Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
Dated: December 22, 2005
NOTICE OF FILING
To :
Frank Bencie
10220 Bencie Lane
West Frankfort, Illinois 62896
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution
Control Board of the State of Illinois the following instrument(s) entitled POST-HEARING BRIEF
OF COMPLAINANT
.
Respectfully submitted,
J.
I
THIS FILING SUBMITTED ON RECYCLED PAPER
Michelle M. Ryan
Special Assistant Attorney General
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR E C EI VE D
CLERK'S OFFICE
ILLINOIS ENVIRONMENTAL
)
DEC 2 7 2005
PROTECTION AGENCY,
)
Complainant,
)
AC 04-77
STATE OF ILLINOIS
Pollution Control Board
V .
)
(IEPA No. 265-04-AC)
FRANK BENCIE,
)
Respondent
.
)
ILLINOIS ENVIRONMENTAL
V .
Respondent
.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PROTECTION AGENCY,
)
Complainant,
)
AC 04-77
(IEPA No. 265-04-AC)
FRANK BENCIE,
)
POST-HEARING BRIEF OF COMPLAINANT
On May 11, 2004, the Illinois Environmental Protection Agency ("Illinois EPA") issued
an administrative citation to Frank Bencie ("Respondent") . The citation alleges violations of
Section 21(p)(1) and 21(p)(4) and 21(p)(7) of the Environmental Protection Act
("Act") (415
ILCS 5/21(p)(1) & (4) (2002)), in that Respondent caused or allowed open dumping of waste,
resulting in litter and the deposition of waste in standing or flowing water. The violations
occurred at a property located at 10220 Bencie Lane, south of West Frankfort, Franklin County
.
Transcript, p. 8; Exhibit 1 .
Illinois EPA has demonstrated that Respondent caused or allowed open dumping on the
site. "Open dumping" means "the consolidation of refuse from one or more sources at a disposal
site that does not fulfill the requirements of a sanitary landfill ." 415 ILCS 5/3.305 (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, appliances,
glass, household waste, plastics, metal and other unidentifiable items were accumulated
throughout the site. Tr. at 9-11 ; Exh. 1, pp. 3, 6-27. These materials constitute "discarded
material" within the meaning of the term "waste ." Respondent owns the site. Tr. at 8 .
RECEIVED
DEC 2 7 2005
STATE OF ILLINOIS
Pollution Control Board
Respondent admitted that people dump at his property because they see all the junk there, and
that they bring it to him because it's cheaper than proper disposal. Tr. at 16. Some of the
material was placed on the property by Respondent "a long time ago," and had vegetation
growing on it. Tr. at 17-18 . Therefore, Respondent caused or allowed the open dumping of
waste observed on March 23, 2004 .
Respondent's causing or allowing the open dumping of these wastes resulted in "litter"
under Section 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (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
.
.
.or anything
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 I. Mund
(Aug. 22, 1991), AC 90-64, slip
op . at 4, 6. Using this definition, the wood, tires, insulation, appliances, glass, household waste,
plastics, metal and other items constitute "litter" under Section 21(p)(1) of the Act, and therefore
Respondent violated that section .
Respondent's open dumping of these wastes also resulted in the deposition of waste in
standing or flowing water in violation of Section 21(p)(4) of the Act (415 ILCS 5/21(p)(4)
(2004)). Some of the waste materials were observed in standing water on the site, including
some plastic shelving and other materials. Tr. at 10; Exh. I, p. 14. As argued above, Respondent
caused or allowed the open dumping of this waste . Because the open dumping resulted in the
waste being in standing water, Respondent also violated Section 21(p)(4)
.
Respondent stated that he was trying to clean up the site . Tr. at 14. As previously noted, at
least some of the material was placed on the property so long ago that it had vegetation growing on
2
it. Tr. at 17-18. Although Illinois EPA appreciates Respondent's good intentions, clearly he was not
making reasonable progress in his clean up effort . For example, although it is unknown even to
Respondent how long some of the waste has been at the site, Respondent admitted at hearing that
only 65-70% of the material had been removed in the year-and-a-half since this Administrative
Citation was filed. 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 I11.2d 318, 574 N.E.2d 612 (1991). Therefore, these arguments byRespondent
do not provide a defense to the proven violations .
The Illinois EPA photographs and inspection report and the testimony show that Respondent
allowed open dumping of waste in a manner resulting in litter and deposition of waste in standing or
flowing water in violation of Sections 21(p)(1) and (p)(4) of the Act. Illinois EPA requests that the
Board enter a final order finding that Respondent violated these sections and imposing the statutory
penalty .
DATED: December 22, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
3
Respectfully Submitted,
1 !
l .
LL. .
Michelle M. Ryan
Special Assistant Attorney General
PROOF OF SERVICE
I hereby certify that I did on the 22" d` day of December, 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 of the
following instrument(s) entitled POST-HEARING BRIEF OF COMPLAINANT
To :
Frank Bencie
10220 Bencie Lane
West Frankfort, Illinois 62896
and the original and nine (9) true and correct copies of the same foregoing instruments on the same
date by U.S. Mail with postage thereon fully prepaid
To :
Dorothy Gunn, Clerk
Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
Michelle M. Ryan
Special Assistant 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
