ILLINOIS POLLUTION CONTROL BOARD
    February
    7,
    1991
    ILLINOIS ENVIRONMENTAL PROTECTION
    )
    AGENCY,
    Complainant,
    v.
    )
    AC 89—156
    Docket A
    & B
    (Administrative Citation)
    JOHN A. GORDON,
    )
    (IEPA No. 9758—AC)
    Respondent.
    MR. WILLIAM SELTZER, ASSISTANT COUNSEL, APPEARED ON BEHALF OF
    COMPLAINANT
    MR. JOHN A. GORDON, RESPONDENT, APPEARED PRO SE
    OPINION AND ORDER OF THE BOARD
    (by B. Forcade):
    This matter comes to the Board on an Administrative Citation
    filed by the Illinois Environmental Protection Agency
    (“Agency”)
    pursuant to the Illinois Environmental Protection Act
    (hereinafter “the Act”)
    (Ill.
    Rev.
    Stat.
    1989,
    ch.
    111 1/2, par.
    1001 et.
    seq.).
    The citation was filed July 13,
    1989,
    and
    alleges that Respondent,
    John A. Gordon, the owner and operator
    of a facility located in Jackson County,
    Illinois is in violation
    of Section 21(q) (1) and 21(q) (3)
    of the Act for causing or
    allowing open dumping of wastes that result
    in litter and result
    in open burning.
    A Petition for Review was filed with the Board on July
    13,
    1989.
    Hearing was held November
    3,
    1989,
    at the Community Center
    in Carbondale,
    Illinois.
    No members of the public were present.
    Mr. Gerald Steele and Mr. William Ryan testified for the Agency;
    Respondent offered no testimony.
    Closing Arguments were made on
    the record at hearing.
    DISCUSSION
    Section 31.1 of the Act provides that “the
    prohibitions
    specified in subsections
    (p) and
    (q)
    of Section 21 of this Act
    shall be enforceable either by administrative citation under this
    Section or as otherwise provided in this Act.”
    (Ill.
    Rev.
    Stat.
    1989,
    ch. 111 1/2, par.
    1031.1.)
    Section 21(p)
    of the Act
    applies to sanitary landfills permitted under the Act while
    Section 21(q)
    applies to all dump sites.
    The administrative
    citation issued against Mr. Gordon alleges violations of
    subsections
    (1) and
    (3)
    of Section 21(q).
    Section 21(q)
    provides
    that no person shall in violation of Section 21(a)
    of the Act:
    118—309

    2
    cause or allow the open dumping of any waste
    in a manner which
    results
    in any of the
    following occurrences at the dump site:
    1.
    litter;
    ***
    3.
    open burning;
    Section
    21(a)
    of the Act sets forth a general prohibition against
    open dumping by providing that “no
    person shall cause or allow
    the open dumping of any waste.”
    These sections of the Act establish that,
    in order to seek
    enforcement by way of the administrative citation process for
    violations of Section 21(q), the Agency must establish that the
    person caused or allowed open dumping and must also prove that
    the open dumping resulted
    in litter, open burning or other
    specified conduct at the dump site.
    If the record demonstrates
    that such violation occurred then the Board must adopt an order
    finding a violation and impose the specified penalty unless,
    .the person appealing the citation has shown that the
    violation resulted from uncontrollable circumstances.”
    Section
    31.1(d)
    (2)
    of the Act.
    Therefore,
    the initial inquiry
    in this
    case
    is whether Mr. Gordon’s conduct constitutes causing or
    allowing “open dumping.”
    Section
    3.24 of the Act defines “open dumping”
    as “the
    consolidation of refuse from one or more sources at a disposal
    site that does not fulfill the requirements of a sanitary
    landfill.”
    (Ill.
    Rev.
    Stat.
    1989,
    ch. 111 1/2, par. 1003.24.)
    Section 3.31 of the Act defines “refuse” as “waste.”
    (Ill.
    Rev.
    Stat.
    1989,
    ch. ill 1/2, par.
    1003.31.)
    Section
    3.53 defines
    “waste” as,
    inter alia,
    “garbage
    ...
    or other discarded material
    .“
    (Ill.
    Rev.
    Stat.
    1989,
    ch.
    111 1/2, par.
    1003.53.)
    At hearing complainant’s witness, William C.
    Ryan,
    testified regarding a site inspection he made of Mr. Gordon’s
    facility on May 18,
    1989.
    The facility is called the Jackson
    County PTL River Terminal.
    It is a coal-loading terminal where
    coal from various mines is brought in by truck and loaded onto
    barges;
    it also has limited sand and gravel operations.
    The
    facility is permitted as coal-mine-related activities through the
    mine pollution control program of the Agency.
    The facility is
    just over fours acres, but Mr. Jackson and Jackson County River
    Terminal own surrounding land totalling about ten acres.
    (R.
    11-
    13).
    Mr. Ryan also provided several photographs of the site
    inspection which were introduced as exhibits,
    as well as a site
    sketch.
    (Pet. Exs.
    1-9).
    During the inspection Mr. Ryan observed
    118—3 10

    3
    the dumping of some demolition debris and a pile of some burnt
    tires.
    While Mr. Ryan was inspecting the site he observed two
    trucks, approximately ten ton trucks, dumping demolition debris.
    Mr. Ryan believes the debris came from the demolition of the post
    office in Gorham.
    The debris was characterized as a lot of wood
    and paper,
    some old siding,
    some bricks.
    Mr. Ryan observed four
    piles of debris in one area and five piles
    in another.
    There
    were various piles of debris at four different areas within the
    site, approximately 80 or 90 tons of material in total.
    (R.
    36-
    64,
    85).
    In addition, Mr. Ryan observed a pile of burnt tires.
    Based
    on his observations Mr. Ryan concluded that the tires were
    burned, and were burned on—site.
    Mr. Gordon did not take the stand to testify, nor did he
    call any witness on his behalf.
    He did,
    however,
    cross examine
    witnesses on several issues and posed objections to certain
    statements of the witnesses.
    Primarily,
    Mr. Gordon’s questions
    and objections focused on the basis for a conclusion that he
    owned the land in question.
    Mr. Gordon established that the
    Agency witness
    Mr.
    Steele, had not reviewed any deeds, or maps,
    or property descriptions to support the conclusion that the land
    was owned by Mr. Gordon.
    (R.
    21-22).
    He also established that
    the Agency witness,
    Mr. Ryan,
    had never scaled off of any map in
    the office to determine the property lines or coal-loading permit
    lines for this facility.
    (R.
    101).
    In addition, Mr. Gordon
    raised questions regarding the conclusion that the tires were
    burned on site,
    establishing that the witness did not see any
    fire or smoke during the site inspection.
    (R.
    68-71;
    108-111).
    Based on the evidence presented, the Board concludes
    Complainant has demonstrated that open dumping, which resulted
    in
    litter, has occurred on the Respondent’s property.
    The
    undisputed testimony is that Mr. Gordon owns the property upon
    which the dumping occurred.
    Mr. Steele of the Agency testified
    that Mr. Gordon owned the property in question.
    (R.
    13,21,22)
    This was based on statements made to him by Mr. Gordon and based
    on the coal loading facility permit Mr. Gordon holds for the
    facility.
    (R. 21,22).
    Mr. Ryan has been inspecting the facility
    for about ten years and testified that the facility has a current
    permit for 4.06 acres and a permit application pending for
    10
    acres which states Mr. Gordon
    is the owner of the property in
    question
    (R.
    107-108), and that each of the photographs depicting
    the various debris piles shows a piece of property included
    within the 10 acres of the permit application perimeter or within
    the perimeters of the 4.06 acres of the current permit Mr. Gordon
    holds.
    (R.
    56—62).
    Lastly,
    Mr. Gordon alluded, through
    questions, to the prospect that the material might be subject to
    reclamation.
    He did not provide any testimony that the material
    was intended for recycling,
    and did not raise this matter in
    closing argument.
    The Board finds that the Agency need not
    118—3 11

    4
    establish lack of recycling or reclamation capabilities as part
    of their case in chief.
    In addition, the Agency here has
    provided testimony that the operation was not consistent with
    reclamation or salvage.
    (R.
    125-131).
    The Board must now consider whether Mr. Gordon caused or
    allowed such open dumping.
    The meaning of the phrase “cause or
    allow”, as used in Section 12(a) of the Act, has been determined
    by the Illinois Appellate Court, Third District,
    in Freeman Coal
    Mining Corp.
    v.
    Illinois Pollution Control Board,
    21 Ill. App.
    3d
    157,
    313, N.E.2d 616
    (1974).
    In Freeman, the petitioner was an
    owner of a coal mine that maintained a mine refuse pile.
    Rainfall upon the pile resulted in an acidic contaminant which
    washed into an unnamed waterway causing water pollution.
    Id. at
    618.
    The petitioner argued that it could not be held liable for
    “allowing such discharges because the discharges were the result
    of
    a natural force beyond the control of the petitioner” Id.
    at
    619.
    In its decision in Freeman,
    the court restated that the Act
    is malum prohibitum and no proof of guilty knowledge or mens rea
    is necessary to a finding of guilt.
    The court went on to say,
    that the fact that the discharges were unintentional,
    or occurred
    despite efforts to prevent them,
    is not a defense.
    The owner of
    the property that creates the pollution has a duty,
    imposed by
    the legislation, to take all prudent measures to prevent the
    pollution.
    The efforts by the landowner to control or treat the
    pollution go to the issue of mitigation, not to the primary issu
    of liability.
    Id.
    at 621.
    See also, County of Jackson v. Don
    Taylor, AC89—258, January 10, 1991;
    IEPA v. Robert Wheeler, A
    90-42, January 10,
    1991; and Perkinsori
    v.
    IPCB,
    187 Ill.
    App. 3d
    689,
    546 N.E.2d 901
    (1989).
    Based on the facts presented in this case and the legal
    principles outlined by this Board and the Courts, we conclude
    that Mr. Gordon did “cause or allow” the open dumping described
    in this proceeding.
    Therefore,
    Mr. cordon is in violation of
    Section 21(q) (1)
    of the Act.
    The second question is whether the record supports a
    conclusion that the open dumping resulted in open burning on N
    Gordon’s property.
    For the reasons stated below, the Board fi
    that the record supports the conclusion that the tires are on
    Gordon’s property and that the tires are burnt.
    The operative provision of the Act,
    Section 31.1(b),
    provides:
    Whenever Agency personnel
    ...
    on the basis of
    direct observation, determine that any person
    has violated any provision...
    The statute by its terms does not require that the fire itse
    observed, but instead that direct observation support a
    118—3 12

    5
    conclusion that fire occurred at the site.
    Thus, the Board
    believes that the Act clearly allows the Agency to prevail on a
    claim of open burning even where the inspector does not
    specifically see the burning material or smoke during the
    inspection.
    However, the Agency must make some showing that the
    burning did occur at the facility issued the administrative
    citation.
    The question is whether the Agency has made such a
    factual showing in this particular proceeding.
    This factual
    determination must be based on a review of the testimony of Mr.
    Ryan and an evaluation of the photograph of the burned tires.
    (Pet.
    Ex. 2).
    Mr. Ryan stated:
    Okay.
    There
    is absolutely no question
    in my
    mind that
    it
    tthe tires
    was burned because
    there was obvious partially burnt and charred
    tires
    in there.
    In
    terms
    of
    where
    it
    was
    burned,
    the
    indications that
    I have that it was burned in
    this
    area
    are
    the presence
    of
    ash material
    amongst the tires,
    which was different than
    the ash material in the
    -
    -
    well, the ash that
    was brought on site from CIPS, which is in the
    surrounding area.
    And the fact that some of
    the
    tires
    -
    to
    include
    one
    here
    in
    the
    photograph
    tPet.
    Ex.
    2
    -
    -
    showed charred
    -
    and
    ashed
    -
    type
    edges
    and
    some
    of
    the
    partially burnt tires showed some protruding
    steel bands on them, and there was steel bands
    in concentric rings that, in my opinion, would
    not have been that perfect or that formed had
    it
    been transported
    to
    the site
    and dumped
    there.
    So utilizing that information,
    I drew
    the conclusion that they were burned on site.
    (R.
    71-72).
    See also,
    Mr.
    Steele’s testimony
    (R.
    124—125; 133—134)
    Mr. Gordon did not provide any testimony on this issue.
    As Mr.
    Gordon has presented no evidence or argument rebutting the
    evidence presented by the Agency, the Board finds that in this
    case the Agency has met its burden of proof
    in demonstrating that
    the alleged violations occurred.
    Therefore,
    the Board concludes
    that the tires were burned on site and that Mr. Gordon is in
    violation of Section 21(q)(3) pertaining to open burning.
    The final question the Board must consider is whether Mr.
    Gordon has shown that the violation resulted from uncontrollable
    circumstances.
    This is the only showing provided in the statute
    that allows the Board to excuse any violation.
    If the Board so
    finds, then no violation would be found and no penalty imposed.
    (see Section 31.1(d) (2)
    of the Act).
    118—3 13

    6
    The record raises no basis for a conclusion of
    uncontrollable circumstances.
    The Board finds that the
    violations did not result from uncontrollable circumstances.
    Therefore,
    Mr. Gordon is in violation of Section 21(q) (1)
    and
    21(q) (3)
    of the Act.
    PENALTIES
    Penalties in administrative citation actions of the type
    here brought are proscribed by Section 42(b) (4)
    of the Act, to
    wit:
    In
    an
    administrative
    citation
    action
    under
    Section 31.1 of this Act, any person found to
    have violated any provision of subsection
    (p)
    of
    Section 21 of this Act shall pay
    a
    civil
    penalty
    of
    $500
    for each violation of
    each
    such
    provision,
    plus
    any
    hearing
    costs
    incurred by the Board
    and the Agency.
    Such
    penalties
    shall
    be
    made
    payable
    to
    the
    Environmental Protection Trust Fund to be used
    in accordance with the provisions of
    “An Act
    creating the
    Environmental
    Protection
    Trust
    Fund”, approved September 22, 1979 as amended;
    except
    that
    if
    a
    unit
    of
    local
    government
    issued the administrative citation, 50
    of the
    civil penalty shall be payable to the unit of
    local government.
    Ill.
    Rev.
    Stat.
    1989,
    ch.
    111
    1/2,
    par.
    1042(b) (4)
    -
    Respondent will therefore be ordered to pay a civil penalty
    of
    $
    1000 based on the violations as herein found.
    For purpose
    of review, today’s action (Docket
    A) constitutes the Board’s
    final action on the matter of the civil penalty.
    Respondent is also required to pay hearing costs incurred by
    the Board and the Agency.
    The Clerk of the Board and the Agency
    will therefore be ordered to each file a statement of costs,
    supported by affidavit,
    with the Board and with service upon Mr.
    Gordon.
    Upon receipt and subsequent to appropriate review, the
    Board will issue a separate final order
    in which the issue of
    costs is addressed.
    Additionally, Docket B will be opened to
    treat all matters pertinent to the issue of costs.
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    118—3 14

    7
    1.
    Respondent is hereby found to have been in violation on
    Nay 18,1989,
    of Ill. Rev. Stat.
    1989,
    ch.
    111 1/2,
    par.
    1021(q) (1) and 1021(q) (3).
    2.
    Within 45 days of this Order Respondent shall,
    by
    certified check or money order, pay a civil penalty in
    the amount of $1000 payable to the Illinois
    Environmental Protection Trust Fund.
    Such payment
    shall be sent to:
    Illinois Environmental Protection Agency
    Fiscal Service Division
    2200 Churchill Road
    Springfield, Illinois
    62706
    3.
    Docket A in this matter is hereby closed.
    4.
    Within 30 days of this Order, the Agency shall file a
    statement of its hearing costs,
    supported by affidavit,
    with the Board and with service upon John Gordon.
    Within the same 30 days, the Clerk of the Pollution
    Control Board shall file a statement of the Board’s
    costs,
    supported by affidavit and with service upon
    John Gordon.
    Such filings shall be entered in Docket B
    of this matter.
    5.
    Respondent is hereby given leave to file a
    reply/objection to the filings as ordered in paragraph
    4 of this order within 45 days of this Order.
    Section 41 of the Environmental Protection Act,
    Ill.
    Rev.
    Stat.
    1989,
    ch. 11l~,par.
    1041, provides for appeal of final
    Orders of the Board within 35 days.
    The Rules of the Supreme
    Court of Illinois establish filing requirements.
    IT IS SO ORDERED.
    I, Dorothy N. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Opinion and Order was
    adopted on the
    7~
    day of
    ~~—‘i~
    ,
    1991,
    by a
    voteof
    c~~—c
    Dorothy N. ,4(inn, Clerk
    Illinois Pollution Control Board
    118—315

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