ILLINOIS POLLUTION CONTROL BOARD
May
24,
1979
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB 77—143
PETER D, GIACHINI,
Respondent.
MS CAROL M. PEARCE AND MS JILL LESLIE DRELL, ASSISTANT ATTORNEYS
GENERAL, APPEARED ON BEHALF OF THE COMPLAINANT.
MR. JOHN MURPHY, GIACHINI, MURPHY
&
MANN,
APPEARED ON BEHALF OF
THE RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by Dr. Satchell):
This matter comes before the Board upon an amended com-
plaint filed
on October 13,
1977 by the Environmental Protection
Agency
(Agency).
Respondent Peter
D.
Giachini was added
as
a
party after discovery indicated he was the beneficial owner of
fifty-three acres located near Palatine in Cook County, the
area bounded by Dundee Road,
Greenview Avenue, Glencoe Street,
Portage Avenue, Northwest Highway and the Deer Grove subdivision,
which was held by the original Respondent, Maywood-Proviso State
Bank,
under a trust agreement.
The amended complaint alleges that
since January
1,
1976 Respondent has allowed open dumping of
refuse on land owned by him in violation of Section 21(b)
of the
Environmental Protection Act
(Act)
and Chapter
7:
Solid Waste
Rules and Regulations, including Rule
305,
failure to place
adequate daily cover of at least six inches of suitable material
on all exposed refuse.
Hearings were held upon the complaint on May 18,
1978,
June
7,
1978 and February 16,
1979.
The Agency presented its
witnesses at the first two hearings and Respondent testified at
the lasts
Respondent appeared at the first hearing with counsel,
stated that,
among other things,
he intended to file an inter-
locutory
appeal and walked out.
There is no mention of such an
appeal in the record.
Respondent did not otherwise participate
in the first two hearings and did not cross—examine the Agency’s
witnesses.
However, Respondent makes no arguments questioning
due process aspects
of the hearings.
33—547
—2—
Mr. Kenneth
Bechely, regional manager of the Agency’s Land
Pollution Office, testified
concerning four visits to the site on
August
18,
1976, June 9,
1977, October,
1977 and May 17, 1978
(R.
33,
38).
He testified that there was a large volume of debris,
including construction debris, waste from processing auto interiors
and “people garbage”
(R.
34).
The debris extended two hundred to
three hundred feet from the highway into Respondent’s property and
increased in volume between August,
1976 and June,
1977
(R.
36).
The witness had
never seen anyone dumping at the site, but testified
that it was a tremendous amount of refuse just for people who come
by and dump randomly and that it
would take
a
good-sized truck
to
dump some of the piles
there
(R.
42,
43).
There was no cover of any
type on the material
(R.
42).
Mr. Gilbert Gurber,
a
zoning
in-
spector for
Cook County, testified concerning three visits to the
site in June,
1975,
October, 1975 and November, 1975
(R.
26).
He
generally agreed with Bechely concerning the nature and extent of
the refuse
CR,
27,
28).
In June, 1975 he had seen two dump
trucks and one bulldozer leveling the earth
(R.
28).
The principal
factual issue concerned whether the refuse was
on Respondent’s property
or on the state highway right-of-way.
Mr.
Donald Miller,
Survey Unit Engineer,
and Mr. Donald Bohien, Surveyor,
both employed
by the Illinois Department of Transportation, testified
concerning a survey they made of the fifty foot right-of-way line on
April
5,
1978
CR.
48, 12).
They testified that there was debris and
that it was on Respondent’s property,
as well as the right-of-way
(R.
16, 18,
19,
54).
Mr. Miller testified also to the lack of cover
(R.
54).
Photographs were introduced showing refuse located on
Respondent’s property with respect
to the survey flags
(Comp. Ex.
7,
8,
10).
Two maps were
introduced showing an area of refuse six
hundred feet across, extending as much as two hundred feet into
Respondent’s proerty
(Camp.
Ex.
12A,
18).
One of the maps also
shows another area of refuse six hundred feet across which extends
over three hundred feet from the right-of-way
(Comp.
Ex. 12A).
Mr.
Bechely testified that this area had more refuse, but he was unsure
whether it belonged to Giachini
(R.
39).
Respondent did not cross-
examine and does not directly argue that this pile is not on his
property.
He testified that his frontage was nine hundred feet
(R.
107), but implies
in his brief that his frontage extends
to
Portage Avenue,
a distance of some 1800 feet from Doe Road
(R.
18,
Camp.
Ex.
12A,
18).
The map also shows smaller areas of refuse
along almost the entire frontage.
Respondent,
Mr. Peter Giachini, was the only witness for
the defense.
He testified
that he had never permitted anyone to
dump on the property
CR.
64).
He testified that he had hired or
asked two men to watch the site when they passed it on the way to
work and that they
had never found anyone dumping
(R.
64,
98,
104),
33—548
—3—
He or someone posted “one or two or three” no dumping signs
CR.
65,
106).
Complainant’s Exhibit
2 includes a letter dated
July
16,
1973,
from Respondent to the Cook County sheriff asking
for license numbers of persons seen dumping on the property.
Respondent visited the site once a week and had never seen anyone
dumping
(R.
65,
99, 104).
He admits there was a “nominal” amount
of dumping on his property prior to September,
1977
CR.
86),
denies that there has been any debris dumped since then
(R.
89),
but says some “material”,
as opposed to “debris”,
has been dumped
CR. 101,
102),
Section 21(b)
of the Act reads:
“No person shall
.
cause or allow the open dumping of any other refuse in violation
of regulations adopted by the Board.”
Respondent has testified
that he never permitted anyone to dump.
However, the photographs,
maps and the testimony of the Agency’s witnesses clearly establish
that refuse has been dumped on
a massive scale which involved the
use of heavy equipment.
The Agency has offered no evidence that
Respondent actively permitted this or that he actually caused the
dumping. However,
the Board has previously held that “allow”
includes inaction on the part of a landowner.
The Board finds
that Respondent’s conduct amounts
to acquiescence sufficient to
find, a violation of Section 21(b).
EPA v.
Dobbekke, PCB 72-130,
5 PCB 219,
Much of Mr. Giachini’s testimony concerns drainage.
He says
that the state raised the highway several years ago, interfered
with the natural drainage and created a slough on his property
CR.
89—97).
He contends the wet area attracts
“fly dumpers”.
This cannot be recognized as
a defense.
It is not obvious why a
wet area would necessarily attract fly dumpers more than a dry
area.
It is well known, however,
that a pile of refuse, such as
the one Respondent maintains,
tends to attract dumpers.
Respondent’s pleadings offer four affirmative defenses.
One alleges the failure of the State of Illinois to prevent the
dumping by failing to erect a snow fence along the state’s
right-of-way beside Respondent’s property line.
Respondent has
cited no authority imposing a duty on the state
to either erect
a snow fence or prevent dumping on property adjacent to highways.
Respondent has alleged as a second defense that refuse has also
been dumped on the state’s right-of-way adjacent to his property.
The existence of refuse on another’s property is not made a
defense by any rule or statute and is not logically relevant to
any issue in the violation charged against Respondent.
Respondent
also attempted to file a counter—claim against the state alleging
this,
The counter-claim wa~sdismissed by Order of the Board on
May 11,
1978,
for reasons set forth in the Board’s Order of
January 19, 1978,
in Owens—Illinois, Incorporated v.
EPA, PCB 77-288.
33—549
A
—4—
Respondent’s
third and fourth affirmative defenses raise
£~j~dicataas
a bar to this enforcement action.
Respondent’s
Exhibit
5 is
a summons and complaint issued by the Cook County
Circuit Clerk, dated March 13,
1974, charging:
that Peter D.
Giachini has on or about June 21,
1973
at Northwest Highway/West of Palatine committed the
offense of 6.9 8—3—4 in that he is the beneficiary of
land on which landfill operations are conducted without
Special Use permit and debris has been dumped on the
property.
Respondent’s Exhibit
4
is also a summons and complaint which
charges similarly that Respondent on or about May
11,
1977:
committed the offense of violating the zoning ordinance
in that he has
a landfill and dump in a R—5, Single
Family Residence District which is
a prohibited use in
violation of Article
4 Section 4.57—10
of the Cook
County Zoning Ordinance.
Respondent has the
burden of proof on the affirmative defense
of ~
McNely
V.
Bd.
of Education 9
Ill.
2d 143, 151
(1956).
Mr Giachini
testified that there was a hearing and judg-
ment
of dismissal on the merits in each case
CR.
81, 88).
No
other evidence of the judgments appears in the record.
Judgments
are to be proved by a certified copy.
Ill.
Rev.
Stat.
Ch.
51, §13
(1977).
However, since the Agency has no objection,
the Board
will consider Mr.
Giachini’s testimony
as competent evidence.
However,
the testimony is self—impeaching.
Respondent says there
was
a judgment on the merits
in both cases and that they were on
the same cause of action as the case at bar.
He says that the
first and second cause of action are the same as the third.
This
is the same as saying the first
is the same as the third and the
second is the same as the third.
Therefore,
the first is the same
as the second and res judicata was a bar to the second judgment
also.
Respondent
does not explain how a judgment on the merits was
reached in the second case
when resjudicata was
a defense there
also.
Illinois Courts have recognized two forms of res judicata,
estoppel by verdict and estoppel by
judgment.
Hoffman
v,
Hoffman,
330 Ill 413, 417
(1928).
In the case of estoppel by judgment,
where a former adjudication
is relied on as an answer and bar to
the whole cause of action,
it must appear that the cause of action
is the same in both actions,
On the other hand,
in the case of
estoppel by verdict,
the cause of action need not be the same.
Where a question has been directly in issue and decided by a court
of competent jurisdiction, that issue cannot be relitigated in a
future action between the parties on the same or a different cause
of action.
33—550
—5—
Respondent does not mention estoppel by verdict in his brief
and the argument is deemed waived.
However,
since the pleading
could be construed as raising estoppel by verdict, the Board will
address the issue further.
To raise this defense Respondent must
point to some issue actually litigated in one of the former actions
and demonstrate that the Agency
is estopped on that issue in this
case.
The burden
is on Respondent to do this by clear and conyjncjnq
evidence.
The Board cannot determine from the evidence before it
what issues were actually litigated in the former actions.
For
instance, they could have been decided on the issue of ownership,
which is admitted here.
Therefore, Respondent has
failed to meet
the burden of establishing estoppel by verdict.
When a former adjudication is relied upon as
a complete bar
to a subsequent action,
the questions to be determined are whether
the cause of action is the same in the two proceedings, whether the
two actions are between the same parties or their privies, whether
the former adjudication was a final judgment upon the merits and
whether it was within the jurisdiction of the court rendering
it.
v.
Kidd,
398 Ill.
405,
408
(1947).
The parties do not argue
the Circuit Court’s jurisdiction and it is assumed there was a final
judgment upon the merits.
The Agency argues that it was not in
privity with Cook County and
is not bound by the former judgments.
Since there is evidence in the record that there was actual coopera-
tion between the County and the Agency in this case,
the Board does
not need to address the question of privity in the abstract.
The
Board finds that they were in fact in privity.
Bulk Terminals Co.
v.
EPA,
29
Ill, App.
3d 978,
331 NE 2d 260
(1975)
,
rev’d on other
grounds 65 Ill 2d 31, 357 NE
2d 430,
cert. denied 97
S. Ct.
2674.
The only remaining question
is whether the former judgments were upon
the same cause of action.
In determining whether the nature of a
second cause of action is the same as the prior one, the test is
whether the same evidence would sustain both actions.
Pillsbury v.
Early,
324 Ill.
562,
565
(1927).
The 1974 complaint appears to charge that Respondent owned
land on which landfill operations were being conducted without a
special use permit.
The 1977 complaint charges violation of the
zoning ordinance by having a landfill and dump in a single family
residence district.
Neither complaint mentions the Act or Board
Rules.
However,
res judicata could still be a bar if the evidence
to prove the former actions would also sustain a finding on the case
at bar.
The parties have introduced no evidence into the record of
what these ordinances are.
The Board must therefore draw upon its
general knowledge of the law.
In the case before the Board Respond-
ent is charged with permitting open dumping without providing daily
cover,
The Board assumes evidence concerning daily cover was not
necessary in either of the earlier cases.
Respondent would have
violated the zoning or special use ordinance whether he applied
cover or not.
It cannot, therefore, be said that Respondent has met
his burden of establishing by clear and convincing evidence that the
earlier judgments were on the same cause of action.
33—55 1
—6—
Assuming, however, that in the abstract the causes of action
are the same,
they are different because they involve different
dates.
The earlier complaints charge violations on June 21, 1973
and May
11,
1977, while the Agency’s complaint charges
a continuing
violation from January
1, 1976 on to the date of the amended com-
plaint of October 13,
1977.
A new cause of action arises under the
Act and Board Rules each day Respondent either allows additional
dumping or fails to provide cover.
There is testimony that addi-
tional dumping occurred between August,
1976 and June,
1977
(R.
36).
There was no cover on the refuse on June
9,
1977 and May 17, 1978
CR.
38,
41).
The Board therefore concludes that res judicata is no
bar because the Agency’s complaint relates
to a different time
period and not the same violation.
Respondent raises for the first time in his reply brief the
argument that the Board Rules are inapplicable since he is not
operating a solid waste disposal site.
The Agency has had no
opportunity to respond to this contention, which should have been
raised much earlier.
It should therefore be deemed waived.
However,
the Board has previously held Section 21(b)
and the Rules applicable
in similar cases.
EPA v.
Dobbekke, PCB 72-130,
5 PCB 219.
Section 33(c)
of the Act requires the Board to consider all
the facts and circumstances bearing upon the reasonableness of the
emissions, discharges or deposits.
Respondent has offered no evi-
dence bearing upon reasonableness and the Board finds that he has
failed to meet the burden of proof required to establish a Section
33(c)
defense.
Processing
& Books
v.
PCB,
64 Ill 2nd 68,
351 NE
2nd 865,
However, the Board will consider Section 33(c)
factors
in
mitigation in assessing its final Order.
All witnesses, including Respondent,
testified to the pres-
ence of construction debris on the site
CR.
16,
27, 33,
34, 54,
86,
89, 101,
102).
Two witnesses said that there was some “people gar-
bage” on the site
CR.
27,
34).
The Board finds, from the evidence,
that the refuse constitutes
a serious hazard to public health and
safety by promoting rats and other disease vectors by providing food
and habitat, and also threatens discharge of leachate into the
ground and surface water.
The Board finds that there is no social
or economic value in open dumping.
There is no evidence in the
record pertaining to the suitability of the area and priority of
location for a dump.
It is technically practical to restrict access
and to compact the refuse and apply a final cover of suitable
impermeable material with readily available equipment.
There is no direct evidence of Respondent’s financial con-
dition in the record.
However, it appears that he is
a partner
in the law firm of Giachini, Murphy and Mann, president of the
Maywood-Proviso State Bank and owns fifty-three acres of land
near Chicago.
Prior to the hearing, the Agency posed interrog—
atones relating to Respondent’s financial condition pursuant
33—552
—
7—
to Procedural Rule 313 (a) (3).
Respondent objected and refused
to answer after ordered to do so by the Hearing Officer.
As a
result, pursuant to Rule 701(c)
,
Respondent is deemed to have
admitted that any Order of the Board would be economically
reasonable.
The Board therefore finds that Respondent Peter D. Giachini
has violated Section
21(b)
of the Act by allowing open dumping of
refuse in violation of Board Rules, Chapter
7:
Solid Waste,
Rule 305 by failing to provide adequate daily cover.
Respondent
has delayed cleaning up the refuse and restricting access for
more than three years.
This delay no doubt conferred a substan-
tial economic benefit on the Respondent in the form of interest
on the money
it would have cost to come into compliance.
However,
the Board cannot estimate from the record before us how much he
saved by this delay.
The value of Respondent’s land may have
increased as a result of the dumping.
He admits that he actively
permitted dumping of clean clay without charge
(R.
103).
He has
obtained an economic benefit in the form of other free fill
material.
A fine of $1000
is necessary to aid enforcement of the
Act by encouraging voluntary compliance.
The Board will order
Respondent to take specific steps to restrict access to the site
because of the extent of dumping which has occurred and the on-
going nature of the violation.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
It
is the Order of the Pollution Control Board that:
1.
The Board finds Respondent in violation of Section
21(b)
of the Act by allowing open dumping of refuse
on a site owned by him and failing to place adequate
daily cover of six inches of suitable material on all
exposed refuse.
2.
Within ninety days of the entry of this Order,
Respondent shall cease and desist from further
violations of the Act and Board Rules.
3.
Within ninety days of the entry of this Order,
Respondent shall either remove the existing refuse
to a permitted landfill or spread and compact it
into layers not more than two feet thick and apply
a final cover of not less than two feet of suitable,
compacted, impermeable cover material.
33—553
—8—
4.
Within ninety days of the entry of this Order,
Respondent shall do any and all acts necessary to
restrict access to the site along the entire length
of his frontage along Northwest Highway.
5.
Within forty-five days of the entry of this Order,
Respondent shall, by certified check or money order pay-
able to the State of Illinois,
pay a civil penalty of
$1000 which
is to be sent to:
State of Illinois
Fiscal Services Division
Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois
62706
I, Chrjstaii~L.Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion and Order we e
adopted on the
~L/~
day of
,
1979 by a vote of
—o
Illinois Pollution
trol Board
33—554