ILLINOIS POLLUTION CONTROL BOARD
February 18, 1999
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
BRADLEY G. WHITE,
Respondent.
)
)
)
)
)
)
)
)
)
)
AC 98-41
(IEPA No. 238-98-AC)
(Administrative Citation)
ROBERT J. SCHERSCHLIGT, ASSISTANT COUNSEL, APPEARED ON BEHALF OF THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY; and
BRADLEY G. WHITE APPEARED
PRO SE
.
INTERIM OPINION AND ORDER OF THE BOARD (by E.Z. Kezelis):
This matter comes before the Board on an administrative citation issued by complainant,
the Illinois Environmental Protection Agency (Agency), to respondent, Bradley G. White (White).
In the administrative citation, the Agency alleges that on April 29, 1998, White violated Sections
21(p)(1) and (3) of the Illinois Environmental Protection Act (Act) by causing or allowing open
dumping in a manner that resulted in litter and open burning at a site in Cumberland County,
Illinois. See 415 ILCS 5/21(p)(1), (3) (1996). After reviewing the record, including the
transcript of the hearing held in this matter, the Board finds that White violated the Act as
alleged. In this interim order, the Board orders the Agency and the Clerk of the Board to file a
statement of hearing costs, to which White is given leave to reply. After the Board receives these
statements of hearing costs, we will issue a final order requiring White to pay the total statutory
penalty of $1,000 and any appropriate costs.
PROCEDURAL MATTERS
The Agency served its administrative citation on White by personally delivering a copy to
him on June 18, 1998. The Agency filed the administrative citation with the Board on June 24,
1998. An affidavit attesting to the personal service of the administrative citation on the
respondent was filed on June 29, 1998. In the citation, the Agency alleges that White caused or
allowed open dumping in a manner that resulted in the occurrences of (1) litter in violation of
Section 21(p)(1) of the Act and (2) open burning in violation of Section 21(p)(3) of the Act. See
415 ILCS 5/21(p)(1), (3) (1996).
2
Subsections (p)(1) and (p)(3) of Section 21 are enforceable by administrative citation under
Section 31.1 of the Act. See 415 ILCS 5/31.1(a) (1996). White elected to contest the citation
pursuant to Section 31.1(d)(2) by filing a petition for review with the Board on July 23, 1998.
See 415 ILCS 5/31.1(d)(2) (1996).
1
By hearing officer order dated September 14, 1998, a copy of which was served on all
parties, a hearing was scheduled for October 14, 1998. The hearing took place as scheduled
before Board Hearing Officer Amy L. Jackson.
2
Kent Johnson (Johnson), an environmental
protection specialist with the Agency, testified on behalf of the Agency. Tr. at 8-70. The
complainant also called White as a witness. Tr. at 71-77. Respondent was sworn in by the court
reporter and gave testimony on his own behalf. Tr. at 78-80. No other witnesses testified. The
Agency made a closing argument on the record. Tr. at 82-84. White opted to reserve his closing
argument for a post hearing brief. Tr. at 84. White’s post hearing brief was due on or before
November 15, 1998. Tr. at 84. The Agency’s reply brief, if any, was due on or before November
30, 1998. Tr. at 84. No post hearing briefs were submitted by either party.
FINDINGS OF FACT
Johnson has been an environmental protection specialist with the Agency since May 1992.
Tr. at 9. As an environmental protection specialist, his duties include performing inspections for
the Agency’s Bureau of Land and Division of Land Pollution Control of solid waste sites,
hazardous waste sites, tire disposal, and tire storage sites. Tr. at 9.
White owns the property which is the subject of the administrative citation. Tr. at 72.
Johnson first inspected White’s property in November 1994. Tr. at 11. The November 1994
inspection was performed in response to complaints alleging the open dumping and open burning
of waste. Tr. at 11. A fire damaged home is located on the property. Tr. at 16. The home was
lost to a fire in 1994. Tr. at 79. Johnson prepared a report in connection with the November 22,
1994 inspection. Tr. at 12.; Exh. 1. As a result of the November 22, 1994 inspection, Johnson
cited White for violations of Sections 21(a), 21(p)(1), and 21(p)(3) of the Act. See 415 ILCS
5/21(a), 21(p)(1), (3) (1996). Tr. at 14. These violations were cited due to the evidence of waste
being dumped and burned. Tr. at 14. An administrative warning notice was sent to White
following the November 1994 inspection. Tr. at 23; Exh. 2.
The next inspection of White’s property took place on April 29, 1998. Tr. at 25.; Exh. 3.
Johnson inspected the property on April 29, 1998, in order to ascertain compliance and to
investigate complaints regarding open dumping and open burning. Tr. at 26. The site is neither a
permitted land disposal facility, nor a permitted burn site. Tr. at 27. On April 29, 1998, Johnson
observed an area of burned debris in a pit. Tr. at 29. The burned debris included what appeared
to be tire bead, mattress springs, remnants of shingles, and other ash residue. Tr. at 29. Johnson
corroborated his testimony with a photographs of the burn pit. Tr. at 29-32; Exh. 3.
1
Respondent’s petition for review is cited as “Pet. at __.”
2
The transcript of the hearing is cited as “Tr. at __.” Hearing exhibits are cited as “
Exh.__.”
3
Johnson had a telephone conversation with White on May 5, 1998. Tr. at 36. During the
telephone call, White admitted burning wood and a mattress in the burn pit. Tr. at 37. White also
admitted, during his testimony, to digging a hole and burning wood in it. Tr. at 72 and 79; Pet. at
1. White did not realize that it was illegal to burn in a pit. Tr. at 79. White was using the burn pit
to clean up debris from the fire damaged home. Tr. at 72-73.
DISCUSSION
The administrative citation alleges that White caused or allowed open dumping that
resulted in litter and open burning in violation of subsections (p)(1) and (p)(3) of Section 21 of
the Act, which provide as follows:
No person shall:
* * *
(p)
In violation of subdivision (a) of this Section, 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;
***
3. open burning. 415 ILCS 5/21(p)(1), (3) (1996).
Section 21(a), to which Section 21(p) refers, provides:
No person shall:
(a)
Cause or allow the open dumping of any waste. 415 ILCS
5/21(a) (1996).
Subsections (p)(1) and (p)(3) each require the Agency to show, as a threshold matter, that
White caused or allowed open dumping. “Open dumping” means “the consolidation of refuse
from one or more sources at a disposal site that does not fulfill the requirements of a sanitary
landfill.” 415 ILCS 5/3.24 (1996). “Refuse” means “waste,” 415 ILCS 5/3.31 (1996), and
“waste” includes “any garbage . . . or other discarded material.” 415 ILCS 5/3.53 (1996).
The record shows that White both removed debris from inside the fire damaged home and
brought debris onto the property from another site for disposal. The record also shows that
White burned the debris in a burn pit located on the property. The Board finds that the wood,
mattress springs, shingles, and other miscellaneous material found in the burn pit constitute
“discarded material” within the meaning of the term “waste.” Thus, the wood, mattress springs,
shingles, and other ash debris are “waste” and “refuse” as defined in the Act. The Board also
finds that the burned debris in the burn pit constitutes a “consolidation of refuse from one or more
sources” within the meaning of the term “open dumping.” In addition, the Board finds that the
burn pit on respondent’s property is “a disposal site that does not fulfill the requirements of a
4
sanitary landfill.” Accordingly, the Board finds that White caused or allowed the open dumping
of waste.
The next question is whether the open dumping of the wood and other debris resulted in
“litter” under Section 21(p)(1) of the Act. The Act does not define “litter,” but in similar cases,
the Board has looked to the definition of “litter” in the Litter Control Act. See 415 ILCS 105/1
et
seq
. (1996)
“Litter” means any discarded, used or unconsumed substance or
waste. “Litter” may include, but is not limited to, any garbage,
trash, refuse, debris, rubbish . . . or anything else of an unsightly
or unsanitary nature, which has been discarded, abandoned or
otherwise disposed of improperly. 415 ILCS 105/3(a) (1996);
see,
e.g
., St. Clair County v. Mund (August 22, 1991),
AC 90-64, slip op. at 4, 6.
Using this definition, the Board finds that the pile of debris in the burn pit constitutes “litter”
under Section 21(p)(1) and that White has therefore violated that section.
Finally, the Board considers whether White’s open dumping also resulted in “open
burning” as prohibited by Section 21(p)(3). “Open burning” is “the combustion of any matter in
the open or in an open dump.” 415 ILCS 5/3.23 (1996). The Board finds that White combusted
matter in the open when he burned the wood, mattress, and shingles in the open burn pit on the
site. Accordingly, the Board also finds that White violated Section 21(p)(3).
Penalty and Costs
Section 42(b)(4) of the Act provides for penalties in an administrative citation action as
follows:
In an administrative citation action under Section 31.1 of this
Act, any person found to have violated any provision of
subsection (o) or (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 made payable to the Environmental Protection
Trust Fund, to be used in accordance with the provisions of the
Environmental Protection Trust Fund Act; 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.
415 ILCS 5/42(b)(4) (1996).
5
The Board will assess White the statutory penalty of $500 for violating Section 21(p)(1)
and $500 for violating Section 21(p)(3). The Board and the Agency are also entitled to their
hearing costs under Section 42(b)(4) of the Act, but no information on those costs is included in
the record. Therefore, the Clerk of the Board and the Agency are ordered to file with the Board a
statement of hearing costs, supported by affidavit, with service on White, within 14 days of the
date of this order.
This interim order constitutes the Board’s interim findings of fact and conclusions of law
in this case.
ORDER
1.
The Board finds that respondent, Bradley G. White, violated
Section 21(p)(1) and (3) of the Illinois Environmental Protection Act.
See 415 ILCS 5/21(p)(1), (3) (1996).
2.
The Agency must file a statement of its hearing costs, supported
by affidavit, with the Board and with service on White, within 14
days of the date of this order. Within the same 14 days, the Clerk
of the Board must file a statement of the Board’s hearing costs, supported
by affidavit and with service on White.
3.
White is given leave to file a reply to the filings ordered in paragraph
2 of this order within 14 days after receipt of that information, but in
no event later than 40 days after the date of this order.
4.
No earlier than 40 days after the date of this order, the Board will issue
a final order assessing a statutory penalty of $500 for each violation, for
a total civil penalty of $1,000, and awarding appropriate costs.
IT IS SO ORDERED.
6
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the
above interim opinion and order was adopted on the 18th day of February 1999 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
