BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
R E C E ~V E D
CLERK’S
OFFICE
DEC
142004
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY
)
STATE OF ILLINOIS
)
PoUut~onControl Board
Complainant,
)
AC
04-82
)
V.
)
(IEPA No. 270-04-AC)
)
JOHN BROWN,
)
Respondent.
NOTICE OF FILING
To:
John
Brown
1805 Neville
Street
Metropolis,
IL 62960-1443
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution Control
Board of the State of Illinois the
following instrument(s) entitled POST-HEARING BRIEF OF
COMPLAINANT.
Respectfully submitted,
Michelle M. Ryan
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield, Illinois 62794-9276
(217) 782-5544
Dated:
December 13, 2004
THIS
FILING SUBMIUED
ON
RECYCLED PAPER
RECIEIVED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION
CONTROL
BOARD
DEC
14
2004
ILLiNOIS ENVIRONMENTAL
)
STATE OF ILLINOIS
PROTECTION AGENCY,
)
Pollution Control
Board
)
Complainant,
)
AC 04-82
)
V.
)
(IEPA No.
270-04-AC)
)
JOHN BROWN,
)
Respondent.
POST-HEARING BRIEF OF COMPLAINANT
On June 2, 2004, the Illinois Environmental Protection Agency (“Illinois EPA”) issued an
Administrative Citation to
John Brown (“Respondent”).
The citation alleges violations of
Section 21Qi)(1) and
2l(p)(7) ofthe Environmental Protection Act
(“Act”) (415 ILCS
5/2l(p)(l)
&
(7) (2002)), in that Respondent caused or allowedopen dumping of waste, resulting in
litter
and the deposition ofconstruction or demolition debris.
The violations occurred at a property
located at
955
Country Club Road, just north of Metropolis, Massac County, Illinois.
Transcript,
p.
6; Exhibit
1.
Illinois EPA has demonstrated that Respondent caused or allowed open dumping on the
site.
“Open dumping” means “the consolidation of refuse from one or more sources at a disposal
site that does not fulfill the requirements of a sanitary landfill.”
415 ILCS
5/3.305
(2002).
“Refuse” means “waste,” (415 ILCS
5/3.385
(2002)), and “waste” includes “any garbage.
.
.
or
other discarded material” (415 ILCS
5/3.535
(2002)).
The inspection report admitted into
evidence as Exhibit
1
and
the testimony at hearing show that wood and
metal, which had
previously been part ofa building, were accumulated on the site.
Tr.
at 7-8,
10; Exh.
1, pp.
3,
5-
6.
These materials constitute “discarded material” within
the meaning of the term “waste.”
The
testimony from all witnesses shows that Respondent owned the property at the time of the
inspection.
Tr. at 6,
9, see also
Tr.
at
16.
Respondent
further admitted that he brought
the waste
from a burned building out to the site.
Tr.
at 10.
As such, Respondent caused or allowed the
open dumping ofwaste
observed on April 7, 2004.
Respondent’s causing or allowing the open
dumping ofthese wastes resulted in “litter”
under Section 2l(p)(l) ofthe Act (415 ILCS S/2l(p)(l) (2002)).
The Act does not define “litter,”
but in similar cases, the Board has looked to the definition of “litter” in the Litter Control
Act:
“Litter” means any discarded, used orunconsumed substance orwaste.
“Litter” may
•
include, but is not limited to, any garbage,trash, refuse, debris, rubbish.
.
.oranything
else of an unsightly or unsanitary nature, which has been discarded, abandoned or
otherwise disposed ofimproperly.
415 ILCS 105/3(a) (2000); see St.
Clair County v. Louis I. Mund
(Aug. 22, 1991), AC 90-64, slip op.
at 4,6.
Using this definition, thewood and metal from theburned building constitute“litter” under
Section 2l(p)(l) ofthe Act, and therefore Respondent violated that section.
Respondent’s open dumping ofthese wastes also resulted in the deposition of
construction or demolition debris in violation of Section 2l(p)(7) ofthe Act (415 ILCS
5/2l(p)(7) (2002)).
“Construction ordemolition debris” is defined in part, as follows:
“General construction or demolition debris” means non-hazardous,
uncontaminated materials resulting from the construction, remodeling, repair, and
demolition
ofutilities,
structures,
and roads, limited
to the following:
bricks,
concrete, and other masonry materials; soil; rock;
wood,
including non-hazardous
painted, treated, and coated wood and wood products; wall coverings; plaster;
drywall; plumbing fixtures; non-asbestos insulation; roofing shingles and other
roof coverings; reclaimed
asphalt pavement; glass; plastics that are not sealed in a
manner that conceals waste; electrical wiring and components containing no
hazardous substances;
and piping or
metals
incidental to any ofthose materials.
415 ILCS 5/3.160(a) (2002) (emphasis added).
2
As described above, the waste material
located on the site was wood and metal from a burned
structure.
The term “demolition” is not separately defined in
the Act, but the American Heritage
Dictionary, Second College Edition (1991) defines demolition as “The act or process ofwrecking
or destroying, esp. destruction by explosives.”
Clearly, this definition contains no element of
intent, and includes unintentional destruction as well as intentional wrecking.
Further, the
burning ofa building can properly be characterized as “destroying,” particularly in this case,
where the resulting debris needed to be disposed.
Therefore, the wood and metal from the
burned building on the site meets the definition of“construction ordemolition debris” for
purposes ofSection 2l(p)(7) of the Act, and
therefore Respondent violated that section.
Respondent
alleged that
he
did
not
know
that hauling
the burned
debris
to
his
site for
dumping and further burning was illegal.
Tr. at 10.
A person can causeorallow a violation ofthe
Act without knowledge orintent.
County of Will v.
Utilities Unlimited,
Inc.,
et a!. (July 24,
1997),
AC
97-41,
slip
op.
at
5,
citing
People
v.
Fiorini,
143
I1l.2d
318,
574
N.E.2d
612
(1991).
Furthermore, the conversation Respondent had with theIllinois EPAinspector about theillegalityof
his actions occurred in October 2003, approximately 6 months before the April 7, 2004 inspection
daterelevant to this Administrative Citation action.
Id.
Therefore, Respondent’s alleged ignorance
ofthe law is no defense.
Respondent also alleged that he could
not remove the waste due to the wet weather.
Tr.
at
10.
The Illinois
EPA
inspector testified
that
although
some
areas were
wet
during
the
April
inspection, there were dry areas as well.
Id.
Furthermore, the weather during April 2004
is not
as
relevant to Respondent’s alleged inability to conduct the work as the weatherbetween the time the
material
arrived on
site
and
April
7,
2004,
when the inspection
was
conducted.
Illinois
EPA
originally observed
the material on
site
in
October
2003.
Tr.
at
12.
According to
the National
3
Weather Service, monthly normal temperatures forthe State ofIllinois remain below freezing for the
months of December,
January and
February.’
Although
these
averages may not be
specifically
representative ofthe weatherin Massac County in 2003, it is likely that the ground would havebeen
dryand/or frozen during at least some part ofthe period between October2003 and April 2004.
The
Illinois
EPA inspector testified that
it would
have taken no more than two
weeks to remove the
estimated 30-40 cubic yards ofmaterial from the site.
Tr. at 12.
Therefore, Respondent’s complaints
about poorweather do not rise to the level ofthe “uncontrollable circumstances” requiredby Section
31.1 (d)(2) ofthe Act to provide a defense to the violations.
Respondent also raises the common defense ofpoverty, in that he was financially unableto
remove the waste from the site during the six months between October 2003 and April 2004.
Tr. at
13,
16.
In fact, Respondent did not have the waste removed until October 2004, approximately a
year after it
was first
observed
by
Illinois
EPA.
Tr.
at
14.
However, Respondent offered
no
documentary
evidence
of his
financial
condition,
either
by
way of tax
Teturns,
bank
account
statements, orcredit reports to verifyhis claims.
Therefore, he has not carried his burden ofproof as
to
this
affirmative defense.
Furthermore, even if the allegation that Respondent had a financial
inability to
comply with the
law were
taken as true,
Respondent introduced no evidence that his
fitiancial
condition
was
the
result
of “uncontrollable
circumstances,”
as
required
by
Section
31.1 (d)(2) oftheAct to providea defense.
At worst, theevidence shows that Respondent’s financial
situation is fluctuating, because he was ableto afford to properlydispose ofthe waste, once Illinois
EPA filed this Administrative Citation and set it for hearing.
Tr.
at 13,
17.
The Illinois EPA photographs and inspection report and the eyewitness testimony show that
Respondent
allowed
open
dumping
of waste
in
a
manner resulting
in
litter
and
deposition of
‘See http:Jh~’.ww5
.ncdc.noaa.gov/climatenormalslhcs/HCS_4 I
.pdf
4
construction or demolition debris in violation ofSections 2l(p)(l) and 2l(p)(7) ofthe Act.
Illinois
EPA requests that the Board enter a final order finding that Respondent violated these sections and
imposing the statutory penalty.
Respectfully Submitted,
DATED:
December 13, 2004
)‘~
~
Michelle M. Ryan
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield, Illinois
62794-9276
(217) 782-5544
5
PROOF OF SERVICE
I hereby certify that I did on the
13” day ofDecember
2004, send by U.S. Mail
with postage
thereon fullyprepaid, by depositing in a United States Post Office Box a true and correct copy ofthe
following instrument(s) entitled POST-HEARING BRIEF OF COMPLAINANT
To:
John Brown
1805 Neville Street
Metropolis,
IL 62960-1443
and the original and nine (9) true and correct copies ofthe same foregoing instruments
To:
Dorothy Gunn, Clerk
Pollution Control Board
James R.
Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
•
________
Michelle M. Ryan
Special Assistant AttorneyGeneral
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield, Illinois
62794-9276
(217) 782-5544
THIS FILING SUBMITTED ON RECYCLED PAPER
