ILLiNOIS POLLUTION CONTROL BOARD

March

21,

1984

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

)

Complainant,

v.

)

PCB 80—49

)

EAST ST. LOUIS SCHOOL DISTRICT NO.

189,

)

A. DAVINROY CONTRACTORS, INC., an

Illinois corporation, CITY

OF EAST ST.

LOUIS, a municipal corporation, and the

)

HOUSING AUTHORITY OF THE CITY OF EAST

)

ST. LOUIS,

)

Respondents.

MR. EDWARD WELCH APPEARED

ON

BEHALF OF EAST ST. LOUIS SCHOOL

DISTRICT NO. 189;

MR. CHARLES STEGMEYER APPEARED ON BEHALF OF

A. DAVINROY CONTRACTORS,

INC.;

MR. EDWARD NEVILLE APPEARED ON BEHALF OF THE HOUSING AUTHORITY

OF EAST

ST.,

LOUIS;

MS. McGULL-BILLINGSLEY APPEARED ON BEHALF OF THE CITY OF EAST

ST. LOUIS;

MS. GWENDOLYN KLINGER,

ASST. ATTORNEY GENERAL, APPEARED ON BEHALF

OF THE ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY.

OPINION AND ORDER OF THE BOARD

(by.

B.

Forcade):

This matter comes before the Board upon a May 28,

1982,

Second Amended Complaint filed by the Illinois Environmental

Protection Agency (~Agency~’)regarding unpermitted dumping, a

violation of

(1) Rule

3:14(c)

of Chapter 7:

Solid

Waste,

(2)

Ill.

Rev.

Stat.

1980,

sec.

21

(a,

b), Ch.

111½,

par.

1021 (a, b),

and

(3) Xli.

Rev.

Stat.

1979,

sec.

21(f), Ch. 111½,

par.

1021

(f).

Hearings were held on June

26,

1981, December

2,

1982,

and

March 25,

1983.

The following codified rules apply:

35

Iii.

Adm.

Code

Chapter 7

Summary

807.303(b)

303(b)

Spreading and compacting

807.305(c)

.305(c)

Final cover

57-153

---

2

807.314(c)

3i4(c)

Fencing,

gates, or other

measures to

control access

to site

HISTORY

A portion of

the property upon which dumping

is

alleged

since November,

1978F

is owned by the East St. Louis School

District

No.

189

(“School

District”)

and

an

adjoining

portion

is

owned by the East St. Louis Housing Authority (“Housing

Authority).

Both the School District and the Housing Authority leased the

properties to the City of East St. Louis

(“City”).

The original three—count complaint in this matter was

filed

by the Attorney General at the request of the Illinois Environ-

mental Protection Agency on March 24,

1980 against respondent,

the

School

District

and

A.

Davinroy,

Contractors,

Inc.

(~Davinroyw).

The

complaint

charged

the

Respondents

with

causing

or

allowing

random, open unpermitted dumping on the School

District’s vacant

property

in a residential area of East St. Louis.

The City was

joined

as a Respondent on September 19,

1980 and was charged with

the same dumping violations as

in the

original

complaint.

On

May

28,

1982 the Housing Authority was named as

a

Respondent

with a filing of a

second anended complaint.

On December

22,

1982, the Agency filed

a ~otion for Acceptance of Partial

Settle-

ment

of

this

case0

The

proposed

settlement

agreement

has

been

signed

by

all

respondents

except

the

Housing

Authority.

The

proposed

settlement

is as follows:

(1)

Davinroy

is

charged

a

$500

fj~~,*

which

the

City sha:Ll

apply

to

the

cost

of

spreading,

compacting

and

covering refuse on the vacant lots in question;

(2) the

City

is to bring

the

site into compliance with

the

Illinois

Pollution

Control

Board~s Solid

Waste

Regulations;

(3)

the School

District

is

to erect a fence

at

least eight feet high

on or

around

the border of the property it owns;

and

(4) the

Housing Authority

is

to erect a fence

at

least eight feet high on

or

around

the

border

of

the

property

it

owns.

The allegations

in this

case

against

the

Housing

Authority

rest

solely upon it;~owners~iipof land where illegal dumping

has

occurred,

(R.

Mar,

V83~ p.

~6)., Evidence

of land ownership by

the

Housing

Authority

is

found

in testimony by the

Executive

Director

statinq that the Housing

:~uthority

owns

property where

there

has

been

illegal dumping

~.R.Mar.

~83,

p.

120)

and

by

Barry

Rogue,

an

employee

at

the Housing

Authority

when

he

marked

an

area

on

a

map

to

indicate the

F-lousing

Authority’s

land

(R.

Mar.

‘83,

p.

127).

The record contains

substantial

testimony

on

the

severity

of

the

dumping

piohlem, including

two

separate

occasions

when

a

human

body

was found

(P. 2i)~

*

This amount

is

contained in an

agreement

signed by the

parties

and

does

not represent a

penalty

assessed

by the Board.

57-154

---

The

primary

issue

in

this

case

is the determination of the

landowner’s

responsibility

to

prevent illegal dumping

on his

property.

Past decisions by

the

Illinois

Pollution control Board

have found liability on the part of “passive”

landowners who were

not charged with dumping hut allowing their property

to be used

for dumping.

In

EPA

V.

Dobbeke, PCB No. 72-130

decided

August

22,

1972,

the

Board

found

that

although

there

was

no

evidence

that

the

landowner

personally

dumped

on

his

property,

he

“allowed”

open

dumping with in the

meaning

of

Section

21(b)

of

the

Act.

The

Board specifically sLaLeth

“He did not build a fence

.

.

.

such

inaction by the owner of the land implies acquiescence

.

.

.

The Board pointed out that it would take more than “No

Dumping”

signs to reverse dumping habits of long standing.

The Board

ordered the landowner to construct a fence to bar access by the

public to the dumping

site.

For additional support see Hindman

v.

Environmental Protection

Agency,

356 N.E.2d 669

(1976), and

Environmental Protection Agency v.

James

McHugh Construction Co.,

4

PCB

511

(1972).

The Housing Authority has stated that the property

on

which

dumping occurs is owned by the

School District, and repeatedly

asserts that dumping has not occurred on Housing Authority pro-

perty

(Resp.

Reply Brief pp.

3—7).

There was direct testimony by witnesses and by the Agency

that illegal dumping has occurred on the property owned by the

Housing Authority.

~R. Mar.

pp0

35,

113,

Dec. 35—36).

Based on the overwhelming testimony the Board finds

that

dumping has occurred on Housing Authority Property.

The property owned by the School District adjoins the

property owned by the Housing Authority and there is

no

natural harrier or marker of any kind between the two lots

(R.

Mar.

~83 p.

130).

This lack of any barrier is critical

when one

considers the Compliance Plan agreed to in the Stipulation and

Proposal for Settlement by the City, the School District, and

Davinroy,

and

requested relief by the Agency against

the Housing

Authority.

1~s

part of

the

Compliance

Plan,

the

City

and

the

School

District

agreed

to

erect

an

eight—foot

fence

along

the

School

District’s

property

north of

Gross

Avenue

(Stip.

pp.

12—13)..

However,

this fence would

end

roughly

two—thirds

of

the

way

down

the

street at the point

where

the

Housing

Authority’s

property line starts~Obviously,

such a fence

would be totally

ineffective to prevent dumping,

since trucks could simply drive

in on the Housing ~uthority’s property to dump on either

the

School District’s or Housing Authority’s land.

A solution to

prevent dumping in this entire residential area must be found.

It would be useless

for the Board to order the terms of the

agreed Compliance Plan to be carried out unless it also orders

the Housing Authority to erect

a fence

or

barrier

along

its

portion.

57-155

---

4

Therefore,

the

Board

finds that the property

can be brought

into compliance only if the Housing Authority constructs a

fence

in conjunction with the fence to be constructed by

the School

District, with both parties responsible for effectively pro-

hibiting public access to the property.

This opinion constitutes the Board’s findings of

fact and

conclusions of law in this matter.

ORDER

I.

The

Board

finds

the

following:

A.

Respondents

East

St.

Louis

School

District

No.

189,

and

the

City

of

East

St.

Louis,

a

municipal

corporation,

are in violation of

(1)

35

Ill.

Adm.

Code

807.303(b),

807,305(c)

and

807.314(c),

and

(2)

Ill.

Rev.

Stat,

1980,

sec.

21

(a,

h),

ch.

111½,par.

1021

(a,

b).

B.

Respondent

A.

Davinroy

Contractors,

Inc.,

an

Illinois

corporation,

is

in

violation of Ill. Rev. Stat.

1979,

sec.

21(f),

ch.

111½,par.

1021(f).

II.

The

Board

accepts the “Stipulation and Proposal for Settlement”

(“Settlement”)

entered

into

by

the

Respondents

named

in

par.

1(A)

and

1(13),

and

hereby

orders

them

to

effectuate

the

terms of the Settlement, which is incorporated by

reference

herein

as

if set forth in

full.

III.

The Board

finds that the Respondent Housing Authority of the

city of East St. Louis is

in violation of

(1)

35 Ill. Mm.

Code 807,303(b), 807,305(c)

and 807.314(c)

and

(2)

IllS

Rev.

Stat.

1980,

sec.

21

(a,

b),

ch. 111½,

par.. 1021

(a, h).

IV.

Within 45

clays after notification by the Agency pursuant to

paragraph E(3), of the Stipulation and Proposal

for Settlement,

the Housing Authority is ordered to construct a

fence at

least eight feet high,

to be constructed on or

around the

border of the property owned by the Housing Authority

and

to be built in conjunction with the fence to be

constructed

by the School District.

The fence will be completed

no

later than October

1,

1984.

The vacant lot will be

managed

so as to prevent residents and others from dumping

refuse

upon the site,

IT IS SO ORDERED.

I,

Christan

L.

Moffett,

hereby certify that the above Opinion

and

Order

was

adopted

on

the

~1/

~

day

of

~

,

1984

by a vote of

-

~

~

~

—

Christan

L.

Moffett,

tClerk

Illinois

Pollution

Control

Board