ILL1NO1S
POLLETIGL.
CCNTRCJL
BOARD
September
17, 1967
ILLINOIS ENVIRONMENTAL
PROTECTION AGENC~’,
Complainant,
I
v.
)
AC
87—6
JAMES PRESSNALL,
Respondent.
MR.
3AMES
H.
?P~ESSNALL A~PEAREL PRO
SE.
MR. IILLIAM SELTZER APPEARED ON BEHALF OF THE ILLINOiS
ENVIRGNMEi~TALP~CTEC’IION AGENCY.
OPINION
AND
ORDER OF THE BOARD
(by 3.
Marlin):
This matter
comes before
the Board
on
a Petition
for Review,
filed
by James Pressnall
(Pressnall)
on March
5,
1987.
Pressnall
is
seeking review of
an administrative citation that was issued
against
him by the Illinois Environmental Protection Agency
(Agency) anc~ tiled with
the Board
on January 27,
1987.
A hearing
was held
in
this matter
on May
28,
1987
in Belleville,
Illinois.
Section
31.1
of
the Illinois Environmental Protection Act
(Act)
sets forth
the process
by which prohibitions specified
in
Section 21(p)
of
the
Act may
be enforced
by administrative
citations.
Ill.
Rev.
Stat.
1986 Supp.,
cn.
111 1/2
,
par.
1031.1.
After
an
administrative citation
is issued
and served
upon
a person,
that person has
35
days
in which
to file
a
petition
for review
of
the citation.
If
that person fails
to
file
a petition within that
time period,
the Board
is directed by
Section 3l.1(d)(l)
of the Act to adopt
a final
order
imposing the
penalty
as
specified
by
the
citation.
The
only
time
the
Board
may review
the merits
of
a citation
is when
a petition
for review
of the citation
is filed
in
a timely manner.
Alleged Proceöural Errors
Pressnall
claims that several procedural errors occurred
concerning
the hearing.
First,
he states
in his brief:
Further,
he
Pressnall)
takes
exception
of
the manner
in which
he was notified
to appear
for
a
hearing
in
Court
Chambers,
City
Hall,
Belleville,
IL.
He
was
not
advised
of
his
rights
to
legal
counsel
and
was
forced
to
testify,
unprepared,
on
his own
behalf.
He
was not
advised
to
bring
witnesses,
which
he
~1—3O7
coulo
well
nave
done
to
collaoorate
his
points
and
positions;
unfair
advantage
has
been taken b~ the IEPA.
(Pressnall
Brief,
p.
1).
Pressnal? does
not
support any of
these allegations with
facts.
Also,
this
is
a civil, not
criminal, action;
as
a result,
it
is not legally necessary
to inform
a respondent
of his right
to counsel.
lt
is important
to note that Pressnall petitioned
for
review
of
the administrative citation.
That
is,
it was his
own action which triggered
the hearing.
Section 31.l(d)(2)
of
the A~tprovides
that when
a
petition for review
is filed before
tne
Board,
the A:ency
or
unit
of
local government
which
issued
the citation “shal
appear
as
a complainant at
a hearing before
the Board
to be conducted pursuant
to Section
32
of
this Act.”
Section
32
of
the Act
states:
Any party
to
a
hearing
under
this subsection
may
be
represented
by
counsel,
may make oral
or
written
arcument,
offer
testimony,
cross—
examine witnesses,
or
take any combination of
such actions.
All testimony taken before
the
Board
shall
be
recorded
stenographically.
The
transcript
so
recorded,
and
any
additional
matter
accepted
for
the
record,
snall
~e
o;en
to
public
inspection,
and
copies thereof shall
be made available
to any
person
upon
payment
of
the
actual
cost
of
reproducIng
the original.
111.
Rev.
Stat.
1965,
ch.
111 1/2
par.
1032.
Given
the
clear language
of
the Act,
it
is difficult
for the
Board
to understand
how Pressnall
can claim that
he was
uninformed
as
to how the
hearing was to
be conducted.
The Board
is not pursuaded
that Pressnall was prejudiced
as he seems
to
claim.
Secondly,
Pressnall
claims that
he was “denied
a copy
of the
transcript of
the hearing.”
(Pressnall
Brief,
p.
1).
He states
that
the court
reporter
said that
a copy
could be purchased
from
the court reporting service
for
$150.
It appears
that this cost
is
the
sole basis
for his failure
to acquire
a transcript.
Section
32 of the Act,
as
quoted above, provides that
all
transcripts
“shall
be open
to public inspection.”
Also,
the
Board
will provide copies of
a hearing transcript
to any person
upon payment
of the actual cost
of reproduction.
At this point
in
time,
the Board’s cost
for photocopying
a transcript
is based
on
a
rate
of
10 cents
per page.
Since
the hearing
in this matter
generated
a transcript
that was 173 pages,
the
total
cost for
a
copy
of
the nearing transcript,
if procured from
the Board,
would
81—308
3
amount
to $17.30.
Given
that Pressnall could
have reviewed the
transcript
at
the Board’s offices for
free
or purchased his own
copy
for $17.30,
the Board believes
that Pressnall
is not
justified
in claiming that he was denied access to
a
transcript.
In addition, Pressnall
claims that tne lack
of
“a
pre—trial hearing” prevented his preparation of
an “adequate
defense”.
(Pressnall Brief,
p.
2).
~nile
a pre—hearing
conference
is helpful
in many instances,
it
is certainly not
necessary
in all
cases.
The Board
finds no
reason to conclude
that Pressnall was prejudiced due
to the lack of
a pre—hearing
conference.
Finally,
Pressnall claims that
the hearing officer
erred
in
failing
to exclude witnesses from the hearing room while others
testified.
However, according
to the hearing transcript,
it
is
clear
that Pressriall
never made
a request to exclude witnesses
from the hearing
room.
Since Pressnall never made such
a request
at hearing,
he waived any subsequent claim
that he was prejudiced
due
to the lack of exclusion.
Administrative Citation Process
Section
21(p)
of the Act consists
of
a
list of prohibitions
that may be enforced by administrative citations.
Section 2l(p)
provides:
No person shall:...
p)
Conduct
a
sanitary
landfill
operation
which
is required to have
a permit under
subsection
(d)
of
this
Section,
in
a
manner
which
results
in
any
of
the
following
conditions:
The
subsection
then lists twelve specific conditions)
Ill.
Rev.
Stat.
1986 Supp.,
ch.
111 1/2
par.
lO2l(p)
The citation that was issued
to Pressnall
states:
T)he
Illinois
Environmental
Protection
Agency
has
determined
that
Respondent
was
conducting
a
sanitary
landfill
operation
at
the
above—described
facility,
which
was
required
to
have
a
permit
pursuant
to
Ill.
Rev.
Stat.
1985,
ch.
111
~/2
,
par.
1021(d),
without
the
required permits
and
in
a manner
which resulted
in the following conditions:
A.
On
December
16,
1986,
said
unpermitted
landfill
facility
had
uncovered
refuse
remaining from
a previous operating day,
in
violation
of
Ill.
Rev.
Stat.
1986
Supp.,
ch.
1111/2, par.
lO2l(p)(5).
81—309
4
B.
On
December
12,
1986,
said
unpermitted
landtill
facility
had
open
burning
of
refuse,
in violation
of
Ill.
Rev.
Stat.
l9&~Supp.,
cn.
111
1/2
,
par.
lO2l(p)(4).
C.
On
December
16,
1986
said
facility
had
unpermitted
portions
of
its
facility
wherein
refuse
had
been
deposited,
in
violation
of Ill.
Rev.
Stat.
1986 Supp.,
ch.
111 ~
par.
lQ2l(p)(~).
(Agency Citation,
p.
2)
Section 3l.l(d)(2)
of the Act provides the standard for the
Board’s
review of
the administrative citation.
If,
based
on the record,
the Board
finds that
the
alleged
violation
occurred,
it
shall
adopt
a
final
order
which
shall
include
the
administrative
citation
and
findings
of
violation
as
alleged
in
the
citation,
and
shall
impose
the
penalty
specified
in
subdivisions
(b)(4)
of
Section
42.
However,
if
the
Board
finds
that
the person appealing
the
citation
has
shown
that
the
violation
resulted
from
uncontrollable
circumstances,
the
Board
shall
adopt
a
final
order
which
makes
no
finding
of
violation
and
which
imposes
no penalty.
Ill.
Rev.
Stat.
1986
Supp.,
ch.
1111/2, par.
103l.l(d)(2)
The Section further provides that the burden
of proof
is on the
Agency
or
the unit
of local government which issued
the citation.
The Board
has never
before
issued
a decisionupon
a petition
for review of
an administrative citation; this
is
a case
of the
first impression.
Consequently,
it
is necessary
to closely
examine the elements
of
a Section
21(p)
offense
as enforced
by
the administrative citation process.
Such
an examination can be
accomplished
by answering
the questions:
who; what;
how;
and
when.
Who may be
issued
an
administrative citation?
This question
is answered simply.
Section
21 states
“No
person shall”.
The term “person”
is defined
under the Act.
“PERSON”
is
any individual, partnership,
00—
partnership,
firm,
company,
corporation,
81—310
5
association,
joint
stock
company,
trust,
estate,
political
subdivision,
state
agency,
or
any
other
legal
entity,
or
their
legal
representative,
agent
or assigns.
lii.
Rev.
Stat.
1986
Supp.,
ch.
111
~/2
,
par.
1003.26.
What type of facility
is subject
to an administrative citation
enforcement
action?
Subsection
(t)
of
Section
.1 further
states,
after
the
phrase “no person shall,”
“(c)onduct
a sanitary landfill
operation which
is re~uired to have
a
permit under
subsection
(d)
of
this
Section.”
Subsection
(d)
states:
flo person shall:
d)
Conduct
any
waste—storage,
waste—
treatment,
or
waste—disposal operation:
1)
without
a
permit
granted
by
the
Agency
or
in
violation
of
any
conditions
imposed
by
such
permit,
including periodic reports and
full
access
to
adequate records
and
the
inspection
of facilities,
as may
be
necessary to assure compliance with
this
Act
and
with
regulations
and
standards
adopted
thereunder,
provided,
however,
that
no
permit
shall
be
required
for
any
person
conducting
a
waste—storage,
waste—
treatment,
or
waste—disposal
operation
for
wastes
generated
by
such
person’s
own
activities
which
are
stored,
treated,
or
disposed
within
the
site
where
such
wastes
are generated;
or,
2)
in
violation
of
any regulations
or
standards
adopted
by
the
Board
under
this Act.
This subsection
(d)
shall
not apply to
hazardous waste.
A plain reading
of the language of subsection
(p) suggests that
only sanitary landfill operations which
are also subject
to
subsection
(a)
may be subject
to subsection
(p).
Also,
subsection
(d) makes
no mention of
the
term “sanitary landfill
operation”.
Given
these observations,
it
is clear
that
subsection
(d) does not define
the term “sanitary landfill
81—311
operation”
but merely provides
additional limiting requirements
which
serve
to delineate
the scope
of applicability under
subsection
(p).
Therefore,
the board must look elsewhere
in the
Act for a definition
of
a “sanitary landfill operation”.
The Act provides
a definition
for “sanitary landfill”
in
Section 3.41:
“Sanitary
Landfill”
means
a
facility
permitted
by
the
Agency
for
the disposal
of
waste
on land meeting
the requirements of
the
Resource
Conservation
and Recovery
Act,
P.L.
94—580,
and
regulations
thereunder,
and
without
creating
nuis.~nces
or
hazards
to
public
health
or
safety,
by
confining
the
refuse
to
the
smallest
practical
volume
and
covering
it
with
a
layer
of
earth
at
the
conclusion
of
each
day’s
operation,
or
by
such other methods and intervals
as the board
may provide ~y regulation.
(emphasis added).
Section
3.41
of the Act,
Ill.
Rev.
Stat.
1986 Supp.,
ch.
111
1/2
,
par.
1003.41.
It naturally follows
that
the
type
of facility subject
to
a
Section
21(p)
enforcement action must
be
a permitted facility as
described
in Section
3.41
as well
as
be
a facility which
is
required
to have
a permit under
the Section
21(d).
One may
argue
that
there
is
a substantive difference between the terms
“sanitary landfill”
and “sanitary landfill operation”.
The
Board,
though,
does not see any such distinction.
Given
that
there
is
a statutory definition of “sanitary landfill”
and that
there
is
no statutory definition
of
“sanitary landfill
operation”,
it
is
the Board’s position that the legislature did
not
intend
to create
a term with new legal
significance when
it
used
the phrase “sanitary landfill operation”.
In other words,
“sanitary landfill operation”
is plainly
read
to be equivalent
to
the phrase “operation of
a sanitary
landfill”.
In short,
sanitary landfill operations
include
only those
facilities that
are permitted
by the Agency and meet the other requirements of
Section 3.41.
Therefore,
sanitary landfill operations that are
subject
to administrative citation enforcement
of
Section
21(p)
must
in the least
be permitted
by the Agency and
fall within the
other requirements
of Section
3.41.
The additional requirement
that
the facility must
be
a sanitary landfill operation
“which
is
required
to have
a permit under
subsection
(d)
of the Section,”
(emphasis added)
further
strengthens
the position that only
permitted facilities may
be subject
to an administrative citation
enforcement of Section 21(p).
From the above analysis,
it can
be concluded
that
if
a
person
is conducting
a landfill
operation without
a permit, hence
81—312
the facility is
not
a sanitary landfill
as defined
by the Act,
then
that person may not be
issued
an administrative citation for
the enforcement
of Section
21(p).
Instead,
that person could
be
subject
to
a regular enforcement action for
the violation of
Section 21(d).
As noted earlier, subsection
(d)
does not mention
the term “sanitary landfill”.
Therefore,
unlike subsection
(p),
subsection
Cd)
is designed
to enable actions
to be brought
against unpermitted
facilities.
One fact which further
bolsters
the position that only
permitted facilities may
be subject
to administrative citation
involves
the wording
of
the prohibited
conditions listed
in
subsection
(p).
Section 2l(p)(9)
states,
“deposition of
refuse
in
any
unpermitted portion
of
the lanafill.”
(emphasis added).
The language of this prohibited condition
implies that the
remainder of
the landfill
is permitted.
If
non—permitted
facilities were meant
to
be subject
to
a 21(p) enforcement
action,
condition
(9) would
have likely been drafted
to read
“deposition of refuse
in any unpermitted landfill.”
How must
a facility be oDerated
in order
to
be subject
to
an
administrative citation enforcement action?
This question
is easily answered
by
the statutory
language.
Section
21(p)
sets forth twelve specific prohibited
conditions.
lf
a facility,
which
is
of the requisite type
as
discussed above,
is operated such
that any
of twelve prohibited
conditions
occur,
then
the person
operating
that
facility could
be subject
to Section
21(p)
enforcement action.
When must
the prohibited
conditions
occur
for there
to be
a
violation
of
Section
21(o)
as enforced
by an administrative
citation?
Section 31.1 of
the Act states
that
“subsection
(p)
of
Section 21... shall
be enforceable either
by administrative
citation.. .or
as otherwise provided
by this Act.”
Ill.
Rev.
Stat.
1986 Supp.,
ch.
111
1/2
,
par.
1031.1(a).
The answer
to the
above question
is different depending on how Section 21(p)
is
enforced.
In
an administrative citation enforcement action,
the
prohibited condition must occur
at
the time the facility
is being
inspected by Agency personnel
or personnel
of
a unit of local
government which issues
a citation.
Provisions
of the Section
31.1
of the Act dictate
this conclusion.
Determination of
a
violation by the issuer
of an administrative citation must
be
“on
the basis of direct observation.”
An administrative citation
must then be issued and served “within
not more than
60 days
after
the date
of the observed violation.”
(emphasis added).
Ill.
Rev.
Stat.
1986 Supp.,
ch.
111 ~/2
,
par. 1031.1(b).
The Act
further requires that
the citation served must include “an
affidavit
by the personnel
observinq
the violation attesting
to
their material actions and observations.”
(empnasis added).
Ill.
Rev.
Stat. 186
Supp.,
ch.
111 ~/2
,
par.
1031.1(b) (5).
81—313
S
It
is clear
from
the above references
to Section
31.1
tnat
the prohibited
conditions,
upon which
an administrative citation
may be
issued, must
have been observed by personnel
of
the Agency
or unit
of local government
issuing the citation.
Conversely,
if
the personnel did not observe the prohibited
conáition,
an
administrative citation cannot
be issued on the basis
of that
condition’s existence.
As stated above,
Section
21(p)
can be enforced through
the
more
traditional procedure of an enforcement action conducted
pursuant
to Section
31.
In such
an action,
direct observation
of
the prohibited condition by Agency designated would
not be
necessary before
a violation can
be
found.
Other
types of
evidence could
be utilized
to prove
the violation.
The Board may find that
the violation occurred only when all
of
the above—described elements are fulfilled.
The Board will
next evaluate the particular
facts
at
hand
in
the context of
those elements.
Citation Issued
to Pressnall
First,
James Pressnall,
the Respondent,
is certainly
a
“person”
as defined
under
the Act.
Secondly,
the
Board must examine
the
type of facility that
is the subject of
the citation issued
to Pressnall.
In
the
citation,
the Agency alleges,
“t)hat
said
Pressnall’s)
facility
has been operated
as
a landfill,
operating without an Illinois
Environmental Protection Agency Operating Permit.”
At hearing,
an Agency employee,
Kenneth
G. Mensing,
stated that the facility
has never
been issued
a permit
to dispose
of any type
of waste
or
refuse.
(P.
22).
Also,
at hearing, Pressnall asserted that
he
was
in
the construction
and salvage business,
not
a disposal
business.
He claimed
that
he could
not remember anyone from the
Agency telling him that his operation required
a permit.
(R.
160).
It
is clear
from the record that Pressnall does not have
an Agency permit
to dispose
of waste
in
a landfill.
Consequently,
in
the context of
an administrative citation,
Pressnall’s facility cannot
be considered
a “sanitary landfill
operation which
is required to have
a permit under subsection
(d)” of Section
21
of the Act.
The Agency has not presented any
evidence to indicate otherwise.
It
is quite
clear
that
the Agency believes
it may issue
an
administrative citation to
a facility which is not a sanitary
landfill,
as defined
by the Act.
It
is the Board’s position that
such
an action
is without statutory authority and ignores
the
unambiguous language
of the Act.
Since
all
four elements of an administrative citation must
be proven,
the failure
to prove
any one element warrants
a
81—314
C’
finding
of
no violation.
Because
the Agency failed
to prove that
Pressnall was conducting
“a
sanitary landfill operation which
is
required
to have
a permit under
subsection
(d)”
of Section
21,
the Board
finds
that
the violations
alleged
by the administrative
citation did not
occur.
Although
it
is unnecessary now to evaluate
the
alleged
occurrences of the prohibited conditions cited by the
administrative citation,
the Board
is concerned with
the Agency’s
apparent position with regard
to the timing
of
those
occurrences.
The administrative citation charged
that “o)n
December
12,
1986
an unpermitted landfill
facility had
open
burning
of refuse
in violation of
Ill.
Rev.
Stat.
1966
Supp.,
ch.
111 ~
tar.
lO2l(p)(4).”
however,
the inspection
of
the facility
conducted
by Renneth :~er.sing and Randy Ballard
of the Agency,
took place on December
16,
1986.
At
hearing,
Mr.
Mensing
stated
that
at
the time
of
the inspection
he only saw evidence
of
a past
fire:
“There was
sicj
no visible signs
of smoldering,
but
it
was my determination that
there
had
been
a recent fire
involving
some of
the material
at the site.”
(P.
22—23).
However,
according
to Mensing, at
the
time
of
the inspection
there was no
observed fire.
(h.
64).
As discussed
earlier, when
an administrative citation
is
issued
by
the Agency
or
unit of local
government
the personnel
of
the Agency
or
unit
of local
government must directly observe
the
prohibited conditions
alleged by the citation.
In other words,
prohibited conditions which were not observed
by such personnel
may not
be the subject of
an administrative citation.
No
evidence was presented
to
suggest that any Agency personnel
observed the Respondent conducting
an open burning activity at
Pressnall’s facility on December
12,
1986.
It naturally follows
then
that the Agency connot properly
allege such
a violation
in
an administrative citation.
It
is important
to note that
the Board
is deeply concerned
about any
illegal dumping operation.
However,
the Board
is
equally concerned that
the legal
limits
of
the administrative
citation enforcement program be
strictly adhered
to.
The Agency seems
to take
a position which,
if followed,
could have serious consequences
for
the enforcement of many
regulatory
requirements.
If the Board
finds
a violation,
under
the administrative citation process,
concerning
an unpermitted
site,
the Board
would
be
implicitly finding
that
the site
requires a permit and must be operated like
a permitted
facility.
This,
in turn,
could make the owner
or
operator
of the
site responsible
for such items as
a closure
plan, post—closure
care, monitoring wells,
and bonding,
just
to name
a few.
Such
an
interpretation would
lead
to
a legal morass of monumental
proportions especially
in
instances involving
illegal dumping
without permission
on private property.
81—315
10
Absent further
legislative clarification on the
administrative citation process, enforcement
of the prohibitions
against
littering,
open dumping,
or other
illegal disposal
methods must presently be
accomplished through the more
traditional enforcement action process provided
by the Act,
not
the administrative citation process.
Finally, Pressnall
requests that he
be reimbursed
for the
expenses he incurred in litigating his defense
to the
administrative citation.
Although the Board
is finding
in his
favor
in
this matter,
the Act does not provide
for
an award
for
such costs.
This Opinion constitutes
the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby finds that the administrative citation
filed
on January
27, 1987 was improperly
issued
to
James Pressnall.
That administrative citation
is stricken and
this matter is accordingly dismissed.
IT
IS SO ORDERED.
B. Forcade dissented.
Section
41
of the Environmental Protection Act,
111.
Rev.
Stat.
1985
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.
1,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the abo.ve~pinionand Order was
adopted
on
the
/7~-
day of
~
,
1987,
by
a vote
of
~3~—/
.
/
~
t~-~-~~Z1
L~
Dorothy
M. /Gunn,
Clerk
Illinois Pollution Control Board
81—316
