ILLINOIS

POLLUTION CONTROL

BOARD

April

4,

1975

ENVIRONMENTAL PROTECTION AGENCY,

)

)

Complainant,

)

)

PCB

74—391

LEROY

ROBINSON,

)

)

Respondent.

)

CPINION ARD ORDER OF THE BOARD

(by Mr. Zeitlin)

The Complaint in this matter was filed by the Attorney

General for the Environmental Protection Agency

(Agency)

on

October

25,

1974.

The Complaint alleges that Respondent Leroy Rob-

inson operated,

as a sole proprietor,

a solid waste management site in

Will County, without the requisite operating permit issued by the Agency.

Turning first

to the Complaint itself,

the Board finds

that the

Complaint herein is partially deficient

on its

face,

The Complaint

properly alleges that Respondent Robinson operated

a solid waste management

site without the operating license required under Rule 202(b) (1)

of the

Board~sSolid Waste Rules and Regulations.

The permit requirement

of

that rule became effective on July 27,

1974.

But the Complaint herein

improperly alleges a violation of Section 21(b)

of the Env±ronmental

Protection Act,

Ill.

Rev.

Stat,,

ch,

111 1/2,

Sec. 1021

(b)(l973).

Section 21(b)

of

the Environmental Protection Act prohibits the

open dumping of refuse other than garbage in violation of regulations

adopted by

the Board,

The Complaint herein does not

in

any

way

address

the question of open dumping; while the Board does

not

require fact

pleading, such a general allegation of violation of

a Section of the Act

is insufficient in a Complaint.

It

is

clear to

the Board that the Attorney General intended

to

allege a violation

of Section 21(e)

of

the

Act;

that Section

of the Act

does

in fact prohibit the collecting of any

refuse or any refuse disposal

operation,

without

a permit granted

by the Agency.

The Board

cannot,

however, find

a

violation of

a Section of

the Act

where such violation

has not been alleged

in the Complaint.

That portion of

the Complaint

herein alleging a violation of Section 21(b)

of

the Act must be dismissed.

16

~-295

---

—2—

The Board then turns to examine the properly pleaded allegation of

violation

of Rule 202(b)(l) of the Solid Waste Rules and Regulations.

A

hearing

was

held on this matter on January

9,

1975.

Respondent Robinson

did not appear at that hearing.

Nor,

it appears from the testimony

entered at

the hearing, has Mr.

Robinson replied to or acknowledged

any

communication from either the Agency or

the Hearing Officer regarding

the Complaint or the hearing held

in this matter.

The Hearing Officer,

upon Mr. Robinson’s

failure to appear, entered an “order of default”

against Mr.

Robinson

(R.

3).

Pursuant

to Board Procedural Rule 320,

the Agency then proceeded to

call a single witness to testify at

the hearing. That witness testified

that

in the course of his employment with the Environmental Protection

Agency he had inspected the site in question, that the site was in fact

operating on October

9,

1974,

and that the site did not have or possess

the requisite operating permit from the Agency

KR.

4,5).

The witness

further testified that he had notifed Mr.

Robinson of the fact that he

did not have a permit,

such notification being made by mail.

Board Procedural Rule 320 does

in fact state

that the Board may

enter an appropriate Order based on evidence introduced

at a hearing,

when

a party has defaulted by

faijure

to appear

on the date set for

hearing.

That rule is in conformance with Section

33(a)

of the Act,

which states that upon due consideration of written and oral statements,

testimony and arguments submitted at

the hearing,

or upon default

in

appearance of the Respondent,

the Board shall issue and enter such final

Order as

it shall deem appropriate under the circumstances.

While the Board may in fact find

a violation upon the default of

the Respondent,

that is not the case here.

The Board has previously

held that defaults are to be discouraged.

Nonyekv.

EPA,

PCB

71—80,

2

PCB 125

(1971).

See also, Moody

v. Flintkote, PCB 70—36,

2 PCB 341,

356

(1971).

Here, however,

even were the Board’s standard in finding a

violation upon default a liberal one,

a violation could not be found.

First,

the Agency has failed to make a prima

facie case in this

matter.

While the Agency

did show that a solid waste management site

was in operation in Lockport, off of Harvard and Sheffield Streets, and

that such site was not covered by an operating permit issued by

the

Agency,

the Agency has wholly

failed to prove that such site was

in

any

way connected with the Respondent herein.

In

fact, the Agency failed to

make any offer

of proof regarding the operation

or ownership of a solid

waste management site by Mr. Robinson.

In finding a violation the Board

simply cannot infer so vital

a part of

the offense.

16—296

---

—3—

(It should also be noted that

the bald allegation of ownership—by

sole proprietorship—of the site in question,

as contained in the Complaint,

in no way constitutes proof

of such an allegation.

Board Procedural Rule

308(a)

clearly states that where a Respondent has not answered a Complaint

within 20 days, all material allegations therein shall be taken as

denied.)

Secondly,

it is not clear that default should have been ordered by

the Hearing Officer in this matter.

The Agency’s Attorney at hearing

admitted that although

a copy of the Complaint was mailed

to Mr.

Robinson

by

certified mail, return receipt requested,

the return receipt was

signed by

a Phyllis

Simpson.

(The

fact that Mr.

Robinson did not personally

sign the return receipt

is also reflected on that receipt itself, submitted

with the

affidavit

of service filed by

the Attorney General).

There was

no testimony entered

at the hearing indicating any connection between

Phyllis Simpson

and

Mr. Robinson,

or that the address was even correct.

Although the Hearing Officer stated,

(R.

6),

that he had also notified

Mr.

Robinson by mail

of the hearing

that notice was sent

to an address

different from that shown on

the return receipt connected with the

Complaint;

further,

there is no showing that the correspondence sent by

the Hearing Officer was by certified or registered mail.

Thus, the

proof

that Mr.

Robinson was

ever in fact notified of

the Complaint in

this matter

is inadequate.

For the reasons stated above,

the Board has no choice but to dismiss

the complaint

in this matter.

This Opinion constitutes

the findings of

fact and conclusions of

law of the Board in this matter.

ORDER

IT

IS THE ORDER of

the Pollution Contro

Board that the Complaint

in

this matter be dismissed without prejudice.

I,

Christan L. Moffett, Clerk of

the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on the

_______

day of

______________

,

1975 by a vote of

‘3

to

Q

Ck~iOfç~1~dJ~tL

Christan

L. Moffett,

C

Illinois Pollution Cont~~,’~oard