ILLINOIS POLLUTION CONTROL BOARD
December
15,
1988
VILLAGE OF RIVERSIDE,
)
)
Complainant,
v.
)
PCB 88—54
EDWIN AND MARY SUSAN KOZOYED,
)
Respondents.
DAVID C. NEWMAN,
ESQ.,
OF CARRANE,
ZWIRN, NEWMAN AND FREIFELD
APPEARED ON BEHALF OF THE PETITIONER.
PATRICIA
F. SHARKEY, ESQ., OF MAYER, BROWN AND PLATT APPEARED ON
BEHALF OF THE RESPONDENTS.
OPINION
AND ORDER OF THE BOARD
(by M.
Nardulli):
This matter comes before the Board from a March
18, 1988
complaint filed
on behalf of
the Village
of Riverside against
Edwin and Mary Susan Kozoyed.
The complaint alleges that the
Kozoyeds violated Section 21(a)
and
(b)
of the Illinois
Environmental Protection Act
(hereinafter “Act”) which provide:
Section
21
No person shall:
a.
Cause or a1~1owthe open dumping
of any waste
b. Abandon, dump,
or deposit any
waste upon the
public highways or
other public property,
except
in
a sanitary landfill approved by
the Agency pursuant
to
regulations adopted by the Board.
A public hearing was held on
this matter
on June
8,
1988
in
Riverside,
Cook County.
Two persons testified
for
the
Complainant and two persons testified for
the Respondents.
In
addition,
one member of
the public, who was present at the
hearing, was called upon
to testify.
By agreement of the
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parties,
no post—hearing briefs were filed.
Based
on the record,
the Board finds
that the Complainant
has
failed to carry
its burden of proving the Respondents
violated Section 21
of the Act,
As
a result, the Board will not
enter
the order requested by the Petitioner.
BACKGROUND
The Kozoyeds own and control property that
is adjacent to
property owned
by the Village of Riverside and adjacent to
property controlled by the Forest Preserve District of Cook
County.
The Kozoyeds’ property
is located
in an unincorporated
area of Cook County, known as Riverside Lawn.
The Kozoyed’s
property borders the Village
of Riverside but is not under the
village’s jurisdiction.
In the complaint,
the Village
of
Riverside claimed
that the Kozoyeds are dumping,
or are causing
to
be dumped, quantities of trash,
tin cans, bottles, plastic
containers,
landscape waste,
bricks,
stones,
gravel and other
refuse materials on the property.
Further,
they alleged that a
portion of these materials were being dumped or deposited on
adjoining public property owned by the Village of Riverside.
The
Complainant requested that the Board enter an order
to have the
Respondents remove such waste deposits from both their own and
the adjoining public property and prohibit further use of the
properties as a site for dumping waste and refuse
items.
At hearing,
the Village
of Riverside presented two witnesses
and considerable photographic evidence to substantiate the
allegations.
The first witness called by the Plaintiffs was
Chester Kendior, Jr., the Village Manager for the Village of
Riverside.
Mr. Kendior testified that on July 2,
1987,
and on
subsequent dates, he visited the site in question and found
that
debris including dirt, concrete, bricks,
wood,
pipe,
metal,
stones, cans and mattress springs had been dumped on both the
Kozoyeds’ property and on the property belonging to the Village
of Riverside
(R.
at 24—57).
Mr. Kendior stated that the village
never authorized
the dumping or spreading of such material on its
property
(R.
at 53) and also stated that the debris deposited on
the village’s property was removed by the village while the
debris deposited on the Kozoyed’s property was spread over the
Kozoyed’s property
(R.
at
42).
Mr. Kendior testified that he did not see the materials
actually being dumped except
for one occasion after July of 1987
(R.
at 54 and 59).
Further, Mr. Kendior did not testify that he
witnessed the piles of debris being spread over the Kozoyed’s
property but did present photographic evidence
in an effort
to
show that the materials that were in the debris piles after July
of 1987 were scattered throughout the Kozoyeds’ property
in April
of 1988
(R.
at 56
to 63).
On cross—examination, the attorney for
the Respondents was able to establish that Mr. Kendior had no
accurate way of determining the property lines between the
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Kozoyed’s property and the village property and may not have been
able
to determine
if the debris was actually on village property
(R.
at
69
to 109).
The other witness
for the Village
of Riverside was Mr.
Durnbough,
the Building and Zoning Commissioner for
the Village
of Riverside.
Mr. Durnbough testified that he photographed the
piles of debris on the Kozoyed’s property
(R.
at 177)
and he
testified that he did not consider the material
in the piles
shown in the photographs
to be clean fill or structural fill (R.
at 181 to 185).
The Respondents
first witness was Mr. Randy Pezza,
a
landscape contractor, who was hired by the Kozoyeds
to deliver
and spread fill on the property
in question.
Mr. Pezza stated
that he had discussed the property boundaries with Mr. Kozoyed
and also stated that the brush between the Kozoyeds’ property and
the village’s property prevented them from dumping on the
village’s property
(R.
at 218—219).
Mr.
Pezza testified that his
drivers knew where to dump the fill and that during his
approximately fifteen visits
to the site he never observed any of
his material dumped on the village’s property
(R.
at 219—221).
~s to the content
to the fill,
Mr. Pezza stated that the
fill material was the same quality of material used and
classified as residential fill
(R.
at 222).
He said that his
business did not involve concrete and that the piles
in the
photographs that contained concrete could not have been material
that his people dumped (R.
at
224).
Mr. Pezza also testified
concerning quality control procedures used at his Maywood plant
to ensure that the material dumped as residential fill
is clean
fill
(R.
at 229—230 and 259—262).
Mr. Ed Kozoyed testified on his own behalf at the hearing.
Mr. Kozoyed described the conditions of the property at the time
he purchased it
in October of 1986.
He stated that
a former
owner of
the property had allowed the property
to be used
as
a
dump site
(R.
at 267,
292—293 and 307—309) and that both he and
his wife witnessed people dumping material on the property,
including
a load of concrete,
in the months prior
to
their
acquisition of the property
(R.
at 269).
Mr. Kozoyed testified that his interest
in acquiring the
property was
to develop
it for residential housing and he
detailed efforts that he and Mrs. Kozoyed had made
to improve the
site
(R.
at 272
to 283).
Included
in this work was the
collection and removal
of debris from the property by M&R
Wrecking Company and Crown Disposal
(R.
at 278
to 281) and the
fill activity by Mr. Pezza
(R.
at 294
to
296).
Mr.
Kozoyed did
acknowledge that someone had fly dumped
a load of paneling
on
the
property since he had purchased
it
(R.
at
285)
and he said steps
had been taken to prevent others from dumping on the property
(R.
at 286—287).
Mr.
Kozoyed also testified that he had his property
surveyed
(R.
at 275)
and explained how he determined
the property
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lines and how he supervised
the activity on the property to
ensure that only his property was involved
(R.
at 298 to 302).
The member of the public who testified at the hearing was
a
friend of
the Kozoyeds, Mr. Daniel Przybylowski.
He testified
that he was familiar with the property and the dumping activity
on the property.
It was his testimony that only clean fill was
being dumped on the property and that the dumped material never
was spread on the Village of Riverside’s property
(R.
at 361).
DECISION
In a complaint of this type,
the burden of proving that
a
violation of the Act has occurred is clearly on the
complainant.
In order
to prove
a violation
of Section 21(a),
the
complainant would need
to show both that the respondents caused
or allowed open dumping and that the material that was dumped was
waste.
The Complainant,
in this matter, was able
to show that
there was dumping activity on the Respondent’s property.
However,
the evidence that the material dumped was waste was
inconclusive.
The only materials that the testimony indicates were
definitely dumped on the property were two truck loads witnessed
by Mr. Kendior
in 1987
(R.
at 54—55).
Mr. Kendior
stated that
this material contained construction material but did not
quantify the amount or precentage of construction material in the
pile and did not verify the testimony with photographic
evidence.
In fact,
Mr. Kendior did not photograph the site again
until April of the following year.
His claim that the debris
shown in the April 11,
1988 photographs
is the same debris he saw
dumped
in the yard
is not persuasively developed.
The
photographs show no distinguishing characteristics
in this debris
that would allow Mr. Kendior
to recognize it as the debris he saw
dumped.
Therefore,
the Complainant has failed to show that this
material he saw dumped was waste and not clean fill.
The remainder of the Complai~nant’stestimony and evidence
involving Section 21(a)
fail to show that the Respondent caused
or allowed
the waste
to be dumped.
The photographs of piles of
refuse do not prove
that this material was dumped on the site.
The Respondents maintain that these materials were gathered from
the site and piled prior
to disposal as part of the effort to
clear
the site of the debris that was on the property before they
acquired
it.
The Complainant have failed
to carry
the burden of
showing
the origins
of the piled debris.
In order
to prove
a violation of Section 21(b),
the
Complainant would need to show that the Kozoyeds were responsible
for abandoning,
dumping or depositing waste on public property.
The public property of concern
in this complaint
is
the property
adjacent
to the Kozoyed’s property that belongs
to the Village of
Riverside.
Again,
the only waste
that
the village can
94—44
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conclusively show was dumped by or
for the Kozoyeds
is the two
truck
loads of waste Mr. Kendior saw dumped after July of
1987.
Mr.
Kendior stated that part of these loads were deposited on
village property and removed by the village.
This testimony is
also not confirmed by photographic evidence.
Further,
the
testimony of Mr. Kendior does not persuade the Board that he had
definite knowledge of where the property line between the
Kozoyeds’ property and the village’s property waslocated or that
the landmarks that he was depending on
to determine the property
line were accurate indicators.
Conversely,
Mr. Kozoyed showed that he had had his property
surveyed
to determine the property line.
He further testified
that he supervised and inspected all of the dumping, grading and
cleanup work on his property to ensure that none of the material
was moved
to adjoining property.
In addition,
Mr. Pezza stated
that the heavy brush between the properties made
it
impossible
for
a truck
to access the area from the Kozoyeds’ property and
dump on the village property.
Based on this information,
the
Board
is unpersuaded
that the Kozoyeds violated or caused
a
violation of Section 21(b).
CONCLUSION
The Complainant has failed to persuade the Board that the
Respondents, Edwin and Mary Sue Kozoyed, were responsible for
a
violation of Sections 21(a)
and
(b)
of the Act.
Consequently,
the Board will
not enter an order granting the relief sought by
the Complainant and dismisses the complaint with prejudice.
This opinion constitutes the Board finding of fact and
conclusion of law
in this matter.
ORDER
The Board hereby denies
relief to the Complainant, Village
of Riverside,
in the above captioned matter and dismisses the
complaint with prejudice.
Section 41 of
the Environmental Protection Act,
Ill.
Rev.
Stat.
1985,
ch.
1111/2, 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 SO ORDERED.
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—6—
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
,~I---&,.t~
1988, by
a vote of
________.
Ih
Dorothy M. ,~unn,Clerk,
Illinois Pállution Control Board
94—46