ILLINOIS POLLUTIOt4 CONTROL BOARD

November 7, 1985

MAURINE BACHERT,

an Individual,

Complainant,

V.

)

PCB 85—80

VILLAGE OF TOLEDO ILLINOIS,

a Municipal Corporation and

VICTOR L. WILSON, JOHN SCOTT,

KURT SCOTT, KENNETH MENDENHALL,

Individually,

Respondents.

MS. MAURINE BACHERT, COMPLAINANT, APPEARED PRO SE;

MR. BOBBY SANDERS APPEARED ON BEHALF OF THE RESPONDENT, VILLAGE

OF TOLEDO;

MR. KURT SCOTT, RESPONDENT, APPEARED PRO SE.

OPINION AND ORDER OF THE BOARD (by J. Marlin):

This enforcement case comes before the Board upon the

June 12, 1985 filing of a complaint alleging air pollution

violations of Section 9(a) of the Illinois Environmental

Protection Act (Act), Ill. Rev. Stat. 1983, ch. 111 1/2

,

par.

1009(a) arid open burning violations of 35 Ill, Adm. Code 237.102

against the Village of Toledo, Illinois (Village) and individuals

Victor L. Wilson, Lewis Russell, John Scott, Kurt Scott and

Kenneth Mendenhall. The proof of personal service on others is

defective because it is not sworn to or otherwise properly

notarized, even though purportedly signed by a notary

(Complainant’s Exh. 4). On September 20, 1985, the Board denied

the Village’s motions to dismiss the complaint and to make the

complaint more definite and certain as being untimely. Proof of

service on the Village was defective. There are no mail receipts

signed by the Village or its agents and the personal service list

is, as noted above, defective, (See IEPA v. Murray, 21 PCB 337,

May 6, 1976). However, the Village did not raise this issue in

its motion to dismiss and proceeded to submit itself to the

jurisdiction of the Board by filing its answer.

Before reaching the main issues, a few preliminary ones need

to be addressed. At hearing, the Village moved for a directed

verdict before the start of complainant’s case in chief, As

there are no jury trials before the Board, the motion is

denied. To the extent that the motion can be construed as one

tar judgment on the pleadings, it is denied as being late,

Such

a motion should have been submitted to the Board, not to the

hearing officer, sufficiently prior to the hearing to enable the

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2

Board to rule Ofl it. All motions which could dispose of a case

are decided by the Board (35 Ill. Adm. Code 103.140). Thus, to

the extent that the Village’s motion can be construed as a motion

to find for defendant at close of plaintiff’s evidence (Ill. Rev.

Stat. 1985, oh. 110, par. 2—1110), it also is denied.

The Village objected to all diary entries in complainant’s

Exhibit 1 (C. Exh. 1) after the date of filing of

the

complaint

(June 12, 1985). The Board sustains the objection and strikes

those portions. There must be a definiteness as to

time

of

alleged violation in order to allow the respondent sufficient

time

to defend against those alleged violations. While the

complainant probably did not know that the proper way is to amend

the complaint or file a motion to incorporate the new dates of

alleged violations in the original complaint, the Board must

adhere to the rules in order to avoid unfairness and undue

surprise to the respondents.

The Village objected to the lack of foundation concerning

the photographs comprising C.Exh.2 and C.Exh.3. The objection is

sustained for complainant’s failure to lay a proper foundation.

To lay a proper foundation, the complainant needed to state at

hearing that each photograph was a true and accurate

representation of what she saw. In addition, each photograph

would need to be connected by the complainant to the facts in the

case. The photographs in question show numerous barrels that are

apparently used for open burning, but the record does not

adequately establish where they are located, when the pictures

were taken, who took them, what they show, and how they relate to

the complaint. Furthermore, some of the photographs were taken

after the filing of the complaint and without a proper motion or

amended complaint, they can not be considered.

Any other motions not addressed are denied and any other

objections not ruled on are overruled.

Maurine Bachert is a resident of the Village of Toledo,

Illinois. The Village is a municipal corporation of the. State of

Illinois and its population is approximately 1,100 people.

Respondents John Scott, Kurt Scott and Kenneth Mendenhall are

individuals who are alleged to have caused or allowed air

pollution and open burning, as is respondent Victor Wilson,

a) Cause or threaten or allow the discharge or emission of

any contaminant into the environment in any State so as

to cause or tend to cause air pollution in Illinois,

either alone or in combination with contaminants from

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other sources, or so as to violate regulations or

standards adopted by the Board under the Act;

The complaint further alleges that respondent violated 35

Ill. Adm, Code 237,102 which provides as follows:

a) No person shall cause or allow open burning, except as

provided in this Part,

b) No person shall cause or allow the burning of any refuse

in any chamber or apparatus, unless such chamber or

apparatus is designed for the purpose of disposing of

the class of refuse being burned.

An enforcement proceeding before the Board is civil in

nature. The burden of proof in a civil proceeding is a

preponderance of the evidence, Industrial~~nc,v,~oun~

Board of Marion, PCB 83~~l73(August 2, 1984), citing

~~fl~a_y~

~

30 Ill,App.3d 631, 333

N,E,2d 50 (1975), A proposition is proved by a preponderance of

the evidence when it is more probably true than not, Industrial

~

supra, citing

~9fR!~fl, 79 Ill.App,3d 8 (1979).

It is the complainant~s burden to prove a proposition by a

preponderance of the evidence,

The Board first must determine if the respondents have

caused or allowed the discharge of contaminants into the

environment. A contaminant “is any solid, liquid, or gaseous

matter, any odor, or any form of energy, from whatever source.”

(Section 3(d) of the Act). The Board recently found a municipal

corporation to have caused or allowed the discharge of

contaminants into the environment so as to cause air pollution by

allowing leaf burning through its municipal ordinance, in

contravention of a state statute, Greenland v,Cite

Forest, PCB 84—155, June 13, 1985, on~~i, Second District,

No, 85—541, The Board in Greenland cited the controlling law on

the issue:

Etihe Second District Appellate Court entertained

the cause or allow clause of Section 9(a) and stated

that the respondent must “exercise sufficient control

overCo.

v,theIEPA,sourceet

ofal,,the72pollution.”Ill,

App. 3d

!flis~~

217, 390 N.E.2 2d

~T~dDisEl97~T.

The Fifth District, in construing

identical language in Section 12(a) of the Act,

affirmed the Board and found that the respondent “had

the capability of controlling the pollutional

discharge,” Meadowlark Farms, Inc. v. IPCB,et al., 17

Ill. App, 3d 851, 308 N.E. 2d 826 (5th Dist, 1974);

~

21 Ill, App.

3d 157, 313 N.E. 2d 616 (5th Dist, 1974). In

interpreting the word allow, the Board has found that

one can allow a discharge by poor practices which

contribute to the problem. IEPA v, Bath, Inc. et al,,

---

4

PCB 71—52; Bath, Inc. et al. v. ISPA, PCB 71—224,

(consol.), 2 PCB 433, September 16, 1971. The Fourth

District, in affirming the Board, noted that to argue

that a violation cannot be predicated upon the

existence of burning in the absence of a finding that

respondent by its affirmative act caused...the burning’

is not persuasive. Bath, Inc. et al. v. IPCB, et al.,

10 Ill. App. 3d 507, 294 N.E. 2d 778 (4th Dist. 1973).

The Board subsequently found that the City did have

sufficient control over the source of the pollution and thus did

cause or allow the discharge of contaminants into the environment

(Greenland, slip op. at 5).

In this case, there is no village ordinance involved and

state law controls. ~The Village is aware of its duty to enforce

the open burning provisions of the

Act

CR. 72) and sends letters

to alleged violators when complaints are received CR. 71,9).

However, the Village stops short of prosecuting for open burning

(R. 92). The evidence shows that when Mrs. Bachert. complained

of burning, the Village responded to check out her complaint CR.

27—9, 32, 63—5, 70, 77—9, 83). The only

time

the Village did not

respond was when the Village policeman was off duty CR. 79). At

such times, the sheriff’s office takes over all calls. 14. In

addition, when the Illinois Environmental Protection Agency

(IEPA) sent a letter to the Village advising it that the IEPA had

received an open burning complaint, the Village passed the

information on to the citizenry by publication

in

the ‘local

newspaper (C.Exh. 5, R. 87). Furthermore, a Village Board ‘legal

notice’ was published after the date of the filing of ‘this

complaint requesting that the citizens stop burning domicile

waste (C. Exh. 6, R. 12—13). The Board finds that there is

insufficient evidence to show that the Village caused or allowed

the discharge of contaminants into the environment or had

sufficient control over any alleged burnings. The Board need go

no further in consideration of Section 9(a). Likewise, the Board

finds that there is insufficient evidence to find that the

Village caused or allowed open burning pursuant to Section

237.102.

Testimony was presented regarding only two alleged instances

of open burning. One of the fires was caused by an individual

who was not named in the complaint CR. 26—29, 67). The other

fire was started by Mr. Kurt Scott who testified he was burning

wood

scraps for cookout purposes within the exclusions

of

Section

237.120(e), (R.97). Mrs. Bachert complained that the odor from

the ‘fireplace’ smelled of garbage, tar, turpentine and was

odoriferous. jj. The record does not adequately refute the

cookout contention or document that Mr. Scott burned domicile

waste on other occasions. There is insufficient evidence to find

that Mr. Kurt Scott violated sections 9(a) of the Act or Section

237.102.

86-282

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5

As for two other respondents, there was no evidence

presented concerning Mr. John Scott and Mr. Kenneth Mendenhall,

While some photos showing burning were entered into evidence

(former C,Exh. 3), they have been stricken from the record for

lack of foundation. The Board finds that there is insutficient

evidence to find Mr. John Scott and Mr. Kenneth Mendenhall in

violation of Sections 9(a) or 237,102, Likewise, there was no

evidence to show that the former president of the Board of

Trustees, caused or allowed anything. The Board finds that Mr.

Victor Wilson did not violate Sections 9(a) or 237,102,

The Village has requested that the Board assess the

Village’s court costs in defense of this suit against Mrs.

Bachert, yet cites no authority, The Illinois Supreme Court has

held that authority for an administrative agency to award

attorneys fees must be found in its enabling statute, ~

~

65 Ill,2d 108,

357 N,E,2d 1154 (1976), Since no such Board authority exists in

the Act, the request for court costs is denied.

It is clear that State laws exist to protect people from

problems caused by open burning of domestic waste and that

citizens can reasonably expect this law to be enforced, The

Board emphasizes that the decision in this matter is based on a

lack of sufficient evidence, The complainant failed to he

specific about such matters as the time and place of alleged

burning and exactly what was being burned by whom, The Village

has responded to open burning complaints and it is evident that

burning does occur in the Village. The Village Clerk admitted

open burning occurs (R. 88) and it was mentioned that burning is

traditional in the general character and make up of the small

community (R, 47), The Board will not reach a conclusion

regarding the adequacy of the Village’s enforcement of the

State’s open burning prohibition. Given the lack of evidence in

this case, the Board cannot make additional findings,

This Opinion concludes the Board’s findings of fact and

conclusions of law in this matter,

ORDER

1, There is insufficient evidence in the record to show that

respondents Village of Toledo, Victor L, Wilson, John Scott,

Kurt Scott and Kenneth Mendenhall have violated Section 9(a)

of the Act or 35 Ill, Adm, Code 237,102,

2, This proceeding is hereby dismissed,

IT IS SO ORDERED,

Board Member J,D, Dumelle Concurred,

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6

I, Dorothy M, Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above OpiniQn and Order was

adoptedonth,2~~~~

day of

)tv~~t..-,

1935

J2~

Dorothy M. dunn, Clerk

Illinois Pollution Control B~nrd

66~284