—4—
incurred by the Board and the
Environmental Protection Agency.
Such
penalities 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.
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 Agency.
The Clerk
of the Board and the Agency
will
therefore be ordered to each file
a statement
of costs,
supported by affidavit, with the Board and with service upon
respondent.
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
in violation, as alleged
of Ill.
Rev.
Stat.
1986 Supp.,
Ch; 1ll~,par.
102l(q)(l)
and
(q)(3).
2)
Within
45 days of
this Order
of July
13,
1989,
respondent
shall,
by certified check
or money
order, pay
a civil penalty
in the amount of
$1,000
payable
to the Environmental Protection Trust
Fund.
Such payment shall be sent to:
Illinois Environmental Protection Agency
Fiscal Service Division
2200 Churchill Road
Springfield,
IL
62706
3)
Docket
A in this matter
is hereby closed.
4)
Within
30 days
of this Order of July 13,
1989,
the
Environmental Protection Agency 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
101—152
—5—
with service upon 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
4)
within 45 days of this Order of July
13,
1989.
Section 41
of the Environmental Protection Act,
Ill. Rev.
Stat.
1985,
ch. 11l~,par.
1041, provides for appeal of Final
Orders of the Board within
35 days of the issuance of Final
Orders.
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, hereby certify that the above Opinio
and Order was
adopted on the
~
day of ________________________
1989, by
a vote of
7—c
.
orothy M. ~nn,
Clerk,
Illinois Po~lutionControl Board
101—153