1LLINOIS

POLLUTION

CONTROL

BOARD

ENVIRONMENTAL PROTECTION

AGENCY,

Complainant,

PCB

73~393

GLENN WILSON and GARY

BAILEY,

Respondents.

Mr.

Dale

R. Turner, Assistant Attorney General,

on behalf of the Environmental

Protection Agency;

Mr. Howard Campbell, Attorney, on behalf of Respondents.

OPINION AND ORDER OF

THE

BOARD (by Mr.

Seaman):

On September 17,

1973, the Environmental Protection Agency filed Complaint

against Glenn Wilson and Gary Bailey, charging therein that the named Respondents

caused or allowed the open burning of refuse in violation of Section 9(c) of

•the EnvirOnmental Protection Act,

11,

Rev.

Stat., 1971, Chapter

‘111

1/2,

§

1009(c)

and

in violation of Rule 502(a)

of Chapter 2,

Part

V of the Regulations of the

Pollution Control Board adopted pursuant to Section 10 of the Environmental

Protection Act Ill.

Rev, Stat., 1971, Chapter

ill

1/2,

§

1010.

More

specifically,

Complainant

a1leges~thatRespondent

Wilson owns certain

rural

real estate located in McClellon Township, Jefferson County, Illinois.

it

is further alleged that Respondent Wilson sold certain junk automobiles located

on said property to Respondent Bailey and that Bailey subsequently open burned

the automobiles

on Wilson~sproperty.

As stated in

Respondents’ Answer Brief:

“t.TJhe essential

facts concerning the violation are not

in

dispute.

Respondent Glenn Wilson

is the owner of the rural

real estate on

which the open burning involved

in this action took place.

Respondent

Gary Bailey stipulated to and testified to setting the fire complained

of, with

a match, for salvage purposes.

It is therefore undisputed by

the

Respondents that Respondent Gary Bailey violated the Environmental

Control

Act

and

the

rules

and

regualtions

of

the

Pollution

Control

Board

specified

in

the

complaint

by

conducting

open

burning

operations

for salvage purposes.

The dispute of Respondents with the statement

of

facts

given

by

the

Complainant

concerns

any

alleged violation by

Respondent

Glenn Wilson,

and the consideration to be given

to mitigating

and

aggravating factors introduced

in

evidence

in

this cause.”

13

—

89

---

-2—

Bailey frankly admitted setting the fire for salvage purposes on

July

12,

1974.

(R. 45).

Bailey testified that he did not advise Wilson

that he intended to burn the junk cars.

CR.

46).

Bailey further testified

that it was his responsibility to remove the cars from Wilson’s property.

(R. 47).

Wilson testified that he did not know that Bailey intended to open

burn the cars, nor did he authorize such action,

(R. 66).

Wilson indicated

that the, cars were to be stripped in.a hard,

level

area specifically set

aside for the operation.

(R. 69).

The mere ownership~ofland on which the burning occurred,

in the face

of uncontroverted,

competent testimony that Wilson did not participate or

even realize that such burning was to occur,

is

insufficient to prove

violation.

To do so would strain any construction of the term “allow’

beyond reason.

From the Record,

it

is clear that

all of the incidents of

ownership were transferred from Wilson

to Bailey,

nor can any agency re-

lationship be implied.

Bailey’s disposition of his personal property was

the independent and efficient cause of the violation.

Since there can be

no implication from the Record that Wilson knew or had reason

to know that

the burning was to take place, Wilson is

no more liable for the burning than

he would

be if the blaze had been started by

a cigarette thrown from

a

passing car.

Regarding the magnitude of the open burning,

Respondent Bailey testified

that approximately fifty to sixty cars were partially or completely burned

during the single date of violation alleged.

(R. 45).

Mr. Jim Tate,

Fire

Department Chief,

testified that he observed black smoke rising hundreds of

feet into the air (R.

6),

The open burning took place

in

a remote area approximately two miles

from the city limit of Mt. Vernon, ~Illinois.

Respondent Bailey testified

that,

although he knew that open burning was illegal within the city limits

of Mt.

Vernon,

he did not know that open burning

in rural areas was illegal.

(R,

49—51).

Respondents

in their Answer Brief emphasize that no contention

is made that scienter is an element

of the offense and that Bailey’s motives

and intentions were introduced solely for the purpose of mitigating his

violation and to show that no flagrant or intentional

violation of the law was

intended.

Respondent Bailey testified that he had knowledge that junk cars were

open burned for salvage purposes

in the vicinity of Jefferson and Marion Counties.

(R. 54).

Respondent Wilson testified that he had heard of people open

burning

cars and saw many loads

of burned-out cars pass his property.

(R.

72),

Respondent Bailey

is twenty-nine years old, married, and the father of

two children.

(R. 42).

Bailey

is without

a high school

education and

automobile ~salvage

is

his sole vocation.

(R. 45,56).

Bailey testified that

he has two or three hundred dollars

in

a bank account and is buying

a home

on contract.

CR.

59),.

13—90

---

—3—

Due to Respondent Bailey’s circumstances and apparent lack of wrongful

intent, we are disposed

to assess

a small

penalty for the single instance

of violation found.

The Respondents

have,

in their Answer, raised two affirmative defenses.

In the First Affirmative

Defense,

Respondents allege that Rule 332(b)

of the Pollution Control Board’s Procedural

Rules

is unconstitutional

because

it exceeds authority granted

by the Act, denies due process and equal

protection, and unconstitutionally grants judicial authority to the Board.

in the Second Affirmative Defense, Respondent contends the penalty

power is unconstitutional because the legislature has set no standards

for such imposition of penalty.

These arguments are without merit.

(See, City of Waukegan

v.

Pollution

Control Board,

311 N.E.

2d

145 (1974).

This Opinion constitutes

the findings of fact and conclusions of law

of the

Board.

IT

IS THE ORDER

of

the

Pollution

Control

Board

that:

1.

Complaint against Respondent Wilson

be dismissed.

2.

For the violation found herein,

Respondent Bailey shall pay to the

State of Illinois the sum of $25.00 within 35 days from the date of this

Order.

Penalty payment by certified check or money order payable to

•the

State of Illinois shall bemade

to:

Fiscal Services

Division,

Illinois

Environmental

Protection Agency, 2200 Churchill

Road, Springfield, Illinois

62706.

3.

Respondent Bailey shall

cease and desist from the violation found

herein.

Mr. Dumelie dissents and will file

a dissenting opinion.

I,

Christan

L.

Moffett, Clerk of the Illinois Pollution Control Board,

certify that the above Opinion and Order was adoptçd on this

day of

___________________,

1974 by

a vote of q—j