2

of fact. The Board then discusses the County’s alleged violations and Kamarasy’s claimed

defenses before the Board renders its legal conclusions.

 

LEGAL FRAMEWORK

 

Under the Act (415 ILCS 5 (2002)), an administrative citation is an expedited

enforcement action brought before the Board seeking civil penalties that are fixed by statute.

Administrative citations may be filed only by the Illinois Environmental Protection Agency

(Agency) or, if the Agency has delegated the authority, by a unit of local government, and only

for limited types of alleged violations at sanitary landfills or unpermitted open dumps.

See

415

ILCS 5/3.305, 3.445, 21(o), (p), 31.1(c), 42(b)(4), (4-5) (2002); 35 Ill. Adm. Code 108.

 

The Agency or delegated local authority must serve the administrative citation on the

respondent within “60 days after the date of the observed violation.” 415 ILCS 5/31.1(b)

(2002));

see also

35 Ill. Adm. Code 108.202(b). The Agency or delegated local authority also

must file a copy of the administrative citation with the Board no later than ten days after serving

the respondent.

See

415 ILCS 5/31.1(c) (2002).

 

To contest the administrative citation, the respondent must file a petition with the Board

no later than 35 days after being served with the administrative citation. If the respondent fails to

do so, the Board must find that the respondent committed the violations alleged and impose the

corresponding civil penalty.

See

415 ILCS 31.1(d)(1) (2002); 35 Ill. Adm. Code 108.204(b),

108.406.

 

If the respondent timely contests the administrative citation, but the complainant proves

the alleged violations at hearing, the respondent will be held liable not only for the civil penalty

but also for the hearing costs of the Board and the complainant.

See

415 ILCS 5/42(b)(4-5)

(2002); 35 Ill. Adm. Code 108.500. However, if the Board finds that the respondent “has shown

that the violation resulted from uncontrollable circumstances, the Board shall adopt a final order

which makes no finding of violation and which imposes no penalty.” 415 ILCS 5/31.1(d)(2)

(2002);

see also

35 Ill. Adm. Code 108.500(b).

  

PROCEDURAL HISTORY

 

On April 7, 2004, the County timely filed two administrative citations against Kamarasy,

which the Board docketed as AC 04-63 and AC 04-64. AC 04-63 concerns the Makanda site and

AC 04-64 concerns the Carbondale site.

1

Both site inspections, on which the respective

administrative citations are based, took place on March 25, 2004, and both administrative

citations were served on Mr. Kamarasy on April 2, 2004, by hand delivery. On May 7, 2004,

Kamarasy timely filed separate petitions contesting each of the administrative citations.

 

In a May 20, 2004 order, the Board accepted for hearing Kamarasy’s petition in AC 04-

63, but granted Kamarasy leave to file an amended petition in AC 04-64 to correct an apparent

1

The Board cites the County’s Makanda administrative citation as “AC 04-63 at _,” and the

County’s Carbondale administrative citation as “AC 04-64 at _.”

---

 

3

clerical error in setting forth the grounds for appeal. Kamarasy timely filed an amended petition

in AC 04-64 on June 22, 2004, which the Board accepted for hearing in an order of July 8,

2004.

2

On August 30, 2004, the County filed a motion to consolidate AC 04-63 and AC 04-64,

which the Board granted in a September 2, 2004 order.

 

On November 22, 2004, Board Hearing Officer Carol Webb conducted a hearing on the

two administrative citations at the Jackson County Health Department in Murphysboro. At

hearing, six witnesses testified: Don Terry, a solid waste inspector for the Jackson County

Health Department; Kamarasy; Phillip McMurphy, an excavator; Archie Mays; James Taylor;

and Kerry Grunloh. The latter three witnesses worked for Kamarasy at the sites. The hearing

officer found all of the witnesses credible.

3

Tr. at 66, 68, 70, 73, 78.

 

Both parties offered exhibits into evidence at hearing, all of which were admitted into the

record without objection. The County’s lone exhibit consists of Terry’s inspection reports for

both sites.

4

For AC 04-63, Kamarasy’s five exhibits consist of letters from the Illinois

Department of Public Health, the Jackson County Health Department, a site sketch, and an

invoice for work performed at the Makanda site. Kamarasy’s exhibits for AC 04-63 are attached

to a “Memorandum Supporting Petition to Contest Administrative Citation.” For AC 04-64,

Kamarasy’s one exhibit is a receipt for work performed at the Carbondale site. Kamarasy’s

exhibit for AC 04-64 is attached to a separate “Memorandum Supporting Petition to Contest

Administrative Citation.”

5

   

 

The County filed a brief on January 7, 2005, pertaining to both AC 04-63 and AC 04-64.

Kamarasy filed a response brief on February 2, 2005, concerning AC 04-64, and another

response brief on February 3, 2005, concerning AC 04-63. The County filed a reply brief on

February 10, 2005, concerning both AC 04-63 and AC 04-64.

6

      

 

2

The Board cites Kamarasy’s petition to contest the Makanda citation as “04-63 Pet. at _,” and

his petition to contest the Carbondale citation as “04-64 Pet. at _.”

  

3

The Board cites the hearing transcript as “Tr. at _.”

  

4

The Board cites the County’s exhibit as “County Exh. at _.”

 

5

The Board cites Kamarasy’s exhibits for the Makanda site as “04-63 Exh. _ at _,” and his

memorandum for the Makanda site as “04-63 Memo at _.” The Board cites Kamarasy’s

memorandum for the Carbondale site as “04-64 Memo at _.”

   

6

The Board cites the County’s opening brief as “County Br. at _,” and the County’s reply brief

as “County Reply at _.” The Board cites Kamarasy’s response briefs as “04-63 Resp. Br. at _”

for the Makanda site, and “04-64 Resp. Br. at _” for the Carbondale site.

---

 

4

FACTS

 

The Agency has delegated administrative citation authority to the Jackson County Health

Department (JCHD) by agreement.

7

Tr. at 8-9. Terry is a solid waste inspector with JCHD. Tr.

at 7; County Exh. at 1. Terry received a certificate from the Agency documenting his solid waste

site inspector training. Tr. at 8.

 

AC 04-63: Makanda Site

 

On March 25, 2004, Terry inspected a site located at the eastern end of Starvation Acres

Road, in Makanda, Jackson County. The Makanda site is owned by Kamarasy and is also known

as “Bittersweet Farm.” Tr. at 10, 45-46; County Exh. at 1, 2, 4, 10. The site, which lacks any

waste disposal or storage permit from the Agency, is assigned site code #0778095036. Tr. at 13-

14; County Exh. at 2. The site is 40 acres in size and has a fenced pasture. Tr. at 10-11; County

Exh. at 4.

 

The March 25, 2004 inspection of the Makanda site, on which the administrative citation

is based, was conducted as a follow-up to Terry’s December 5, 2003 inspection of the site. Tr. at

12; County Exh. at 2, 8. Based on Terry’s December 5, 2003 site inspection, JCHD sent a

“Violation Notice” to Kamarasy, dated January 9, 2004. 04-63 Exh. 4. In the notice, JCHD

states that the letter “constitutes a Violation Notice pursuant to Section 31(a)(1) of the Illinois

Environmental Protection Act (‘the Act’) 415 ILCS 5/31(a)(1).”

Id

. at 1. The notice purports to

be provided by the Agency and JCHD.

Id

.

 

The January 9, 2004 Violation Notice states that it “includes an explanation of the

activities that the Illinois EPA and JCHD believe may resolve the specified violations, including

an estimate of a reasonable time period to complete the necessary activities.” 04-63 Exh. 4 at 1.

The Violation Notice cautioned:

 

Due to the nature and seriousness of the violations cited, please be advised that

resolution of the violations may require the involvement of a prosecutorial

authority for purposes that may include, among others, the imposition of statutory

penalties. A written response . . . must be submitted via certified mail to the

JCHD within 45 days of receipt of this letter. *** If a timely written response to

this Violation Notice is not provided, it shall be considered to be a waiver of the

opportunity to respond and to meet and the Illinois EPA and JCHD may proceed

with a referral to the prosecutorial authority. *** Questions regarding this matter

should be directed to Don Terry at [phone number].

Id

. at 1-2.

 

Among the “corrective actions required,” the Violation Notice states that Kamarasy must

perform the following by February 13, 2004:

 

7

Section 4(r) of the Act provides in part: “The Agency may enter into written delegation

agreements with any unit of local government under which it may delegate all or portions of its

inspecting, investigating and enforcement functions.” 415 ILCS 5/4(r) (2002).

---

 

5

Remove all general refuse from this site and properly transport to a permitted

landfill or transfer station.

 

Scrap metal not disposed at a permitted landfill or transfer station may be taken to

a scrap metal facility or recycling center. 04-63 Exh. 4 at 3.

 

The Violation Notice also directed Kamarasy to submit copies of receipts by February 27, 2004,

documenting “the proper disposal or recycling of the waste.”

Id

.

 

In response to the January 9, 2004 Violation Notice from JCHD, Kamarasy, in a January

15, 2004 phone call with Terry, agreed to remove all of the materials by February 13, 2004. A

January 16, 2004 letter from Terry to Kamarasy purports to “act as a confirmation and summary”

of their January 15, 2004 phone call. Tr. at 35-36, 53, 56-57; 04-63 Exh. 5 at 1. Terry’s

confirmation letter to Kamarasy states in part:

 

During our phone conversation, you admitted that the debris was on the site and

had originated from the demolition of mobile homes you were being required to

remove by the [Illinois Department of Public Health]. You explained that the

debris was taken to the above listed site so that recyclable and non-recyclable

materials could be separated. You also stated that you wanted to work with us

and the date given to you in the violation notice letter to properly clean up the

open dump site (February 13, 2004) was more than sufficient to be able to

accomplish the task.

 

I explained that the process of taking demolition debris from one site to another

for the purpose of salvaging was not permissible under Illinois law and that the

demolition would have to take place where the mobile home had been in place. I

also explained that this process should take place as quickly as possible; any

materials that were going to be used or recycled should be covered until moved,

and all waste would have to be properly disposed of at the landfill. ***

 

Finally, I asked that you contact me when the site was clean so I could come do a

compliance inspection. You stated you would do this . . . . 04-63 Exh. 5 at 1-2.

 

Terry conducted the March 25, 2004 inspection from a public road at the Makanda site’s

gate, without entering Kamarasy’s property. The inspection lasted three minutes, from 2:32 p.m.

to 2:35 p.m. Tr. at 31; County Exh. at 1, 2, 4. Terry observed a pile of debris on the site,

approximately 100 yards east of the gate. The pile included dimensional lumber, paneling, and

metal siding. Tr. at 10-12, 51-52; County Exh. at 2, 4, 7. The debris pile, which was

approximately 100 cubic yards in volume, was roughly the same size and in the same location as

it had been during the December 5, 2003 inspection. Tr. at 10, 12, 13; County Exh. at 2, 8, 10,

11. The December 5, 2003 inspection was also conducted from the gate, and took five minutes,

from 9:10 a.m. to 9:15 a.m. County Exh. at 8.

 

Kamarasy brought the materials to the Makanda site from another property where he had

a mobile home park. The mobile home park is known as “Raccoon Valley Mobile Home Park,”

---

 

6

which is approximately one mile from the Makanda site. Kamarasy has owned and operated the

mobile home park for over 20 years. Tr. at 12, 21, 46-47, 49-50, 53, 66-67.

 

On November 12, 2003, the Illinois Department of Public Health (IDPH) inspected

Raccoon Valley Mobile Home Park. In a November 19, 2003 letter from IDPH to Kamarasy,

IDPH referred to the site visit as an “annual licensure inspection,” the purpose of which was to

“determine compliance with the Mobile Home Park Act and Manufactured Home Community

Code.” 04-63 Exh. 1 at 1. The IDPH letter stated that Kamarasy was out of compliance and had

to take numerous “actions . . . to correct the violations,” including:

 

Remove or repair the manufactured homes at sites 9, 51A, and 59 which have the

appearance of being abandoned. The homes are potentially hazardous to children

and other community residents due to available access through broken windows

and/or unsecured doors. The home at site 59 is a REPEAT violation. Remove

and properly dispose of the rubble from homes being dismantled at sites 12 and

31. Correct by December 12, 2003.

Id

. at 2.

 

The debris at the Makanda site came from the dismantling of several mobile homes that

had been abandoned at the Raccoon Valley park. Tr. at 47-50. Kamarasy owns the lots on

which the mobile homes were located. Other persons owned and eventually abandoned the

mobile homes. These persons rented the lots from Kamarasy. Tr. at 49. The photographs from

both the December 5, 2003 and March 25, 2004 inspections by Terry show no discernable intact

mobile homes or large portions of mobile homes in the pile, but rather only pieces of debris.

County Exh. at 7, 10, 11.

 

Kamarasy had metals from the debris pile at the Makanda site segregated and then

recycled off-site. Kamarasy also had dimensional lumber from the pile used for barn and fence

repairs. In mid-December 2003, after the debris was moved from the trailer park to the Makanda

site, Kamarasy contacted an excavator, Phillip McMurphy, to remove the rest of the pile from the

Makanda site. The removal work was delayed, however, because McMurphy was concerned that

the Makanda site would be too muddy to allow access for a backhoe and tractor trailer. Tr. at 50,

54-56, 57-58, 66-69. McMurphy testified:

 

I never actually seen the pile. It was -- I was working at various places and just,

when [Kamarasy] called, I knew that, if I tracked the road up, we were going to

be in trouble there, so I couldn’t get my big equipment in there is the bottom line.

Tr. at 68-69.

 

By mid-April 2004, the remaining debris was removed from the Makanda site and disposed in a

landfill. Tr. at 50, 54-55, 57-58; 04-63 Exh. 3.

 

AC 04-64: Carbondale Site

 

On March 25, 2004, Terry inspected a site located at 786 Green Ridge Road, in Pomona

Township, Jackson County. The site is referred to, however, as the “Carbondale site.” Terry

entered the site to inspect it. The site is owned by Kamarasy and is several hundred acres in size.

---

 

7

Tr. at 14, 38, 58-59; County Exh. at 12-13, 15, 59. The site, which lacks any waste disposal or

storage permit from the Agency, is assigned site code #0778125013. Tr. at 17; County Exh. at

13. There were no dwellings on the site, and Kamarasy raises horses there. Tr. at 16, 59; County

Exh. at 15. Kamarasy’s home is located on a site adjacent to the Carbondale site. Tr. at 59.

 

The March 25, 2004 inspection was conducted as a follow-up to Terry’s March 11, 2004

inspection of the site. Tr. at 12; County Exh. 1 at 2, 8. The March 25, 2004 inspection lasted

five minutes, from 2:25 to 2:30 p.m. The March 11, 2004 inspection took ten minutes, from

11:05 a.m. to 11:15 a.m. County Exh. at 8. During the March 25, 2004 inspection, Terry

observed a pile of debris on the site. The pile, which was approximately 10 cubic yards in

volume, included ash, landscaping waste, dimensional lumber, metal frames, fence posts, and

cans, a metal piece of sink, and sections of laminate counter tops. Tr. at 14-15, 40; County Exh.

at 13, 15, 24-26.

 

At the time of the March 25, 2004 inspection, the debris pile was in the same general

location as it was during the March 11, 2004 inspection. County Exh. at 13. However, the

debris pile was approximately 6 cubic yards smaller on March 25, 2004, than it was on March

11, 2004. Tr. at 16; County Exh. 1 at 13, 16, 19-21. Most of the material in the debris pile on

March 25, 2004, was charred from being burned, including charred metals, counter tops, and

dimensional lumber. Tr. at 14-15, 17; County Exh. at 13, 15, 24-26, 63. Metal fence posts were

burned to remove poison ivy. Tr. at 64.

 

There is conflicting testimony on whether the pile of debris on the Carbondale site was

visible from the public road. Terry testified that he could see the debris pile from Green Ridge

Road. Tr. at 40. Kamarasy, however, testified that the “total distance from the road to the pile is

510 feet, and the pile cannot be seen from the road.” Tr. at 62.

 

Kamarasy admitted that he burned materials on the Carbondale site. The materials came

from his horse farm operations at the site and his home on the adjacent site. Tr. at 59-64, 71.

Kamarasy explained: “that pile existed for years. We always burned the material there and what

was left over, the metals were then recycled after we collected enough . . . .” Tr. at 64.

 

DISCUSSION

 

The Board first sets forth the provisions of the Act allegedly violated at the Makanda and

Carbondale sites. For each site, the Board then separately discusses the alleged violations and

Kamarasy’s claimed defenses before rendering the Board’s legal conclusion on whether

Kamarasy violated the Act. The Board concludes by discussing civil penalties and hearing costs.

 

Alleged Violations

 

The County issued two administrative citations to Kamarasy, alleging two open dumping

violations at the Makanda site and three open dumping violations at the Carbondale site.

  

Specifically, the County’s administrative citations allege that Kamarasy violated Sections

21(p)(1) and (p)(7) of the Act (415 ILCS 5/21(p)(1), (p)(7) (2002)) at the Makanda site and

---

 

8

Sections 21(p)(1), (p)(3), and (p)(7) of the Act (415 ILCS 5/21(p)(1), (p)(3), (p)(7) (2002)) at the

Carbondale site. AC 04-63 at 2; AC 04-64 at 2.

 

Sections 21(p)(1), (p)(3), and (p)(7) of the Act provide in relevant part:

 

No person shall: In violation of subdivision (a) of this Section, cause or allow the

open dumping of any waste in a manner which results in any of the following

occurrences at the dump site:

  

1. litter;

* * *

3. open burning;

* * *

7. deposition of:

  

i. general construction or demolition debris as defined in

Section 3.160(a)of this Act . . . . 415 ILCS 5/21(p)(1), (p)(3),

(p)(7) (2002).

Section 21(a) of the Act, which is referred to in Section 21(p), provides:

No person shall:

Cause or allow the open dumping of any waste. 415 ILCS 5/21(a) (2002).

 

The County bases its allegations on the March 25, 2004 site visits conducted by County

inspector Terry. AC 04-63 at 1; AC 04-64 at 1. The County seeks a $1,500 civil penalty for

each of the five alleged violations (two alleged violations at the Makanda site and three alleged

violations at the Carbondale site), for a total civil penalty of $7,500.

 

AC 04-63: Makanda Site

 

Kamarasy denies both alleged violations at the Makanda site: Sections 21(p)(1) and

(p)(7) of the Act. 04-63 Pet. at 2-3; 04-63 Memo at 1. Kamarasy raises numerous alleged

defenses, each of which the Board addresses below in reviewing the elements of the alleged

violations.

 

No “Direct Observation”

   

 

Section 31.1(b) of the Act provides in part:

 

Whenever Agency personnel or personnel of a unit of local government to which

the Agency has delegated its functions pursuant to subsection (r) of Section 4 of

this Act,

on the basis of direct observation

, determine that any person has violated

any provision of subsection (o) or (p) of Section 21 of this Act, the Agency or

such unit of local government may issue and serve an administrative citation upon

---

 

9

such person within not more than 60 days after the date of the observed violation.

415 ILCS 5/31.1(b) (2002) (emphasis added).

 

Kamarasy argues that Terry could not have personally observed the specific items of

debris in the pile because Terry was too far away and only there for three minutes. According to

Kamarasy, from where Terry stood at the gate several hundred feet from the debris pile, Terry

“could not possibly have identified the specific items in the debris pile, such as dark paneling

and metal siding, that he reported to have personally observed.” 04-63 Memo at 5, 37-38.

Kamarasy continues: “Nor does the photograph taken by Mr. Terry make it possible to identify,

with the naked eye, any such specific items.”

Id

. at 5.

 

Kamarasy maintains that Terry therefore made no “direct observation” of what materials

were in the pile on March 25, 2004, the only date at issue for this administrative citation. 04-63

Memo at 5, 11-13, 37 (citing 415 ILCS 5/31.1(b) (2002)). Kamarasy also states that Terry’s

report was “demonstrably inaccurate” because the metal siding he described as present was

already removed from the Makanda site by March 25, 2004, for off-site recycling.

Id

. at 6.

Kamarasy argues that, at best, Terry recalled seeing those items based on his December 5, 2003

inspection and assumed they were still present on March 25, 2004.

Id

. at 12-13. Kamarasy also

argues that Terry was an “inexperienced inspector,” stressing that Terry had been a solid waste

inspector for only 17 months at the time of hearing (Tr. at 7-8), and for only approximately 8

months at the time of the March 2004 site inspection. 04-63 Resp. Br. at 1, 5.

 

According to the County, Kamarasy’s argument, that the Board should disregard Terry’s

observations based on Terry’s alleged lack of credibility, is unpersuasive because: “virtually all

the inspector observed, recorded, and testified to is corroborated by the Respondent.” County

Br. at 4. The County maintains that Terry has “consistently stated what he observed and put that

information into his reports and reiterated all of his observations at the hearing.”

Id

. Moreover,

the County notes, Kamarasy has “admitted the pile contained debris consisting of materials from

abandoned mobile homes; and that he put the debris on his land.”

Id

.

 

The Board finds that Terry, the inspector, had an unobstructed view of the debris pile, as

corroborated by the photographic evidence. The pile, including specific items such as

dimensional lumber, can be plainly seen in the photo taken by the inspector. The Board hearing

officer found Terry’s testimony credible, and Terry is an Agency-certified solid waste inspector.

In addition, Kamarasy does not dispute that the pile included debris from the abandoned mobile

homes. Accordingly, the Board finds that Terry directly observed the debris pile. The purported

“failure to personally observe” defense to liability for alleged violations of Sections 21(p)(1) and

(p)(7) is of no aid to Kamarasy.

 

Following IDPH Order

   

 

Kamarasy next states that the IDPH “ordered him to remove certain abandoned and

broken mobile homes from the mobile home park” he owned and operated. 04-63 Memo at 4.

Kamarasy states that IDPH did not allow him to “leave the abandoned homes at the mobile home

park until he managed to sell or recycle the usable parts from the homes.”

Id

.

 

---

 

10

According to Kamarasy, he “attempted to comply with the IDPH directive” when he

“relocated the abandoned mobile home structures and materials in question” to the Makanda site,

where “workers continued the work of dismantling the structures, separating the recyclable from

the non-recyclable materials, in order to sell whatever materials from the mobile homes were

reusable and dispose of the rest.” 04-63 Memo at 4-5. Kamarasy adds that “he thought, and had

every reason to believe that his actions were legal and not in violation” of the Act.

Id

. at 5.

Kamarasy argues that he therefore should not be liable for alleged the violation of Section

21(p)(1) or (p)(7) and emphasizes that he did not believe moving the materials from one of his

properties to another was unlawful.

Id

.

 

The County states that Kamarasy admits the following: (1) he owned the Makanda site at

the time of the March 25, 2004 inspection; (2) he caused the debris from the mobile home park

to be deposited at the Makanda site; and (3) at the time of the March 25, 2004 inspection, the

debris pile consisted of abandoned mobile homes. County Br. at 3. The County further states

that little had changed at the site between the December 5, 2003, and March 25, 2004 inspection.

Id

. According to the County therefore, Kamarasy has admitted, and the record is otherwise clear,

“to every factual element needed to show Section 21(p)(1) and (7) were violated.”

Id

. at 6.

 

The Board finds this alleged defense unpersuasive. First, the IDPH did not order

Kamarasy to deposit debris at the Makanda site. That was Kamarasy’s choice. In fact, the IDPH

order directed Kamarasy to “[r]emove

and properly dispose of

the rubble from homes being

dismantled.” 04-63 Exh. 1 at 2 (emphasis added). Instead, Kamarasy deposited the materials at

the Makanda site, and there they remained in a pile for several months. Kamarasy does not

explain why the materials were not sent directly from the mobile home park to the landfill.

 

Whether Kamarasy knew that his actions were unlawful is irrelevant here. The Illinois

Supreme Court has established that one may “cause or allow” a violation of the Act without

knowledge or intent.

See

People v. Fiorini, 143 Ill. 2d 318, 336, 574 N.E.2d 612, 621 (1991)

(“knowledge or intent is not an element to be proved for a violation of the Act. This

interpretation of the Act . . . is the established rule in Illinois.”);

see also

Freeman Coal Mining v.

PCB, 21 Ill. App. 3d 157, 163, 313 N.E.2d 616, 621 (5th Dist. 1974) (the Act is

malum

prohibitum

and no proof of guilty knowledge or

mens rea

is necessary to find liability).

 

“Open Dumping” of “Waste”

 

To prove a violation of Section 21(p)(1) or (p)(7), the County must first prove a violation

of Section 21(a) of the Act (415 ILCS 5/21(a) (2002)). Section 21(a) provides that “[n]o person

shall: Cause or allow the open dumping of any waste.” 415 ILCS 5/21(a) (2002). “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). A

“sanitary landfill” is defined in part as “a facility permitted by the Agency for the disposal of

waste on land meeting the requirements of the Resource Conservation and Recovery Act.” 415

ILCS 5/3.445 (2002). “Refuse” means “waste.” 415 ILCS 5/3.385 (2002). The Act defines

“waste” as:

 

---

 

11

[A]ny garbage, sludge from a waste treatment plant, water supply treatment plant,

or air pollution control facility or other discarded material, including solid, liquid,

semi-solid, or contained gaseous material resulting from industrial, commercial,

mining and agricultural operations, and from community activities . . . . 415

ILCS 5/3.535 (2002).

  

Kamarasy argues that the debris pile, “while perhaps unsightly,” was not an “open dump”

under the Act. According to Kamarasy, under the Act’s definition of “open dumping,” the

County “must show that he created a ‘disposal site’ on his land.” 04-63 Memo at 14. Surely it

cannot be true, Kamarasy maintains, that any time a homeowner places a broken chair or piece of

plywood down in his backyard, he has thereby created a “disposal site” under the law.

Id

., citing

Alternate Fuels, Inc. v. IEPA, 2004 WL 2359398 (Ill. Sup. Ct 2004).

 

Kamarasy recognizes that his debris pile was larger in scale than the piece of plywood in

his hypothetical, but he maintains that size does not matter “when it comes to determining which

piles of materials do or do not constitute a ‘disposal site.’” 04-63 Memo at 14. Instead,

according to Kamarasy, what matters is the likelihood that the pile will cause “pollution,” and a

“disposal site” is “a place where material is disposed of in such a way that it is likely to cause

pollution.”

Id

.

 

Kamarasy argues that depositing the debris on the Makanda site “did not introduce

pollutants into the environment.” 04-63 Memo at 5, 9. Kamarasy states that he “did not cause

the debris to enter the environment, nor make it likely that polluting materials would be emitted

or discharged, or otherwise disseminated from the site.”

Id

. at 9, 15. According to Kamarasy,

he was also not operating a “commercial waste dump facility” at the Makanda site or “allowing

others to dump there.”

Id

. at 5.

 

Kamarasy maintains that the Act’s definition of “disposal” sheds light on the meaning of

“disposal site,” and which debris piles qualify. 04-63 Memo at 15.

  

The Act defines “disposal”

as:

 

[T]he discharge, deposit, injection, dumping, spilling, leaking or placing of any

waste or hazardous waste into or on any land or water or into any well so that

such waste or hazardous waste or any constituent thereof may enter the

environment or be emitted into the air or discharged into any waters, including

ground waters.

Id

., quoting 415 ILCS 5/3.185 (2002).

   

According to Kamarasy, the definition of “disposal” requires not only the placing of

waste on land, which he concedes he did, but also placing the waste 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. 04-63 Memo at 16. Kamarasy argues that to hold that any debris pile “outside of a

building” has necessarily entered the environment would render the phrase “so that such waste

. . . may enter the environment” in the definition “completely superfluous.”

Id

. The legislature

must have meant, Kamarasy continues, that the concept of “entering the environment” put “some

limitation on the notion of placing waste on the land.”

Id

.

 

---

 

12

Kamarasy argues that to prove the existence of a “disposal site,” it must be shown that

waste or some constituent of the waste “did enter or is likely to enter (freely) into the

environment, or be emitted into the air or be discharged into the waters.” 04-63 Memo at 17.

Kamarasy maintains that the County cannot show that any siding, paneling, or dimensional

lumber was likely to enter the environment, and so the County cannot make its

prima facie

case.

Id

. at 17, 33. According to Kamarasy, because no “disposal” took place at the Makanda site, it

was not a “disposal site,” and thus could not be an “open dump” under the Act.

Id

. Kamarasy

contends that to not require a showing of a “significant likelihood” of pollution would render the

Act “unconstitutionally vague.”

Id

. at 31, 33.

 

The County maintains that Kamarasy is incorrect in stating that an element of a violation

is that “the debris had been or was likely to be emitted into the environment.” County Br. at 5.

The County argues that “[p]roof of dumping is all that must be shown,” and notes that the

General Assembly intended that the provisions of the Act be “liberally construed.”

Id

., citing

415 ILCS 5/2 (2002). According to the County:

 

A showing of actual or likely emission or pollution runs starkly counter to the

broad, preventive, and remedial purpose of the Act; and would make any

successful prosecution under Section 21(p) nearly impossible and subject to

overly technical scientific theories and data.

Id

.

 

The Board agrees with the County. The record shows that Kamarasy brought to the

Makanda site roughly 100 cubic yards of miscellaneous debris from abandoned mobile homes.

Kamarasy admits that he deposited the debris in a pile on the ground. Some metals and

dimensional lumber were removed from the pile for re-use, but the rest of the materials were

eventually sent to a landfill. On the date of the March 25, 2004 inspection, some three and one-

half months after the pile was first observed by the County, the pile remained largely unchanged.

This was therefore not an instance of structures being demolished, followed by the timely

removal from the demolition site of the resulting debris for proper off-site disposal or recycling.

See

EPA v. PCB, 219 Ill. App. 3d 975, 579 N.E.2d 1215 (5th Dist. 1991).

 

The Board finds that under these circumstances, materials in the debris pile at the

Makanda site were “discarded” and therefore constitute “waste” under the Act.

See

Alternate

Fuels v. IEPA, 2004 Ill. LEXIS 1616, 33 (Ill. Sup. Ct 2004) (materials remain “discarded” when

they are not “diverted from becoming waste and returned to the economic mainstream”).

Further, it is undisputed that Kamarasy’s site does not meet the requirements for a sanitary

landfill. Neither the Board nor the courts have required that waste brought to a location and

dumped on the land, and allowed to remain there for months, must then leach or emit pollutants

before that site can be considered a “disposal site” for purposes of the Act’s definition of “open

dumping.” Indeed, the Board has held to the contrary.

See

IEPA v. Yocum, AC 01-29, AC 01-

30 (cons.) (June 6, 2002). The Board finds that Kamarasy “open dumped” waste at the Makanda

site.

 

Resulting in “Litter”

  

The Board has adopted the definition of “litter” provided in the Litter Control Act for

---

 

13

purposes of Section 21 of the Act.

See

St. Clair County v. Mund,

 

AC 90-64, slip op. at 4, 6

(Aug. 22, 1991). The Litter Control Act defines “litter” as:

 

[A]ny discarded, used or unconsumed substance or waste [and] may include, but

is not limited to, any garbage, trash, refuse, debris, rubbish, grass clippings, or

other lawn or garden waste, newspaper, magazines, glass, metal, plastic or paper

containers . . . or anything else of any unsightly or unsanitary nature, which has

been discarded, abandoned or otherwise disposed of improperly. 415 ILCS

105/3(a) (2002).

 

Kamarasy argues both that the debris at the Makanda site was not “litter” and that the

Litter Control Act “expressly permits . . . the dumping of a pile of non-polluting and non-littering

debris on one’s own property, some to be recycled and the rest disposed of.” 04-63 Memo

at 9-10.

 

First, Kamarasy maintains that the definition of “litter” in the Litter Control Act is so

broad that it “completely fails to answer the basic question [of] what kind of dumping on one’s

own property is the kind that results in littering, and what kind does not?” 04-63 Memo at 20.

According to Kamarasy, without the answer to that question, a homeowner would have to “read

the inspector’s mind” to know if, for example, the “common practice of mulching one’s grass

clippings back into one’s lawn” would lead to issuance of an administrative citation.

Id

.

 

Kamarasy argues that the County wants the Board to give the inspector “sole and

absolute power to decide what is litter,” effectively accepting that Terry “knows litter when he

sees it.” 04-63 Memo at 20. This, according to Kamarasy, would be a “blatant violation of the

Separation of Powers Clause of the Illinois Constitution.”

Id

. “The inspector is no more

authorized than the Board to make new law about what is and is not pollution.”

Id

. at 34.

 

Kamarasy maintains, however, that the definition of “litter” is not flawed but simply

cannot be read in isolation; the Litter Control Act must be read in its entirety. 04-63 Memo

at 21. Kamarasy quotes from the legislative findings in the Litter Control Act:

 

[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.

Id

., quoting 415 ILCS 105/2

(2002) (emphasis by Kamarasy).

 

Kamarasy maintains therefore that the “notion of unlawful littering should be ‘uniform’ in the

State of Illinois” and that to prove a violation of the Act for open dumping resulting in litter, the

County must prove that littering took place in violation of the Litter Control Act.

Id

.

 

Kamarasy also quotes from two prohibitions in the Litter Control Act. Section 4 provides

in part:

 

No person shall dump, deposit, . . . [or] discard . . . litter . . . unless

* * *

---

 

14

(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

. 04-63 Memo at 21, quoting 415 ILCS 105/4

(2002) (emphasis by Kamarasy).

 

Kamarasy quotes from Section 6 of the Litter Control Act:

 

No person shall allow litter to accumulate upon real property, of which the person

charged is the owner or tenant in control,

in such a manner as to constitute a

public nuisance or in such a manner that the litter may be blown or otherwise

carried by natural elements on to the real property of another person

. 04-63

Memo at 22, quoting 415 ILCS 105/6 2002) (emphasis by Kamarasy).

 

Kamarasy argues there is no evidence that he created “a public health or safety hazard, a

public nuisance, or a fire hazard” or that the debris pile was accumulated so as to “constitute a

public nuisance” or such that items may be “blown or otherwise carried” to another’s real

property. 04-63 Memo at 22. Accordingly, Kamarasy argues that he did not violate the Litter

Control Act, and therefore did not violate the Act’s prohibition on open dumping resulting in

litter.

Id

.

 

Reading Sections 4 and 6 of the Litter Control Act, Kamarasy maintains that the Litter

Control Act “expressly grants” him permission to do what he did at the Makanda site: “he is

lawfully entitled to deposit those things on his own land, so long as those things do not form a

public nuisance, migrate to the neighbor’s property, or create a health, safety, or fire hazard.”

04-63 Memo at 23, 25.

 

Kamarasy argues that the Board should not interpret the Act to prohibit conduct

authorized by the Litter Control Act, for to do that:

 

[W]ould render one or the other Acts unconstitutional, since, 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 other land is both lawful and unlawful at the same time. 04-63 Memo at 10.

 

According to Kamarasy, this would run afoul of constitutional due process, a basic tent of which

is that “a citizen must be able to reasonably ascertain whether an act he is contemplating is

lawful or not.”

Id

. at 29, 38-39.

 

In Kamarasy’s view, if the Board finds his activities at the Makanda site unlawful under

the Act, even though they are “explicitly lawful under the Litter Control Act,” the Board “would

be, in effect, making new legislation . . . in violation of the Separation of Powers principle of the

Illinois Constitution.” 04-63 Memo at 33-34 (“it cannot be left to the executive branch of

government, whether that means a county health department inspector or this Board, to decide

arbitrarily and on its own what constitutes unlawful litter and what does not”). Kamarasy

maintains that these arguments apply with equal force to the charge of open dumping resulting in

the deposition of demolition debris.

Id

. at 30.

---

 

15

 

The County states the Board and the courts have already rejected Kamarasy’s argument

that the definition of “litter” is so unclear that “one cannot know what one is to avoid doing,”

concluding that the word “litter” is “clearly understood.” County Br. at 5. The County also

argues that a violation of the Litter Control Act is not a condition precedent to a violation of the

Act for open dumping resulting in litter: the two statutes are “cumulative,” with the Act

pertaining to littering in the “open dumping context.”

Id

. The County emphasizes that neither

the Board nor any court has found that the Litter Control Act applies “to any facet of a Section

21 case other than to the definition of ‘litter.’”

Id

.

 

The County adds:

 

The [L]itter [C]ontrol [A]ct is a criminal provision. The present proceedings are

civil. This is the difference between the two. Respondent is essentially arguing

that a civil violation under Section 21 of the [E]nvironmental [P]rotection [A]ct is

the same as a criminal violation under the [L]itter [C]ontrol [A]ct, and vice-versa.

This is absurd. The two acts are not interchangeable. County Reply at 3.

 

The Board notes that Kamarasy’s argument that the term “litter” under the Act is so

vague as to be unconstitutional was addressed by the Appellate Court in Miller v. PCB, 267 Ill.

App. 3d 160, 642 N.E.2d 475 (4th Dist. 1994):

 

Miller’s argument the term “litter” is unconstitutionally vague is similarly

unconvincing. *** A person of common intelligence can understand the term

“litter.” *** Given its ordinary meaning, “litter” refers to material of little or no

value which has not been properly disposed of. The examples of litter set forth in

the Litter Control Act [citation omitted] provide additional guidance. Miller, 267

Ill. App. 3d at 168-69; 642 N.E.2d at 483.

 

Under Miller, Kamarasy has not established any of the constitutional infirmities he

alleges. The meaning of “litter” under the Act is plain, and therefore not susceptible to

Kamarasy’s “separation of powers” and “due process” arguments based on vagueness.

Kamarasy admits that he brought miscellaneous debris from abandoned mobile homes to the

Makanda site and dumped it on the ground. Over 100 cubic yards of debris was observed on

December 11, 2003. Nearly that much of the debris remained in the pile months later on March

25, 2004, the date on which the administrative citation is based. Much of the material was

eventually landfilled. The Board finds that the pile of materials at the Makanda site included

discarded substances that fall within the definition of “litter.”

 

The Board does not have jurisdiction to decide whether the Litter Control Act has been

violated. As the County notes, the Litter Control Act is enforced through criminal prosecution in

the courts.

See

415 ILCS 105/8, 10 (2002). The Board does have jurisdiction, however, to

decide whether the Act has been violated. Here, that decision depends simply on whether the

County can demonstrate that Kamarasy caused or allowed “open dumping” (“the consolidation

of refuse from one or more sources at a disposal site that does not fulfill the requirements of a

sanitary landfill”) of “waste” (“discarded material”) in a manner that results in “litter.” The

---

 

16

Board makes no comment on what the elements of a Litter Control Act violation are, but it is

hardly inconceivable that the General Assembly might require more for criminal than civil

liability to attach.

 

The Litter Control Act was enacted in 1974, over a decade before enactment of the Act’s

Section 31.1 administrative citation procedure for prosecuting open dumping.

See

P.A. 84-1320

(eff. Sept. 4, 1986); P.A. 85-1346 (eff. Aug. 31, 1988); P.A. 78-837 (eff. Jan. 1, 1974). The

General Assembly did not, and the Board cannot, graft a violation of the Litter Control Act onto

the Act’s Section 21(p)(1) prohibition. A Litter Control Act violation is not an element of a

violation of the Act. Kamarasy cites no authority to the contrary.

 

Indeed, the relevant provisions of both statutes have been amended numerous times over

the years and the General Assembly has not taken any of those opportunities to prevent the

Board’s long-standing statutory construction.

See

Mund,

 

AC 90-64, slip op. at 4, 6 (first Board

use of Litter Control Act definition of “litter” for purposes of Section 21);

see

,

e.g.

, P.A. 88-670

(eff. Dec. 2, 1994) (amending Section 31.1 of the Act and Sections 3 and 4 of the Litter Control

Act). Moreover, the Litter Control Act itself provides that its penalties “are in addition to, and

not in lieu of, any penalties, rights, remedies, duties or liabilities otherwise imposed or conferred

by law.” 415 ILCS 105/8(c) (2002).

 

Kamarasy’s constitutional and statutory construction arguments are unavailing. The

Board therefore holds that Kamarasy violated Section 21(p)(1) of the Act at the Makanda site by

causing or allowing the open dumping of waste, resulting in “litter.”

 

Resulting in the Deposition of “General Construction or Demolition Debris”

 

Section 3.160(a) of the Act defines “general construction or demolition debris” as:

  

[N]on-hazardous, uncontaminated materials resulting from the construction,

remodeling, repair, and demolition of utilities, 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 of those materials.

  

General construction or demolition debris does not include uncontaminated soil

generated during construction, remodeling, repair, and demolition of utilities,

structures, and roads provided the uncontaminated soil is not commingled with

any general construction or demolition debris or other waste. 415 ILCS

5/3.160(a) (2002).

 

Kamarasy concedes that the pile observed by Terry on March 25, 2004, at the Makanda

site “contained the remaining parts from several abandoned mobile home structures.” 04-63

---

 

17

Memo at 22. Kamarasy also states that he does not know if the pile contained “general

construction or demolition debris” because “he does not know if his actions constituted

‘demolishing’ the abandoned mobile homes, or whether the materials therefrom should

technically be described as ‘debris.’”

Id

. at 23.

 

Kamarasy nevertheless argues that it was “a violation of his due process rights and a

violation of the Separation of Powers principle for him to be charged with two violations for

what amounts to one (allegedly) wrongful act.” 04-63 Memo at 9. The County, according to

Kamarasy, is “effectively 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’.”

Id

. “This sort of punitive approach was the sort of thing the legislature surely intended

to avoid when it established the administrative citation procedure,” according to Kamarasy. 04-

63 Resp. Br. at 17.

 

Kamarasy maintains that “fundamental fairness” dictates that he cannot be “convicted” of

both charges “on the basis of a single act of depositing a single type of material.” 04-63 Memo

at 23-24. According to Kamarasy, “[t]his is not a case of open dumping of both kinds of

materials, litter and construction or demolition debris, where two separate offenses properly [are]

chargeable.” 04-63 Resp. Br. at 12. Kamarasy also argues that the County and Terry, in seeking

a total civil penalty of $3,000 for two violations based on the one act, “are attempting to overrule

the legislature and create a new law of their own.” 04-63 Memo at 36.

 

The County emphasizes Kamarasy’s admission that “the pile contained debris consisting

of materials from abandoned mobile homes; and that he put the debris pile on his land.” County

Br. at 4. The County further notes that the Board has previously found multiple violations for

the same activity and, according to the County, “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.”

Id

. at 6.

 

Kamarasy cites no authority for the proposition that his open dumping of waste can

violate only one provision of the Act. The Board and the courts have long found that a single act

or omission may constitute multiple violations of the Act.

See

,

e.g.

, ESG Watts v. PCB, 282 Ill.

App. 3d 43, 668 N.E.2d 1015 (4th Dist. 1996); Discovery South Group, Ltd. v. PCB, 275 Ill.

App. 3d 547, 656 N.E.2d 51 (1st Dist. 1995); State of Illinois v. Community Landfill Co., Inc.,

PCB 97-193 (Oct. 3, 2002);

 

County of Sangamon v. Daily, AC 01-16, AC 01-17 (Jan. 10, 2002);

People v. D’Angelo Enterprises, Inc., PCB 97-66 (Nov. 19, 1998).

 

The Board finds, and Kamarasy does not dispute, that he brought abandoned mobile

home materials to the Makanda site and piled them there. Quoting from the statutory definition

of “general construction or demolition debris” under the Act, the Board finds that these materials

at the Makanda site resulted from the “demolition” of “structures,” and included “wood” and

“metals.” The Act does not define “demolition,” but the Board looked to the definition of the

word from the

American Heritage Dictionary, Second College Edition

(1991) in IEPA v. Brown,

AC 04-82 (May 19, 2005), which includes the “act or process of destroying.” Kamarasy

destroyed mobile homes, reducing them to the large pile of pieces observed by Terry on

March 25, 2004.

---

 

18

  

The Board finds that the wood and metal from the dismantled mobile homes meet the

plain meaning of the Act’s definition of “general construction or demolition debris,” and

therefore that Kamarasy’s open dumping of waste resulted in the deposition of such debris at the

Makanda site, in violation of Section 21(p)(7) of the Act.

 

“Uncontrollable Circumstances” and Section 31 Pre-Enforcement

 

In an administrative citation, a violation will be excused if it resulted from

“uncontrollable circumstances.” 415 ILCS 5/31.1(d)(2) (2002);

see also

35 Ill. Adm. Code

108.500(b). Section 31.1(d)(2) provides:

 

[I]f the Board finds that the person appealing the citation has shown that the

violation resulted from uncontrollable circumstances, the Board shall adopt a final

order which makes no finding of violation and which imposes no penalty. 415

ILCS 5/31.1(d)(2) (2002).

Kamarasy argues that the County gave him until February 13, 2004, to remove all of the

debris from the Makanda site, but he could not meet that deadline because of “uncontrollable

circumstances.” 04-63 Memo at 26-27. According to Kamarasy, the “weather was just not cold

enough and the ground was too wet and muddy” to allow heavy equipment access by February

13, 2004.

Id

. at 8. Kamarasy contends that:

 

[B]oth he and the County were bound to honor this agreement [to remove all

debris by February 13, 2004], 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.

Id

. at 9.

 

Kamarasy argues that he was proceeding diligently with the clean up. He states that

during his January 15, 2004 phone call with Terry, Kamarasy agreed to meet the February 13,

2004 deadline. Kamarasy maintains that before he made that agreement, he had arranged with

McMurphy to haul the non-recyclables to a landfill. 04-63 Memo at 27, 31. Kamarasy admits

that he “did not account for the weather,” and with no “solid freeze” before March 25, 2004,

Kamarasy was “forced to wait until the ground dried up later in the spring.”

Id

. at 27, citing

IEPA v. Pekarsky, AC 01-37 (Feb. 27, 2002). Kamarasy also emphasizes that before the

administrative citation issued, the County did not contact him after their January

communications “to determine why more of the pile had not been removed.”

Id

. at 9.

 

After questioning whether there was any legal “agreement” between Kamarasy and the

County, the County states that Kamarasy did not fulfill his promise to clean up by February 13,

2004, anyway. County Br. at 6. Moreover, according to the County, “this Board has repeatedly

held that clean up efforts are not a mitigating factor under the administrative citation program.”

Id

. The County also argues that “bad weather is not an uncontrollable circumstance in this

instance,” noting that “winter in these climes usually contains inclement weather which would

hamper anyone doing any kind of work outdoors.” County Reply at 2. The County concludes

---

 

19

that Kamarasy “knew, or should have known, that he would most likely encounter bad weather

that might hamper his ability to remove [the debris].”

Id

. at 2-3.

     

In relying upon the Board’s decision in Pekarsky, Kamarasy has failed to cite to the

case’s subsequent history. In Pekarsky, the Board did find that extreme winter weather

prevented compliance with a cleanup deadline that was given following a site inspection that

revealed open dumping. The Board held that the weather constituted uncontrollable

circumstances, rendering the administrative citation improperly issued. The Board’s decision in

Pekarsky, however, was overturned on the merits by the Appellate Court in an unpublished

order. IEPA v. Pekarsky and PCB, No. 2-02-0281 (2d Dist., Mar. 18, 2003) (Rule 23 Order).

 

A plain reading of Section 31.1(d)(2) reveals that this defense is available only where the

violation

resulted from uncontrollable circumstances.

See

Brown, AC 04-82. The violations

alleged and found here are based on the pile of waste that (1) Kamarasy open dumped at the

Makanda site; and (2) the County observed on March 25, 2004. The violations existed when the

County observed them on that date. On this record, any delay in

removing

the waste pile due to

wet weather is irrelevant to the statutory defense of “uncontrollable circumstances.” Even if

weather delayed Kamarasy’s cleanup, it did not

cause

the violation of Sections 21(p)(1) and

(p)(7) of the Act. The Board therefore finds that Kamarasy has not proven the violations resulted

from “uncontrollable circumstances.”

 

In addition to the administrative citation process, the pre-enforcement process under

Section 31 of the Act (415 ILCS 5/31 (2002)) came into play in this case. Section 31 of the Act

sets forth a process of notice of alleged violations from the Agency and an option of meeting

with the Agency to give a potential violator the opportunity to resolve alleged violations without

being subject to a formal enforcement action.

See

415 ILCS 5/31(a), (b) (2002). The potential

violator may propose a “Compliance Commitment Agreement that includes specified times for

achieving each commitment.” 415 ILCS 5/31(a)(2)(B) (2002). The pre-enforcement process is a

precondition to the Agency referring unresolved alleged violations to the Attorney General’s

Office or the State’s Attorney for the filing of a formal complaint.

See

415 ILCS 5/31(b) (2002).

  

The Board has held that, depending on case-specific circumstances, an administrative

citation may be dismissed as improperly issued to a person who was voluntarily cleaning up

under the Section 31 pre-enforcement process. A decision often cited for this proposition is

IEPA v. Wright, AC 89-227 (Aug. 30, 1990). Because the particular facts are especially critical

to this analysis, the Board will discuss the facts of Wright in detail.

 

In Wright, there was an initial site inspection by the Agency on August 31, 1989, during

which an Agency representative gave Wright 30 days to clean up.

See

Wright, AC 89-227, slip

op. at 4. According to Wright’s testimony, the Agency inspector stated “that if I did not comply

with getting these items corrected I would be subject to a $500 fine from IEPA. He stated that I

had 30 days to get this work done.”

Id

. Wright cleaned up the site within 30 days.

Id

. at 4-5.

 

On September 25, 1989, Wright received a letter from the Agency informing him that his

noncompliance might result in enforcement, such as by enforcement action or administrative

citation before the Board.

See

Wright, AC 89-227, slip op. at 4-5. Wright responded on

---

 

20

September 25, 1989, in writing to the Agency, explaining that the site had been cleaned up (

i.e.

,

within 30 days of the first inspection).

Id

. at 5. Around the first of October, the same Agency

inspector returned for a follow-up inspection when he informed Wright that “there would be no

problem with an IEPA fine.”

Id

. On October 21, 1989, Wright received an administrative

citation.

Id

.

 

Under those circumstances, the Board held that the administrative citation was

improperly issued:

  

Mr. Wright was clearly led to believe that the matter would be closed if he

cleaned up the site within 30 days. However, the administrative citation was

issued . . . despite the fact that the Agency had proceeded under the pre-

enforcement track and the site was cleaned up. The Board believes that in this

instance the administrative citation was improperly issued. Wright, AC 89-227,

slip op. at 5.

 

The Board finds, however, that Wright is distinguishable from Kamarasy’s case. Unlike

Wright, Kamarasy did not complete his cleanup within the time period specified by the County.

Wright does not stand for the broad proposition that an administrative citation cannot be issued

to a person merely because that person cooperates with the Agency or County and voluntarily

cleans up: “The Act, by its terms, does not envision a properly issued administrative citation

being dismissed or mitigated because a person is cooperative or voluntarily cleans-up the site and

the Board does not find differently today.” Wright, AC 89-227, slip op. at 7.

  

The Board in Wright foresaw circumstances like those present in the Kamarasy case:

  

The Board does not view today’s decision as limiting the Agency’s ability to

utilize the administrative citation process. If an inspector determines that a site is

in violation the Agency may promptly issue an administrative citation.

Alternatively, the Agency may give a person time to clean up the site with the

decision to give time being binding upon the Agency during the specified time. If

upon reinspection the site is still thought to be in violation an administrative

citation could properly issue based upon the reinspection. Wright, AC 89-227,

slip op. at 7 (emphasis added).

  

Here, the County chose not to issue an administrative citation based on Terry’s

December 5, 2003 inspection of the Makanda site. Instead, the County gave Kamarasy until

February 13, 2004, to clean up the debris pile. The County re-inspected on March 25, 2004,

observed the alleged violation, and issued the administrative citation. Contrary to Kamarasy’s

suggestion, the County was in no way required under the Act to contact him to see how his

cleanup was progressing. In fact, Kamarasy offered no evidence that he sought to contact Terry

to explain the delay, and it was over a month after the February 13, 2004 deadline when Terry re-

inspected the Makanda site. Moreover, nothing in Section 31 of the Act requires that a potential

violator be given an extension of a cleanup deadline.

See

IEPA v. Carrico, AC 04-27 (Sept. 2,

2004). The Board finds nothing inappropriate about the use of the Section 31 pre-enforcement

process before issuing the administrative citation in this case.

---

 

21

  

Finally, Section 31.1(a) of the Act provides that the prohibitions of Sections 21(o) and (p)

“shall be enforceable either by administrative citation under this Section or as otherwise

provided by this Act.” 415 ILCS 5/31.1(a) (2002). The Board in Wright interpreted this

provision of the Act:

  

[T]he Act allows the Agency to use either the administrative citation or formal

enforcement proceedings. A plain reading of the statute indicates that the General

Assembly did not intend that a citizen would be charged for the same violation

under both the administrative citation provisions and the formal enforcement

provisions of the Act for a specific violation on a given day. Wright, AC 89-227,

slip op. at 5-6 (emphasis in original).

 

No formal complaint was filed against Kamarasy alleging a violation of Sections 21(p)(1) and

(p)(7) of the Act based on the March 25, 2004 site conditions that led to the administrative

citation. The Board finds that nothing in this record runs afoul of Section 31.1(a) of the Act.

 

Summary of Violations at the Makanda Site

 

For AC 04-63, having found that Kamarasy caused or allowed the open dumping of

waste resulting in litter and the deposition of general construction or demolition debris at the

Makanda site, the Board finds that Kamarasy violated Sections 21(p)(1) and (p)(7) of the Act.

The Board further finds that Kamarasy has failed to establish uncontrollable circumstances or

any other of his purported defenses.

  

AC 04-64: Carbondale Site

 

Kamarasy denies all three alleged violations at the Carbondale site: Sections 21(p)(1),

(p)(3), and (p)(7) of the Act. 04-64 Pet. at 2-3; 04-64 Memo at 1. As with the Makanda site,

Kamarasy claims numerous defenses, each of which the Board addresses below.

 

Fourth Amendment Right to Privacy

   

 

Kamarasy first notes that the County’s inspection authority under Section 4(d) of the Act

(415 ILCS 5/4(d) (2002)) is subject to “constitutional limitations.” 04-64 Memo at 6. Kamarasy

then argues that the County exceeded those limits when Terry entered his land for the March 11

and 25, 2004 inspections without first obtaining Kamarasy’s permission or a search warrant.

Kamarasy maintains that this violated his right to privacy under the Fourth Amendment of the

Constitution of the United States.

Id

. at 6-7.

 

Section 4(d) of the Act reads in part:

 

In accordance with constitutional limitations, the Agency shall have authority to

enter at all reasonable times upon any private or public property for the purpose

of:

 

---

 

22

(1) Inspecting and investigating to ascertain possible violations of the Act

. . . . 415 ILCS 5/4(d)(1) (2002).

 

The Fourth Amendment of the U.S. Constitution provides:

 

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized. U.S. Const., 4th Amend.

 

According to Kamarasy, the debris pile was

not

visible from a public road or neighboring

property. Kamarasy states that Terry had to traverse 500 feet across Kamarasy’s property to

reach the debris pile. The alleged violation was not in “open or plain view” and therefore the

County was required to get a warrant to enter and “search” Kamarasy’s property, argues

Kamarasy. 04-64 Memo at 7. Under these circumstances, Kamarasy maintains, “the evidence

obtained from the warrantless searches should not be allowed.”

Id

. at 7-8.

 

The County argues that there was no illegal search and that Kamarasy has not met his

“burden of persuasion with this defense.” County Br. at 9. The County notes that Terry

“testified he could see the pile from the public road with the naked eye.”

Id

. at 9. The County

further notes that in Miller, an inspector went onto a respondent’s land after noticing a potential

violation from a road, and the court “found nothing wrong with this search.”

Id

. The County

adds that “the inspector as the agent of the Illinois Environmental Protection Agency has broad

authorities under the Act to inspect and investigate violations.”

Id

.

 

The Board agrees with the County. The Appellate Court in Miller addressed this

argument under analogous facts:

 

Wood’s observation of the litter on Miller’s property from the road and his later

entry upon the property to photograph the litter did not constitute an unreasonable

search.

 

Wood observed the litter on Miller’s property from the road. This was not a

search because no justified expectation of privacy is present when the

incriminating objects or activities are readily noticeable to persons on neighboring

lands. [citation omitted] Wood then entered the land to photograph the litter.

Entry upon land to photograph conditions visible from neighboring property is not

an unreasonable search and seizure. Miller, 267 Ill. App. 3d at 169, 642 N.E.2d at

483.

 

Kamarasy “has the burden of establishing there was a search and the search was illegal.”

Miller, 267 Ill. App. 3d at 169, 642 N.E.2d at 483. Kamarasy did nothing more than offer his

own testimony contradictory to that of Terry as to whether the debris pile was visible from the

road. The Board finds that Kamarasy has not met his burden. Terry’s inspections did not

constitute an unreasonable search and seizure in violation of the Fourth Amendment of the U.S.

---

 

23

Constitution. The Board accordingly declines to suppress the evidence based on Terry’s

inspections of the Carbondale site.

 

“Open Dumping” of “Waste”

 

To prove a violation of Section 21(p)(1), (p)(3), or (p)(7), the County must first prove a

violation of Section 21(a) of the Act (415 ILCS 5/21(a) (2002)). As discussed, Section 21(a)

provides that “[n]o person shall: Cause or allow the open dumping of any waste.” 415 ILCS

5/21(a) (2002). The definitions of “open dumping,” “refuse,” and “waste” are set forth above in

the Board’s discussion of the Makanda site.

 

The Board need not repeat Kamarasy’s legal arguments, discussed and rejected above,

that an “open dumping” violation requires a showing that the waste is leaching or emitting

pollutants into the environment, or that he is not liable because he did not intend to violate the

Act. Kamarasy makes the same arguments for the Carbondale site (04-64 Memo at 8-13, 24-25;

04-64 Resp. Br. at 4, 6-7), and the Board finds them no more persuasive here. Kamarasy also

argues, without citation to authority, and without merit, that the debris pile should be exempt

because of its allegedly small or “

de minimus

” size. 04-64 Resp. Br. at 9, 12.

 

The record shows that on March 25, 2004, Terry observed roughly 10 cubic yards of

debris on the ground at the Carbondale site, including ash, landscaping waste, dimensional

lumber, metal frames, posts, and cans, a metal piece of sink, and sections of laminate counter

tops. Kamarasy concedes that he consolidated the materials from his neighboring home and his

farm activities and placed the materials into a pile to burn them. The Board finds that under

these circumstances, the materials were “discarded” and therefore constitute “waste” under the

Act. Further, it is undisputed that the Carbondale site does not meet the requirements for a

sanitary landfill. The Board accordingly finds that Kamarasy “open dumped” waste at the

Carbondale site.

     

 

Resulting in “Litter”

  

As discussed, the Board has adopted the definition of “litter” provided in the Litter

Control Act for purposes of Section 21 of the Act.

See

Mund,

 

AC 90-64, slip op. at 4, 6. The

definition of “litter” in the Litter Control Act is set forth above in the discussion of the Makanda

site.

 

Again, the Board need not repeat Kamarasy’s legal arguments premised on the Litter

Control Act, all of which were discussed and rejected above. Kamarasy repeats the arguments

for the Carbondale site (04-64 Memo at 13-18, 24-26; 04-64 Resp. Br. at 7-8), and the Board

finds them equally unconvincing in this case. The Board finds that the pile of materials at the

Carbondale site, including wood and metals, were discarded substances, and as such fall within

the definition of “litter.”

  

The Board accordingly finds that Kamarasy violated Section 21(p)(3)

of the Act by causing or allowing the open dumping of waste, resulting in “litter.”

  

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24

Resulting in “Open Burning”

 

“Open burning” is defined in the Act as “the combustion of any matter in the open or in

an open dump.” 415 ILCS 5/3.300 (2002). Kamarasy argues that his burn pile was exempt

under the Part 237 open burning regulations of the Board (35 Ill. Adm. Code 237). 04-64 Memo

at 18-19. Section 237.120 of those regulations includes several exemptions under which the

open burning of “agricultural waste,” “domicile waste,” and “landscape waste” is exempt under

specified conditions.

8

  

See

35 Ill. Adm. Code 237.120(a)-(c). Each of these terms is defined in

the regulations.

See

35 Ill. Adm. Code 237.101. The County argues that Part 237 provides no

“defense or limitation to a Section 21(p) administrative citation brought under Section 31.1 of

the Act.” County Br. at 10-11.

 

There is no need here to address the many particulars of these exemptions in great detail.

Kamarasy fails for any of several reasons. First, the regulations do not purport to provide an

exemption from liability for a violation of Section 21(p)(3) of the Act, the statutory provision at

issue for Kamarasy. Section 237.120, by its own terms, provides an exemption

only

from the

prohibitions of Section 9(c) of the Act and Part 237.

See

35 Ill. Adm. Code 237.120. Second,

each of the mentioned Part 237 exemptions is limited to open burning that waste “[o]n the

premises on which such waste is generated.”

See

35 Ill. Adm. Code 237.120(a)(1), (b)(1), (c)(1).

Even if the materials from Kamarasy’s home qualified as “domicile waste” under the regulations,

Kamarasy concedes that his home is not on the Carbondale site. Finally, “domicile waste” is

defined as “[a]ny refuse generated on single-family domiciliary property as a result of

domiciliary activities.” 35 Ill. Adm. Code 237.101. The Board finds that various material in the

burn pile, such as the laminate counter tops, do not come within this definition.

See

IEPA v.

Grubaugh, AC 92-3 (Oct. 16, 1992) (similar material in burn pile “clearly goes beyond mere

domicile waste”).

 

Kamarasy concedes that he burned debris in the pile and the photographic evidence

shows ash and charred metals, counter tops, and dimensional lumber. The Board finds that

Kamarasy’s open dumping of waste resulted in “open burning” in violation of Section 21(p)(3)

of the Act.

 

Resulting in the Deposition of “General Construction or Demolition Debris”

 

The statutory definition of “general construction or demolition debris” as used in Section

21(p)(7) of the Act is set forth above in the discussion of the Makanda site. The Board need not

repeat Kamarasy’s legal arguments, discussed and rejected above, that he cannot be charged with

more than one violation of the Act for the same act of open dumping. Kamarasy makes those

arguments again, but for the Carbondale site (04-64 Memo at 27-28), and the Board finds them

no more convincing here.

 

Kamarasy also denies that the burn pile contained “general construction or demolition

debris” because he “was not constructing a structure, nor was he demolishing one.” 04-64

Memo at 20; 04-64 Resp. Br. at 9. The County responds that the “facts in evidence clearly belie

8

 

But see

415 ILCS 5/9 (2002) on limits to prohibitions on landscape waste burning.

---

 

25

this argument,” pointing to the dimensional lumber and counter tops in the pile on March 25,

2004. County Br. at 11.

 

The Board notes, and Kamarasy concedes, that dimensional lumber, metal fence posts,

and counter tops in the burn pile came from his home on the adjacent site and from the

Carbondale site’s farm operations. In his response brief, Kamarasy repeats that “no construction

or demolition activities were shown, “ but then adds “except for the replacement of old fence

posts.” 04-64 Resp. Br. at 9. The Board finds that the preponderance of the evidence in the

record demonstrates that at least some materials in the pile resulted “from the construction,

remodeling, repair, [or] demolition of . . . structures,” and as such fall within the Act’s definition

of “general construction or demolition debris.”

 

To prove this alleged Section 21(p)(7) violation, the County is not required to establish

that

every

item in the debris pile constitutes “general construction or demolition debris,” but

rather only that such material was in fact deposited.

See

Carrico, AC 04-27; Daily, AC 01-16,

AC 01-17. Nor is the County required to observe Kamarasy in the act of constructing,

remodeling, repairing, or demolishing.

See

IEPA v. Thomas, AC 89-215 (Jan. 23, 1992). The

County has met its burden. The Board therefore finds that Kamarasy’s open dumping of waste

resulted in the deposition of “general construction or demolition debris” at the Carbondale site,

in violation of Section 21(p)(7) of the Act.

 

Summary of Violations at the Carbondale Site

 

For AC 04-64, the Board finds Kamarasy caused or allowed the open dumping of waste

resulting in litter, open burning, and the deposition of general construction or demolition debris

at the Carbondale site, violating Sections 21(p)(1), (p)(3), and (p)(7) of the Act. The Board

further finds that Kamarasy failed to prove that the administrative citation was improperly

issued.

 

Civil Penalty and Hearing Costs

 

The County seeks the statutory $1,500 civil penalty for each of the five violations (two at

the Makanda site for $3,000, three at the Carbondale site for $4,500), for a total civil penalty of

$7,500. AC 04-63 at 2; AC 04-64 at 2. Because the parties have been to hearing and the Board

has found that Kamarasy violated Sections 21(p)(1) and (p)(7) at the Makanda site, and Sections

21(p)(1), (p)(3), and (p)(7) at the Carbondale site, the Board now addresses the issues of civil

penalty and hearing costs. Both are addressed in Section 42(b)(4-5) of the Act:

 

In an administrative citation action under Section 31.1 of this Act, any person

found to have violated any provision of subsection (p) of Section 21 of this Act

shall pay a civil penalty of $1,500 for each violation of each such provision, plus

any hearing costs incurred by the Board and the Agency, except that the civil

penalty amount shall be $3,000 for each violation of any provision of subsection

(p) of Section 21 that is the person’s second or subsequent adjudicated violation

of that provision. 415 ILCS 5/42(b)(4-5) (2002).

 

---

 

26

When the Board finds a violation in a formal enforcement action brought under Section

31 of the Act, the Board has the discretion to impose a penalty and if the Board decides to

impose one, the Board may consider factors that mitigate the amount of penalty.

See

415 ILCS

5/31, 33(c), 42(h) (2002). The Board has no such discretion after finding a violation in an

administrative citation action.

See

Miller, 267 Ill. App. 3d at 167, 642 N.E.2d at 482. The Board

must impose a civil penalty on Kamarasy and, further, the amount of that penalty is fixed by the

Act.

 

There is no indication that this is a second or subsequent adjudicated violation for

Kamarasy.

See

Yocum, AC 01-29, AC 01-30 (cons.) (Aug. 8, 2002) (violations of Sections

21(p)(1) and (p)(7) found at each of two sites in consolidated administrative citation order of

June 6, 2002, constitute initial violations). Therefore, the civil penalty for Kamarasy’s first

violations of Sections 21(p)(1), (p)(3), and (p)(7) is statutorily set at $1,500 for each of the five

violations, totaling $7,500.

See

415 ILCS 5/42(b)(4-5) (2002); 35 Ill. Adm. Code 108.500(b)(2).

The Board will assess the $7,500 penalty in its final opinion and order.

 

In addition, by unsuccessfully contesting the administrative citations at hearing,

Kamarasy must pay the hearing costs of the County and the Board.

See

415 ILCS 5/42(b)(4-5)

(2002); 35 Ill. Adm. Code 108.500(b)(3). However, no information on those costs is in the

record. The County and the Clerk of the Board are therefore each ordered to file a statement of

costs, supported by affidavit, and to serve the filing on Kamarasy. Kamarasy will have an

opportunity to respond to the requests for hearing costs, as provided in the order below.

 

CONCLUSION

 

The Board finds that Kamarasy violated Sections 21(p)(1) and (p)(7) of the Act by

causing or allowing the open dumping of waste resulting in litter and the deposition of general

construction or demolition debris at the Makanda site. The Board also finds that Kamarasy

violated Sections 21(p)(1), (p)(3), and (p)(7) of the Act by causing or allowing the open dumping

of waste resulting in litter, open burning, and the deposition of general construction or

demolition debris at the Carbondale site.

 

Having found the violations in these administrative citation actions, Kamarasy must pay

a civil penalty of $7,500 and the hearing costs of the County and the Board. As set forth in the

order below, the Board directs the County and the Clerk of the Board to file hearing cost

documentation, to which Kamarasy may respond. After the time periods for the filings on

hearing costs have expired, the Board will issue a final opinion and order imposing the civil

penalty on Kamarasy and assessing against him any appropriate hearing costs.

  

This interim opinion constitutes the Board’s interim findings of fact and conclusions of

law.

 

ORDER

 

1. Kamarasy violated Sections 21(p)(1) and (p)(7) of the Act (415 ILCS 5/21(p)(1),

(p)(7) (2002)) at the Makanda site.

---

 

27

 

2.

Kamarasy violated Sections 21(p)(1), (p)(3), and (p)(7) of the Act (415 ILCS

5/21(p)(1), (p)(3), (p)(7) (2002)) at the Carbondale site.

    

3.

By July 6, 2005, the County must file a statement of its hearing costs, supported

by affidavit, with service on Kamarasy. By July 6, 2005, the Clerk of the Board

must file a statement of the Board’s hearing costs, supported by affidavit, with

service on Kamarasy.

  

4.

By July 26, 2005, Kamarasy may file a response with the Board to the filings

required in paragraph 3 of this order.

  

IT IS SO ORDERED.

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above interim opinion and order on June 16, 2005, by a vote of 5-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board