ILLINOIS POLLUTION CONTROL BOARD
May 3,
1973
ENVIRONMENTAL PROTECTION AGENCY
#72-506
v.
JOHN McINTOSH and
MARY
McINTOSH
DALE R.
TURNER AND THOMAS A.
CENGEL, ASSISTANT ATTORNEYS GENERAL,
APPEARED ON BEHALF OF ENVIRONMENTAL PROTECTION AGENCY
RAYMOND A. LAWLER OF HARRIS
& LAMBERT, APPEARED ON BEHALF OF
RESPONDENTS
OPINION AND ORDER OF THE BOARD
(BY SAMUEL T. LAWTON,
JR.):
Complaint was filed against John McIntosh and Mary McIntosh
alleging that with respect to certain property owned by the Village
of Spillertown in Williamson County, Respondents,
during a period
beginning in May,
1972,
have caused or allowed the open dumping
of garbage in violation of Section 21(a)
of the Environmental Protec-
tion Act, caused or allowed
the open dumping of refuse in violation
of Section 21(b)
of the Act, deposited refuse on public property which
is not a sanitary landfill in violation of Section 21(c)
of the Act
and conducted a refuse disposal operation without an Agency permit
in violation of Section 21(e)
of the Act.
The foregoing events are
also alleged to violate Rules 1.01 requiring registration of the site,
1.03 requiring approval of the Agency for the conduct of refuse disposal
and 3.04 prohibiting open dumping of refuse,
of the Rules and Regulations
relative to refuse disposal sites and facilities during the same period.
ççmplaint also alleged that on or about September 1,
1972, Respondents
sed or allowed open burning of refuse in violation of Section
9(c)
of
the. Act and Rule 3.05 of the Rules and Regulations for Refuse Dis-
posal~Sites and Facilities.
Before considering the merits of the case,
it is necessary to
dispose of certain motions made by Respondents.
Respondents have
filed a motion to dismiss, endeavoring to characterize the present
complaint as a criminal proceeding and has alleged that the Environmental
Protection Act is
so vague as
to preclude adequate preparation of a
defense and consequently, constitutes a denial of due process in viola-
tion of the Constitution of the State of Illinois and the United States.
Respondents also contend that the imposition of a penalty by an adminis-
trative body constitutes an unlawful delegation of authority and that
the Rules and Regulations as applied to Respondents constitute an
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679
improper delegation of legislative authority.
Respondents likewise contend that they are entitled to “face
the Board” and that the complaint is inadequate in failing to allege
sufficient facts to apprise Respondents as to their liability as charged.
Respondents have also filed a Jury Demand and moved to suppress
evidence
on the grounds that it was improper1~obtained without.a search warrant.
The motion to dismiss the complaint,
the Jury Demand and the motion to
suppress evidence are all denied.
All contentions raised with respect
to the constitutionality and vagueness of the Environmental Protection
Act, the characterization of the proceeding as a criminal action, the
improper delegation of judicial and legislative authority and
the
right to a~trial by jury have been answered and disposed of by pre-
vious decisions of this Board and the Illinois Appellate Court and
need not be discussed.
See Environmental Protection Agency v.
Granite Cit~~
Steel Company, #10-34,
1 PCB 315
(March 17, 1971);
Modern Plating
v. Environmental Protection Agency,
##70-38,
71-6,
1 PCB 531
(May
3,
1971); and Environmental Protection Agency v.
C. ~4.Ford,
#71-307,
3 PCB 503 (January
20,
1972)
.
The conduct of an
administrative hearing by a Hearing Officer subject
to ultimate deci-
sion by the Board is a recognized practice at both the State and Federal
levels, and no reason suggests itself why Respondents are entitled to
“face the Board”.
Nor do we find the complaint inadequate
in failing
to apprise Respondents of the violations charged.
Any further specifica-
tion or amplification needed could have been obtained through pre-trial
procedures provided in the Rules and Regulations of the Pollution Control
Board.
Cf. EPA
V.
Parks, #72-484;~
PCB
____
(May
3,
1973).
Lastly,
no evidence has been designated that was improperly ob-
tained and we are not apprised as
to what evidence Respondents seek
to have suppressed or the reasons therefore.
Hearing was held. on the complaint on February 15, 1973.
While
the question of ownership of the property is not an issue,
it appears
from the record that the subject property was controlled by Respondents.
The testimony of Agency witnesses sustains the essential allegations of
th~ complaint.
Persons residing in the immediate area testified to
their own observations
of dumping of tree limbs and concrete in May
of 1972
(R.
19),
garbage consisting of rotten potatoes and onions
equivalent
to 400 wheelbarrows
in June,
1972, muskmelons and corn
in September,
1972
(R.
27),
the dumping of roofing and siding in
September,
1972
(R.
28)
and open burning in September,
1972,
(R.
29).
Testimony indicates that the totality of the operation generated odors
and smoke,
induced the growth of maggots and constituted a severe and
unwarranted nuisance in the immediate area.
Testimony of Environmental
Protection Agency personnel confirmed all of the foregoing.
A hog
enclosure and boiler appear to have been deposited during the fall of
1972, which condition continued into the winter of 1973.
Complainant’s
Exhibits
1,
2,
3,
5 and 6 depict the condition of the premises, re-
flecting the open dumping of trash, wood, concrete and garbage,
as
alleged.
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680
Testimony further indicates
that John McIntosh has maintained
a hostile attitude toward the Agency and other law enforcement offi-
cials who have sought to cause Respondents to bring the operation into
compliance.
It is difficult
to
tell the theory on which Respondents
are defending the case.
The area involved is approximately 35 feet
in length by 12 feet in width.
While relatively small in size compared
to other landfill sites that we have been concerned with,
there is no
question that Respondents have caused open dumping of refuse and dump-
ing without a permit, have failed to
take
the necessary steps to com-
pact and cover that which has been dumped and have caused open burning
of refuse in violation of the Act and Regulations.
Respondents contend
that they had permission to burn which
is not supported by the record
and that what dumping took place was to prevent erosion.
We do not
feel
these
contentions
are
meritorious.
Nor
arewe
persuaded
by
the
argument
of
counsel
that
Respondent’s
chief
defense
is
that
they
have been harassed by the Environmental Protection Agency and law
enforcement officers “and
that if they would have handled
this differ-
ently,
he would have cleaned it up.”
(R. 184).
We will direct the Respondents to take all necessary steps
to
bring
the site into compliance with the relevant regulations and
statutory provisions,
to cease and desist all violations and impose a
penalty in the amount of
$750
for the violations aforesaid.
This opinion constitutes the findings of fact and conclusions of
law of the Board.
IT IS ThE ORDER of the Pollution Control Board:
1.
Respondents,
John
McIntosh
and
Mary
McIntosh,
shall,
within
15
days from the date of this Order, bring the
premises
subject
to
this
proceeding
into
compliance
with
all
relevant~ Regulations
and
statutory
provisions
with
respect
to
the
operation
of
refuse
disposal
sites.
2.
Respondents,
John
McIntosh
and
Mary
McIntosh
shall
cease
and
desist
all
violations
of
the
Regulations
and
statutory
provisions
with
respect to operation of refuse disposal
sites
and
facilities.
3.
Penalty
in
the
amount
of
$750
is
assessed
against
Respondents,
John
and
Mary
McIntosh for violations
of Sec-
tion
9(c),
Sections 2l(a),(b),(c) and
(e) of the Environmental
Protec.tion Act and Rules 1.04,
1.03,
3.04,
3.05,
as
found
in
this proceeding.
Penalty payment made payable to the State
of Illinois by cash or certified check shall be made to:
Fiscal Services Division,
Environmental Protection Agency,
2200 Churchill Drive, Springfield, Illinois 62706.
I, Christan Moffett, Clerk of the Pollution Contr~ Board, certify that
the
above
Opinion
and
Order
was
adopted
on
the
J
day of May,
1973,
by
a
vote
of
~
to ~
cLLL~I9/~
~
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681
S
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