ILLINOIS POLLUTION CONTROL BOARD
June 17, 1998
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
JOHNNIE MAE HENDRICKS,
Respondent.
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PCB 97-31
(Enforcement - Land - Tires)
AMY JACKSON, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF OF
COMPLAINANT.
INTERIM OPINION AND ORDER OF THE BOARD (by M. McFawn):
This matter is before the Board on the complaint of the Attorney General filed on
August 12, 1996, on behalf of the People of the State of Illinois (Complainant). The
complaint alleges violations of the Illinois Environmental Protection Act (Act), 415 ILCS 5/1
et seq
., and the Illinois Administrative Code through improper operation of a used and waste
tire disposal, treatment, or storage facility. Respondent Johnnie Mae Hendricks did not
respond to the complaint.
For the reasons stated below, the Board finds Ms. Hendricks in violation of the Act and
the Board’s regulations as alleged in counts I through IX of the complaint
1
and imposes a
penalty of $39,000.
BACKGROUND
The site at issue, commonly known as the Earp Property, is located in Macoupin
County, Illinois. Ms. Hendricks became the site’s owner in 1990 and sold the property in
March, 1997, to Alton Entertainment. Tr. at 11-12.
2
Alton Entertainment is not a party to
this action. The site is alleged to have contained at least 30,000 used or waste tires, most of
which were destroyed in a fire in 1996.
The alleged violations are based upon matters observed during Illinois Environmental
Protection Agency (Agency) inspections of the site in 1990 and 1995. The ten-count
complaint alleges numerous violations of the Act and the Board’s regulations, including
1
Under count V of the complaint, the Board finds violations of only three of the four cited
provisions.
2
The transcript of the hearing held on September 9, 1997, in this matter will be cited as “Tr.
at ___.”
2
improperly disposing of more than 50 used or waste tires on property which is not a sanitary
landfill, failing to submit required reports to the Agency, operating a waste storage or disposal
operation without an Agency permit, causing or allowing the open dumping of used or waste
tires, litter, the open burning of used or waste tires, and causing, threatening or allowing air
and water pollution. The time period covered by the complaint spans from Ms. Hendricks’
acquisition of the property in 1990 to its sale in March of 1997.
The site was originally owned by J.T. Earp, Ms. Hendricks’ father, who operated a
salvage yard there. Tr. at 40. Mr. Earp placed the tires on the property. Tr. at 39, 43. Ms.
Hendricks became the owner of the property in 1990. Tr. at 11. Also in 1990, the Agency
inspected the Earp site and issued Ms. Hendricks an administrative warning notice for open
dumping of tires. Tr. at 14. The inspection report indicated approximately 50,000 tires at the
site. Tr. at 14.
On April 7, 1995, Agency inspector John S. Senjan conducted a follow-up inspection
of the Earp site. Tr. at 13. He also noted approximately 50,000 tires, which were in various
states of decay and could not be reused. Tr. at 17-19. He also noted that no precautions had
been taken to minimize the risk of fire at the site. For instance, there was no fence around the
site, and no earthen berms. Tr. at 20, 23-24. There were overhanging branches and brush
within 50 feet of the tires. Tr. at 22-23.
On April 9, 1996, a fire in a rubbish pile at the Earp site spread to the tires. Tr. at 25-
26. The resulting tire fire was visible from up to 15 miles away, and was photographed by
Mr. Senjan from that distance. Tr. at 27, Exh. 2. The tire smoke was very thick and black,
and typically contained carcinogens and lead. Tr. at 33, 35. By the time firefighters arrived,
the fire had engulfed the tires and was too hot to put out. Tr. at 30. Firefighters attempted to
control the fire with water, but the water was ineffective; ultimately, Mr. Senjan and a
representative of Macoupin County Emergency Response, decided to let the fire burn itself
out. Tr. at 30. Some of the water applied to the fire went through the tires and ran off into a
small creek which led to the Staunton reservoir, the water supply for the city of Staunton. Tr.
at 31-32. Mr. Senjan inspected the creek, but found no visible contamination. Exh. 2.
Mr. Senjan was present at the site during the fire on April 9, and returned on April 10
and again on April 16th or 17th. Tr. at 28-29, 34. He revised his estimate of the number of
tires present at the site to 30,000 to 40,000, and estimated that 99% of the tires had been
consumed in the fire. Tr. at 29. Although the fire was primarily burnt out by the second day,
there were still smoldering hot spots up to seven days later. Tr. at 34. After the fire had
burned itself out, there were a number of steel wheel rims left. Members of the Hendricks
household collected the rims and sold them for scrap. Tr. at 37-38.
The Earp site was never issued a permit for waste disposal by the Agency. Tr. at 20.
The Agency has never received a contingency plan or any reports or documentation from Ms.
Hendricks regarding the tires disposed at the site. Tr. at 21.
3
Complainant seeks entry of a cease and desist order against further violations by Ms.
Hendricks, and the imposition of a civil penalty of not less than $5,000. Complainant also
requests attorneys fees and costs.
CONSIDERATION OF ALLEGED VIOLATIONS
Ms. Hendricks did not answer the complaint; nor did she attend the hearing on this
matter, held September 9, 1997, in Springfield, Illinois. Tr. at 3. Pursuant to 35 Ill. Adm.
Code 103.220:
Failure of a party to appear on the date set for hearing or to
proceed as ordered by the Board shall constitute a default. The
Board shall thereafter enter such order as appropriate, as limited
by the pleadings and based upon the evidence introduced at the
hearing.
Complainant introduced evidence in support of the allegations in the complaint at the
September 9, 1997, hearing. Based upon the evidence introduced, the Board finds
complainant has established violations with respect to nine of the ten counts of the complaint,
and accordingly finds that Ms. Hendricks has violated the Act and the Board’s regulations as
alleged in counts I through IX of the complaint.
3
The individual counts of the complaint and
the evidence supporting them are discussed below.
Count I: Improper Tire Storage
Count I alleges that Ms. Hendricks caused or allowed the disposal and storage of
approximately 50,000 used and waste tires on private property which is not an Agency
permitted sanitary landfill, in violation of Sections 55(a)(5) and (e) of the Act (415 ILCS
5/55(a)(5) and (e) (1996)) and 35 Ill. Adm. Code 848.202(b)(6). Section 55 of the Act
provides in relevant part:
a.
No person shall:
* * *
5.
Abandon, dump or dispose of any used or waste
tire on private or public property, except in a
sanitary landfill approved by the Agency pursuant
to regulations adopted by the Board.
* * *
3
Under count V, the Board finds violations of only three of the four cited provisions.
4
e.
No person shall cause or allow the storage, disposal,
treatment or processing of any used or waste tire in
violation of any regulation or standard adopted by the
Board.
35 Ill. Adm. Code 848.202(b) provides in relevant part:
At sites at which more than 50 used or waste tires are located the
owner or operator shall comply with the following requirements:
* * *
6)
USED OR WASTE TIRES SHALL NOT BE
ABANDONED, DUMPED OR DISPOSED ON
PRIVATE OR PUBLIC PROPERTY IN ILLINOIS,
EXCEPT IN A LANDFILL PERMITTED BY THE
AGENCY PURSUANT TO 35 ILL. ADM. CODE 807
or 811.
Mr. Senjan testified that 30,000 to 40,000 tires had been disposed at the site, and that
the site was not a sanitary landfill. Tr. at 20, 29. The Board accordingly finds that Ms.
Hendricks has violated Sections 55(a)(5) and (e) of the Act and 35 Ill. Adm. Code
848.202(b)(6).
Count II: Reporting Violations
Count II of the complaint alleges that Ms. Hendricks failed to file the required reports
and information regarding the site, in violation of Sections 55(a)(6), (c), and (d) of the Act
(415 ILCS 5/55(a)(6), (c), and (d) (1996)). Those provisions of Section 55 provide in relevant
part:
a.
No person shall:
* * *
6.
Fail to submit required reports, tire removal
agreements, or Board regulations [sic].
* * *
c.
On or before January 1, 1990, any person who operates a
tire storage site or a tire disposal site which contains more
than 50 used or waste tires shall give notice of such
activity to the Agency. Any person engaging in such
activity for the first time after January 1, 1990, shall give
5
notice to the Agency within 30 days after the date of
commencement of the activity. * * *
d.
Beginning January 1, 1992, no person shall cause or allow
the operation of:
* * *
2.
a tire disposal site, unless the owner or operator (i)
has received approval from the Agency after filing
a tire removal agreement pursuant to Section
55.45, or (ii) has entered into a written agreement
to participate in a consensual removal action under
Section 55.3.
Mr. Senjan testified that the tires at the Earp site could not be reused. Tr. at 19. From
this testimony the Board finds that the Earp site was a tire disposal site. Mr. Senjan also
testified that the Agency never received notice from Ms. Hendricks as required by Section
55(c), nor did it receive a tire removal agreement or written agreement to participate in a
consensual removal action, as required under Section 55(d). Tr. at 21. The Board thus finds
Ms. Hendricks in violation of Sections 55(a)(6), (c), and (d).
Count III: Management Standard Violations
Count III of the complaint alleges respondent violated Section 55(e) of the Act and 35
Ill. Adm. Code 848.202(c)(1), (2), and (3) and (d)(1), (2), and (3). Section 55(e) is quoted
above in the Board’s discussion of count I. 35 Ill. Adm. Code 848.202 provides in relevant
part:
c)
In addition to the requirements set forth in subsection (b),
the owner or operator shall comply with the following
requirements at sites at which more than 500 used or
waste tires are located.
1)
A contingency plan which meets the requirements
of Section 848.203 shall be maintained.
2)
The recordkeeping and reporting requirements of
Subpart C shall be met.
3)
Used or waste tires shall not be placed on or
accumulated in any pile unless the pile is separated
from grass, weeds, brush, overhanging tree limbs
and similar vegetative growth by no less than 50
feet.
6
* * *
d)
In addition to the requirements set forth in subsections (b)
and (c), the owner or operator shall comply with the
following requirements at sites at which more than 10,000
used or waste tires are located.
1)
The area of the site where used or waste tires are
stored shall be completely surrounded by fencing
in good repair which is not less than 6 feet in
height.
2)
Entrance to the area where used or waste tires are
located shall be controlled at all times by an
attendant, locked entrance, television monitors,
controlled roadway access or other equivalent
mechanisms.
3)
The area of the site where used or waste tires are
stored shall be completely surrounded by an
earthen berm or other structure not less than 2 feet
in height, and capable of containing runoff
resulting from tire fires, accessible by fire fighting
equipment; except that the owner or operator shall
provide a means for access through or over the
berm or other structure.
Mr. Senjan testified that Ms. Hendricks failed to maintain a contingency plan and failed
to keep the records and report to the Agency. Tr. at 21-22. The Board accordingly finds Ms.
Hendricks in violation of Section 848.202(c). The photographs in Exhibits 1 and 2 show
neither the fence required by Section 848.202(d)(1) nor any of the control mechanisms
required by Section 848.202(d)(2). Mr. Senjan also testified that the tires were in piles located
within 50 feet of the surrounding brush and vegetation. Tr. at 23. The Board finds Ms.
Hendricks in violation of Section 848.202(d). By violating these regulations, Ms. Hendricks
has also violated Section 55(e) of the Act.
Count IV: Contingency Plan
Count IV of the complaint alleges respondent failed to have a tire fire contingency plan
which met the requirements of 35 Ill. Adm. Code 848.203, in violation of that section and
Section 55(e) of the Act. Section 848.203(a) provides:
If an owner or operator of a tire storage site or tire disposal site
is required by Section 848.202 to have a contingency plan under
7
this Section, the owner or operator must meet the contingency
plan requirements of this Section.
In Count III, the Board found that Ms. Hendricks did not have a contingency plan. Thus, Ms.
Hendricks has not complied with Section 848.203 or, consequently, with Section 55(e) of the
Act.
Count V: Operating Without a Permit
Count V alleges that respondent operated a waste storage, waste treatment, or waste
disposal facility without the required Agency permits in violation of Sections 21(d)(1) of the
Act (415 ILCS 5/21(d)(1) (1996)) and 35 Ill. Adm. Code 807.201 and 807.202. Count V also
alleges that respondent conducted waste storage, waste treatment, or waste disposal activities at
a facility other than an Agency permitted sanitary landfill, in violation of 21(e) of the Act (415
ILCS 5/21(e) (1996)). Section 21 of the Act provides in relevant part:
No person shall:
* * *
d.
Conduct any waste-storage, waste-treatment, or waste-
disposal operation:
1.
without a permit granted by the Agency . . . .
* * *
e.
Dispose, treat, store or abandon any waste . . . except at a
site or facility which meets the requirements of this Act
and of regulations and standards thereunder.
35 Ill. Adm. Code 807.201 provides:
Subject to such exemption as expressly provided in Section 21(e)
of the [Act] as to the requirement of obtaining a permit, no
person shall cause or allow the development of any new solid
waste management site or cause or allow the modification of an
existing solid waste management site without a Development
Permit issued by the Agency.
35 Ill. Adm. Code 807.202 provides in relevant part:
b)
Existing Solid Waste Management Sites.
8
1)
Subject to such exemption as expressly provided in
Section 21(e) of the [Act] as to the requirement of
obtaining a permit, no person shall cause or allow
the use or operation of any existing solid waste
management site without an Operating Permit
issued by the Agency not later than one year after
the effective date of these Regulations.
The tires disposed at the Earp site fall within the definition of “waste” found in the
Act.
4
Thus, the Earp site was a waste disposal site, and was required to have an operating
permit under Section 21(d)(1) of the Act and 35 Ill. Adm. Code 807.202(b)(1). Mr. Senjan
testified that the Agency had not issued a permit for the Earp site. Tr. at 20, 43. The Board
therefore finds Ms. Hendricks in violation of Sections 21(d)(1) and 807.202(b)(1) and,
consequently, in violation of Section 21(e).
The evidence indicates that the tires were already in place at the Earp site prior to Ms.
Hendricks’ ownership of the property. Tr. at 39. There is no evidence in the record
regarding modification of the site during Ms. Hendricks’ ownership. The Board accordingly
cannot find that 35 Ill. Adm. Code 807.201 is applicable in this case.
Count VI: Open Dumping Violations
Count VI alleges that respondent, since at least 1990, caused or allowed the
consolidation and accumulation of used and waste tires at the facility which does not meet the
requirements of a sanitary landfill in violation of Sections 21(a) and 55(a)(1) of the Act (415
ILCS 5/21(a) and 55(a)(1) (1996)). Section 21(a) provides:
No person shall:
a.
Cause or allow the open dumping of any waste.
Section 55(a)(1) provides:
a.
No person shall:
1.
Cause or allow the open dumping of any used or
waste tire.
“Open dumping” is defined in Section 3.24 of the Act (415 ILCS 5/3.24 (1996)) as
“the consolidation of refuse from one or more sources at a disposal site that does not fulfill the
requirements of a sanitary landfill.”
4
“Waste” is defined, with certain exceptions not relevant here, as “any . . . discarded
material.” 415 ILCS 5/3.53 (1996).
9
It is abundantly clear from the photographs in Exhibit 1 that waste tires have been
consolidated on the property; Mr. Senjan testified that the tires were present since Ms.
Hendricks acquired the property in 1990. Tr. at 39. The Earp site is not a sanitary landfill.
Tr. at 20. The Board finds that Ms. Hendricks has violated Sections 21(a) and 55(a)(1) of the
Act by allowing open dumping of waste tires at the Earp site.
Count VII: Litter Violations
Count VII alleges that since respondent caused or allowed the open dumping of tires at
the facility, litter resulted in violation of Section 21(p)(1) of the Act (415 ILCS 5/21(p)(1)
(1996)). Section 21(p)(1) provides:
No person shall:
* * *
p.
In violation of subdivision (a) of this Section, 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[.]
“Litter” is not defined in the Act, but the Board has interpreted litter to include refuse
of an unsightly or unsanitary nature which has been discarded, abandoned or otherwise
disposed of improperly. County of Will v. Hunter (May 7, 1998), AC 98-8. Once again, the
photographs in Exhibit 1 show that refuse (the waste tires) of an unsightly nature was
improperly disposed at the Earp site. The Board thus finds that Ms. Hendricks has violated
Section 21(p)(1).
Count VIII: Open Burning Violations
Count VIII alleges respondent caused or allowed open burning of used and waste tires
in violation of Sections 9(c), 21(p)(3), and 55(a)(2) of the Act (415 ILCS 5/9(c), 21(p)(3),
55(a)(2) (1996)). Section 9(c) provides:
No person shall:
* * *
c.
Cause or allow the open burning of refuse, conduct any
salvage operation by open burning, or cause or allow the
burning of any refuse in any chamber not specifically
designed for the purpose ad approved by the Agency
10
pursuant to regulations adopted by the Board under this
Act . . . .
Section 21(p)(3) provides:
No person shall:
p.
In violation of subdivision (a) of this Section, cause or
allow the open dumping of any waste in a manner which
results in any of the following occurrences at the dump
site:
* * *
3.
open burning[.]
Section 55(a)(2) provides:
a.
No person shall:
* * *
2.
Cause or allow the open burning of any used or
waste tire.
“Open burning” is defined in the Act as “the combustion of any matter in the open or
in an open dump.” 415 ILCS 5/3.23 (1996). On April 9, 1996,, a fire occurred at the Earp
site which consumed approximately 99% of the tires. Tr. at 26, 29; Exh. 2. The fire was not
contained. Tr. at 34. The Board has already found under count VI above that the Earp site
was an open dump. The Board therefore finds that Ms. Hendricks has violated Sections 9(c),
21(p)(3) and 55(a)(2) of the Act.
Count IX: Air Pollution
Count IX alleges a violation of Section 9(a) of the Act (415 ILCS 5/9(a) (1996)).
Section 9(a) provides in relevant part:
No person shall:
a.
Cause or threaten or allow the discharge or emission of
any contaminant into the environment in any State to as to
cause or tend to cause air pollution in Illinois. . . .
11
“Air pollution” is defined in the Act as “the presence in the atmosphere of one or more
contaminants in sufficient quantities and of such characteristics and duration as to be injurious
to human, plant, or animal life, to health, or to property, or to unreasonably interfere with the
enjoyment of life or property.” 415 ILCS 5/3.02 (1996). A contaminant is defined in the Act
as “any solid, liquid, or gaseous matter, any odor, or any form of energy, from whatever
source.” 415 ILCS 5/3.06 (1996).
Mr. Senjan testified that when tires burn, the smoke emitted can contain carcinogens.
Tr. at 35. It is apparent from the photographs in Exhibit 2 that vast amounts of contaminants
were emitted into the atmosphere. The smoke plume from the fire was visible (and
photographed by Mr. Senjan) from a distance of at least 15 miles. Tr. at 27; Exh. 2.
The Board finds that Ms. Hendricks has allowed the discharge of contaminants into the
atmosphere so as to cause air pollution in Illinois, in violation of Section 9(a) of the Act.
Count X: Water Pollution
Count X alleges a violation of Section 12(a) of the Act (415 ILCS 5/12(a) (1996)).
Section 12(a) provides in relevant part:
No person shall:
a.
Cause or threaten or allow the discharge of any
contaminants into the environment in any State so as to
cause or tend to cause water pollution in Illinois . . . .
Under Section 3.55 of the Act (415 ILCS 5/3.55 (1996)),
“WATER POLLUTION” is such alteration of the physical,
thermal, chemical, biological or radioactive properties of any
waters of the State, or such discharge of any contaminant into
any waters of the State, as will or is likely to create a nuisance or
render such waters harmful or detrimental or injurious to public
health, safety or welfare, or to domestic, commercial, industrial,
agricultural, recreational, or other legitimate uses, or to
livestock, wild animals, birds, fish, or other aquatic life.
The complaint alleges, and Complainant argues, that Ms. Hendricks caused or allowed
water pollution as a result of water used to fight the tire fire finding its way into a creek which
flows into the Staunton reservoir, the water source for the city of Staunton. The record,
however, is devoid of any evidence establishing the effects of the fire runoff on the waters of
the State. Mr. Senjan’s inspection did not reveal any contamination, and although samples
were taken, Exh. 2, test results were not introduced into evidence. Without such evidence, the
Board cannot find that the runoff has rendered waters of the State harmful, detrimental or
injurious. Jerry Russell Bliss, Inc. v. Illinois Environmental Protection Agency, 138
12
Ill.App.3d 699, 704, 485 N.E.2d 1154, 1157 (5th Dist. 1985). Accordingly, the Board does
not find a violation of Section 12(a) of the Act.
PENALTY
Having found violations, the Board must next determine whether a penalty should be
assessed, and if so the magnitude of the penalty. In determining the appropriate response to a
finding of violation, the Board is required to consider the factors set forth in Sections 33(c) of
the Act upon which the parties have introduced evidence, but may consider any matters of
record in mitigation or aggravation of any penalty. 415 ILCS 5/33(c), 42(h); see also Ford v.
Environmental Protection Agency, 9 Ill.App.3d 711, 720-21, 292 N.E.2d 540, 546 (3rd Dist.
1973); People v. Kershaw (April 20, 1994), PCB 92-164, slip op. at 14; IEPA v. Barry (May
10, 1990), PCB 88-71, slip op. at 62-63.
Complainant has not sought individual penalties for the various violations alleged in the
complaint; rather, Complainant has sought imposition of a single penalty based on the
aggregation of violations. Complainant asks the Board to order Ms. Hendricks to cease and
desist from further violations and impose a civil penalty in the amount of no less than $5,000.
Comp. Br. at 15. Complainant also requests attorneys fees and costs in an amount to be
supported by an affidavit. Comp. Br. at 15.
Section 33(c) Factors
In making its orders and determinations, the Board is required under Section 33(c) of
the Act to take into consideration all of the facts and circumstances bearing upon the
reasonableness of the emissions, discharges, or deposits, including but not limited to:
i.
the character and degree of injury to, or interference with the protection
of the health, general welfare and physical property of the people;
ii.
the social and economic value of the pollution source;
iii.
the suitability or unsuitability of the pollution source to the area in which
it is located, including the question of priority of location in the area
involved;
iv.
the technical practicability and economic reasonableness of reducing or
eliminating the emissions, discharges or deposits resulting from such
pollution source; and
v.
any subsequent compliance. 415 ILCS 5/33(c).
13
Character of Injury or Interference with Protection of Health, Welfare and Property
The fire which burned at least 30,000 tires, and the resulting air pollution it caused,
interfered with protection of the health, general welfare, and physical property of the people.
Respondent had no measures in place to reduce the threat of harm from the fire, including no
berm to prevent runoff. Tr. at 32. The location of the tires to the surrounding brush and
vegetation caused the destruction of trees during the fire. Tr. at 35-36. The fire could not be
extinguished with water and burned for at least seven days. Tr. 26, 34.
The Board finds that there has been a substantial interference with the protection of
health, safety and welfare. The danger of allowing the accumulation of waste tires without
adequate safeguards is amply illustrated in this case, where not only did the tires catch fire, but
the fire could not be extinguished. As a result, it was impossible for authorities to prevent or
control the dispersal of contaminants into the air. This factor militates in favor of, and weighs
in aggravation of, a penalty.
Social and Economic Value
There is no social or economic value to an unauthorized and unpermitted accumulation
of waste tires. The Board finds that this is an aggravating factor and that it supports
imposition of a penalty.
Suitability or Unsuitability of Pollution Source
The occurrence of the fire at the Earp site and the inability of the local fire departments
to douse it graphically illustrate the unsuitability of the Earp site for waste tire disposal. The
Board finds this is an aggravating factor which supports imposition of a penalty.
Technical Practicability and Economic Reasonableness of Reducing Pollution
Ms. Hendricks submitted no evidence to establish that it was technically impracticable
or economically unreasonable for her to comply with the Act and Board regulations regarding
waste tires. Based on its own expertise, the Board believes that compliance with the applicable
statutes and regulations was both practicable and reasonable. The Board finds that this factor
supports imposition of a penalty.
Subsequent Compliance
Because the fire destroyed substantially all of the tires, and because Ms. Hendricks no
longer owns the Earp site, the issue of subsequent compliance is now moot. This factor
weighs neither in aggravation nor mitigation of the penalty to be imposed.
14
Other Relevant Factors
Beyond the factors listed in Section 33(c), the Board is authorized under Section 42(h)
of the Act to consider any matters of record in mitigation or aggravation of a penalty. In this
case, the Board finds that two additional factors—the economic benefit to the violator from
noncompliance and the amount of penalty necessary to deter violations or aid in achieving
voluntary compliance—significantly impact the determination of an appropriate penalty.
Economic Benefits from Noncompliance
Ms. Hendricks economically benefited by neither removing the tires after she received
an administrative warning notice in 1990, nor undertaking the minimum safety measures
required under the waste tire regulations,
i.e.
, installing a fence and berms, clearing brush,
and installing security measures. Tr. at 19. The subsequent fire which destroyed most of the
tires saved Ms. Hendricks the expense of having to properly remove and dispose of the tires.
Also, Ms. Hendricks profited from the sale of the tire rims. Tr. at 37. Moreover, Ms.
Hendricks sold the property in 1997, for presumably more money than if the land had still
contained the tires. Tr. at 12.
A person ought not be allowed to benefit economically from violation of environmental
laws and regulations. The Board accordingly finds that this factor weighs in aggravation of the
penalty to be imposed.
Amount of Penalty which will Deter Further Violations
Due to the fire and her sale of the Earp site property, Ms. Hendricks is no longer in
violation of the Act and regulations regarding waste tires. Thus, deterrence of continuing or
future violations by Ms. Hendricks is not a significant concern in this case. (It is likewise
unnecessary to order Ms. Hendricks to cease and desist from violations.) Under Section 42(h)
of the Act, however, the Board may consider the amount of a monetary penalty which will
serve to aid in enhancing voluntary compliance with the Act “by the violator and other persons
similarly subject to the Act.” 415 ILCS 5/42(h)(4) (emphasis added). We thus consider the
precedential effect of this case and the message it sends to others in a similar position to Ms.
Hendricks.
Compliance with the Act and waste tire regulations, obviously, costs money. By not
complying with the Act, and allowing the tires to burn, Ms. Hendricks saved the costs of
compliance. Such a course of conduct must be discouraged. Unless a violator such as Ms.
Hendricks is assessed a substantial penalty, there will be an incentive for other similarly
situated parties to avoid compliance, or even to purposefully burn tires,
5
because it would be
more economical to pay a fine after the fact than to pay the costs of compliance. Thus, any
penalty assessed must be substantial enough to ensure that this incentive for noncompliance is
5
There is no evidence or suggestion that the fire at the Earp site was anything but accidental.
We cannot assume, however, that this will hold true for all tire fires.
15
removed. The Board therefore finds that this factor weighs in severe aggravation of the
penalty to be imposed.
PENALTY AMOUNT
Where a violator has realized an economic benefit from noncompliance, that benefit is
a useful starting point for determining an appropriate penalty. See People v. ESG Watts, Inc.
(February 5, 1998), PCB 96-233, slip op. at 14. Unfortunately, there is insufficient evidence
to quantify most of the benefits realized by Ms. Hendricks. With regard, at least, to the
savings from not complying, however, the Board can draw upon its experience in other cases
to calculate an approximate amount.
In People v. Cyber America Corp. (March 5, 1998), PCB 97-8, the Board was
presented with a case by the Agency seeking to recoup expenditures for cleanup of waste tires
from a site in Fulton County. The Cyber America site contained approximately 500,000 tires,
and the Agency expended $326,153.74 removing the tires. Cyber America, slip op. at 4, 5.
In this case, where the Earp site contained at least 30,000 tires, we can estimate the cost of
removal as being at least $19,500. We consider this a very conservative estimate since due to
the number of tires in the Cyber America case there were no doubt economies of scale
involved, which would not have been available to Ms. Hendricks.
To fine Ms. Hendricks only the amount she would have had to pay had she complied,
however, merely places her in the position in which she would have been had she complied,
and thus provides no deterrent factor. In light of this and the other aggravating factors
discussed above, the Board concludes that an additional penalty should be assessed. In other
cases, the Board has found that penalizing a violator two dollars for each dollar saved by
noncompliance removes the economic incentive for noncompliance. People v. ESG Watts,
Inc. (February 5, 1998), PCB 96-233, slip op. at 14. The Board believes that it is appropriate
to apply this multiplier here.
Based on the foregoing analysis, the Board finds that an appropriate penalty for the
violations found here is $39,000.
COSTS AND FEES
Complainant has requested attorney fees and costs in accordance with Section 42(f) of
the Act (415 ILCS 5/42(f) (1996)), which provides in relevant part:
Without limiting any other authority which may exist for the
awarding of attorney’s fees and costs, the Board . . . may award
costs and reasonable attorney’s fees, including the reasonable
costs of expert witnesses and consultants, to the State’s Attorney
or the Attorney General in a case where he has prevailed against
a person who has committed a willful, knowing or repeated
violation of the Act.
16
Complainant requests award of attorneys fees and costs, in an amount to be supported by an
affidavit attesting to the time spent in preparation and prosecution of this case. Complainant
proposes to submit the affidavit as a supplementation of the record. Comp. Br. at 15.
The Board finds from the record that Ms. Hendricks was aware since at least 1990 that
she was in violation of the Act and waste tire regulations, yet took no action to come into
compliance. Accordingly the Board finds that the majority of violations found against Ms.
Hendricks today were knowing violations, and that an award of attorney fees is therefore
appropriate.
Complainant’s attorneys must file an affidavit of fees and costs with the Board on or
before July 2, 1998. The Board will award fees and costs in a separate order.
ORDER
The Board finds that Ms. Hendricks has knowingly violated the Illinois Environmental
Protection Act and the Board's regulations at 35 Ill. Adm. Code as described in the foregoing
opinion. In view thereof, the Board hereby orders Ms. Hendricks to pay a civil penalty of
$39,000. Ms. Hendricks must pay this penalty within 30 days of the date of this order. Such
payment must be made by certified check or money order payable to the Treasurer of the State
of Illinois, designated to the Illinois Environmental Protection Trust Fund, and must be sent by
first class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
1021 North Grand Avenue East
P.O. Box 19276
Springfield Illinois 62794-9276
The certified check or money order must clearly indicate on its face this case name and docket
number. Any penalty not paid within the time prescribed will accrue interest at the rate set
forth in section (a) of Section 1003 of the Illinois Income Tax Act (35 ILCS 5/1003(a)(1996)),
as now or hereafter amended, from the date payment is due until the date payment is received.
If the time for payment is stayed during the pendency of an appeal, interest will not accrue
during such stay.
Attorneys for Complainant must file an affidavit in support of their request for fees and
costs by July 2, 1998.
IT IS SO ORDERED.
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Board Member K.M. Hennessey abstained.
Chairman C.A. Manning and Board Member R.C. Flemal concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above Interim opinion and order was adopted on the 17th day of June 1998, by a vote of
5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
