JACKSON COUNTY

HEALTH

DEPARTMENT

AFFIDAVIT

REC~v~

CLERK’S OF~~E

IN THE MATTER OF:

2Ot~4

Pt

ri

STATEOFlLUNO~S

0778095036

IJackson

County

ri

1

101

~

t~Il

IA\

II

Pollution Contro’

Boarc~

Makanda

I

Egon

Kamarasy

-•

L.

COMPLiANCE FILE

HJ

Ii

Respondent.

Affiant, Don Terry, being first duly sworn, voluntarily deposes and states as follows:

1.

Affiant is a fieldinspector employed by Jackson County Health Department and

has been so employed at all times pertinent hereto.

2.

On March

25,

2004, betweenthe hours of2:32 pm and

2:35

pm,

Affiant

conducted an inspection ofthe open dump site known as MakandslEgon

Kamarasy, Jackson County, Illinois.

3.

Affiant inspected said open dump site by an inspection from a location adjacent to

the site.

4.

As a result ofthe activities referred to in Paragraphs 2 and 3 above, Affiant

completed the Inspection Report form attachedhereto and made a part hereof,

which, to the best of Affiant’s knowledge and belief; is an accurate representation

ofAffiant’s observations and factual conclusions with respect to said Egon

Kamarasy, Makanda, Illinois, open dump site.

Don Terry

ti

Solid Waste Inspector

Subscribed and Sworn To before me

this

c~Z’7

day of

~

,

2004.

(~c~1W~k~

t~ifl

ACY~H~NG1

MY COMMISSION

EXP~RE~

03/04/2006

_,w~

w~w

~

-

~L~-

A

---

NARRATIVE

INSFECTIONREPORTDOCUMENT

OFENDUMP SITE

Date

ofInspection:

March

25,

2004

Inspector:

Don Terry

Site Code:

077 809

5036

County:

Jackson

Site Name:

Makanda / Egon Kamarasy

Time:

2:32pm

—

2:35 pm

Location:

Eastern end of

Starvation

Acres Rd

Owner ofProperty:

Egon Kamarasy

Approximate Volume of Waste at site:

110

cu/yds

GPS:

N 37°40.580

W 089°15.105

GENERAL REMARKS

During the above date and time, I conducted an inspection ofthis site as a follow-up ofone done on

December

5,

2003.

According to the Jackson County Assessor’s Office, the site is owned by Egon Kamarasy of474

Egret LakeRd, Carbondaie, 1L 62901.

.The weather conditions at thetime ofthe inspection were:

partly cloudy, windy and a temperature ofabout 72°F.

I did

not enter the property and conducted this follow-up inspection from thegate.

From the gate I observed a debris pile in

approximatelythe

same location as I had observed on

December

5,

2003

(Photo #1, see sketch).

It appeared larger than when I observed it on my last

inspection,

indicating more material has been open

dumped at this location since December

5,

2003.

The approximate volume ofthis debris pile is

110 cu/yds (Photo #1, see

sketch).

It appeared to

consist ofconstruction / demolition debris consolidated from off site and included: dimensional

lumber, dark paneling, metal siding

and other materials not readily identifiable from my location.

My inspection ended at approximately 2:35 pm.

---

Continuing Violations Observed:

Item

#5(21)(a):

Cause or allow open dumping,

Item #S(21)(p)(1

and 7): Cause

or allow the

open dumping ofany waste in

a mannerwhich results in any of the following occurrences at

the dump

~it~

(1)

1itt~r;

(7) Deposition of

general eonstruetion

or demolition debris; or

clean construction or demolition debris:

During the inspection open dumping on the site was

observed causing litter and the deposition

of

general or clean construction or demolition debris.

Item

#6(21)(d)(1):

Conduct any waste-storage, waste-treatment, or waste-disposal operation:

Without a

permit;

Item #6(21)(dI(2):

Conduct any waste-storage, waste-treatment,

or

waste-disposal operation: In violation ofany regulations or standards adopted by the Board:

Due to the volume

and typeofwaste observed, the mannerin which it was placed and the location,

it

can

be

assumed that

the

waste was

not generated on site

and was transported

onto

thd

site for the

purpose of

disposal.

Duringthe

inspection violations

of

regulations and standards

were observed.

There

is no record

that

Mr. Kamarasy

was issued

a

pemiit by the Agency to

conduct a waste-

storage,

waste-treatment,

or

waste-disposal

operation.

Item #7(21)(e):

Dispose, treat, store, or abandon any waste, or transport any waste into the

State at/to sites not meeting requirements oftheAct: Violations of

this

section ofthe Act were

observed during the

inspection.

Item #10(812.100(a): Failure to submit an application for a permit to develop

and

operate a

landfill;

Item #15(807.201): Failure to obtain a Developmental Permit to operate a solid

waste management site;

Item #15(807.202): Failure to

obtain

an Operational Permit to

operate a solid waste management site:

There is no record that Mr.

Kamarasy

has submitted

or

received a permit to develop or operate a landfill or to develop or operate a solid waste

management site.

---

vrc1v

uui~ir

iiv~r&t.iiuiv

SITE SKETCH

I

Date Of Inspection:

March

25,

20204

Inspector:

Don Terry

Site Code:

077 809 5036

County: Jackson

Site Name:

Makanda/ Egon

Kamarasy

Time:

2:32 pm 2:35 pm

Not

Drawn to Scale

All locations are approximate

0

indicates approx. location &

direction

ofphotos

fN

/

/1

/

/

I.

-————j

/

/

/

/

/

/

/

)ebris Pile

0

Starvation Acres Rd

/

/

/

/

/~

/

/

/

/

/

/

/

Fence

/1

/

/

/

/

/

/

/

/

/

/

---

ILLINOIS ENVIRONMENTAL

Open

Dump Inspection Checklist

LPc#:

Makanda

I

Egon Kamarasy

County:

Jackson

Location/Site Name:

Date:

0312512004

Time:

From

2:32

pm

Inspector(s):

Don Terry

No. of Photos Taken:

#

1

Interviewed:

no one at site

SECTION

DESCRIPTION

ILLINOIS ENVIRONMENTAL PROTECTION ACT REQUIREMENTS

1.

9(a)

CAUSE, THREATEN OR ALLOW

AIR

POLLUTION IN ILLINOIS

El

2.

9(c)

CAUSE OR ALLOW OPEN BURNING

El

3.

12(a)

CAUSE, THREATEN OR ALLOW WATER POLLUTION IN ILLINOIS

El

4.

12(d)

CREATE A WATER POLLUTION

HAZARD

El

5.

21(a)

6.

21(d)

CONDUCTANY WASTE-STORAGE, WASTE-TREATMENT, OR WASTE- DISPOSAL

OPERATION:

(1)

WIthout a Permit

(2)

In Violation of Any Regulations or Standards Adopted by the Board

7.

21(e)

DISPOSE, TREAT,

WASTE INTO THE STATE AT/TO SITES NOT MEETING REQUIREMENTS OF ACT

8.

21(p)

ANY OF THE

FOLLOWING OCCURRENCES AT THE

(1)

Litter

(2)

Scavenging

El

(3)

Open

Burning

El

(4)

DeposItion_of Waste

in_Standing_or_Flowing_Waters

El

(5)

Proliferation

of Disease Vectors

El

(6)

Standing or Flowing Liquid Discharge from the Dump Site

El

ts

077

809 5036

Region:

7

-

Marion

To

2:35 pm

Previous Inspection Date:

12/05/2003

Weather:

72°F

--

partly cloudy with

moderate winds

Est. Amt. of Waste:

110

yds3

Samples Taken:

Yes #

Complaint #:

2004-002

Responsible Party

Mailing Address(es)

and Phone

Number(s):

Egon

Kamarasy

474 Egret Lake Rd

Carbondale,

IL

62901

__No~

Revised 06/18/2001

(Open Dump

-

1)

---

LPC#

0778095036

Inspection Date:

03/25/2004

(7)

Deposition of General Construction or Demolition Debris;

or Clean Construction or

Demolition Debris

9.

55(a)

NO PERSON SHALL:

(1)

Cause or Allow Open Dumping of Any Used or Waste Tire

E~l

(2)

Cause

or

Allow Open Burning of Any Used or Waste Tire

L:I

35 ILLINOIS

ADMINISTRATIVE CODE REQUIREMENTS

SUBTITLE 0

10.

812.101(a)

FAILURE

TO SUBMIT AN APPLICATION FOR APERMIT TO DEVELOP AND

OPERATE A LANDFILL

11.

722.111

HAZARDOUS WASTE DETERMINATION

El

12.

808.1 21

SPECIAL WASTE DETERMINATION

El

13.

809.302(a)

ACCEPTANCE

OF

SPECIAL WASTE

FROM AWASTE

TRANSPORTER WITHOUT A

WASTE HAULING PERMIT, UNIFORM WASTE PROGRAM REGISTRATION AND

PERMIT AND/OR MANIFEST

El

14.

APPARENT VIOLATION OF:

(LI)

PCB;

(0)

CIRCUIT COURT

CASE NUMBER:

ORDER ENTERED ON:

El

15.

OTHER:

807.201

Developmental Permit & 807.202

Operational

Permit

El

El

El

El

.~.

El

Signature of Inspe9’àr(s)

Informational Notes

1.

illinoisJ

Environmental Protection Act 415 ILCS

514.

2.

Illinois Pollution

Control Board: 35

III. Adm.

Code, Subtitle C.

3.

Statutory and regulatory references herein are provided for convenience only and should

not be construed as legal

conclusions

ofthe Agency or as limiting the Agency’s statutory or regulatory powers.

Requirements of some statutes

and regulations cited

are in summary format.

Full text of requirements can be found

in references listed in 1.

and 2.

above.

4.

The provisions of su•bsectio.n (p) of Section

21 of the Illinois

Environmental

Protection Actshall be enforceable either

by administrative citation under Section 31.1

of the Actor by complaint under Section

31

of the Act.

5.

This inspection was conducted in accordance with Sections 4(c) and 4(d) of the Illinois

Environmental

Protection Act:

415

ILCS

5/4(c) and

(d).

6.

Items marked with an

“NE”

were not evaluated at the time of this inspection.

Revised 06/18/2001

(Open Dump -2)

---

DIGITAL INSPECTION PHOTOS

Date: March

25,

2004

J

Site

#:

077 809 5036

County:

JACKSON

Time: 2:32 pm

Site Name:

Makanda/ Egon

Kainarasy

Photograph taken by:

DonTerry

COMMENTS:

Pictures taken toward:

East

PHOTO

FILE

NAME:

0778095036-03252004-01

No Photo

Date:

Time:

Photograph taken by:

COMMENTS:

Pictures takentoward:

PHOTO

FILE NAME:

---

NARRATIVE

INSPECTION REPORT DOCUMENT

OPEN DUMPSITE

~

Date ofInspection:

December

5,

2003

Inspector:

Don

Terry

-~ —

—

-

-

~7~7

C~

(se,

~‘

IV)

.~

I~’

.~

4-....

T.-....1.-.......,

~iLe

‘..oue;

~ii

/

oui

.~i.3u

~uu11Ly.

Site Name:

Makanda / Egon Kamarasy

Time:

9:10 am

—

9:15

am

Location:

Eastern end of Starvation Acres Rd

Owner ofProperty:

Egon

Kamarasy

Approximate Volume of Waste at site:

100 cu/yds

GPS:

N

370

40.580

W 089°15.105

GENERAL REMARKS

During the above date

and

time, I conducted an inspection ofthe site listed above.

This inspection

was made as a follow up to a report made to

this

office by Jackson County Health Department staff.

According to the Jackson County Assessor’s Office, the

site is owned by Egon Kamarasy of474

Egret Lake Rd,

Carbondale, IL 62901.

I was accompanied on this inspection by Matt Charles a

Sanitarian at the Jackson County Health Department.

The weather conditions at the time ofthe

inspection were: cloudy, with rain/snow drizzle and a temperature of about 35°F.

I drove east on Starvation Acres Road.

I observed a section of dark wood paneling lying on the

north side ofthe road

about 100

feetwest ofthe gate we were approaching.

The road ended at this

gate which opened into a pasture containing a lake (Photo #4, see sketch) and several horses.

A

sign with “Welcome to Bittersweet Farm,

457-6167” was posted at the gate along with a “No

Trespassing”

sign (Photo #1, see

sketch).

After checking the phone book, I found that the phone

number 457-6167 is listed to the name Egon Kamarasy at 474 Egret Lake Rd, Makanda, IL 62958.

I did not enter the property and conducted my inspection from the gate.

From the gate I observed a large debris pile approximately 100 cu/yds in volume

(Photos

#2

and

#3,

see

sketch).

It appeared to

consist of construction / demolition debris consolidated from off

site and included:

dimensional

lumber, dark paneling, metal

siding and other materials not readily

identifiable from my location.

My inspection ended at approximately 9:15

am.

---

Page 2

077

809

5036

Makanda / Egon Kamarasy

Violations Observed:

Item #5(21)(a):

Cause or allow open dumping;

Item #S(2l)(p)(1 and 7~:

Cause or allow the

open dumping ofany waste in

a mannerwhich results in any of the following occurrences at

the dump site: (1) Litter;

(7)

Deposition ofgeneral construction or demolition debris; or

clean construction or demolition debris:

During the inspection open dumping on the site was

observed causing litter and the

deposition of general or clean construction or demolition debris.

Item #6(21)(d)(1’):

Conduct any waste-storage, waste-treatment, or waste-disposal operation:

Without a permit;

Item #6(21’)(d)(2):

Conduct any waste-storage, waste-treatment, or

waste-disposal operation: In

violation of any regulations orstandards adopted by the Board:

Due to the volume and type ofwaste observed, the manner in which it was placed and the location,

it can be assumed that the waste was not generated on site and was transported onto the

site for the

purpose ofdisposal.

During the

inspection violations ofregulations and standards were observed.

There is no record that Mr. Kamarasy was issued a permit by the Agency to conduct a waste-

storage, waste-treatment, or waste-disposal operation.

Item

#7(21)(e): Dispose,

treat, store, or abandon any waste, or transport any waste into the

State

at/to

sites

not

meeting

requirements ofthe Act:

Violations ofthis section ofthe Act were

observed during the inspection.

Item #10(812.101)(a): Failure to submit an application for

a permit

to develop and operate

a

landfill;

Item #15(807.201): Failure to

obtain

a

Developmental Permit to operate

a

solid

waste management site;

Item

#15(807.202):

Failure to obtain an Operational Permit to

operate a solid waste management site:

There is no

record that Mr. Kamarasy has submitted or

received a permit to

develop or operate a landfill or to develop or operate a solid waste

management site.

-

---

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY

Open

Dump Inspection Checklist

County:

Jackson

-

LPC#:

077 809 5036

Location/Site Name:

Makanda

I

Egon Kamarasy

Date:

12/05/2003

Time:

From

9:10am

Inspector(s):

Don

Terry

No. of Photos Taken:

#

4

Interviewed:

no one

at the site

Responsible

Party

Mailing Add ress(es)

and Phone

Number(s):

To

9:15

am

Previous Inspection

Date:

Weather:

rainy/snow, cloudy

-

31°F

Est.

Amt. of Waste:

100

yds3

Samples Taken:

Yes #

Complaint #:

2004-002

Region:

7

-

Marion

No~

Egon Kamarasy

474 Egret Lake

Rd

Carbondale

IL

62901

SECTION

DESCRIPTION

ILLINOIS ENVIRONMENTAL PROTECTION ACT REQUIREMENTS

1.

9(a)

CAUSE, THREATEN OR ALLOW AIR POLLUTION

IN

ILLINOIS

El

2.

9(c)

CAUSE

OR ALLOW OPEN

BURNING

LI

3.

12(a)

CAUSE, THREATEN OR ALLOW WATER POLLUTION IN ILLINOIS

El

4.

12(d)

CREATE

AWATER POLLUTION HAZARD

El

5.

21(a)

CAUSE

OR ALLOW OPEN DUMPING

6.

21(d)

CONDUCT ANY

WASTE-STORAGE,

WASTE-TREATMENT, OR WASTE- DISPOSAL

OPERATION:

(1)

Without a Permit

(2)

In Violation

of Any Regulations or Standards Adopted by the

Board

7.

21(e)

DISPOSE, TREAT, STORE, OR ABANDON ANY WASTE, OR TRANSPORT ANY

WASTE INTO THE

STATE

AT/TO SITES

NOT

MEETING

REQUIREMENTS OF ACT

8.

21(p)

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

(2)

Scavenging

El

(3)

Open

Burning

El

(4)

Deposition of Waste

in Standing or Flowing Waters

El

(5)

Proliferation of Disease Vectors

-

El

(6)

Standing

or Flowing

Liquid

Discharge from the Dump

Site

El

Revised 06/18/2001

(Open Dump

-

1)

---

LPC#

0778095036

Inspection Date:

12/05/03

(7)

Deposition of General Construction or Demolition Debris; or Clean Construction or

Demolition Debris

9.

55(a)

NO

PERSON SHALL:

-

-

(1)

Cause or Allow Open Dumping

of Any Used or Waste Tire

El

-

(2)

Cause or Allow Open

Burning of Any Used or Waste Tire

El

35

ILLINOIS ADMINISTRATIVE CODE

REQUIREMENTS

SUBTITLE G

10.

812.101(a)

FAILURE

TO

SUBMIT AN

APPLICATION

FOR A

PERMIT TO

DEVELOP AND

OPERATE A LANDFILL

11.

722.111

HAZARDOUS WASTE

DETERMINATION

El

12.

808.121

SPECIAL WASTE

DETERMINATION

El

13.

809.302(a)

ACCEPTANCE

OF SPECIAL

WASTE

FROM A WASTE

TRANSPORTER WITHOUT A

WASTE

HAULING

PERMIT,

UNIFORM WASTE

PROGRAM REGISTRATION

AND

PERMIT

AND/OR MANIFEST

El

OTHER REQUIREMENTS

14.

APPARENT VIOLATION OF:

(El)

PCB;

(LI)

CIRCUIT COURT

CASE

NUMBER:

ORDER

ENTERED

ON:

El

15.

OTHER:

807.201,

807.202

El

El

El

El

nspector(s)

Informational Notes

1.

Illinois

Environmental Protection Act: 415 ILCS

5/4.

2.

Illinois Pollution Control

Board: 35

Ill.

Adm. Code, Subtitle

G.

3.

Statutory

and regulatory references herein are provided for convenience only and should

not

be

construed

as legal

conclusions

of the Agency or as limiting the Agencys

statutory or regulatory powers.

Requirements of some statutes

and

regulations cited

are in summary format.

Full text of requirements can be found

in references listed

in

1.

and

2.

above.

4.

The provisions of subsection (p) of Section

21

of the Illinois

Environmental

Protection Act shall

be enforceable either

by administrative citation under Section 31.1

of the Act or by complaint under Section

31

of the Act.

5.

This inspection was conducted

in accordance with Sections 4(c) and 4(d) of the Illinois

Environmental Protection Act:

415 ILCS

5/4(c)

and

(d).

6.

Items marked with

an “NE” were not evaluated at the time of this

inspection.

El

Revised 06/18/2001

(Open Dump

-

2)

---

DIGITAL INSPECTION PHOTOS

Date:

December

5,

2003

f

Site

#: 077 809

5036

County:

JACKSON

Time:

9:12

am

Site Name:

Makanda/

Egon Kamarasy

Photograph

takenby:

Don Terry

COMMENTS: Pictures taken toward:

East

PHOTO

FILE

NAME:

0778095036-12052003-01

Date: December

5,

2003

Time:

9:13am

Photograph

takenby:

Don

Terry

COMMENTS:

Pictures taken toward:

East

PHOTO

FILE NAME:

0778095036-12052003-02

---

DIGITAL INSPECTION PHOTOS

Date:

December

5,

2003

Site

#: 077

809 5036

County:

JACKSON

Time: 9:14 am

Site Name:

Makanda / Egon Kamarasy

-

Photograph

takenby:

Don Terry

COMMENTS:

Pictures takentoward:

East

PHOTO

FILE

NAME:

0778095036-12052003-03

Date:

December

5, 2003

Time:

9:14am

Photograph

taken

by:

Don

Terry

COMMENTS:

Pictures

takentoward:

Southeast

PHOTO

FILE NAME:

0778095036-12052003-04

---

JACKSON COUNTY

HEALTH

DEPARTMENT

IN TilE

MATTER

OF:

077 812

5013/

Jackson County

Carbondale

I

Egon

Kamarasy

COMPLIANCE FILE

Respondent.

AFFIDAVIT

Affiant, Don Terry,

being first duly sworn,

voluntarilydeposes and states as follows:

1.

Affiant is a field inspector employed by Jackson County Health Department and

has been so employed at all times pertinent hereto.

.

-

2.

On March 25,2004, between the hours of2:25 pm and 2:30 pm, Affiant

conducted an inspection ofthe

open dump site known as Carbondale / Egon

Kamarasy, Jackson County, Illinois.

3.

Affiant

inspected said

open dump site by an on-site inspection.

4.

As a result ofthe activities referred to in Paragraphs

2 and 3 above, Affiant

completed the Inspection Report form attached hereto and made a part hereof,

which, to the best ofAffiant’s knowledge and belief,

is an accurate representation

ofAffiant’s observations and factual conclusions with respect to said Egon

Kamarasy, Carbondale, Illinois, open dump site.

Don Terry

Solid Waste Inspector

Subscribed and Sworn To

before me

this

~

day of1v”C\i~

I

‘OFFICIALSEAL’

___~J~-,___

-~--,~-,,---

-. -

TRACY

L.

HARTUNG

NOTARY PUBUC, STATE OF ILUNOIS

MYOM~US~ONEXP~ESO~!2OO6

—

j

A

2004

---

NARRATIVE

INSPECTIONREPORTDOCUMENT

OPENDUMP SITE

.

-

Date ofInspection:

March

25,

2004

Inspector:

Don

Terry

Site

Code:

077 812 5013

County:

Jackson

Site

Name:

Carbondale / Egon Kamarasy

Time:

2:25 pm

—

2:30 pm

Location:

786 Green Ridge Rd

Owner of

Property:

Egon Kamarasy

Volume of

Waste

at

site:

10 cu / yds

-

GPS:

N 37°40.869

W 089°16.646

GENERAL REMARKS

I

During the stated date and time, I conducted an inspection ofthe site listed above.

This inspection

was made as a follow up to

an inspection made ofthis site on March 11, 2004.

Weather~onditions

at the time ofthe inspection were: cloudy, windy with the temperature about

72°F.

According to the Jackson County Assessor’s Office, the site is owned by Egon Kamarasy of474

Egret LakeRd, Carbondale, IL.

Upon arrival at the site I observed a pile ofdebris in the same general location as on my inspection

visit ofMarch

11, 2004 (Photos

#1

—

#5,

See sketch).

The

debris pile appeared to have been

reduced in volume by open burning.

Within this pile I observed

landscape waste,

dimensional lumber, and what appeared to be metal

frames from furniture.

I also observed metal fence posts, the remains of what appeared to be a

window air

conditioner, sections oflaminate counter tops, metal

cans and other materialsnot

easily

identifiable (Photos #1

—

#5,

See

sketch).

Most of

this

material was charred from burning.

My inspection ended at approximately 2:30 pm.

---

Page 2

077 812

5013

Carbondale

I

Egon Kamarasy

Continuing Violations Observed:

Item #1(9)(a): Cause, threaten or allow airpollution in

Illinois;

Item #2(9)(c):

Cause or

allow open burning;

Item #8(2fl(p)(3): Cause or allow the open dumping ofany waste in a

manner which results in any ofthe following occurrences at the dump site:

(3) Open

Burning:

During the inspection,

evidence ofthe open burning

of

waste was observed.

Item #5(21)(a):

Cause

or allow open dumping;

Item #8(21)(p)(1&7): Cause or allow the

open dumping ofany waste in

a mannerwhich results in any ofthe following occurrences at

the dump

site: (1) Litter and (7) Deposition ofgeneral construction or demolition debris; or

clean construction or demolition debris:

During the inspection, the open dumping ofwaste

resulting in litter and the deposition ofgeneral construction or demolition debris was observed.

Item

#6(21)(d)(1):

Conduct any

waste-storage,

waste-treatment, or waste-disposal

operation:

Without a permit;

Item

#6(21)(d)(2):

Conduct any waste-storage, waste-treatment, or

waste-disposal operation: In violation ofany regulations or standards adopted by the Board:

There is no record ofthe property owner having received a permit from the Agency to conduct a

waste-storage, waste-treatment or waste-disposal operation.

Also, during the inspection, violations

ofstandards

and regulations were observed.

Item #7(21)(e): Dispose, treat, store, or abandon any waste, or

transport

any

waste

into

the

State at/to sites not meeting requirements ofthe Act:

Due

the location ofthe

site and the type

and amount

of

debris observed, it would be reasonable to assume that the waste was transported to

the site from another location for thepurpose

ofdisposal.

Item #9(55)(a)(1):

No person shall: Cause or allow open dumping ofany used or waste tire;

Item #10(812.lOfl(a): Failure to submit an application for a permit to develop and operate a

landfill:

During the inspection, the open dumping ofwaste tires on the site was observed.

---

OPENDUMPINSPECTION

SITE SKETCH

~—

~

Date Of Inspection:

March

25,

2004

•

Inspector: Don

Terry

Site Code:

077 812 5013

County: Jackson

Site Name:

Carbondale / Egon Kainarasy

Time:

2:25

pm

—

2:30 pm

Not Drawn to Scale

All

Locations Are Approximate

0

Indicates

Approximate

Location & Direction ofPhotos

Debris

I

Euni

Pile

fN

:~

-

I-

4

Green

Ridqe

Rd

---

NARRATIVE

INSPECTIONREPORTDOCUMENT

OPENDUMP SITE

~

Date of Inspection:

March

11,

2004

Inspector:

Don Terry

Site

Code:

077 812 5013

County:

Jackson

Site Name:

Carbondale / Egon Kamarasy

Time:

11:05 am

—

11:15

am

Location:

786 Green Ridge Rd

Owner ofProperty:

Egon Kamarasy

Volume ofWaste at site:

16

Cu!

yds

GPS:

N 37°40.869

W

089°16.646

GENERAL

REMARKS

During the stated date and time, I conducted an inspection ofthe site listed above.

This inspection

was made as a follow up to a complaint made to this office by a member ofthe Jackson County

Health Department staff.

Weather conditions at the time ofthe inspection were: sunny, windy with

the temperature about 40°F.

According to the Jackson County Assessor’s Office, the site is owned by Egon Kamarasy of474

Egret Lake Rd, Carbondale, IL

Upon arrival at the site I observed a large pile ofdebris

(Photos #1, #2, #3

& #5,

See

sketch).

Within this pile I observed landscape waste, two

couches, two

mattresses, pallets, plastic items,

charred wire and

other materials not readily identifiable.

To the north ofthe debris pile I observed

three waste tires that had been open dumped (Photos #2 &

#5,

See sketch).

I also observed

in and around the debris pile, evidence ofprevious burning,

including:

charred

dimensional lumber, wall board, metal, mattress springs and earth.

I also observed ash at the

bottom ofthe pile (Photos #4,

#5 & #6, See sketch)

I observed an individual to my east, approximately 30 yards away who appeared to be clearing

brush.

I approached this individual and asked himhis name.

He identified himself as James Taylor.

I asked ifhe was the owner ofthe property on which the

debris pile was located.

He told me no,

the owner was Egon Kamarasy for whom he worked.

(7/

---

Page 2

077

812 5013

Carbondale / Egon Kamarasy

March 11,

2004

I

asked him if he knew anything about the debris pile.

He said yes and explained that he was told by

Mr. Kamarasy to add brush to the pile and then burn it.

I explained that the burning ofdebris

including the tires lying to the side ofthe pile was not permissible in Illinois.

I stated to Mr. Taylor that he was not to burn the pile and that if he did he

could be held responsible

for open burning and open dumping under Illinois law and that those violations carry civil penalties

beginning at $1500 per offence.

Before leaving I gave Mr. Taylor my business card and asked him to have Mr. Kamarasy call

me to

discuss this situation.

My inspection ended at approximately 11:15

am.

Violations Observed:

Item #1(9)(a): Cause,

threaten or allow air pollution in

Illinois;

Item #2(9)(c):

Cause or

allow open burning;

Item #8(2l)(p)(3): Cause or allow the open dumping ofany waste in

a

manner which results in any of the following occurrences at the dump site:

(3) Open

Burning:

During the inspection,

evidence ofthe open burning ofwaste was observed.

Item #5(21)(a):

Cause or allow open dumping;

Item #8(21)(n)(1&7): 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 and

(7)

Deposition ofgeneral construction or demolition debris;

or

clean construction or

demolition debris:

During

the inspection,

the open dumping ofwaste

resulting in litter and the deposition ofgeneral construction or demolition debris was observed.

Item #6(21)(d)(1):

Conduct any waste-storage, waste-treatment, or waste-disposal operation:

Without a permit;

Item #6(21)(d)(2):

Conduct any waste-storage, waste-treatment, or

waste-disposal operation: In

violation of any regulations

or standards adopted by the Board:

There is no record ofthe property owner having received a permit from the Agency to conduct a

waste-storage, waste-treatment or waste-disposal operation.

Also, during the inspection, violations

ofstandards and regulations were observed.

---

Page 3

077

812 5013

Carbondale / Egon Kamarasy

March

11, 2004

Item #7(21)(e): Dispose, treat, store,

or abandon any waste, or transport any waste into the

State at/to sites not meeting requirements of the Act:

Due

the location ofthe site and the type

and amount ofdebris

observed, it would be reasonable to

assume that the waste was transported to

the site from another location for the purpose of disposal.

Item #9(55)(a)(1):

No person shall: Cause or allow open dumping ofany used or waste tire;

Item #10(812.101)(a): Failure to submit an application for a permit to develop and operate a

landfill:

During the inspection, the open dumping ofwaste tires on the sitewas

observed.

---

ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY

Open Dump

Inspection

Checklist

County:

Jackson

077

8125013

Location/Site

Name:

Date:

03/11/2004

Time:

From

11:05

am

To

11:15

am

Previous Inspection

Date:

06/24/2002

Inspector(s):

Don Terry

Weather:

40°F—sunny

and windy

No.

of Photos Taken:

#

6

Est. Amt. of Waste:

16

yds3

Samples Taken:

Yes #

No

~

Interviewed:

James.Taylor

Complaint #:

2004-057

SECTION

DESCRIPTION

1.

9(a)

CAUSE, THREATEN OR ALLOW AIR POLLUTION

2.

9(c)

CAUSE OR ALLOW OPEN BURNING

3.

12(a)

CAUSE, THREATEN OR ALLOW WATER

POLLUTION IN

ILLINOIS

LI

4.

12(d)

CREATE AWATER POLLUTION HAZARD

LI

5.

21 (a)

CAUSE OR ALLOW OPEN DUMPING

6.

21(d)

OPERATION:

(1)

Without a Permit

(2)

In Violation ofAny Regulations or Standards Adopted by the Board

Z

7.

21(e)

WASTE INTO THE STATE ATITO SITES NOT MEETING REQUIREMENTS OF ACT

8.

21(p)

CAUSE OR ALLOW THE

ANY OF THE FOLLOWING OCCURRENCES AT THE DUMP SITE:

(1)

Litter

~________

(2)

Scavenging

LI

(3)

Open Burning

(4)

Deposition

of Waste in Standing or Flowing Waters

U

(5)

Proliferation of Disease Vectors

E

(6)

Standing or Flowing Liquid Discharge from the Dump Site

LI

LPC#:

Carbondale

I

Egon Kamarasy

Region:

7

-

Marion

Responsible Party

Mailing Address(es)

and

Phone

Number(s):

Egon Kamarasy

474 Egret Lake

Rd

Carbondale,

IL

62901

Revised 06/18/2001

(Open Dump

-

1)

---

LPC#

0778125013

Inspection

Date:

03/11/2004

(7)

Deposition of General Construction or Demolition Debris; or Clean Construction or

Demolition Debris

9.

55(a)

NO PERSON SHALL:

.

(1)

Cause orAllow Open Dumping

of Any Used or Waste Tire

-

—

—

—

(2)

Cause or Allow Open~Burn~p

~

.L

35 ILLINOIS ADMINISTRATIVE CODE REQUIREMENTS

-

LI

—

10.

SUBTITLE

G

OPERATE A LANDFILL

11.

722.111

HAZARDOUS WASTE DETERMINATION

LI

12.

808.121

SPECIAL WASTE DETERMINATION

UI

ACCEPTANCE OF SPECIAL WASTE FROM AWASTE TRANSPORTER WITHOUT A

WASTE HAULING PERMIT,

UNIFORM WASTE PROGRAM REGISTRATION AND

LI

13.1809.302(a)IPERMITAND/ORMANIFEST

~

~

.~....

...

..

OTHER REQUIREMENTS

.

__

.~

Informational Notes

APPARENT VIOLATION OF:

(LI)

PCB;

(LI)

CIRCUIT COURT

CASE NUMBER:

Signature~9f

Inspector(s)

1.

lIlinoisJ

Environmental

Protection Act: 415 ILCS 5/4.

2.

Illinois Pollution

Control Board: 35

III.

Adm. Code, Subtitle

G.

3.

Statutory and regulatory references herein are provided for convenience only and

should not

be construed

as legal

conclusions

of the Agency or as limiting the Agency’s statutory or regulatory powers.

Requirements of some statutes

and regulations cited are in summary format.

Full text of requirements can

be found

in references listed in

1.

and 2.

above.

4.

The provisions of subsection

(p) of Section

21

of the lltinoisj

Environmental

Protection Act shall be enforceable either

by administrative citation under Section 31.1

of the Act or by complaint under Section 31

of the Act.

5.

This inspection was conducted in accordance with Sections 4(c) and 4(d) of the Illinois

Environmental

Protection Act:

415

ILCS

5/4(c)

and (d).

6.

Items marked with an “NE’ were not evaluated at the time of this

inspection.

Revised 06/18/2001

(Open Dump

-

2)

---

Digital

Inspection

Date:

March

11, 2004

Site #:

077 812 5013

County:

Jackson

11:08 am

-~

Site

Name:

Carbondale

I

Egon Kamarasy

Time:

Photo taken by:

Don

Terry

Comments

—

Photo taken towards:

Northwest

Photo File Name:

0778125013-03112004-01

)z

~

J/

.,.

Date:

March

11, 2004

Time:

11:08am

Photo taken by:

Don Terry

Comments

—

Photo taken towards:

Southwest

Photo File Name:

0778125013-03112004-02

P

---

Digital

Inspection

Photo

Sheet

Date:

March 11, 2004

Site #:

077 812 5013

County:

Jackson

Time:

11:09am

Site Name:

Carbondale

I

Egon Kamarasy

F

Photo taken by:

Don

Terry

Comments

—

Photo taken towards:

Southeast

Photo File Name:

0778125013-03112004-03

Date:

March

11, 2004

Time:

11:09am

Photo taken by:

Don

Terry

Comments

—

Photo taken towards:

Southeast

Photo File Name:

0778125013-03112004-04

---

Digital

Inspection

Photo Sheet

Date:

March

11, 2004

Site #:

077812 5013

County:

Jackson

Time:

11:10 am

Site Name:

Carbondale

I

Egon Kamarasy

Photo taken by:

Don Terry

Comments

—

Photo taken towards:

North

Photo File Name:

0778125013-03112004-05

Date:

March 11,2004

Time:

11:10am

Photo taken by:

Don Terry

Comments

—

Photo taken towards:

North

Photo File Name:

0778125013-03112004-06

.

(

---

NARRATIVE

INSPECTIONREPORTDOCUMENT

OPENDUMP SITE

~

-

~.

S

Date

of Inspection:

March

25,

2004

Inspector:

Don Terry

Site Code:

077 812 5013

County:

Jackson

Site Name:

Carbondale / Egon Kamarasy

Time:

2:25

pm

—

2:30 pm

Location:

786

Green Ridge

Rd

Owner

ofProperty:

Egon Kamarasy

Volume ofWaste at

site:

10 cu / yds

GPS:

N 37°40.869

W 089°16.646

GENERAL

REMARKS

During the stated date and time, I conducted an inspection ofthe site listed above.

This inspection

was made as a follow up to

an inspection made ofthis site on March

11, 2004.

Weather conditions

at thetime of the inspection were: cloudy, windy with the temperature about 72°F.

According to the Jackson County Assessor’s Office, the site is owned by Egon Kamarasy of474

Egret Lake Rd,

Carbondale, IL.

Upon arrival at the site I observed a pile ofdebris in the same general

location as on my inspection

visit ofMarch

11, 2004

(Photos #1—

#5,

See sketch).

The debris pile appeared to have been

reduced in volume by open burning.

Within this pile I observed landscape waste, dimensional lumber, and what appeared to be metal

frames from furniture.

I also observed metal fence posts, the remains ofwhat appeared to be a

window air conditioner, sections oflaminate counter tops, metal

cans and

other materials not easily

identifiable

(Photos #1

—

#5, See sketch).

Most ofthis material was charred from burning.

My inspection ended at approximately 2:30 pm.

---

Page 2

077 812 5013

Carbondale

I

Egon

Kamarasy

March

25,

Continuing Violations Observed:

Item #1(9)(a): Cause, threaten or allow

air pollution in Iffinois;

Item #2(9)(c): Cause or

allow open burning;

Item #8(21)(p)(3): Cause or allow the open dumping of any waste in

a

manner which results in any ofthe following occurrences at the dump site:

(3) Open

Burning:

During the inspection,

evidence ofthe open burning ofwaste was observed.

Item #5(21)(a):

Cause or allow open dumping;

Item #8(21)(p)(I&7):

Cause or allow the

open dumping of any waste in

a mannerwhich results in

any ofthe following occurrences at

the dump site:

(1) Litter and

(7)

Deposition ofgeneral construction or demolition debris;

or

clean construction or demolition debris:

During the inspection, the open dumping ofwaste.

resulting

in

litter and the deposition ofgeneral construction or demolition debris was observed.

Item #6(21)(d)(1):

Conduct any waste-storage, waste-treatment, or waste-disposal operation:

Without a permit;

Item #6(21)(d)(2):

Conduct any waste-storage, waste-treatment, or

waste-disposal operation: In violation ofany regulations or standards adopted by the Board:

There is no

record ofthe property owner having received a permit from the Agency to conduct a

waste-storage, waste-treatment or waste-disposal operation.

Also, during the inspection, violations

ofstandards and regulations were observed.

Item

#7’21)(e~:

Dispose,

treat,

store, or abandon any waste, or transport anywaste into the

State at/to sites not meeting requirements ofthe Act:

Due the location ofthe site and the type

and

amount ofdebris observed, it would be reasonable to

assume that the waste was transported to

the site from another location for thepurpose ofdisposaL

Item #9155~a)(1):

No person shall:

Cause

or allow open dumping of any used or waste tire;

Item #10(812.101)(a): Failure to submit an application for a permit to develop and operate a

landfill:

During the inspection, the open dumping ofwaste tires

on the site

was observed.

---

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

Open Dump Inspection

Checklist

County:

Jackson

LPC#:

077 812

5013

Region:

7

-

Marion

Location/Site Name:

Carbondale

I

Egori Kamarasy

Date:

03/25/2004

Time:

From

2:25

pm

To

2:30

pm

Previous Inspection Date:

03/11/2004

Inspector(s):

Don

Terry

Weather:

72°F

--

partly

cloudywith moderate winds

No. of Photos Taken: #

5

Est. Amt. of Waste:

10

yds3 Samples Taken:

Yes#

No

~

Interviewed:

no one at site

Complaint #:

2004-057

Egon Kamarasy

Responsible

Party

474 Egret Lake

Rd

Mailing Address(es)

and Phone

Carbondale,

IL

62901

Number(s):

SECTION

DESCRIPTION

ILLINOIS ENVIRONMENTAL PROTECTION ACT REQUIREMENTS

1.

9(a)

CAUSE, THREATEN OR ALLOW

AIR

2.

9(c)

CAUSE OR ALLOW OPEN BURNING

3.

12(a)

CAUSE, THREATEN OR ALLOW WATER POLLUTION IN

ILLINOIS

E

4.

12(d)

CREATE AWATER POLLUTION HAZARD

0

5.

21(a)

CAUSE OR ALLOW OPEN DUMPING

Z

6.

21(d)

OPERATION:

(1)

Without a

Permit

Z

(2)

In Violation of Any Regulations or Standards Adopted bythe Board

.

7.

21(e)

WASTE INTO THE STATE ATITO SITES

NOT MEETING REQUIREMENTS OF ACT

8.

21(p)

CAUSE OR ALLOW THE OPEN DUMPING OF ANY WASTE IN A MANNER WHICH RESULTS

ANY OF THE FOLLOWING OCCURRENCES AT THE DUMP SITE:

(1)

Litter

(2)

Scavenging

.

(3)

Open Burning

(4)

Deposition

of Waste

in Standing or Flowing Waters

0

(5)

Proliferation of Disease Vectors

0

(6)

Standing or Flowing Liquid Discharge from the Dump Site

LI

Revised 06118/2001

(Open Dump

-

1)

---

LPC

#

077 809

5036

Inspection

Date:

03/25/2004

(7)

Deposition of General Construction or Demolition Debris; or Clean Construction or

Demolition Debris

9.

55(a)

NO PERSON SHALL:

(1)

Cause or Allow Open

Dumping of Any Used or Waste Tire

LI

(2)

Cause or Allow Open Burning

of Any Used or Waste

Tire

LI

35

ILLINOIS ADMINISTRATIVE CODE REQUIREMENTS

10.

812.101 (a)

OPERATE A LANDFILL

11.

722.111

HAZARDOUS WASTE DETERMINATION

LI

12.

808.1 21

SPECIAL WASTE DETERMINATION

LI

13.

809.302(a)

ACCEPTANCE OF SPECIAL WASTE FROM AWASTE TRANSPORTER WITHOUT A

WASTE HAULING PERMIT, UNIFORM WASTE PROGRAM REGISTRATION AND

PERMIT ANDIOR MANIFEST

LI

OTHER REQUIREMENTS

14.

APPARENTVIOLATIONOF:

(I)

PCB;

(0)

CIRCUIT COURT

CASE NUMBER:

ORDER ENTERED

ON:

LI

15.

OTHER:

LI

LI

:__

LI

LI

LI

LI

I/i

~

~/4Vff

Signature of Inspeftor(s)

Informational Notes

1.

Illinois

Environmental

Protection Act: 415

ILCS

5/4.

2.

Illinois Pollution

Control Board:

35

Ill.

Adm. Code, Subtitle G.

3.

Statutory and regulatory references herein are provided for convenience only and should

not

be

construed

as legal

conclusions

of the Agency or as limiting the Agency’s statutory or regulatory powers.

Requirements of some statutes

and regulations cited are in summary format.

Full

text

of requirements

can be found in references listed in

1. and 2.

above.

4.

The provisions of subsection (p) of Section

21 of the Illinois

Environmental

Protection Act shall

be enforceable either

by administrative citation under Section 31.1

of the Act or by complaint under

Section

31

of the Act.

5.

This inspection was conducted in accordance with Sections 4(c) and 4(d) of the Illinois

Environmental Protection Act:

415

ILCS

5/4(c)

and

(d).

6.

Items marked with an “NE” were not evaluated at the time of this

inspection.

Revised 06/18/200 1

.

(Open Dump

-

2)

---

Digital

Inspection

Photo Sheet

Date:

March 25, 2004

Site #:

0778125013

County:

Jackson

Time:

2:26pm

Photo taken by:

Don Terry

Comments

—

Photo taken towards:

South

Photo File Name:

0778125013-03252004-01

Date:

March 25,

2004

Time:

2:26 pm

Photo taken by:

Don Terry

Comments

—

Photo taken towards:

Southeast

Site Name:

Carbondale

I

EQon Kamarasy

Photo File

Name:

0778125013-03252004-02

---

Digital

Inspection

Photo Sheet

Date:

March 25, 2004

Site #:

0778125013

County:

Jackson

Time:

2:27 pm

Site Name:

Carbondale

I

E~on

Kamarasy

Photo taken by:

Don

Terry

Comments

—

Photo taken towards:

Southeast

Photo File

Name:

0778125013-03252004-03

Date:

March 25, 2004

Time:

.

2:27

pm

Photo taken by:

Comments

—

Photo taken towards:

Northeast

Photo File Name:

0778125013-03252004-04

(7~~

---

Digital

Inspection

Photo Sheet

Date:

March 25, 2004

Site #:

077812 5013

County:

Jackson

Time:

2:27 pm

Site Name:

Carbondale

I

Egon Kamarasy

Photo taken by:

Don Terry

Comments

—

Photo taken towards:

Southeast

Photo File Name:

0778125013-03252004-05

Date:

Time:

Photo taken by:

No Photo

Comments

—

Photo taken towards:

r

Photo File Name:

---

L

BEFORE THE ILLINOIS

POLLUTION CONTROL

~

~~C~VED

D’JM~1LJ

CLERK’S OFFICE

COUNTY

~

~

r

vs.

No.

2004-063

EGON

KAMARASY,

)

Respondent.

MEMORANDUM

SUPPORTING

PETITION

TO

ADMINISTRATIVE

CITATION

I

INTRODUCTION

The County of Jackson (“County”) seeks

to

impose civil penalties for two

(2) alleged

violations ofthe Act.

Mr. Kamarasy denies that his

actions violated the

Pollution Control

Act.

He

further

denies that his actions gave rise to

any “pollution”.

II

FACTUAL AND PROCEDURAL BACKGROUND

On March

25,

2004,

an inspector for the County, Don

Terry,

conducted an

“on-site

inspection” of a

site that

he

identified as

the Makanda/Kamarasy

site, located in

Jackson

County, Illinois.

The inspection lasted approximately three (3) minutes, from

2:32

p.m.

until

2:35

p.m.

(See

Jaëkson County Health Department Affidavit of Don

Terry,

dated March

29,

2004,

attached as Exhibit “A” to the Administrative Citation (“D. Terry Aff.”))

Mr. Terry’s Narrative Inspection Report (hereinafter “Report”),

submitted in

support

of the Administrative Citation filed by the County, states that the site investigation

on

March

25,

2004

was

made “as

a follow

up to

an

inspection

.

.

.

done

on

December

5,

2003.”

(See

Narrative Inspection Report Document Open Dump Site,

attached to

Affidavit of Don

Terry,

dated March

29,~2004,

attached as Exhibit

“A”

to

the

Administrative

Citation (“Narrative

Page

1

Memorandum

Supporting

Petition

to

Contest

Administrative

Citation

---

Report”)

Howe~er,the Report does not

give

any

account of the December

5

investigation.

Nor does it

say~whether

that first

inspection resulted in

any

action being taken against Mr.

Kamarasy, such as

the issuance of a

warning,

which might have contained its

own

separate

terms for compliance.

Mr. Terry is

careful to

say in

this Report “I

did not

enter the property and

conducted

this follow-up inspection from the gate.”

(Narrative Report)

He then alleges,

from that vantage

point,

“I

observed

a debris

pile in

approximately

the

same

location as

I

had

observed

on

December

5,

2003,” but

the pile “appeared larger”

indicating,

in

his

words,

“more

material

has been open dumped at this location since December

5,

2003.” (Narrative Report)

The inspector estimated the size of the debris

pile on

March 25

as being

approximately

110 cubic yards~(NarrativeReport)

Presumably, he also estimated the volume

of the pile on

December 5, 2003

But, he did not

provide documentation from

the December

5

inspection,

to

show whether that previous estimate was smaller or larger.

Mr. Terry claims that thepile

“appeared

to

consist of construction/demolition debris.”

(Narrative Report)

More specifically, he said that the pile contained (1) “dimensional lumber”,

(2) “dark paneling”,

(3) “metal siding”, and

(4) “other materials not readily

identifiable from

my location.” (N~rrative

Report)

He then concludes that this

debris

must have been

generated

off-site and tran~p,orted

to this location, given the size ofthe pile.

(Id.)

To document these observations, Mr.

Terry

took

one photograph, presumably from the

gate where he

was

standing.

(See

Open

Dump

Inspection Site

Sketch, attached hereto

as

Respondent’s Exhibit “R-2”,

and attached to the Administrative Citation filed by the County in

this case.)

This pjcture

shows that Mr.

Terry

was

standing at a very substantial

distance

from

the

alleged “duttip”.

From

that

distance,

as

the picture

clearly shows,

a

pile

of material

is

visible on the sitç~but

it is impossible to say what items were in thepile.

Mr. Terry’s Report states

that, on the

basis of his personal observation, he

concluded

the following violations occurred: (1) causing or allowing the

open

dumping;

(2)

causing or

allowing

the op~.ndumping

of any

waste

in

a manner that_results

in

(a)

litter and

(b)

the

---

deposition

of general construction or demolition debris or clean

construction or

demolition

debris,

in violation of the

Act;

(3)

conducting

a

waste-storage, waster

treatment, or

waste-

disposal operatidh without a proper permit; (4)

conducting a waste-storage, waste-treatment, or

waste-disposal operation in violation of “any regulations or standards adopted by

the

Board;

(5)

disposing,

treating, storing or abandoning any

waste or transporting

any

waste

into

the

States at or to sites not meeting therequirements ofthe Act; (6) failing

to

submit an

application

for a permit to develop and operate a landfill; (7) failing to obtain a “Developmental Permit”

to

operate a solid waste management site; and

(8) failing

to

obtain

an

“Operational

Permit”

to

operate a solid waste management site

(Narrative Report)

On March

30,

2004,

the County filed an

Administrative Citation with

the

Pollution

Control Board irithis cause.

The Admmistrative Citation states a legal conclusion in

its

so-called “Facts”

section,

namely

that

“tflie

facility

is

an

open

dump,

operating

without

an

Illinois

Environmental

Protection Agency Operating Permit.”

This

is improper because the complaint fails to

allege

any of the underlying facts necessary

to

support

the legal

conclusions that this

was

either

a

“facility” or an ‘~pendump” in the sense regulated by the Pollution Control Act.

In partic~ilar,

proving

that the pile in

question was

an

“open

dump”

is

part

of the

County’s

primafacie

case for both ofthe charges against Mr. Kamarasy.

Therefore,

it cannot

be “fact,” until tl~isBoard says it is.

Nor can it be simply be asserted

as

a conclusory opinion

by the County’s~inspector.The County must

prove

the elements of its

primafacie

case,

not

merely recite them

Furthernläre, it is

a

fact

that neither the Citation, nor any

other charging instrument

from

the

CounW~accusesMr.

Kamarasy of operating

a

commercial

dump

site

“facility”

without a 1icense~ Therefore,

one

must presume that even the

County does not

believe this

accusation by Mr. Terry was a “fact”.

The citatioli document charges that (1) “the

Respondent has caused or allowed litter at

the facility in vi~51ationof 415

ILCS

§

S/2l(p)(l)”;

and (2) “the

Respondent has caused or

---

u

allowed

the

deposition

of

general

construction

or

demolition,

or

clean

construction

or

demolition debri~~

in

violation of 415 ILCS

§

S/2l(p)(7).”

These charges are improperly stated for the same reason as described above.

The plain

language of the Pollution Control Act requires a showing that the site in question was an “open

dump”, in the precise sense that “open dump”

is

defined in

the

Act, before

showing

that it

“caused or allowed litter,” or that it “caused or allowed the deposition of general

construction

or demolition, or~cleanconstruction or demolition debris.”

The respEndentfiled a Petition

to

Contest Administrative

Citation.

In

it, he

denies

that

P

his conduct viola~d

the Act as alleged.

Mr. Kamarasy will testify, first of all, that the pile in question was placed on

his

own

property.

He w~U

explain that the pile contained the broken

down parts

and

pieces of

some

mobile homes that were abandoned by others on property that he owns.

He will further explain

how this pile cathe to be located on the property in question, as set out below.

Mr. Kamarasy owns and operates a mobile home park.

It

is a

common

problem that

mobile home oWners sometimes

abandon their mobile homes

at the mobile

home park

when

they move.

The~iwner/operatorofthe property is

then left with the problem of disposing

of

these unwanted structures.

Mr.

Kan~arasywill testify

and

documentary evidence

will

show

that

the

Illinois

Department of Public Health (“IDPH”), as a result of its

standard inspections

conducted of

Mr. Kamarasy’&hiobile

home park,

ordered him

to

remove

certain

abandoned and

broken

mobile homes from the mobile home park.

According to

the IDPH,

Mr.

Kamarasy was

not

permitted to

leave the abandoned homes at the mobile home park until he

managed

to

sell or

recycle the usable parts from the homes.

(See

Respondent’s Exhibit “R- 1”, a copy of which

is

attached hereto.)~

Mr. Kamarasy attempted to comply with the IDPH directive.

He had some

open space

on land he owned,~:called

“BittersweetFarm”,

which is

located in Makanda Township,

about a

halfmile from his~own

homestead and farm located in Pomona Township.

---

r

L

Mr. Kama~asy

will

testify

that he relocated the abandoned mobile home structures

and

L

materials in question to

the Bittersweet Farm site.

From there, workers

continued

the work of

dismantling the Structures, separating the recyclable from the non-recyclable materials, in order

~

to sell whatever naterials from the mobile homes were reusable and dispose ofthe rest.

Mr. Karnarasy will further testify

that,

at the

time, he thought,

and

had every reason to

believe that his

actions were legal and not in

violation of either the

Litter Control Act or the

Pollution Control Act.

There was

nothing

unlawful,

he

believed,

about moving the

materials

from one ofhis

properties

in

the area to

another.

And, the act of depositing

the debris

on the

L

Bittersweet Farm

site did

not

introduce

pollutants

into

the

environment.

Nor

was

Mr.

Kamarasy operating a commercial waste dump

facility on Bittersweet Farm, or allowing

others

to

dump there

Next,

Mt~.i

Kamarasy will testify

that the debris

pile

was

located approximately five

L

hundred (500) feet from the gate where Mr.

Terry says

he

was

standing when he

took his

one

and only

photograph on March

25,

2004.

From that

distance,

Mr.

Terry could not

possibly

have identified the specific items

in the debris pile,

such as dark paneling

and

metal

siding,

that

he

reported

to

mive

personally observed on

his

March

25,

2004

inspection.

Nor

does

the

photograph tak~n

by Mr. Terry make it possible

to

identify,

with

the naked eye,

any

such

L

specific items.

L

Mr. Kaniàrasy can only

guess

that

what Mr.

Terry

did was simply

assume that

all

the

items that he idetitified during his previous inspection of December

5,

2003,

were still

there.

Underlying that a~sumption

is the further conclusory assumption that

Mr. Kamarasy had done

nothing to

address the problems that Mr. Terry had previously identified on December

5.

The County will present no evidence that Mr. Te~ made a

direct

observation of the

L

items he purported

to

have observed

on

March

25,

2004.

And, the

County

can

present

no

evidence

to

supJ~ort

its

conclusory assumption that Mr.

Kamarasy failed

to

do

anything

to

alleviate the problem that Mr.

Terry had previously identified on December

5,

2003.

---

To the cbntrary, Mr. Kamarasy will testify that all of the

metal parts

from

the

mobile

homes (including all the metal-siding) had

been removed from

the debris

pile

and

taken for

recycling by the~time

Mr. Terry returned for his follow-up inspection on March 25, 2004.

As

a

result, Mr. Terry’s Report was demonstrably inaccurate in identifying metal siding at the

site,

and should be considered suspect with respect to all other specific items

that Mr. Terry claimed

to have identified.

In addition,

Mr. Kamarasy denies having made further deposits of material

on this site, afterhe was warned, in a letter, dated January 9,

2004,

that the debris pile

might be

unlawful.

During that time, thepile clearly was diminished in size, not increased.

In December

2003, Mr. Kamarasy contracted with McMurphy Excavation to remove the debris

and

transport

it to a landfill.

The evidence will show that

all of the materials were removed from the

site and

properly dispos~dof by May 2004.

(See

Respondent’s

Exhibit “R-3”,

a

copy of

which is

attachedhereto.~~

Mr. Kan~arasyhas no

personal

knowledge upon

which

to

deny

that

Mr.

Terry

did

inspect the site ~n December 5,

2003.

Mr.

Terry did not contact Mr. Kamarasy.

He did not

request permission from Mr. Kamarasy to enter the property to

make an inspection.

No prior

notice was given ~to

Mr. Kamarasy concerning the inspection.

And, Mr.

Terry did not give Mr.

Kamarasy a citatiOn, or even an official warning, at that time.

However,

in

January

2004,

Mr. Kamarasy

received a

letter, dated

January

9,

2004,

signed

by

Bart~’Hagston,Coordinator

Solid

Waste

Program,

Jackson

County

Health

Department. (Se~Respondent’s

Exhibit “R-4”, a copy of which is attached hereto.)

That letter

stated that

“a representative

of

the

Jackson County

Health Department”

“completed”

an

investigation on tecember 5, 2003 and believed that he found several violations of theAct.

The

violations a11eged~’werestated as

follows:

(1) causing

or allowing

the open

dumping of any

waste because

‘~evidence

of

waste

was

observed

open

dumped

at

this

site

during

the

inspection”;

(2). conducting

a

waste-storage, waste-treatment,

or waste-disposal operation

without a permit granted by

the IEPA because “no

permits have been issued

for

this

waste

management

facility”;

(3)

conducting

a

waste-storage, waste-treatment, or

waste-disposal

---

operation in violation ofregulations or standards

adopted under the Act because “no

permits

have been issued

for this

waste-management facility”;

(4)

disposing,

treating, storing

or

abandoning any ~iaste, or transport any

waste into this

State for disposal,

treatment,

storage or

abandonment,

except

at

a site

or facility

that meets the requirements of

the

Act

and

the

regulations and standards thereunder because “violations

of Board regulations

as well as the

Act were observed at the time ofthe inspection”;

(5) causing or allowing the open dumping of

any waste in a manner that results

in

(a)

litter and

(b)

deposition of general

construction or

demolition

debris or clean construction or demolition

debris;

(6) developing

and/or operating a

landfill

without~receivinga

Developmental

Permit

from

the

IEPA

“for

a

solid

waste

management siteLát this

location”;

and

(7) causing or allowing the use or operation of a solid

waste managemeht

site for which a Developmental Permit

is

required without an

Operating

Permit issued by’~the

IEPA.

This letter, contained “an explanation ofthe activities that the Illinois

EPA

and

JCHD

believe may reso1~vethe specified violations, including an estimate ofa reasonable time period to

complete the necessary activities” and

stated that “resolution of the violations

may require the

involvement of ~Pprosecutorialauthority for

purposes

that

may

include,

among others,

the

imposition of statutory penalties”.

The lette~tthen

stated that a written response must be

submitted

to

the County

Health

Department within 45 days ofMr. Kamarasy’s receipt of the letter; the written response “must

address each violation specified.

.

.

and include for each an explanation ofthe activities that

wifi

be implemented~indthe time schedule for the completion

of that activity”;

and,

the

written

response “will

cbnstitute a

proposed Compliance Commitment Agreement

(“CCA”),

which

the County Hea1th~Department

will review and

either accept or reject

within

30 days

of receipt.

No time period fOrcompletion of any remediation activities was given.

The letter~nded

by saying that failing to respond timely in

writing

would be

considered

a

“waiver of

the! opportunity

to

respond and

to meet”

and

the

County

Health Department

---

“may proceed with a referral to the prosecutorial authority”.

Mr.

Kamarasy was urged to

call

Mr. Terry with any questions regarding this matter.

In respon~e

to this Notice ofViolation, Mr. Kamarasy did call Mr.

Terry on January

15,

and the two ofthem discussed the corrective actions that the County Health Department wanted

done.

(See

Respondent’s

Exhibit “R-5”,

a copy of which is

attached hereto.)

Mr. Kamarasy

will testify that he told Mr. Terry that (a)

he

(Mr.

Kamarasy)

was working on

removing the

materials comprising the pile; (b) he had already arranged for a contractor to

remove

it;

and

(c)

he

believed he could accomplish this

objective by February

13,

2004

Mr

Kamarasy

will

further testify that he understood that Mr. Terry

agreed to this proposal, and that Mr.

Kamarasy

believed Mr

Terry was acting with the authonty ofthe County at this time

By

February

13,

all

of the metal from

the

site had

been removed for

recycling by

Michael Mays, P~rchie

Mays, Lucas

Parrott,

and Danny Morefield, individuals

retained by Mr

Kamarasy

to

dismantle

the

mobile home

structures

and

recycle the

recyclable

matenals

Unfortunately,

the weather

did not

cooperate with removing the rest of

the

debris.

Mr.

McMurphy had to

wait for a “hard freeze” to

make it possible to

get his heavy equipment into

the field in order to load the non-reusable materials into a truck for transportation to

the county

landfill.

The weather wasjust not cold enough and the ground was too wet and muddy for such

equipment to accomplish the job

Mr

McMurphy’s

testimony

is

expected to corroborate

that

he was unable, ot~

believed that he

was unable,

to

complete the job

due to

the conditions

of the

weather and the ground upon which his heavy equipment would have to traverse in order to

load

and haul away th~

materials from the site.

When th~ground

finally

dried enough,

Mr.

Kamarasy had

the

rest of the

debris

removed to the Jackson County landfill.

However, this occurred after March

25,

2004

and

was

too late to prevent him from receiving the Citation in this case

On March~25,2004, Mr. Terry conducted his three-minute inspection from the gate

500

feet from the pile

of matenals and

on March

29,

2004 the Administrative Citation was filed m

this

case.

No

a.ttcmpt

was made by

the

County

to

contact Mr.

Kamarasy

following their

---

r

communications occurring in January to determine why more of the

pile had not been removed

L

or for any

otherreason.

Mr. Terry did not call or write Mr.

Kamarasy or make any

inquiry

to

determine why the matter had not been resolved to

his

satisfaction

by March

25,

some

six (6)

r

weeks after he believed Mr

Kamarasy had promised to complete the disposal

Mr.

Kamarasy

contends

that

both

he

and

the

County

were

bound

to

honor

this

r

agreement, that he intended

to

honor

it,

and

that he

made all reasonable

efforts

to

comply

with

its terms.

However, he was prevented from fully complying due to circumstances outside of his

reasonable control.

I

In addition, Mr

Kamarasy contends

that

the

debris

pile

he

created, while perhaps

unsightly,

was not

an

“open dump”,

as that

term is

defined

in

the

Pollution

Control

Act,

III

because the nature of the debris and the manner and

location in

which

it

was deposited did not

cause the debris to enter into the

environment, nor make

it

likely

that polluting materials would

be emitted or discharged, or otherwise disseminated from the site

r

For similar reasons, Mr. Kamarasy contends that his debris pile

did

not constitute

litter,

as that term is defined in the Litter Control Act

In fact, a plain reading ofthe Litter Control

Act

r

shows

that Mr

Kamarasy acted lawfully in depositing this material on his own land

Mr. Kam~rasyfinally contends that it was a violation of his due

process rights

and

a

L

violation of the Separation of Powers principle for him to be

charged with two

violations for

what amounts to~one

(allegedly) wrongful act of moving the abandoned mobile home

structures

to a site on Bittersweet Farm to be dismantled, recycled and disposed offrom there.

The County makes no

attempt

to show that there was any litter, apart from5the broken

down parts

of these mobile home

structures at the Makanda/Kamarasy

site.

Therefore,

the

prosecution is eff~ctively

charging Mr. Kamarasy

twice for the

same

demolition debris,

simply

by the deceit of renaming the mobile

home parts

“demolition

debris”,

after first naming them

“litter”.

Finally,

~Mr.Kamarasy

will

argue

that

the

Pollution

Control

Act

should

not

be

interpreted so a~tooutlaw

an

act that

the Litter Control Act expressly

permits,

namely,

the

~

.~.*

~

::

:~

~

~.

.

.~

P ..,.M~th

~

P~titiô~P

tóPCoñtest

Adinin1~t~àti

ciLatid~

:

---

dumping ofa pik, ofnon-polluting

and non-littering debris on

one’s

own property, some

to be

recycled

and th~restdisposed

of.

To hold

otherwise would render one or

the

other

Acts

unconstitutiona1~~ince,

taken together, the two statutes would then tell Illinois citizens that the

same act of creating a debris

pile on one’s own land in such a way that

it

does not spread or

emit or discharge onto otherland is both lawful and unlawful at the sametime.

III

ISSUES PRESENTED

The Administrative Citation and the Petition to Contest Administrative Citation present

the following iss~s:

A.

Shbuld the inspector’s

Narrative Report, based upon his

March

25

inspection of

the Makanda/K~iarasysite, be

disregarded because the

inspector could

not

possibly

have

observed what he~said

he observed from the location where he claimed to have-observed it?

B.

DidPthe

County

improperly state charges

against

Mr.

Kamarasy

and

fail

to

acknowledge thátias part ofits

primafacie

case, it must prove Mr.

Kamarasy created

an “open

dump”, according to the legal definition of that term?

C.

DidMr. Kamarasy cause or allow “open dumping”

at the Makanda/Kamarasy

site?

D.

If ‘~cpendumping”

occurred

at the

site,

did

the

“open

dumping”

result

in

“litter”?

E.

If ‘~pendumping” occurred at the

site,

did

the “open

dumping”

result in

the

deposition

of general construction or demolition debris or clean

construction or

demolition

debris?

F.

Was the County bound to respect the agreement negotiated between the parties in

January,

2004?

liP so, was Mr. Kamarasy’s

failure to

comply

with that agreement the result of

circumstances

that were beyond

his

control?

G.

Did:-the County and

its

inspector abuse their discretion

and exceed

the intent

and

scope ofthe administrative citation process by broadening the definition of “litter”

beyond the

---

legislature’s intent,

and by filing

two

charges

against Mr.

Kamarasy

for the

single

act of

creating a pile

of materials by

depositing

on

his

own property the broken

down parts

from

certain mobile homes

that others

had

abandoned on

his own property?

If so,

did

this create a

separation ofpo~ers

problem under the Illinois Constitution?

H.

Is the law, as applied to Mr. Kamarasy,

unconstitutionally vague, in

failing to

give

Mr. Kamarasy reasonable notice of what

constitutes

creating an open

dump on

one’s

own

property, and what constitutes littering on one’s own property?

IV

THE EVIDENCE SHOWS THAT THE INSPECTOR DID NOT OBSERVE,

ANI5 COULD NOT HAVE OBSERVED,

ON MARCH 25, 2004, THE

SPECIFIC ITEMS THAT HE CLAIMS TO HAVE OBSERVED IN THE

NARRATIVE REPORT, THEREFORE,THIS PART OF THE REPORT

SHOULD BE DISREGARDED AS MERE SPECULATION BY THE

INSPECTOR, LACKING IN ANY FOUNDATION

When a i~itness

such as Mr. Terry attempts to testify about the “facts”

of a case,

he is

required to testify only

about

those

facts of which he has personal knowledge.

Moreover, the

legislature explicitly prescribed, when creating the Administrative Citation process, that

an

enforcement agent, such as Mr. Terry, must base his

testimony

upon

his

direct

observations.

See

415 ILCS

§

5/31.1(b)

It follows that speculative evidence should not be admitted.

By

Mr. Terry’s

own

admission,

he

inspected

Mr.

Kamarasy’s

pile

of material,

on

March 25, 2004 ~r

the sum total ofthree minutes.

This inspection was performed as a follow-

up to a Decemb~5,

2003 inspection.

Mr.

Terry

admits,

however, that

all

he did was

stand on

the side ofthe road by the gate to Mr. Kamarasy’ s property

and

take a photograph of the

pile.

He did not enter-onto the property to make a serious investigation of the pile

or determine what

was in it.

The evide~ice

further shows

that Mr

Terry took

only

one photograph of the

site

on

March 25

That picture is completely unsatisfactory in that

it

does not show

any of the

specific

items

Mr. Terry;âlleges

to

have

seen

in

the

pile

—

namely,

“dimensional

lumber”,

“dark

paneling”,

and ‘~metalsiding”.

About

the

only

thing the photograph shows

clearly is

that

---

there was a pile

of materials and it was located at a

great distance

from

the place

where Mr.

Terry stopped toponduct his investigation.

That le~’VesMr.

Terry’s

personal

testimony

as

the only

evidence

the

County

can

produce to supp~rtits claim that the

items

claimed actually were

contained in

the

pile,

as

of

March 25, 2004- --But the questionremains “what

is

the foundation for Mr. Terry’s

testimony

concerning these -items”.

If the camera did

not

“see”

the individual items

Mr.

Terry

alleges,

when and how did Mr. Terry see them?

It is an undisputed fact that Mr.

Terry was

standing very far away from the pile when he

took the photograph on March 25, 2004.

Mr. Kamarasy is

expected to testify

that the

distance

from the gate to the location ofthe pile was

approximately 500 feet.

How could Mr. Terry have

observed

dimensional lumber at this distance,

or “dark paneling”, or “metal

siding”?

The

answer is that he could not have.

It

is

alsø~undisputedthat Mr. Terry only

took

a total of three minutes to

make his

inspection, and much of that time was presumably spent taking

out his

camera, lining

up

the

photograph, andsetting the proper angles on the lens.

He did not have

time to

study

the debris

pile, or scan clos~iy

for signs of lumber or paneling or siding.

His Report shows that

no tests

or samples of any~materialswere taken.

One might

speculate that Mr.

Terry entered

these

items

on

his

report

on

March

25,

based on his

recOllection of having observed them on December

5,

2003.

Even so, Mr.

Terry

simply had no way ofknowing for sure that the items he

saw

on

December

5

were

still

present

on March 25.

As a result, Mr. Terry’s testimony

is either untruthful, if he claims to have

seen

these

items

on March25, or it is inadmissible if he claims to have only seen them on December

6.

The violation thai- Mr. Kamarasy is charged with

is

dated March

25,

2004,

not

December

6,

2003,

and

the legal requirement

is

that

Mr.

Terry can

only

testify

about what

he

directly

observed regarding the alleged violation.

---

Even

without the requirement set

forth

in

the

Administrative

Citation process,

the

general rules of evidence make Mr. Terry’s evidence

so unreliable that his reference to the

existence ofthe specific items

—

—

the metal siding, dark

panelmg,

and dimensional lumber

—

—

should

be excisqd from his report and stricken from this record.

Mr. Terry merely

assumed

that those items were there.

And, given the fact that Mr. Terry already knew Mr. Kamarasy

was

trying to clean the place up, Mr. Terry’s assumption was unreasonable.

IfMr. Terry wanted to

testify

about what was

in

the

pile, he

should have taken a close

up look to see what was there.

He did not.

And his speculation now about what

was there then

cannot support a reasonable,

sustainable finding that Mr. Kamarasy’s actions violated the Act.

It follows that the County should only be allowed to

present evidence that the

pile

of

materials from

the’- abandoned mobile home structures still existed as ofMarch 25, 2004, a point

that Mr

Kamaras,y does not dispute

The County should not be permitted to

testify

about what

was in the pile.

pAnd then, it follows that the County cannot make

aprimafacie

case that

the

pile violated the ~Po11ution

Control

Act.

As

a matter of

law, the

mere existence of a

pile of

materials is not enough.

V

IT IS I~ART

OF THE

STATE’S

PRIMA FACIE

CASE TO PROVE THAT

MR. K~MARASYCAUSED

OR ALLOWED

“OPEN DUMPING”, AS

THAT TERM IS DEFINED

IN THE POLLUTION CONTROL ACT:

BUT

MR. KAMARASY DID NOT CAUSE OR ALLOW “OPEN DUMPING”

AT THE MAKANDA/KAMARASY SITh

In order

U5

seek enforcement by Administrative

Citation for violations

of Section 21(p),

the Agency, or local governing body, must first establish that the respondent caused or allowed

open dumping

Se~e

Montgomerv County

Illinois

v

Clifford Crispens

Jacqueline R

Cnspens

and Line Pilot Bungee, Inc., AC 95-43.

Section 21(a) ofthe Act sets forth a general prohibition

against open duthping as follows:

“No person shall cause or allow the open

dumping of any

waste.” 415 ILCS

§

5/21(a)

Section 3~385ofthe Act defines “refuse”

as “waste”.

415

ILCS

§

5/3.385.

The Act

then defines “wa’ste” to mean “any garbage, sludge from a waste treatment

plant,

water supply

---

treatment plant,

-

or air

pollution

control

facility or

other discarded material”.

415

ILCS

§

5/3.535.

-

Section ~‘300of the Act defines “open dumping” as

tl~

consolidation of refuse from one or more sources at a

disposal

si~è

that

does not

fulfill

the

requirements of

a

sanitary

landfill.

(Emphasis added.)

415 ILCS

§

5/3.395.

Thus,

in

order to prove that Mr. Kamarasy

committed “open

dumping”,

the County must show that he created a “disposal site” on his land.

It cannot be true, however,

that any time a

landowner places any

household

item

(for

example, a broken chair) on his

land, or piles up

some

branches and

leaves, that he

or she has

thereby created t “disposal site” under the statute.

Such

an

interpretation would render the

Pollution Contro1~Actso broad as to be arbitrary and unenforceable.

See

Alternate Fuels.

Inc.

v.

Director of the illinois Environmental

Protection Ag~cy,2004 WL 2359398

(Ill.

Sup.

Ct.

2004)

It would mean for example that every homeowner who has everplaced a broken

chair in

his backyard, or-th~old

piece of plywood has thereby created a “disposal

site”

under the

law,

and would be

subject (in the case of the plywood) to charges of both littering

and

depositing

demolition debrisiin violation ofthe Pollution

Control Act.

Hopefully,

this

Board would

agree

that that is not the~type

ofproblem that the Pollution Control Act was meant to address.

Of course,

Mr. Kamarasy recognizes

that

his

pile of materials was

not

equivalent

in

scale

to merely p~tting

out a couple ofbroken pieces ofplywood on one’s land.

However, size

or scale is not a r~1evant

consideration when it comes to determining which piles of materials

do

or do not constitute “disposal sites” under the

Pollution

Control

Act

As will be discussed m

detail below, th~relevant

distinction between a mere “pile of material” and a “disposal site”

has to

do

with

the likelihood that

the “pile of material” will

cause “pollution.”

Roughly

speaking, as willi be discussed in

more detail below,

a disposal

site

is

a place

where

material is

disposed of in suCh a way that it is

likely

to

cause pollution.

So, it

is

not the existence of the

---

pile ofmaterial that is offensive to the Pollution Control Act; it is

the scattering of that

material,

or constituents thereof, freely into the environment, which the law seeks to prevent.

In the case at bar, Mr. Kamarasy admits that he

organized

and

consolidated the

parts

and material froñ~i-

some mobile homes

that had been abandoned on his

property, moving them

to a single locatio~nat the Bittersweet Farm site at the direction of the IDPH

But none of these

parts

or materials threatened to

scatter

freely into the

environment

Mr

Kamarasy

merely

intended to harvest or recycle the usable parts before disposing ofthe rest.

In so

doing,

he may

have created a ness;

however,

he

did not create a

disposal

site, according

to

the

Pollution

Control Act.

‘~

Admitte4ly, the Act does not provide a single definition for the term “disposal site”, but

the words

“disposal” and

“site”

are

defined separately.

The definition of the term “site”

is

self-explanatory~ee

415 ILCS

§5/3.460

However, the term “disposal”

is

specific enough

as

to

shed light on

s’~’hichdebris piles can be labeled “disposal sites” and which cannot.

Accordin~

to theAct:

“Disposal”

means

the

discharge,

deposit,

injection,

dumping,

spilling, leaking or placing of any waste or hazardous waste

into or

or~

any

land

or

water

or

into

any

well

so

that

such

waste

or

hazardous

waste

or

any

constituent

thereof

may

enter

the

environment

orbe emitted into the air or discharged into any

waters,

-

including ground waters.

415

ILCS

§

5/3.185.

Presumably, then, a “disposal site” under

the Act would be one where

such “disposal”‘takes place.

For purpdses of analysis, there are two main parts

to

the

above

definition.

First, the

definition requires a

showing

that Mr.

Kamarasy “placed

.

.

.

waste

.

.

.

on

his

land.”

Second it requires

that Mr. Kamarasy placed waste of such a kind and

in

such a manner “so

that such waste.

.

.

or any constituent thereofmay

enter the environment

or

be

emitted

into the

air

or discharged’

nto

any

waters, including ground waters.” (Emphasis added.)

Because the County bears

the burden of proving

that Mr.

Kamarasy committed the act

of “open

dumping”

and because

this

requires

a

showing

that

the

respondent created

a

---

“disposal site”, itis clearly

the County’s

burden to

prove that the

site in

question was truly a

“disposal

site”*-’

As just noted, that would ordinarily require two showings

(1) placing waste on the land,

and (2) doing thi~~

in such a way that the

waste would be

likely to

“enter

the environment”,

or

be “emitted” into the air or “discharged”

into the

water.

But,

since Mr. Kamarasy concedes

the first point, the County’s burden is to show only that

the

waste,

was somehow placed on

the

land in such a way that it, or some

constituent thereof was entering into the environment or

emitting into the~airor discharging into the waters.

Certainly, no evidence will

be presented ofemitting or discharging

Therefore,

it

would

appear

that the Gounty will have to prove “entering into the environment”.

The County will present no evidence that the pile

of material at the site

in question was

likely to cause pollution in the sense just described

Perhaps

the County

means

to

argue,

m

effect, that everyPtime a personplaces waste on his orher land, then he or she automatically, as

a

matter oflogical consequence,

causes that waste to enter into the environment.

But if that

is

the

correct interpretation

of the phrase

“enter

the environment”, namely

that

anything

found

outside of a building is necessarily

in the environment, so that every debris pile

is

a disposal

site, then the entire phrase

“so that such waste.

.

.

or any

constituent thereof may enter the

environment orb~

emitted into the air or discharged into any

waters,

including

ground waters”

would become d~mpletely

superfluous.

If the prohibited act was merely placing the waste on

the land, why did’ the legislature botherto say that it was only prohibited if it was done in

such a

way as to cause the materials to enter into the environment?

It is a standard principle ofstatutory construction that each clause

in

a statute

should be

presumed to have~some

meaning. Alternate Fuels.

Inc.

v.

Director of the Illinois

Environmental

Protection

Agency,

supra,

2004

WL 2359398

Therefore,

it

must

be

presumed

that

the

legislature meant-the concepts of “entering into the environment”, as well as “emitting”

and

“discharging”, t~place

some limitation

on

the

notion of placing

waste

on

the

land.

A

---

landowner, like Mr. Kamarasy, does not create a disposal site every time

he places waste on his

land.

Li

So how d~iesone know which acts create a disposal site, and which do not?

What

is the

distinction that the legislature

intended to

make?

It

seems

clear

that

by

using

the

words

“entering into

the

environment”, “emitting”, and “discharging” the legislature meant to

imply

a certain lack of~Qntrolorpotential

lack of control by the person who placed

the waste on the

land.

To be a disposal site, it must be shown either that (1) the waste in its

entirety (for example

unprotected paper trash), or else

(2)

some constituent of the

waste (for example oil or paint in

open cans)

did enter or is likely to enter (freely) into the

environment, or be

emitted into the air

or be discharged/ihto the waters.

This is a

Pollution

Control

Act.

It is pollution

that

is

being

regulated, not mere messiness on the part of a landowner

Now, it thMr. Kamarasy’s position, as discussed above, that the County

in general

and

Mr.

Terry in particular failed to provide any credible or substantial evidence

showing the nature

or type ofitems

i-n the pile of materials on March 25, 2004.

Without such evidence,

the County

cannot possibly -~reet

its burden ofproving that such materials were

deposited “so

that such

waste..

.

or any~constituent

thereof may enterthe environment or be

emitted

into the air or

discharged into ahy waters, including ground waters”.

Even iftj~~

Board were to allow the County

to

use Mr. Terry’s

specific

list of items

as

evidence, that wOuld hardly help to prove

this

was a disposal

site.

Does

anyone

seriously

believethat metái~siding,dark paneling,

and

dimensional lumber are likely

to

scatter,

like paper

trash, freely intouPthe environment, or to

leak into the ground water or emit

vapors into

the

air?

And, how did M~-

Terry determine that this scattering or leaking or emitting was going

on,

if he

only inspected

th~

pile visually for three minutes from a distance of500 feet?

ThereforC~

and for all of the reasons cited

above,

the County

cannot and

wifi not prove

that Mr. Kamaras~’smaterial pile at BittersweetFarm, as observed on

March 25,

2004,

was

an

“open dump”.

Since

such a finding is

the necessary predicate to

both of the charges

against

Mr. Kamarasy, l~Othcharges should be

dismissed.

--

~-

----~P

---:

--:~

~--~

-.

~—P~äge-j7

~

-

-

~

--~

:~:

--

~--

n

anduni-P Supp

rtingPetitiol

tO

-kCàtést

-

A

ninistrative

CitätLOñPP

-

---

VI

n

~-MR.

KAMARASY DID NOT CAUSE OR ALLOW OPEN

j

DUMPING THAT RESULTED IN “LITTER” AS

THAT TERM IS

‘~-•P

USED IN THE POLLUTION CONTROL ACT

Even if the Board

should find that Mr. Kamarasy did commit “open dumping,” each of

the two charges against Mr. Kamarasy still require a further showing.

Count

(19 states that the respondent caused or allowed open

dumping that resulted in

r

“litter” in violatiOn of

§

2l(p)(l)

of the Act.

But,

Mr. Kamarasy does not believe that his

act

of placing

a pile~

of materials on his

land, consisting of

materials from

abandoned mobile

homes, in a locatiOn that was a substantial distance

from both the road and

any neighbors,

and

in a mannerthat-~posed

no threat that the items

might migrate towards someone else’s

property,

can reasonably

characterized as “littering”

Of cours~I,

Mr. Kamarasy

is

well aware that

the

term

“litter”

has

been

interpreted

expansively in ~rior

cases

before the Pollution Control Board.

See e.g.

Illinois

Environmental

Protection Agency v.

Springer,

supra,

AC 02-7

at p.

6

But,

again, if the legislature had merely

intended that every landowner who everplaced waste on his

land in such a way as to

constitute

“open dumping~’

was

also

and

automatically guilty

of littering,

then the legislature would not

have

added the ~ua1ifying phrase

“that resulted in

litter.”

See

e.g.

Alternate Fuels.

Inc.

v.

Director of the Illinois

Environmental Protection

Agency,

supra,

2004 WL 2359398

It would

havejust defined~thecrime as “open dumping”.

By addingthe phrase “that resulted in litter”, the legislature made it clear that it believes

that

not all discâ~ded

items left at a “disposal site” are litter.

So

the question remains what

constitutes “litt&-~ng”under the

Pollution

Control Act, and what does

not.

Unfortunately,

the

Act does not

sa~:?This

failure

to define littering would have the

potential to

pose

serious

enforcement problems of constitutional dimension: how can a homeowner, even one

who has

studied the statute in

elaborate detail, possibly

know if he

is

performing the kind of “open

dumping” that

results

in litter, if the

Act does not define “litter”?

See e.g.

People

v.

Einoder,

209 Il1.2d 443. 450.

283

I11.Dec.

551.

808

N.E.2d 517

(2004)

---

U

The Pollution Control Board has attempted to

answer this

problem in

previous

cases,

responding

to

charges

that

the term

“litter”

in

the

statute

is

too

vague

by

adopting

the

definition oflitter from the Litter Control Act

See e g

St

Clair County v

Louis

Mund, AC 90-

n

64.

This approach by the Board is both logical and reasonable.

It has the virtue of relying on

a

legal notion of “litter” that was created by

the legislature precisely for the purpose of going

beyond the simplistic notion that litter is just “messy

stuff left outside,” and identifying

with

r

some precision which messy stuffleft outside shall be treated by

the law as “litter”

and

which

shall not, so that littering can be either prevented orpunished.

By adopting the meaning of “litter” as it is

used in the Litter Control

Act, the Board

has put homeowners like Mr. Kamarasy

on

notice

that unlawful “littering”

in

the

Pollution

Control Act

mea*s exactly the same thing

as unlawful “littering” in the Litter Control Act.

The Littei

Control Act provides.

“Litter”

means

any

discarded,

used or unconsumed substance

or

waste.

“Litter”

may include,

but

is

not

limited

to,

any

garbage,

ti~ash,

debris, rubbish, grass clippings

or other lawn or garden

waste,

newspaper, magazines,

glass, metal, plastic or

paper

containers or

otherpackaging

construction material,

abandoned vehicle.

.

.

motor

vehicleparts, furniture, oil, carcass ofa dead animal, any nauseous

or

offensive matter of any kind, any object likely to injure

any

person

or create a traffic hazard, potentially

infectious

medical waste

as

defined in

Section

3.360

of the

Environmental Protection

Act, or

anything

else of an unsightly or unsanitary nature, which has been

discarded,

abandoned or otherwise disposed of improperly.

415 ILCS

§1051-3

But this paragraph, though properly taken from the Litter Control Act, does not give a

complete definition oflitter.

Indeed, it is

transparently incomplete, if one reads

it carefully.

It

consists of two sentences.

The first sentence

is

obviously definitional

in syntax.

“Litter means any

discarded,

used or unconsiti~ied

substance

or waste.”

But

this

sentence,

taken

alone, suffers

from the

same vagueness-lproblem as discussed above.

In fact, based solely on

this

sentence

the

trash

that

one

puts

inside

one’s garbage

can and

takes

to

the

curb

is

“litter,”

since

it

certainly

consists

of “discarded, used or consumed

substance or waste.”

Likewise, a

small

pile

of

-‘

~-

-

-

/~~P:-

fp~

P~ge1~

-

P-

-

~

~

~

~

PP

P

-

-P

~Mj(frajjduhj1

Su~

ôrting

-

J’et-itiónP~to-P’~Con

estP’Administrätivé

-

Citation

-

---

n

u

leaves in one’s own back yard would be litter, and subject to

whatever enforcement measures

the Litter ContrOpAct

provides.

Certainly, that is not what the legislature intended.

b

For one

thing, the second sentence is there for a reason.

It appears to

be

intended to

give some help

in

understanding “litter”, by providing a list (though not complete) of concrete

examples.

But the key word in the second

sentence

is

“may”.

For example according

to

this

so-called definition, “grass clippings or other lawn or garden waste”, may

be

considered litter

under the Litter-Control Act.

Or, they may

not.

One

simply does

not

know, without

more

guidance from tl~ë

statute.

Mr

Kamarasy

does

not

say

this

to

be

tricky,

or try

to

win

this

case

on

a

mere

technicality.

The

question raised here

is

one

about

fundamental fairness.

This

so-called

definition, cited frequently by the Board, completely fails to

answer the basic question posed

above: what

kin~i-

of dumping

on one’s own property is

the kind

that results

in

littering,

and

what kind does not?

Without that

answer, how can a landowner ever know

what is prohibited

and what is not?’

For example, if this

one

paragraph were

the

entire

definition of

litter,

even such

a

common practice as mulching one’s grass

clippings back into

one’s

lawn would

be

fraught

with unknown and unknowable danger

The inspector might cite

it

as

a violation

Or

he

might

not.

And, the onI~y

way for a homeowner to

know in

advance would be to read the inspector’s

mind.

Thereforê~

in effect, the interpretation ofthe Litter Control Act that Jackson

County is

asking this Board to

adopt for use in the Pollution

Control Act

would grant the inspector sole

and absolute pow~r

to decide what is litterand what is not.

Perhaps-‘~41r.Terry

believes

that he

can enforce the Pollution

Control Act merely by

insisting that he knows litter when he

sees

it, but if

so, this

would

lead to a blatant violation of

the Separation of~~owers

Clause of the Illinois Constitution.

See e.g.

People

v.

Izzo,

195

Il.2d

109,

115-6, 253~Ill.Dec.

425,

745 N.E.2d 548

(2001)

It is up to

the legislature to

give

clear

guidelines abou~~’

hat litter is

and what it is not; the inspector, and even the Pollution Control

Board, should have only a very limited discretion in this matter

---

Ofcourse~P

the legislature knew this when it wrote the Litter Control Act.

It did not

give

broad discretion to inspectors to define litter

Instead,

in

plain language,

the

legislature gave

fairly detailed guidelines about what is litter and what is not.

In the legislature’s own words:

t~his Act is, therefore, necessary

to

provide for

uniform prohibition

throughout the

State

of any

and all littering

on

public

or

private

property so as to protect the health,

safety and welfare of the people

of

this State.

415 ILCS §105/2 (Legislative Findings and Determinations) (Emphasis added.)

Therefore, it was the legislature’s intent that the notion of unlawful littering should be

“uniform”

in the State of Illinois,

and

that one has

to

examine the

entire

statute

to

ascertain

what “any and all littering” means.

Merely reading one paragraph from

the statute

will not

suffice.

Itfollow;that the criterion for

whether a landowner has

committed

open dumping

that

resulted in litter

in violation of the Pollution

Control Act is

to

determine

whether or not

the

landowner comn~ittedopen dumping

thatresulted in litter

in violation ofthe Litter Control Act.

In other~~ords,

to

prove

that

Mr. Kamarasy’s

alleged “open dumping”

resulted

in

“litter”, the County must prove that his actions constituted a violation of the Litter Control Act.

But, the County cannot do so, because Mr.

Kamarasy did not violate the Litter Control Act.

The Litter Control Act contains four sections that describe prohibited

acts.

See

415

ILCS

§~

105/4 tl~pugh105/7

Two of these are not relevant to this hearing

in

that they refer to

dumping from a

otor vehicle orabandoning a motor vehicle.

See

415 ILCS

§

105/5

(dumping

from

motor vehicle)

and 415

ILCS

§

105/7

(abandonment of

motor

vehicle)

That leaves

Section 4 (dumping and the deposit oflitter) and Section 6 (accumulation of litter)

Section -4~~f

the Litter Control Act provides in relevant part, as follows:

No person shall dump, deposit,...

or

discard.

.

.

litter.

.

.

unless

*

*

*

*

(c)

the person is the owner or tenant in

lawful possession

of the

property

.

.

.

and

does

not

create

a

public

health

or

safety

hazard,

a public nuisance, or a fire hazard.

---

r

(Emphasis added)

L

Section

-6-of the Litter Control Act

addresses accumulation of litter.

It

provides

in

relevant part, as follows:

T

No person shall allow

litter to

accumulate upon

real

property, of

-

which theperson charged is

the owner or tenant

in

control, in

such

a

manner

as

to

constitute

a

public

nuisance

or

in

such

a

r

manner that the litter may be

blown

or

otherwise

carried

by

I

-

the natural elements on to the real property of another person.

r

There is

no evidence to

support

a claim that Mr. Kamarasy’s

so-called “open

dump”

I

-

created a public health or safety hazard, a public nuisance, or a fire hazard.

There

is

also

no

evidence that he ~depositeditems in the

so-called “open

dump”

in

a manner as to

constitute a

-

public

nuisance Or such that items may be blown or otherwise carried by the natural elements

on to the real prO~ertyof another person.

Therefore~

Mr. Kamarasy should not be

found in violation of the Act

on

the charge of

L

open dumping that resulted in litter, because he did not cause or allow litter in violation of either

p

the Pollution Control Act or theLitter Control Act.

L

THE RESPONDENT DID NOT

CAUSE

OR ALLOW OPEN DUMPING

-

‘-THAT RESULTED

IN THE DEPOSITION OF GENERAL

CONSTRUCTION OR DEMOLITION OR CLEAN CONSTRUCTION

OR

DEMOLITION DEBRIS IN VIOLATION OF THE ACT

Count (2) against Mr

Kamarasy

(if it

had

been properly stated in

the Citation)

charges

L

him

with open

dumping that

“caused or allowed the deposition

of general

construction or

demolition

orclean construction or demolition debris in violation of415 ILCS

§

5/21 (p)(7).”

As already explained, Mr.

Kamarasy concedes that the pile of materials that Mr.

Terry

observed

on

Match

25,

2004,

at Mr.

Kamarasy’s

Bittersweet Farm

property

contained the

remaining parts from

several abandoned mobile home

structures, after Mr

Kamarasy

had

disposed ofcertain recyclable and reusable parts.

Mr. Kamarasy denies,

however, that the

pile

was an “open dump”

and he denies, as ofMarch 25, 2004, that the pile contained the particular

---

items

that Mr. Terry claims

to have

seen.

In particular, Mr. Kamarasy denies that the pile

contained

dimenaional lumber, or metal siding.

Mr. Kamarasy does not know whether the materials that remained in

the pile

on March

25,

formally met- either of the

definitions of “general

construction or demolition

debris”

or

“clean construction or demolition debris”, since he does

not

know if

his

actions constituted

“demolishing”

the

abandoned mobile

homes,

or

whether the

materials therefrom

should

technically be described as “debris.”

See

415

ILCS

§

5/3.160(a)

and

415

ILCS

§

5/3.160(b).

Thatis a matter fOrthe Board to decide.

But, regardiess ofthe Board’s decision on this point, and even assuming further

that the

Board

decides

~ifr. Kamarasy did

create an

“open

dump” in

the

sense

intended

by

the

Pollution Control Act, the Board still must dismiss

this

“depositing

demolition debris”

charge

essentially forth~

same reason as the Board must dismiss the littering charge.

As

discu~s~ed

above, the littering

charge must be dismissed because the

Litter

Control

Act

expressly ~lgrants

a

landowner

the

right

to

deposit

on his

own

land

the

kind

of

“stuff”(which dOes

not spread freely onto

other people’s

land)

that Mr. Kamarasy deposited

at Bittersweet Fath, in the manner that he deposited it (so that it did not cause a public

nuisance,

or health, safety,Pand fire hazards).

Now, theCounty simply wants

to

rename

the same materials

—

the alleged dimensional

lumber, metal

siding, and dark paneling

—

as “demolition debris” rather than “litter”.

But,

Mr.

Kamarasy contends that merely changing the names of those

items

cannot transform the reality

of whetherMr. Kamarasy’s action in depositing them was lawful or unlawful.

Mr.

Kan~iarasy’scontention on

this

point

is

two-fold.

First,

he

cannot rightfully

be

convicted

of

both

charges

—

littering

and

depositing

demolition material.

Second,

if this

Board

agrees that he was not guilty of littering

because the Litter Control Act expressly

permits

his

action in

depositing material

from

abandoned mobile homes

on his

own property,

then

the

Board

must alsoPfind

that Mr. Kamarasy was not guilty

of unlawfully depositing demolition

debris for depositing these same items on the same land.

---

o

In addressing the first of these two arguments, Mr. Kamarasy wants to be very clear not

to

overstate

it. ‘While

fundamental fairness

dictates that

a

person not

be

convicted

(and

punished) twice~for

the exact same act, even if the act is

given two

separate

names by

the

prosecution, Mt~’

Kamarasy does recognize that in

some instances,

the prosecution may

be

unsure how to

characterize certain items,

whether as “litter”

or as “demolition

debris”

under

the Pollution

Control Act.

In that event, it

might make sense for the

prosecution to

bring

forward both charges and let the Board sort it out.

But this

Board

should

still only

convict on

one count.

Mr. Kam’arasy further recognizes that

in some cases, a person could run an

open

dump

site in which both~

litter, such as paper trash,

and

demolition debris,

such as broken

concrete or

bricks, are preselit.

In that case, the State, in principle,

could

charge the person separately

with

“littering” and

“~depositingdemolition debris.”

But that i~

not true ofthe case at bar.

Neither the inspector nor the County has

accused

Mr. Kamarasy

C-f depositing

different kinds

of “stuff’

in

his

pile.

There

is

only

one kind,

namely

the parts~from

the abandoned mobile homes

that

others left upon

Mr.

Kamarasy’s

mobile home park.

The County may

call this

“litter”.

Or it may call this “demolition

debris”.

But it cannot convict Mr. Kamarasy of two counts, littering and depositing demolition

debris,

on the basis ofa single act ofdepositing a single type ofmaterial.

In effect, iJackson County

is

asking this

Board

to

impose two

separate

fines

on

Mr.

Kamarasy for th~

exact same action involving

the exact same materials.

This

Board

should

decline to do so.

In makinig

the second argument

--

that this Board cannot simultaneously hold that the

items deposited ate lawful, whencalled litter, but unlawful, when called demolition debris

--

Mr.

Kamarasy also wishes to be

careful

not to

overstate his

argument.

Of course, it is

possible to

be acquitted und~r

one law because it does not apply, and then be convicted under

a

separate

law that does apply to the same act.

---

L

But the

difference in the case at bar is

that the

stuff at Bittersweet Farm is

the kind of

L

stuffthat the Litter Control Act was

intended

to regulate.

The County

already

conceded that

it

believes this is so, when

it

chargedMr

Kamarasy with pollution by

littering

for depositing

this

stuff on his property.

Of coursç~when one

checks the Litter Control

Act, it is

not

absolutely

clear on

this

r

point.

As already. noted, the LitterControl Act provides a long list of examples of items

that are

r

regulated under the Act.

The list does not

include

“material

from

abandoned mobile homes.”

-

But

the legislature was

careful

to

say that this

is

not the complete or defmitive list.

Items

like

the items on the list should also be regulated.

Materials from abandoned mobile homes

are the types of items

that might be unlawful

litter, if disposed:of in a

manner that violates

the Litter Control

Act.

The list also

specifies

furniture, and presumably the broken down pieces of furniture, as items that may be unlawful

L

litter, if disposedofin violation ofthe Litter Control Act.

Mr.

Kamarasy believes that any

dark

L

paneling or pieces of wood found at his

site, and

coming from the broken mobile homes

that

others

abandone;c~-:inhis mobile home

park,

are of

a type that

could be

compared

to

broken

L

down pieces of ftu

iture.

Mr. Kamarasy believes

the same can be

said of any pieces of wood

found at the site.

They likely came from items

that were furniture inside

the mobile

homes.

P

Mr. Kamarasy f

i~ther

believes that any metal

siding found at the site, -too,

would be

the type of

stuff the LitterControl Act was meant to

address.

In other Words, the materials from the abandoned mobile homes

are a subset of the stuff

-

that is potentiallytonsidered to be litter and addressed under the Litter Control

Act.

That being

so, sections

4

and 6

of the

Litter Control Act

expressly

say

to

a

landowner,

such as

Mr.

Kamarasy, that h~’

is lawfully entitled to deposit those things

on his

own land, so

long

as those

things do not fotm a public

nuisance, migrate to

the neighbor’s

property, or create

a

health,

safety, orfire hazaid.

Now, theprosecution wants to

argue that, nevertheless,

it

is

unlawful to

deposit

these

materials on

one’s own land, provided that

one

calls

them

“demolition

debris”

instead of

---

“litter”.

This is like believing that eating too much sugar-is unhealthy, but if the label

on the

box calls it sucrose instead, one can eat as much as one wants.

The prosecutor in this case, in effect, is asserting that the legislature has written two laws

on the subject.

Under one

law,

a landowner is

expressly

entitled to

deposit materials from

abandoned mobile homes on his own land (so long as certain

conditions

are

met);

under

the

other, it

is

always

unlawful

to

do

so

(at

least without obtaining

a

permit).

The

two

laws

therefore contradict each otherand cannot both represent the nature ofthe law in this State.

Furthermore, and not coincidentally, the Pollution Control

Act happens

to

have adopted

the definition of~~~tter

from the Litter Control Act.

In effect, that means that every landowner

had

a right to e4iect that any action of depositing

stuff on

his or her own land that

is

lawful

under the Litter Control Act would also be lawful under the Pollution Control Act.

By

contrast, the prosecutor wants this

Board to

declare that

Mr. Kamarasy’s

act

of

depositing materials from mobile homes that others

abandoned in

his

mobile home park on his

own land is both expressly unlawful under the littering section ofthe Pollution Control Act,

and

also expressly unlawful under the depositing demolition debris section of the

Pollution

Control

Act.

This positiOn is contradictory and should be adopted by the Board.

This

Board

should

rule

that the prosecution’s

theory

of

the

case

is

untenable,

and

dismiss Count (2) of the charges against Mr. Kamarasy.

VIII

IN JANUARY 2004,

THE PARTIES REACHED AN AGREEMENT

BY WHICH MR. KAMARASY PROMISED TO DISPOSE OF THE

MATERIALS ON

THE

STARVATION ACRES SITE BY

FEBRUARY 13, 2004, MR.

KAMARASY

ATFEMPTED TO HONOR

THE AGREEMENT, BUT WAS UNABLE TO DO

SO DUE TO

PROBLEMS OUTSIDE

HIS CONTROL, AND HE HAS SINCE

-

-

COMPLETELY

CLEANED UP THE

SITE

The Adthnistration Citation procedure

in

the Pollution Control Act provides a defense

in the case ofunavoidable circumstances.

If

the Board finds that the person appealing the citation

has

shown

that the violation resulted from

uncontrollable

circumstances, the

---

n

BOard shall adopt a final order which

makes

no

finding of violation

and which imposes no penalty.

-

~

415

ILCS

§

5/3f1(D)(2)

Mr.

Kamarasy will present evidence that, after receiving the January

9,

2004

letter from

Mr.

Hagston ab’out his

pile

at the Bittersweet Farm

site, he

came

to

an

agreement with

Mr.

Terry about cleaning

up the site.

The agreement was reached

in

January.

It

called for Mr.

Kamarasy to cle~n

up the site by February

13, 2004.

At

the time

he

entered

into the

agreement, Mr. Kamarasy

already

had

called Mr.

McMurphy to

haul away the non-recyclable materials and fully believed

that he

could meet the

February

13 target date

And, he will present evidence to

this Board that he did proceed with

due diligence

to iattempt to comply.

He

succeeded

in

arranging

to

have

all

the

recyclable

materials, including themetal

siding, taken to Karco Metals forrecycling; and,

as mentioned,

he

already had arranged with Mr. McMurphy to pick up the remaining materials and

take them to

a landfill.

1-

Unfortuñ~te1y,Mr. Kamarasy did

not

account

for

the

weather.

Mr.

McMurphy

intended to takethis heavy equipment onto the property to pick up the remaining material,

but

the ground was too wet and muddy.

Mr. McMurphy proposed to

wait for a solid freeze, but

such a freeze didnot occur prior to March 25.

Therefore,

Mr. Kamarasy was forced to

wait

until the ground dried up later in the spring before having the remainder of the material taken to

the landfill for disposal.

In Il1inois~Environmental

Protection Agency

v.

Marshall Pekarsky, AC 0 1-37 (Feb.

27,

2002), the Pollution Control Board

held that snow

was a sufficient excuse for not meeting the

terms of a compliance

agreement.

Rain

and mud

are just

as paralyzing in

circumstances

such

as this.

Therefore,

this

Board

should hold

that Mr. Kamarasy

was unable to comply with the

agreement with M:r. Terry due to circumstances (weather) that were beyond his controL

Of course~the County may argue that this is not a case of uncontrollable

circumstances

because Mr. Kamarasy had control when he created thepile.

But this is not the proper standard

---

for the defense-as defined by

the

statute.

See

Illinois

Environmental Protection

Agency

v.

Marshall Pekarsky,

supra.

Most

violations of the Act involve

some willful or negligent action

on the part of the alleged wrongdoer at some point

in the chain of circumstances that led to

the

violation.

Ifone willful or negligent act in the chain of circumstances

is

sufficient to

negate the

statutory defense ofuncontrollable circumstances, then the defense itself couldnever be used.

Again, under the principle that the legislature does not introduce language,

and

certainly

not whole defenses, that are superfluous, one must

presume that the words “resulted

from”

in

the phrase

“the violation resulted from

uncontrollable

circumstances”

does

not

subsume

everything in the chain of events that led to the violation, but

only

refers

to

those

events

that

triggered the final act ofissuing

a citation.

With that~jnmind, this Board should

note that,

in

January

2004,

the County

agreed that

it

would not proceed with prosecutonal action

if

Mr

Kamarasy complied with the agreement

It

is an uncontested-and uncontestable fact that

no administrative citation would have beenfiled ~

Mr. Kamarasy had

complied with

the agreement to

remove the material

to

the landfill by the

promised target date.

But Mr. Kamarasy was diligent in

trying to comply

with the agreement,

and the only reason he did not fully succeed in complying is

due

to

circumstances that were

truly beyond his control.

Had the County’s

inspector undertaken any

effort to

inquire of Mr.

Kamarasy why some of the material had not beenremoved by February

13, 2004,

it would have

learned about the -contractor’s inability to complete the job

due to

adverse weather conditions

and could have i~ade

a determination

whether to extend the target date to allow completion of

the job, or take sOme other action.

For thesei~reasons

alone, and in

accordance with the Marshall Pekarsky case, the charges

in this case should be dismissed.

---

IX

IT IS

UNFAIR,

AND A VIOLATION OF MR.

KAMARASY’S CONSTITUTIONALLY PROTECTED DUE

PROCESS RIGHTS, TO ACCUSE HIM

OF IMPROPERLY

CREATING AN OPEN DUMP SITE,

LITTERING, AND/OR

DUMPING DEMOLITION DEBRIS AT A SITE WHERE HE

IS

—

EXPRESSLY ENTITLED TO DEPOSIT THOSE SAME

MATERIALS

UNDER THE LITTER CONTROL ACT

The same act by

a

landowner cannot be

declared by

the State to

be

both

lawful

and

unlawful.

Yet,-äs discussed above

in

Section

VII, the

County

is

seeking

to

convict

Mr.

Kamarasy oftwo counts of pollution in

this

case, for an

act that

is

expressly

permitted by the

Litter Control Act.

The irony of this is

clear.

The Pollution Control Board

has adopted

the definition of

“litter”

as

it

is ~described in

the Litter Control

Act.

That should

mean that lawfulness

and

unlawfulness with respect to the matters covered by both Acts should be

the

same.

Yet, Mr.

Terry and the Jackson County prosecutor are asking this Board to hold, in effect, that it is

much

easierto

convictalandowner

ofpollution

(under the Pollution Control Act)

by littering

than it is

to convict the landowner simply oflittering (under the Litter Control Act).

But the problem goes deeper than irony.

It raises serious Constitutional concerns.

A basic tenet of due process is

that

a

citizen must

be

able to

reasonably

ascertain

whether an act that he is contemplating is lawful or not.

See e.g.

Granite City

Div.

Of Nat.

Steel

Co. v. Illinois Pollution Control

Board,

155

Ill.2d

149,

163,

184

Ill.Dec.

402,

613

N.E.2d 719

(1993)

Where the State has two laws, one of which tells the citizen unequivocally that the act

is

lawful, while the~ther tells the citizen, in effect, that the actis not lawful, it must be

true that one

or both of those

laws is unconstitutional.

Id.

Otherwise,

there would be

no possible

way for a

citizen to make the necessary determination about what is lawful conduct and what is not.

A landowner who wants

to

know

whether depositing

materials from

abandoned mobile

homes on his property is

perse

unlawful as littering has every reason to expect that reading the

Litter Control Act-will provide guidance.

And it does.

The LitterControl

Act specifically

states

that this is lawfuL

---

Now, the County wants to argue that,

while this

may be lawful under the Litter Control

Act, it is not lawful under the Pollution Control Act, and Mr. Kamarasy can still be charged with

unlawful “littering”

under the Pollution

Control Act.

In other words, the County

is

trying to

tell landowners that an act that is lawful as littering under the Litter Control

Act may

still be

unlawful for creating an open dump that results in littering

under the Pollution Control

Act.

How

could a landowner,

such

as

Mr.

Kamarasy, reasonably

be

expected to

ascertain this

twisted

logic?

The

answer

is

that

he could not!

And therefore,

the

charge

against

Mr.

Kamarasy for open dumping that resulted in

litter should

be

dismissed

by

this

Board

as an

unconstitutional charge.

Although-it is not quite as obvious,

the

same problem applies

to

the charge against Mr.

Kamarasy for open dumping that resulted in

depositing

demolition

debris

(meaning material

from the abandoned mobile homes)

on

his

land.

Given that the Litter Control Act instructs

landowners in plain language that they are permitted to deposit such material on their land, as

long as they do -~iot

thereby create

a

public nuisance, or a

health,

safety, or fire hazard, how

could Mr. Kamaràsy have reasonably anticipated that doing

so

would

violate the

Pollution

Control Act?

Thd answeris that he could not.

And, therefore, the charge against Mr. Kamarasy

for open dumping that resulted in depositing demolition

debris

should

also

be

dismissed by

this Board as an unconstitutional charge.

Every citizen of the United States

and the State of Illinois must be

able

to

reasonably

ascertain what is~awfuland what is not.

Otherwise law enforcement becomes simply a random

and uninte1ligible~

act.

For the State

to have

two laws, one of which told Mr. Kamarasy his

act

was lawful,

and~

One of which

supposedly

tells him that his

act was

unlawful

is