RECEIVED
CLERK'S OFFICE
FEB 0 2 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR9STATE OF
ILLINOIS
ollution Control Board
POST-HEARING BRIEF OF RESPONDENT
The Agency's position in this case is not sustained by the uncontroverted evidence
adduced at the Hearing. The Agency has charged the Respondent, William Shrum, with "open
dumping," defined as "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) (emphasis
added.) Where there is no evidence in the record that the Respondent consolidated refuse from
one or more sources, the open dumping provision of the Act is not violated .
People v. Conrail
Corp, 245 Ill.App.3rd 167, 613 N.E.2nd 784 (Fifth District 1993) . Mr. Shrum testified that he
took some of the materials on the property and placed them in a dumpster on his property that
was removed by a commercial trash disposal service. (Tr. at 21). As there was no evidence to
indicate that the disposal service was operating without a permit, or otherwise improperly, a
finding against the Respondent cannot be based up the fact that he placed some refuse into the
custody and control of such a service for ultimate disposal
.
In light of the testimony and evidence presented at the hearing, the Agency's case against
Shrum can only be based on the fact that he moved around materials that were previously present
on the property in question, although those materials were, both before and after Mr . Shrum's
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
)
AC 05-18
WILLIAM, SHRUM,
)
Respondent
.
)
(IEPA No. 409-04-AC)
action, located on the same tract of property. To be guilty of open dumping, Mr. Shrum must
have engaged in "the consolidation of refuse from or more sources at a disposal site that does not
fulfill the requirements of a sanitary landfill ." In this case, there is only one "source" of those
materials said to constitute "refuse"-the tract of land on which was located the materials which
allegedly come within the statutory definitions of "litter" or of "construction or demolition
debris." Thus, for Mr. Shrum to be liable for violation of the open dumping provision, he must
have "consolidated" refuse from one source to that same source-- without ever taking the refuse
away from that source. This interpretation of the Act strains the plain meaning of the word
"from." Such an interpretation also negates a clear reading of 415 ILCS 5/3 .305, which seems to
envision a situation in which materials are taken from one or more distinct sites, and then
deposited on a single site, different from any of the sites on which any of the refuse was originally
located. Under this "common sense" interpretation of the language of the Act, Mr. Shrum cannot
be held liable for open dumping, where he simply changed the position of materials that were
already on the site, and neither took materials from that site for deposit in an unlicensed dumping
site, nor added other material to an existing unlicensed waste disposal site
.
. As the Agency admits in its brief there is no dispute that the materials on the land were
present before Mr. Shrum owned the property; and that Mr. Shrum did not place the materials on
the property, nor did he request or hire any other person or entity to do so . There is no evidence
that any additional materials were placed at the site during the time that Mr. Shrum has owned
the land on which it is located . There is no evidence to support the Agency's assertion that,
through his activities, Mr. Shrum in any way "exacerbated" the condition of the land, although
undoubtedly the materials were in different positions than they had been before Mr . Shrum took
the actions set out in his testimony. Under these circumstances, none of the actions taken by
Mr. Shrum can be said to constitute "open dumping", and Respondent therefore prays that
the Board find in his favor on the Agency's charges against him, and that he may obtain any
and all such other relief to which this Board finds he is entitled
.
Respectfully Submitted,
DATED: January 30, 2006
J .
ab
Schattni , bb & Juen
309 Hillsboro Avenue
Edwardsville IL
62025-1967
(618) 656-7681
Attorney for Respondent
NOTICE OF FILING
To :
Michelle M. Ryan
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue
P.O. Box 19276
Springfield IL
62794-9276
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 RESPONDENT
.
Respectfully Submitted,
DATED: January 30, 2006
/..a 4,
A / /
~
V
K
n J Babb
ell, Schattni
, : abb & Juen
309 Hillsboro Avenue
Edwardsville IL
62025-1967
(618) 656-7681
Attorney for Respondent
BEFORE THE ILLINOIS POLLUTION CONTROL BOARM
C
E
R
EO
VE
ILLINOIS ENVIRONMENTAL
)
FEB 0 2 2006
PROTECTION AGENCY,
)
STATE OF ILLINOIS
Complainant,
)
AC 05-18
Pollution Control Board
v .
)
WILLIAM, SHRUM,
)
Respondent .
)
(IEPA No. 409-04-AC)
PROOF OF SERVICE
I hereby certify that I did on this 30t° day of January, 2006, send by U.S. Mail with
postage folly prepaid thereon, by depositing in a United States Post Office Box a true and
correct copy of the following instrument(s) entitled POST-HEARING BRIEF OF RESPON-
DENT
To :
Michelle M. Ryan
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue
P.O. Box 19276
Springfield IL
62794-9276
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
To
:
Dorothy Gunn, Clerk
Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago IL
60601
/4/
WW'
Ke,
J. Babb
U sell, Schattnik, Babb & Juen
309 Hillsboro Avenue
Edwardsville IL
62025-1967
(618) 656-7681
Attorney for Respondent
