RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ADMINISTRATIVE
CITATION
STATE OF ILLINOIS
Pollution Control Board
COUNTY OF JACKSON,
)
)
Complainant,
)
)
v.
)
AC 04-63
)
(Site Code:
0778095036)
)
AC 04-64
)
(Site Code: 0778125013)
EGON KAMARASY,
)
(AC’s Consolidated)
)
Respondent.
)
COMPLAINANT’S POST
HEARING/CLOSING BRIEF
The Complainant herein, the CountyofJackson, Illinois, files its post hearing
-
closingbrief
in the matter.
INTRODUCTION
AND
PROCEDURAL HISTORY
In April 2004 the Complainant filed with the Illinois Pollution Control Board (Board) two
separate
administrative
citations
against
the
Respondent
under
Section
31.1
of the
Illinois
Environmental Protection Act, 415 ILCS 5/31/1 (2002)(theAct).
The cases were docketed as AC 04-
63 and AC 04-64.
The Respondent filed timelyresponses to the citations.
On August 30, 2004 the
Complainant filedwith theBoard a motion to consolidate thetwo administrativecitatk~nswhichv.as:
granted by the Board on September 2, 2004.
The case was heard by Hearing OfficerCarol Webb in
Murphysboro,Illinois on November22, 2004.
She filed her reportwith this Board onNovember 23,
2004.
Page
1 of
12
Onsite number0778095036 (hereinafterreferred to as the Makandasite) the citation alleges
violations ofSection 21(p)(l) and(7) resulting from an inspection conducted March
25,
2004.
On site
number 0778125013 (hereinafterreferredto as the Carbondale site) the citation alleges violations of
Section 2l(p)(l),(3), and (7) resulting from an inspection conducted
March 25, 2004.
In total it is
alleged there have been five violations of Section 21(p) ofthe Act by the Respondent.
Site No. 0778095036
-
MAKANDA
SITE
FACTS
Pursuant to the Jackson County Health Department’s delegationagreement with IEPA, Don
Terry, certified IEPA solid waste inspector (Tr. at 8, and Complainant’s Exhibit
1, p.1), conducted
an inspection ofthis site on March
25,
2004 (Complainant’s Ex.
1, p.1).
On that day he observed a
pile ofmaterial containinggeneral construction debris as evidenced by thephotographs takenthat day
(Complainant’s Ex.
1, p.7) and his inspection reportfrom that day (Complainant’s Ex.
1, pp.2 and 3).
Atthe hearing ofthis matter he furtherelaboratedthat on the day oftheinspection he observed a debris
pile about 100 yards eastofa gate consistingofdimensionallumber and siding and approximately 100
cubic yards in size.
Tr. 10.
The recordnotes the sitehad not been issued a permit to conduct awaste
storage, waste treatment, or waste disposal operation. Complainant’s Ex.
1, p.
3 and Tr.
13
and 14.
The
inspection
took
place
entirely
from
a
public
road
way
as
shown
from
his
site
sketch
(Complainant’s
Ex.
1,
p.
4), his
testimony at the hearing (Tr.
31), and
his inspection
affidavit
(Complainant’s Ex.
1, p.
1).
Page2 of
12
Entirely
corroborating the
Complainant’s case,
is
the
Respondent’s
own admission
in
paragraphs 7 through 9 ofhis Petition to Contest Administrative Citation that: (1) he ownedthe site
in question at the time in question; and (2) he caused the debris to be deposited at the site from his
mobile home park (resulting from an order ofthe Illinois Department ofPublic Health); and (3) the
debris pile at the time of the inspection consisted ofabandoned mobile
homes.
Respondent also
testified that the Complainant’s photos and
site sketch were accurate (Tr.
45),
that he
moved the
mobile homes from his mobile home park to the site in question (Tr.
49-51),
and the pile was visible
from the public road (Tr.
52).
At the hearingthere was evidence presented ofan earlier inspectionofthis site by Mr. Terry
on December 5, 2003.
Complainant’s Ex.
1, pp 8-9,along with photos ofthat inspection atpp 10-11.
Mr. Terry testifiedthat little had changedat the site from his earherinspection on-December 5,2003
and the later inspection in March 2004.
Tr.
13.
ARGUMENT
Open dumping
is
defined as
‘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 is defined as “waste” (415 ILCS
5/3.585
(2002)), and
waste includes “any garbage.
.
.
or
other discarded material
.
.
.
.“
415
ILCS
5/3.535
(2002)).
Disposal
is defined as “the discharge,
deposit, injection, dumping, spilling, leaking orplacing ofany waste.
.
.
into or onto land.
.
.
.“
415
ILCS
5/3.185
(2002)).
Litter
is
defined
in
the
Litter
Control
Act
as
‘any
discarded,
used or
unconsumed substance orwaste..
.
oranything elseofunsightlyor unsanitarynature, which hasbeen
discarded,
abandoned or otherwise
disposed
of improperly.”
415
ILCS
105/3
(2002).
Finally,
general
construction or demolition
debris
is
defined in
Section
3.160 ofthe Act
(2004) as non-
hazardous,
uncontaminated
materials resulting
from
the
construction,
remodeling,
repair,
and
Page3of
12
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-asbestosinsulation, roofing
shingles and roofcoverings.
..
.“
It is not contested that the Respondent owned and controlledthe site at all material times.
It
also is not contested the Respondent causedthe open dumping thatis the subjectofthese proceedings.
He admitted the dumping consisted ofsome abandoned mobile homes from a mobile home park he
owns elsewhere.
In its defense the Respondent raises several issues.
These arguments are primarily taken up
in Respondent’s memorandum supporting its petitionto contest theadministr-ativecitation (R. Ex.
1-5).
Complainant will address eachone ofthe issuesas best itcan discern fromRespondent’s memo what
those issues
are.
Respondent first raises an issue of credibility ofthe Complainant inspector’s reports
and
testimony; and requests this Board to disregard what the inspector observed, recorded, and testified
to.
The problemwith this argument is that virtuallyall the inspectorobserved, recorded,and testified
to is corroborated by the Respondent. The Respondentadmitted the pile contained debris consisting
of materials from
abandoned mobile
homes; and
that
he put the debris
pile
on
his
land.
It
is
disingenuous to now arguethe inspector’sreportcannotbe believed. Mr. Terryhasconsistently stated
what he observed and put that information into hisreports and reiterated all ofhis observations atthe
hearing.
These is absolutely nothing ‘speculative’ (as Respondent argues in his memo) about Mr.
Terry’s observations
and reports.
Page4of
12
TheRespondent nextargues thatit is a necessaryelementofthe Complainant’scasethat itmust
prove the debris had been orwas likely to be emitted intothe environment, citing Section 3.185 ofthe
Act.
This is incorrect. Proofofdumping is all that must be shown.
Sections 2 and 20 ofthe Act stand
for the proposition and
declared public policy in this
State that the provisions ofthe Act are to be
liberally construed and that ‘the failure to salvage and reuse scrap..
.
contributes to the degradation
ofour environment.”
415 ILCS 5/415 20(3)(2002).
The preceding clause is but one ofmany ofthe
declaredpolicies ofthis State to preventand rectify pollution-inafi ofits forms.
A showingofactual
or likely emission orpollution runsstarklycounter to thebroad, preventive, and remedialpurpose of
the Act; and would
make any successful prosecution under
Section
21(p) nearly impossible
and
subject to overly technical scientific theories and data.
TheRespondent continues his defense stating that litter-isnot clearlydefined and one cannot
know what one is to avoid doing.
This argument has already been taken up by this Board and the
courts in othercases and concluded that the meaningoftheword ‘litter’ is clearlyunderstood by any
person with common intelligence.
Miller v.
Illinois Pollution Control Board,
267 Ill. App. 3d
160
(4th
Dist.
1994).
The record in this matter speaks for itself.
Respondent then argues that the Litter
ControlAct (415 ILCS
105/1 ~
~g,.) limits orcontrols an open dump litterviolation under Section
21(p) ofthe Act.
This is also incorrect.
Section 21 pertains to littering in an open dumping context.
TheLitter ControlAct speaks to othertypesoflittering violations.
Both Actsare cumulative, and not
dependent upon each other, as to violations forlittering.
Moreover, the Litter Control Act does not
say (nor has a tribunal ofcompetentjurisdiction ever determined) the provisions and requirements
found in the Litter Control Act are applicable to any facet of a
Section
21
case other than to
the
definition of‘litter.’
~
415 ILCS
105/8(c).
$~
~
Miller at
169; City of Chicago v.
City Wide
Disposal, Inc., AC 03-11
(Sept. 4, 2003).
Page5of
12
TheRespondent also argues that it is incorrectto chargehimtwice forthe same thing. Again,
this is not correct.
This Board has held that multiple charges for the same offense is acceptable and
prior Board precedent hasallowed it.
State ofIllinois v. Community Landfill Co., Inc., PCB No. 97-
193 (October 3, 2002).
Notwithstanding the above, it must be added here the Act intends that each
and every violation declared in Section 21(p) is a separate and distinct violation even if the debris
causing each of these violations is the same.
The Respondent then takes issue with these proceedings because he believed there was an
‘agreement’ between the Complainant and him regarding clean up and the Complainant should be
bound by theagreement. He statesthat in January2004 he spokewith the Complainant’s inspectorand
was givensome time to clean up the site.
Tr. 35.
Thereare a numberofproblemswith this argument.
First, the conversations in January 2004 cannot be labeled as an agreement.
The
Respondent does
not saywhat is the legal basis for suchan ‘agreement.’ Ifanything all these conversations amounted
to was an attempt to settle the matterwithout furtherlegal proceedings.
Inany event,as Respondent
admits, he could not fulfill his promise to clean the site up by the time given.
Id..
He claims the
weatherprevented him from doing so.
R. Ex. 1-5, p.37. More importantly, this Board hasrepeatedly
held that clean up efforts are not a mitigating factor under the administrativeci-tationprogram.
çjty
of Chicago v. City Wide Disposal, Inc., AC 03-11 (September 4, 2003).
CONCLUSION
Respondenthas admitted, and therecord is otherwise clear, to every factual elementneeded
to
show Section
21 (j)(1)
and (7) were
violated.
The Respondent offers several legal
arguments
intending to
make the case why he, despite the facts,
should not be found to have violatedthe Act.
Noneofthe arguments are persuasive. The caseat hand is simply aboutan open dump site operating
withoutthe necessarypermits owned and controlledbythe Respondentwho causedabandonedmobile
Page6of
12
homes to be deposited at his site from another site also owned and controlled by him.
For all the
above reasons
the Complainant
requests
the
Board
to
find the Respondent did
violate Section
21(j)(1)&(7) ofthe Act at his Makanda site on March
25,
2004, and impose a fine of$1,500.00 for
each violation for a total of$3,000.00.
SITE
NO. 0778125013
-
THE CARBONDALE SITE
FACTS
Pursuant to the Jackson County HealthDepartment’s delegationagreement with IEPA, Don
Terry, certified IEPA solid waste inspector conducted an inspectionofthis site on March 25, 2004.
Tr.
14 and Complainant’s Ex.
1, pp.12-15.
On that day he observed a debris pile approximately ten
(10) cubicyards in size that had beenburned and comprisedofashand charredremainsofdemo1itii~n
lumber. Tr.
14-15.
He also
observed the charred remains ofa mattress spring and metals.
Tr.
15.
His inspection report andphotos from that day (Complainant’s Ex.
1, pp.13,24-26) evidence thepile
containedmetal framesfrom furniture, a windowairconditioner, a laminate countertop, fencesposts,
and metal cans.
At the hearingthe Respondenttestifiedthe pile contained lumber, old furniture, and
construction material, among otherthings.
Tr. 63.
The Respondent further admitted he owned and
controlled the site in question and caused and
burned the
pile.
Tr.
62-64. ~
~
Respondent’s
Amended Petition to
Contest Administrative Citation.
One ofhis witnesses also admitted to the
burning (Tr. 71)and identified one ofthe items burned as a sink.
Tr. 72.
Respondentand one ofhis
witnesses even admitted that Respondent has been burning at the site for years.
Tr. 64 &
74.
Page 7of
12
The inspector, Mr. Terry, furthertestifiedand documentedthat he had initially inspected the
site on March 11, 2004.
Tr.
16
& Complainant’s Ex.
1, pp. 16-21.
Mr. Terry further testified that a
dwelling unit did not exist on the site.
Tr.
16.
Nor was one
indicated on inspector’s site sketch.
Complainant’s
Ex.
1,
p.
15.
Respondent testified the site is
a farm and
that his
dwelling unit
is
adjacent to
the site.
Tr.
59.
Mr. Terry said the debris pile had been originally reported to him by
another employee of the Health Department; and Mr. Terry could see the pile from the public road
with the naked eye.
Tr. 40.
Respondent refutes that and states the pile could not be
seen from the
public road.
Tr.
62.
The site had not been issued the requisite permits to operate as a dump.
Tr.
17.
ARGUMENT
Open dumping is defined as ‘the consolidation of refuse
from
one or more sources at a
disposal site that does not fulfill the requirements ofa sanitary landfill.” 415 ILCS
5/3.305
(2002).
Refuse is defined as “waste” (415 ILCS
5/3.585
(2002)), and waste includes “any garbage
.
.
.
or
other discarded material
.
.
.
.“
415 ILCS
5/3.535
(2002)).
Disposal is defined as “the discharge,
deposit, injection, dumping, spilling, leaking or placingofany waste.
.
.
into or onto land...
.“
415
ILCS
5/3.185
(2002)).
Litter
is
defined
in
the
Litter Control
Act
as
‘any
discarded,
used or
unconsumed substanceorwaste.
.
.
oranything elseofunsightlyor unsanitarynature, which hasbeen
discarded, abandoned orotherwise disposed ofimproperly.” 415 ILCS 105/3 (2002).
Open burning
is defined as thecombustion ofany matterin the open-or-in-an-opeiidum-p.
415 ILCS 5/3.300(2002).
Finally,
general construction or demolition debris is defined in
Section 3.160 ofthe Act (2004) as
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 woodand
woodproducts; wall coverings;plaster; drywall; plumbing fixtures; non-asbestos insulation, roofing
Page8of
12
shingles and roof coverings..
.
As with the first site above, the essential facts ofthe case are clear.
The Respondent caused
the dumping ofvarious items and construction debris on his land without proper permits and caused
them to be burnt in the open.
None ofthese facts is disputed. The Respondent raises various issues
in his trial memorandum (Respondent Ex.
1) that he believes will convince this Board there is not a
violation ofany laws.
The Complainant will address eachone ofthese issues as far as it can discern
what the issues are from his trial memo.
Respondentfirst raises theissue that thesearch by the inspector, Mr. Terry,was not conducted
according to constitutionaland statutory framework. Respondent claims the debris pile couldnot be
seen from the road and that the inspector did not have permission or a search warrant to enter onto
Respondent’s site. Mr. Terry, however, testifiedthat he could see the pile from the public road with
the naked eye; and that the pile had been originally reported to him by another inspector from the
Health Department. The Respondent hasthe burdenofpersuasionwith thisdefense.
Miller v. Illinois
Pollution Control Bd., 267 Ill. App. 3d
160
(4th
Dist. 1994); Village ofBridgeviewv. Slominski, 74
Ill. App. 3d
1
(1St
Dist.
1979).
The inspector statedhe sawthe pile from the road and went onto the site to get a closerlook.
In Miller the inspector went onto the defendant’s land after he spotted a potential violation from a
road.
Miller
found nothing
wrong with
this
search
and
dismissed
the
defendant’s
argument.
Moreover, the inspector as the agent ofthe Illinois Environmental
Protection Agency has broad
authorities under the Act to inspect and investigate violations.
Illinois Environmental
Protection
Agency v.
Thomas, Ac No.
89-215 (January 23
,
1992).
The Respondent had no expectation of
privacy in a debris pile that could be seen from a public road.
Mr. Terry has broad authority to look
for violations ofthe Act; and there was no illegal search.
Page9of
12
The Respondent next seems
to advocate that it is
not a violation of Section 21(p) if only
household
(whatever that term means) and
landscape
waste
is
dumped on the site where
it was
generated; especiallyifthe accumulation is minoras allegedhy theR-espondent.
There are,however,
several problems with this argument.
One, the record is clear the Respondent depositedand burned
more than landscape and ‘household’ waste.
The recordestablishes therewasalso present atthe pile
demolition lumber, a sink, a sofa, a mattress,an air conditioner,and fenceposts. Second, Respondent
doesnot cite any authority forhis beliefthat ‘household’ waste is okay to accumulate and bum. Third,
a ten cubic yard burn pile is not a minor accumulation. ~
The Peoplev. Dixon-Marquette Cement,
~pç.
343
Ill. App.
3d
163 (2d Dist.
2003)(good discussion of the on site waste
generation issue).
Fourth,
a dwelling
unit
did
not exist at the
site.
Where did
the
‘household’
waste come from?
Assuming for argument sake that such a defense forminor accumulations ofon site generated waste
exists in the context ofa Section 21(p) violation, the Respondenthasnot shown his circumstances fit
that defense.
As with the first site (Makanda) above,the Respondentgoes on againto takeup the issue that
illegal open dumping requires a showing the Respondent’s debris was actually polluting orlikely to
pollute the environment.
Following that issue the Respondent again reargues the samepoints with
respectto what constitutes littering.
Complainant renews and restatesthe sameargumentshereitmade
previously with respect to these particular issues ofthe Respondent with the first site (Makanda)
above.
Respondent then raises the issue that he is exempt from or not in violation of open burning
violations because he met ormeets the exclusionsorconditions foundin part 237 ofthe Board’srules.
Respondent argues the items atthe site were either domicile waste, landscape waste, oragricultural
waste and that he is allowed to bum these items if he meets the conditions ofPart 237.
Aside from
PagelOof
12
the obvious point that a mattress and sofa couch cannot be (under any liberal interpretation ofthe
definitionofthese terms)considered anyofthesetypes ofwastes, and that there is no domicile on the
site,the Respondent’s use ofPart 237 is misplaced.
Part 237
is simply immaterial to a Section 21(p)
case asthe ruleplainly states itimplements Section
10 oftheAct pertainingto airpollution. Nowhere
does it state nor has the Respondent cited any authority that Part 237 provides a basis for a defense
or limitation to a Section 21(p) administrative citation brought under Section 31.1ofthe Act.
Respondentthentakes up theargumentthat he did not depositconstruction or-demolition debris
at the site.
The facts in evidence clearly belie this argument.
Dimensional lumberwas observed in
the debris pile and is clearly visible in the photographs.
It can also been seen and it is documented
that portions offence posts were in the pile and burned as well as counter tops.
All ofthese type of
items
meet the definition of construction or demolition debris.
The Respondent then concludes his defense making the same two argumentshe did with-the
Makandasite aboveaverring that the requirements and limitations foundin the LitterControl Act are
a necessaryelement for Section 21(p) violations; and that it is improper to cite multiple charges for
the samesingle act. Complainant renews and restateshere the same points madepreviouslyon these
issues in the Makanda site discussion above.
CONCLUSION
Respondent has admitted, and the record is clear, to every factual element needed to show a
violation under Section
21 (p)(1 ),(3), and (7) ofthe Act.
None of the arguments advanced by the
Respondent arepersuasive. This matter is simplyabouta Respondentdepositing asignificantarnount
ofwaste and debris onto his land from multiple sources and then burning it, all without the required
permits.
Therefore, for all of the above reasons the Complainant requests
this Board to find that
respondent did violate sub-section (1), (3), and (7) of Section 21(p) ofthe Act on March
25,
2004,
Page 11 of
12
and impose a fine of $1,500.00 for each violation for a total of$4,500.00.
Respectfully submitted,
el Brenner
Assistant State’s Attorney
Jackson County Courthouse,
3rd
Floor
Murphysboro, Illinois
62966
618-687-7200
Forthe Complainant
Pagel2of
12
PROOF OF SERVICE
I hereby certify that I did on the
3rd
day ofJanuary 2005, send by U.S.
Mail, with postage
thereon fully prepaid, by depositing in U.S. PostOffice Box a true and correct copy ofthe following
instrument(s) entitled COMPLAINANT’S POST HEARING/CLOSING BRIEF
To:
Gregory A. Veach
Carol Webb
3200 Fishback Road
Hearing Officer
P.O. Box
1206
Illinois Pollution Control Board
Carbondale,
IL 62903-1206
1021 North Grand Avenue East
P.O. Box 19274
Springfield,
IL 62794-9274
and the original and nine
(9) true and correct copies ofthe same foregoing instruments on the same
date by U.S.
Mail with postage thereon fully prepaid.
To:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
~
~
D~ielBrei~ner~~
Assistant State’s Attorney
Jackson County Courthouse, Third Fl.
Murphysboro, IL 62966
618-687-7200
FILING
SUBMITTED ON RECYCLED PAPER
