RECEWED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JAN
~52OO4.
U~
ILUP~Ut~
POLW11CN
CONTROL
~ôA
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
)
AC 03-13
)
v.
)
(IEPA No.
565-02-AC)
)
DAN CADWALLADER,
)
)
Respondent.
)
NOTICE OF FILING
To:
John Grivetti, Esq.
Box 251
Wenona, Illinois 61377
PLEASE TAKE NOTICE that on this
date
I presented
to the hearing officer for filing
with the Clerk of the
Pollution Control Board of the State of Illinois the following instrument(s) entitled POST-HEARING BRIEF OF
COMPLAINANT.
Respectfully submitted,
~ll~M.
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
Dated:
December 23, 2003
THIS FILING
SUBMITtED ON
RECYCLED PAPER
BEFORE THE
ILLINOIS POLLUTION CONTROL
BOARd~ECE
fl/ED
JAN
2004
ILLINOIS ENVIRONMENTAL
)
th~
PROTECTION AGENCY,
)
~
CONTROL
BOARD
)
Complainant,
)
AC 03-13
)
v.
)
(TIEPA No. 565-02-AC)
)
DAN CADWALLADER,
)
)
Respondent.
)
POST-HEARING BRIEF
OF
COMPLAINANT
On November
13,
2002, the Illinois Environmental Protection Agency (“Illinois EPA”)
issued an
administrative citation to Dan Cadwallader (“Respondent”).
The citation alleges
violations ofSection
21QD)(1) ofthe Environmental Protection Act (“Act”)
(415
ILCS
5121(p)(1)
(2000)), in that Respondent caused or allowed open dumping of waste, resulting in
litter.
Th~
violations occurred on September 24, 2002 at a property located at 610 North School
Street in
Granville,
Putnam County.
Transcript, pp.
8-12; Exhibit
1.
Illinois EPA has demonstrated that Respondent caused or allowed open dumping on the
site.
“Open dumping” means “the consolidation ofrefuse from one or more sources at a disposal
-
site that does not fulfill the requirements ofa sanitary landfill.”
415
ILCS
5/3.305
(2002).
“Refuse” means “waste,” (415 ILCS 5/3.385 (2002)), and “waste” includes “any garbage.
.
.
or
other discarded material” (415 ILCS
5/3.535
(2002)).
The inspection report admitted into
evidence as Exhibit
1
and the testimony at hearing show that on September 24,
2002, used tires,
metal, wires, and some burned debris were accumulated on the site.
Tr.
at 10-12;
Exh.
1, pp.3-
13.
These materials constitute “discarded material” within the meaning of the term “waste.”The
piles oftires, metal, wire, burned debris, and otherwaste visible in the photographs in Exhibit
1
constitute the “consolidation of refuse from one ormore sources” within the meaning ofthe term
“open dumping.”
Exh.
1
at 5-13.
Respondent admitted that although he is not the owner ofthe property, he has been
attempting to purchase it
(Tr. at
19), and has been operating it since 2002.
Tr. at 20,
see also
Tr.
at 8,
15,
16.
Respondent maintained the premises in a condition that allowed open access to
other parties (Tr.
at
14,
19).
The Illinois EPA inspector noted that during the course of four or
five inspections ofthis site, the general amount of waste remained constant, although some
material had been removed and new material brought in.
Tr. at
15-6.
The condition of the
property remained essentially the same as when the previous owners operated the site.
Tr. at
13-
4.
This Board has previously held that “present inaction on thepart ofthe landowner to remedy
the disposal ofwaste that was previously placed on the site, constitutes ‘allowing’ litter in that
the owner allows the illegal situation to continue.”
Illinois EPA
v.
RonaldD. Rawe, et al.,
AC
92-5
(January 21,
1993), p.
6.
Respondent controlled the property at the time the inspection
resulting in this Administrative Citation was conducted, and he
should be
held responsible for
allowing the illegal dump to continue to the date of the inspection.
As such, Respondent caused
or allowed the open dumping ofwaste observed on September 24, 2002.
Respondent’s causing or allowing the open dumping of these wastes resulted in “litter”
under Section 21(~p)(1)ofthe Act (415 LCS
5/21(p)(1)
(2002)).
The Act does not define “litter,”
but in similar cases, the Board has looked to the definition of “litter” in the Litter Control Act:
“Litter” means any discarded, used orunconsumed substance or waste.
“Litter” may
include, but is not limited to, any garbage, trash, refuse, debris, rubbish.. .or anything
else ofan
unsightly or unsanitary nature, which has been discarded, abandoned or
otherwise disposed of improperly.
2
415
ILCS 105/3(a) (2002);
see St.
Clair County v. Louis I. Mund
(Aug. 22, 1991), AC 90-64, slip op.
at
4,
6.
Using
this
definition, the piles containing used tires, wires,
metals,
and
burned
debris
constitute“litter” under Section 21(p)(1)ofthe Act, and therefore Respondentviolated that section.
Respondent’s defense appears to be that he didn’t intend to
violate thelaw, but he is unable
to
control the daily dumping that occurs
on
the property he
is managing.
Tr.
at
19.
However,
Respondent’s state ofmind is not a relevant inquiry in this action.
A person can cause or allow a
violation of the Act
without knowledge or intent.
County of Will v.
Utilities
Unlimited, Inc.,
et al.
(July 24,
1997), AC 97-41, slip op.
at
5,
citing
People v. Fiorini,
143
Ill.2d 318,
574
N.E.2d 612
(1991).
There is no evidence that Respondent has made any attempt to control fly dumping on this
property
by
fencing,
erecting
signs,
or
removing
waste
to
discourage
additional
dumping.
Respondent’s inability to
prevent fly dumping and failure
to remedy existing violations does not
raise a defense to the violation ofSection 21(p)(1) ofthe Act that he has committed.
The Illinois EPA photographs and inspection report and the eyewitnesstestimony show that
Respondent allowed open dumping of waste in
a manner resulting in litter in violation of Section
21 (p)( 1) ofthe Act.
Illinois EPArequests that theBoard enter a final order findingthat Respondent
violated this section and imposing the statutory penalty.
Respectfully Submitted,
DATED: December 23, 2003
Michelle M. Ryan
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O.
Box
19276
Springfield, Illinois 62794-9276
(217) 782-5544
3
PROOF
OF SERVICE
I hereby certify that I did on the
23td
day ofDecember, 2003, send by U.S. Mail, with postage,
thereon fullyprepaid, by depositing in a United States Post Office Box a true and correct copy ofthe
following instrument(s) entitled POST-HEARING BRIEF OF COMPLAINANT
To:
John Grivetti, Esq.
Box 251
Wenona, Illinois 61377
and the original and nine (9) true and correct copies ofthe same foregoing instruments on the same
date by U.S.
Mail with postage thereon fully prepaid
To:
Dorothy Gunn, Clerk
Pollution Control Board
James
R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois
60601
Michelle M. Ryan
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box
19276
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING SUBMITTED ON RECYCLED PAPER