ILLINOIS POLLUTION CONTROL BOARD

December 9,

1971

ENVIRONMENTAL PROTECTION AGENCY

v.

)

4~

71—239

JACK McINTYRE and DWIGHT ROWE,

d/b/a JACK

&

DWIGHT’S NuWAY

AUTO SALVAGE and SALES

MR. JOHN

C.

PARKHURST, ASSISTANT ATTORNEY GENERAL FOR THE ENVIRON-

MENTAL PROTECTION AGENCY

MR.

MARSHALL E. DOUGLAS, ATTORNEY FOR JACK

& DWIGHT’S NuWAY AUTO

SALVAGE and SALES

OPINION OF

THE BOARD

(by Mr. Lawton):

Complaint was filed by

the

Environmental

Protection

Agency

against Jack McIntyre

and Dwight Rowe, d/b/a Jack

& Dwight’s NuWay

Auto Salvage and Sales,alleging that on specified dates between

October

23,

1970 and June

29, 1971 defendants caused or allowed

open burning of refuse and conducted salvage operations by open

burning in violation of Sections 9(a)

and 9(c)

of the Environmental

Protection Act and Rules

2-1.1

and 2-1.2 of the Rules and Regula-

tions Governing the Control of Air Pollution.

The petition seeks

the imposition of penalties

in

the maximum statutory amount.

The

complaint was amended

to assert violations on the following dates:

October

23,

1970;

November

10,

13 and 21,

1970; December

16,

17

and

18,

1970; April

8 and

30,

1971; June

29,

1971; and August 9,

1971.

Respondents filed an answer to the amended complaint deny-

ing

its material allegations

so

far as the asserted offenses.

Respondents conduct an auto salvage operation on Barstow Road

in

the unincorporated area of Rock Island County near Silvis.

The

operation is characteristic of this business.

Auto hulks, either

wrecked or abandoned,

are taken to

the site where upholstery and

tires are removed and the auto bodies dismantled

and stripped by

the use of acetylene torches.

Approximately

2500 car bodies

in

various stages of stripping are located on the premises.

Prior

to July

1,

1970,

car bodies were burned to remove

the

non-metal attachments which procedure, respondents

assert, terminated

on or about

that date.

But there is no question that fires have

occurred between November 10,

1970 and August

9,

1971 with frequency

and,

in some instances, reaching an intensity causing them to burn

over an extended period and creating difficulties in extinguishing.

A brief summary of the specific burning episodes

follows.

---

November

10,

1970:

This violation was admitted by respondent

McIntyre

(R.268-9).

The

Fire Departments

of Silvis and Barstow were

called and the fire was put out.

November

21,

1970:

The fire

on this day was witnessed by Mar-

shall Monarch, Director of the Quad City Regional Air Pollution

Control Board

(R.l39).

Respondent Rowe expressed the opinion that

this fire had occurr&d as

a consequence

of

a torch-cutting operation

igniting

a

fuel tank

(R.141,

176).

December

16,

17 and 18,

1970:

Fires were observed by witnesses

on these dates

(R.60,

66,

139), which were conceded by respondent

McIntyre

(R.269).

These fires were attributed to an employee of

respondents who appeared to possess an unenviable propensity for

causing cars

on which he was working to become

ignited,

seemingly

without effort on his part.

In the words

of respondent McIntyre

(R.269)

The

l6tth,

the

17th and 18th,

I think it was

three

fires,

one every day.

I had this guy working

for me,

~Evèry time he took

a part off,

he caught

a

car afire.

That was in the wintertime,

and our

fire

truck would freeze up,

and

the zoning won’t

let me

build

a building such

as

I would like to build.’1

April

8,

1971:

This

fire was viewed by a neighbor

(R.49)

and

admitted by respondent McIntyre

(R.270)

to whom it was .particularly

memorable because:

“That is when my wrecker burned up.

.

.

.

You

know,

a wrecker has

got great big tires on it,

and we

couldn’t even get to that wrecker because

it

was all

mud.

It was just a bad day,

and we did put the

fire

out by hand by using the fire extinguisher

and stuff.”

Q

“Did

the tires burn up?”

A

“The whole wrecker.

We just built it.”

April

30,

1971:

This

fire was observed by

a deputy sheriff

who saw

flames

and smoke extending into

the air

(R.86).

Cars were

observed on all sides of the fire.

This witness was not

able to

testify as to whether the

fire was accidental

or controlled.

Re-

spondent Rowe was seen hurrying past

the witness to observe the

fire

and did not pause to discuss the event.

3

—

224

---

June

29,

1971:

A

witness testified that fire was observed

on this date

and lasted

for 1-1/2 hours

(R.66)

in the afternoon,

which

fire,

in the opinion of the witness, was

a result of cars

burning.

This

fire was admitted by respondents

(R.272)

although

its duration was asserted to be only twenty minutes, after which

time

the

fire truck arrived to put it out.

August

9,

1971:

This

fire was witnessed by

an Agency employee

as well

as several neighbors

(R.23—29,

43—45,

105—108, 122—124).

Fanned by

a strong wind,

the

fire burned for

a day before being

extinguished by the Fire Department.

McIntyre expressed the opinion

that the fire had started by using

a torch to cut

a

truck

(R.30)

His e~orts to extinguish

the fire himself with his own water

tank

and caterpillar were unsuccessful

(R.257)

.

Twenty thousand gallons

of water were poured on the

fire before it was ended

(R.273).

Gas

tanks,

tires,

seats and drive shafts were

in the area blocking

access

to the fire.

A large pile of seats became ignited as

a re-

sult.

Quite clearly the evidence sustains

the allegations of the

complaint as

to open burning and salvage by open burning on the

dates above specified.

The defense

is not that

the burning did not

occur;

indeed,

respondents acknowledge

the fires

in virtually every

instance.

The defense is that the fires were accidental,

that with

all fires observed respondents took immediate steps to extinguish

or control

them, and that they had taken all possible precautions

to prevent them from occurring and to extinguish

them when,

in

fact,

they

did occur.

As in all cases of this character, respondents

assert that alternative means of salvage operation are too costly,

too distant and

too impractical.

The issue narrows down

to the question whether when fires occur

in an auto salvage yard with the frequency noted

in the present case

over

a substantial period of

time, the owner or operator can be exon-

erated by asserting that the

fires were not intentional and that

everything had been done that could be to prevent or extinguish

them.

We think the answer must be

no.

We have previously held that where

fires occur under circumstances comparable

to the present case,

the

owner has the affirmative evidentiary burden to prove such fires

accidental.

Environmental Protection Agency v.

Neal Auto Salvage,

Inc.,

#70—5,

dated November

28,

1970.

However, there are circum-

~~ces

when

fires,

though perhaps accidental

as distinguished from

being intentionally

caused,

may be of such frequency, duration

and

character

as to manifest negligence on the part of the operator.

Merely saying,

“I didn’t mean to,” may be sufficient

to excuse

a

single episode, but where,

as here,

the fires cover

a time span of

nine months and unquestionably result from the business activities

of respondents

as distinguished from outside sources or acts of God,

we must find

a violation.

3

—

225

---

Section

9

Cc)

of

the

Act

states

that

no

person

shaLl

“cause

or

allow

the

cpen

burninq

of

refuse,

conduct

any

salvage

operation

by

open

burning,...”

The

word

‘cause”

connotes

a

conscious

and

aifirmative

act

on the part

ci

the

respondent.

The

tern

“allow”

in

the

contnxt

used clearly embraces negligent

operations

as

a

rasis

for violation.

Where

fires

in th~deqrec and frequency of

the

present case have occurred

and

are admitted,

the burden shifts

to the respondents

to show an absence of

neciiiqence,

An

auto

sal-

vage

yard has

an infinite potential

for

fires.

Car

hulks

are

stored with gasoline

still

in

the

tanks.

Acetylene

torches

are

used

for

the dismantling operations.

Coupled with

this

we have the

inherent desire

of

the salvage dealer

(not necessarily shown in

the

present case)

to burn the rubber and non-metal attachments

on

the

cars

in

contemplation of obtaining

a better price upon sale

to the

ultimate buyer.

While we do not by

this decision hold that the

operator is an insurer against any

fires taking place

on his premises,

we

do hold that on the facts

of the present case

the frequency,

degree and intensity of

the

fires resulting from

the business

operation of respondents constitute

a violation.

The conduct of

the basic business operation

is what has created the event.

Any

other

rule would impose on the Agency

the impossible burden of show-

ing the respondents setting

a match

(or acetylene torch)

to the car

and analyzing the thought processes of

the offender.

Where

2500

cars are stored

for ultimate salvage operations, where gasoline is

present in all

or most of

them,

and where fire

is used for dis-

mantling,

the auto salvage operator has

a heavy burden of seeing

that no fires occur,

or if they do occur,

that they

arp immediately

extinguished.

Any other

rule would make enforcement

a game between

the operator and the Agency.

In Environmental Protection Agency

v.

Frank Cobin, d/b/a Cobin

Salvage Company, #7l-234~ dated November

11,

1971,

we reviewed the

entire subject of auto salvage operation, commenting specifically on

the new open burning regulations,

and stated:

“The Board is not unmindful of the problems

created by abandoned and wrecked automobiles and

the

difficulty

in their disposal.

However,

violation

of the

law is not

the answer.

Technology exists with-

in the State enabling

the disposal

of auto bodies in

compliance with

the

law.

“The State of Illinois has

long been concerned

with the disposal of auto bodies which problem is one

of national magnitude.

See

“Auto Di~posa1,a National

Problem”,

U.S. Department of

the

Interior, Bureau of

3

—

22~

---

Mines,

1967.

Government

and

industry

have

been

and

are

presently

engaged

in

efforts

to

eliminate

the

blight

of

abandoned and junk auto hulks.

Variation

and enforcement actions relative to auto salvage

operations constituted the principal business of the

old Air Pollution Control Board,

For

a review of

the

Board’s activities

in this respect,

see Opinion of

Currie,

April

29,

1970,

in Britz Auto Parts,

yR 69—29,

in which the subject of auto salvage,

its history and

litigation in Illinois are reviewed in detail.

As

the Opinion notes:

‘The emission of

dense, ugly smoke from burning

of

junk cars

is

a familiar and unpleasant sight

for

highway travelers.

This

is

a particularly barbaric,

obsolete,

and inexcusable

form of pollution;

for

the smoke is highly visible,

no attempt

is made

to contain it,

and methods of reclaiming auto bodies

without open burning are readily available.

The

harmful effects

of particulate pollution have been

amply documented in the Air Quality Criteria issued

last year by the federal government:

Health,

esthetics, property values, visibility,

weather,

and costs of cleaning, heating and lighting, may

all be adversely affected.

In this

case,

as in

previous cases, there was undisputed evidence

of

alternate disposal methods:

A mere $25,000 will

buy

a relatively smokeless incinerator,

and

a

shredding firm at Alton has offered to pay as much

for auto bodies whether or not

they have been burned.

“Commenting

on

the same regulatory provisions with which

Respondent

is charged in the present case,

the opinion continues:

Because open burning i~so obnoxious and

so

unnecessary,

this Board banned it outright in the

first regulations it issued:

“No person shall con-

duct a salvage operation

by open burning.”

Rules

and Regulations

~2-l.l.

The regulation constitutes

an administrative finding, amply supported by the

facts,

that the open burning of automobile bodies

causes offensive, inexcusable air pollution not just

in high-priced residential

areas and state parks

but whenever and wherever

it occurs.

Proof that

the statute itself

is violated is unnecessary in an

enforcement proceeding under this section;

to re-

quire

such proof would deprive the regulation of

any independent significance.’

3

-~

227

---

“The opinion notes

the existence

of shredders

in

Peoria and Alton which will accept salvage auto bodies

in an unburned condition.

Undoubtedly,

others exist

in the

State.

Likewise, incinerators complying with

the relevant regulations

are obtainable

at

a reasonable

price which would enable salvage operations

in compliance

with

the law.

The statute requires that we

take into con-

sideration the social and economic value of the pollution

source and the technical practicability

and economic

reasonableness of reducing

the emissions

(Section 33(c))

We have concluded that no social or economic considerations

suggest

a continuation of respondents operation in viola-

tion of

the law and that suitable legal alternatives are

available

that are both technically feasible and economical-

ly reasonable.”

The holding in Corbin is applicable

a fortiori

to the present

case.

This opinion constitutes

the findings of

fact and conclusions

of law

of the Board.

Mr. Kissel dissents in

a separate opinion.

Mr. Aldrich will

file

a concurring statement.

IT IS THE ORDER OF the Pollution Control Board that respondents

cease and desist the open burning of refuse and salvage by open burn-

ing at the auto salvage site located in Rock Island County near

Silvis,

Illinois.

Penalty in the amount of $1,000 is assessed for

violations

of the Environmental Protection Act, Secti’ons

9(a)

and

9(c)

and Rules

2-1.1

and 2-1.2

of the Rules

and Regulations Governing

the Control of Air Pollution on November

10,

1970; November

21,

1970;

December

16,

17

and 18,

1970; June

29,

1971;

and August

9,

1971.

I, Christan Moffett, Acting Clerk of

the Pollution Control Board,

certify that

the Board adopted the above Opinion and Order this

‘1

day of December,

1971.

3—

fl~