BEFORE THE ILLINOIS POLLUTION CONTROL BOARL~~~~ED
ILLINOIS ENVIRONMENTAL
)
DEC 052005
PROTECTION AGENCY,
)
PollutionSTATE
OF
Control
ILLINOIS
Board
Complainant,
)
AC 05-63
)
V.
)
(IEPA No. 78-05-AC)
)
JOHN R. MALLOCH,
Respondent.
NOTICE OF FILING
To: John R. Malloch
2572 County Road 600E
Dewey, IL 61840
PLEASE TAKE NOTICE that on this date I presented to the hearing officer for filing with
the Clerk ofthe Pollution Control Board ofthe State of Illinois the following instrument(s) entitled
POST-HEARING BRIEF OF COMPLAINANT.
Respectfully submitted,
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217)782-5544
Dated: November 30, 2005
THIS FILING SUBMI1TED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVE
ERjç~OFFICE
ILLINOIS ENVIRONMENTAL
)
DEC 052005
PROTECTION AGENCY,
)
A
OF ILLINOIS
unUuon
Control Board
Complainant,
)
AC
05-63
)
V.
)
(IEPA No. 78-05-AC)
)
JOHN R. MALLOCH,
)
)
Respondent.
)
POST-HEARING BRIEF OF COMPLAINANT
On April 4, 2005, the Iliinois Environmental Protection Agency (“Illinois EPA”) issued
an administrative citation to John R. Malloch (“Respondent”). The citation alleges violations of
Section 2l(p)(I), 21(p)(3) and 2l(p)(’7) of the Environmental Protection Act (“Act”) (415 ILCS
5/2l(p)(l), (3) & (7) (2002)), in that Respondent caused or allowed open dumping of waste,
resulting in litter, open burning, and the deposition ofconstruction or demolition debris. The
violations occurred at a property located at 2572N and 600E, south of Fisher, Champaign
County. Transcript, p. 7; Exhibit 1.
Illinois EPA has demonstrated that Respondent caused or allowed open dumpingunifre
site. “Open dumping” means “the consolidation ofrefuse from one or more sources at a disposal
site that does not fulfill the requirements ofa sanitary landfill.” 415 ILCS 5/3.305 (2004).
“Refuse” means “waste,” (415 ILCS 5/3.385 (2004)), and “waste” includes “any garbage.
. .
or
other discarded material” (415 ILCS 5/3.535 (2004)). The inspection report admitted into
evidence as Exhibit 1 and the testimony at hearing show that wood, tires, insulation or fibrous
material, furniture springs, part ofa composite pallet, plastic and metal, as well as ash and
remaths from burning, were accumulated in various piles on the site. Tr. at 9-12; Exh. 1, pp. 4,
10-11. These materials constitute “discarded material” within the meaning ofthe term “waste.”
Respondent admitted that the materials were from buildings on site when he purchased the
property in 1970. Tr. at 14. As the person with control over the property for the last 35 years,
Respondent caused or allowed the open dumping of waste observed on Marchi,2005.
Respondent’s causing or allowing the open dumping of these wastes resulted in “litter”
under Section 2l(p)(1) ofthe Act (415 ILCS 5/21(p)~)(2004)). The Act does not define “litter,”
but in similar cases, the Board has looked to the definition of “litter” in the Litter Control Act:
“Litter” means any discarded, used or unconsumed substance or waste. “Litter” may
include, but is not limited to,any garbage, trash, refuse, debris, rubbish.. .oranything
else of an unsightly or unsanitary nature, which has been discarded, abandoned or
otherwise disposed of improperly.
415
ILCS 105/3(a) (2002); see St.
Clair County v. Louis L Mund
(Aug. 22, 1991), AC 90-64, slip
op. at 4, 6. Using this definition, the wood, tires, insulation or fibrous material, furniture springs,
part ofa composite pallet, plastic, metal, ash and remains from burning constitute “titter” under
Section 2l(p)U) of the Act, and therefore Respondent violated that section.
Respondent’s open dumping of these wastes also resulted in open burning in violation of
Section 21(p)(3) of the Act (415 ILCS 5/21(p)(3) (2004)). “Open burning” is defined in Section
3.300 ofthe Act, 415 ILCS 5/3.300 (2004), as “the combustion ofany matter in the open or in an
open dump.” As described above, the burn piles located on the site meet the definition of “open
dumping.” The waste piles were smoldering when the inspector visited the site. Tr. at 9-10. The
burning of any or all ofthis matter in the waste piles constitutes “open dumping ofwaste in a
manner that results in.. .open burning” under Section 21@)(3) of the Act, and therefore
Respondent violated that section.
2
Respondent’s open dumping of these wastes also resulted in the deposition of
construction or demolition debris in violation of Section 2I(p)(7) ofthe Act (415 ILCS
S/2l(p)(7) (2004)). “Construction or demolition debris” is defined in part, as follows:
“General construction or demolition debris” means non-hazardous,
uncontaminated materials resulting from the construction, remodeling, repair, and
demolition 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 ofthose materials.
415 ILCS 5/3.160(a) (2004).
Respondent admitted that all of the material on site was from buildings that were located on site. Tr.
at 14. The materials from the buildings meets the definition of“construction or demolition debris”
forpurposes of Section 21(p)(7) ofthe Act, and therefore Respondent violated that section.
Respondent stated that he was trying to clean up the site. Tr. at 14. Unfortunately,
Respondent’s methods involved illegal open dumpingand open burning on the property. Attempting
to “clean up” a site doS not give the Respondent a license to illegally dispose of waste by-open
burning in violation ofthe Act. This is a situation where the ends do not justi~’the means. It is not
Respondent’s intentions that are objectionable, but rather his improper management of waste
materials that meets the definition of impermissible activity under the law. Further, a person can
cause or allow a violation of the Act without knowledge or intent.
County of Will v. Utilities
Unlimited, Inc.,
et al. (July 24, 1997), AC 97-41, slip op. at
5,
citing
People v. Fiorini,
143 Ill.2d
318,574 N.E.2d 612(1991). Therefore, these arguments byRespondent do not providea defense to
the proven violations.
3
The Illinois EPA photographs and inspection report and the testimony show that Respondent
allowed open dumping of waste in a manner resulting in litter, open burning, and deposition of
construction or demolition debris in violation of Sections 2l(p)(l), (p)(3), and (p)(7) of the Act.
Illinois EPA requests that the Board enter a final order finding that Respondent violated these
sections and imposing the statutory penalty.
Respectfully Submitted,
DATED: November 30, 2005
)I.1JJj~~
Michelle M. Ryan
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
-
4
PROOF OF SERVICE
I hereby certify that I did on the
30th
day ofNovember, 2005, send by U.S. Mail with postage
thereon fully prepaid, by depositing in a United States Post Office Box a true and correct copy ofthe
following instrument(s) entitled POST-HEARING BRIEF OF COMPLAINANT
To: John R. Malloch
2572 County Road 600E
Dewey, IL 61840
and the original and nine (9) true and correct copies ofthe same foregoing instruments
To: Dorothy Gunn, Clerk
Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
j¼
Michelle
1&UJJ4L
M. Ry~ff
—
!~&~
Special Assistant Attorney General
Illinois Environmental Protection Agency
-
1021 North Grand Avenue East
-
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING SUBMITTED ON RECYCLED PAPER
