ILLINOIS POLLUTION CONTROL BOARD

March 16, 2006

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

WILLIAM SHRUM,

Respondent.

)

AC 05-18

(IEPA No. 409-04-AC)

(Administrative Citation)

MICHELLE M. RYAN APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY; and

KEVIN J. BABB APPEARED ON BEHALF OF WILLIAM SHRUM.

INTERIM OPINION AND ORDER OF THE BOARD (by A.S. Moore):

On August 26, 2004, the Illinois Environmental Protection Agency (Agency) timely filed

an administrative citation against William Shrum (respondent). The citation alleges that

respondent violated sections 21(p)(1) and 21(p)(7) of the Environmental Protection Act (Act)

(415 ILCS 5/21(p)(1), 21 (p)(7) (2004)) at a site located north of the intersection of Shamrock

and Corgan Roads approximately three and one-half miles northwest of Tamaroa, Perry County.

For the reasons below, the Board finds that Mr. Shrum violated sections 21(p)(1) and

21(p)(7) of the Act (415 ILCS 5/21(p)(1) and 21(p)(7) (2004)) by causing or allowing the open

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

debris or clean construction or demolition debris, as alleged in the citation. Because the Board

has previously found the respondent in violation of section 21(p)(1), he is subject to a civil

penalty of $3,000 for a second or subsequent violation of that provision. 415 ILCS 5/42(b)(4-5)

(2004);

see

County of Perry v. William Shrum, AC 02-1, slip op. at 1 (Sept. 6, 2001). The Board

assesses a total statutory penalty of $4,500 as well as hearing costs as described below.

In this interim opinion, the Board first describes the administrative citation process and

the procedural history and facts of this case. The Board then sets forth the pertinent provisions

of the Act. Next, the Board analyzes the issues and makes its conclusions of law regarding the

alleged violations before addressing the issue of penalties.

ADMINISTRATIVE CITATION PROCESS

Section 31.1 of the Act authorizes the Agency and units of local government to enforce

specified provisions of the Act through an administrative citation. 415 ILCS 5/31.1 (2004). Part

108 of the Board’s procedural rules provides the process of a citation before the Board. 35 Ill.

Adm. Code 108.100

et seq

. Unlike other environmental enforcement proceedings in which the

Act prescribes a maximum penalty,

see, e.g.,

415 ILCS 5/42(b)(1) (2004), the Act sets specific

penalties for administrative citations. 415 ILCS 5/42(4-5) (2004). In cases such as this, the

Board has no authority to consider mitigating or aggravating factors when determining penalty

amounts.

. However, “if the Board finds that the person appealing the [administrative] 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) (2004).

PROCEDURAL HISTORY

On August 26, 2004, the Agency filed an administrative citation (AC) alleging violations

of the Act at a site north of the intersection of Shamrock and Corgan Roads approximately 3 ½

miles northwest of Tamaroa, Perry County. Specifically, the citation alleges that the respondent

violated section 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2004)) by causing or allowing the

open dumping of waste resulting in litter. AC at 2. The citation further alleges that the

respondent violated section 21(p)(7) of the Act (415 ILCS 5/21(p)(7) (2004)) by causing or

allowing the open dumping of waste resulting in deposition of general construction or demolition

debris or clean construction or demolition debris. AC at 2.

On September 29, 2004, the respondent filed a petition for administrative review (Pet.).

The Board accepted the petition for hearing in an order dated October 7, 2004.

On November 17, 2005, Board Hearing Officer Carol Webb conducted a hearing (Tr.) at

the Perry County Courthouse in Pinckneyville. At the hearing, Special Assistant Attorney

General Michelle M. Ryan appeared and participated on behalf of the complainant, and Kevin J.

Babb appeared and participated on behalf of the respondent. Three witnesses testified during the

hearing: Mr. Kent A. Johnson of the Agency on behalf of the complainant and Mr. William

Shrum and Mr. Keith Moss on behalf of the respondent. Based on her legal judgment,

experience, and observations at hearing, Hearing Officer Webb found that all witnesses testified

credibly in this matter. Tr. at 26-27. On November 21, 2005, Special Assistant Attorney

General Michelle M. Ryan filed an entry of appearance and a motion to file

instanter

. The

Board grants the motion and accepts the entry of appearance.

On December 29, 2005, the complainant filed its post-hearing brief (Pet. Brief).

Although his post-hearing brief was due on or before January 26, 2006, the respondent filed it

(Resp. Brief) on January 30, 2006. The Board finds that the complainant will not be materially

prejudiced by accepting respondent’s brief and accepts it

instanter.

FACTS

On July 2, 2004, Agency field inspector Kent Johnson inspected a site north of the

intersection of Shamrock and Corgan Roads approximately 3 ½ miles northwest of Tamaroa,

Perry County. Exh. 2 at 3;

see

Exh. 2 at 5 (site sketch). Paul Clapp of the Perry County Solid

Waste Authority accompanied Johnson during this inspection. Exh. 2 at 3.

Mr. Johnson conducted the inspection in response to a complaint of debris and pallet

pieces dumped openly there. Exh. 2 at 3; Tr. at 8. Also, Mr. Brian Rodley of the Agency’s

Office of Pollution Prevention supplied Mr. Johnson with photos of the site taken from off-site in

June of 2004. Exh. 1; Tr. at 9. Public records obtained from county offices by Mr. Johnson

indicated that the respondent became owner of the site on February 19, 2004. Exh. 2 at 3

(referring to PIN 1-42-0250-041);

see

Tr. at 7, 18. Mr. Johnson also reports that the respondent

operates a pallet recycling business at the same Shamrock Road address as his residence. Exh. 2

at 3.

On entering the property on July 2, 2004, Mr. Johnson observed materials including

blocks, wood, pallet boards, metal, a tire, and what appeared to be a mattress. Tr. at 11; Exh. 2 at

3; Exh. 2 at 6-8 (photos 1-5);

see also

Tr. at 20. Those materials covered an area that Mr.

Johnson estimated to be ninety feet wide and 75 feet long. Exh. 2 at 5; Exh. 2 at 8-9 (photos 6-

7). The material appeared to have been spread to fill a low-lying area. Tr. at 11-12, 21-22; Exh.

2 at 3; Exh. 2 at 9 (photo 8). Mr. Johnson observed that Mr. Rodley’s June 2004 photos show

material in piles, while he later observed material that appeared to have been spread by moving

equipment. Tr. at 10;

see

Exh. 1. The maximum depth of the material was approximately four

feet at the back or north end, where Mr. Johnson observed a vertical drop. Exh. 2 at 3;

see

Tr. at

12. Mr. Johnson’s site sketch noted material at ground level at the south end of the area. Exh. 2

at 5. Mr. Johnson did not observe dumping taking place at the site during his July 2, 2004

inspection. Tr. at 14.

Although some of the materials were charred and indicated burning, the area surrounding

the materials was not scorched. Tr. at 12; Exh. 2 at 3. Mr. Johnson concluded that the materials

may have been burned elsewhere and brought to the site for disposal. Tr. at 12; Exh. 2 at 3-4.

Mr. Johnson also observed vehicle tracks throughout the area. Exh. 2 at 4. Because the site had

no source generating materials, Mr. Johnson believed that the materials had originated at another

site.

Dan Kleiboecker owned the site before the respondent purchased it. Tr. at 23. From the

end of the year 2000 into the year 2001, Keith Moss performed construction work building a

house on the property for Kleiboecker.

. During that work, Moss observed a dump truck being

filled with materials including drywall, lumber, buckets, plumbing fixtures, furniture, and

household furnishings. Tr. at 24-25. Moss reported that he could see the truck repeatedly

crossing the road and dumping.

. Moss stated that the Agency’s photographs (Exh. 1, Exh. 2

at 6-9) appear to show the same materials that had been deposited on the site when Kleiboecker

owned it. Tr. at 25.

STATUTORY BACKGROUND

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

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 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) (2004).

Section 3.305 of the Act defines “open dumping” as “the consolidation of refuse

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

landfill.” 415 ILCS 5/3.305 (2004).

Section 3.385 of the Act defines “refuse” as “waste.” 415 ILCS 5/3.385 (2004).

Section 3.535 of the Act defines “waste” as:

any 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, but does not

include solid or dissolved material in domestic sewage, or solid or dissolved

materials in irrigation return flows, or coal combustion by-products as defined in

Section 3.135, or industrial discharges which are point sources subject to permits

under Section 402 of the Federal Water Pollution Control Act, as now or hereafter

amended, or source, special nuclear, or by-product materials as defined by the

Atomic Energy Act of 1954, as amended (68 Stat. 921) or any solid or dissolved

material from any facility subject to the Federal Surface Mining Control and

Reclamation Act of 1977 (P.L. 95-87) or the rules and regulations thereunder or

any law or rule or regulation adopted by the State of Illinois pursuant thereto. 415

ILCS 5/3.535 (2004).

Section 21(a) of the Act provides that “[n]o person shall [c]ause or allow the open

dumping of any waste.” 415 ILCS 5/21(a) (2004).

Section 21(p) of the Act provides that no person shall, “in violation of subsection (a) of

this Section, cause or allow the open dumping if any waste in a manner which results in any of

the following occurrences at the dump site:

(1) litter

* * *

(7) deposition of:

(i) general construction or demolition debris as defined in Section

3.160(a) of this Act; or

(ii) clean construction or demolition debris as defined in Section

3.160(b) of this Act.” 415 ILCS 5/21(p) (2004).

Section 31.1(d)(2) of the Act provides that:

“[I]f the Board finds that the person appealing the [administrative] 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) (2004).

Section 42(b)(4-5) of the Act provides that:

“In an administrative citation 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 adjudication violation of that provision.”

415 ILCS 5/42(b)(4-5) (2004).

COMPLAINANT’S BRIEF

Noting that “‘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,’” the Agency

argues it has demonstrated that open dumping occurred at the site. Pet. Brief at 1, citing 415

ILCS 5/3.305 (2004). The Agency claims that testimony at hearing and the inspection report

admitted into evidence as Exhibit 2 show that discarded materials including blocks, burned

debris, construction debris, wood, metal, a mattress, a tire, and other items were present. Pet.

Brief at 1-2, citing Tr. at 11-12, 20 and Exh. 2 at 3, 6-9. The Agency further claims that the

“[r]espondent admitted that construction debris, toilets, shingles, and mattresses had been present

at the site.” Pet. Brief at 1-2. citing Tr. at 20. The Agency argues that these discarded materials

constitute “waste” (415 ILCS 5/.535 (2004)) and thus fall within the statutory definition of

“refuse” (415 ICLS 5/3.385 (2004)).

The Agency notes the respondent stated that, after discovering waste on the site, he

placed certain materials including toiletry and glass in a dumpster for removal. Pet. Brief at 2,

citing Tr. at 19-21. The Agency further notes that the respondent addressed the remaining

materials by pushing them back and forth and leveling the area. Pet. Brief at 2, citing Tr. at 20-

21. The Agency thus concludes that “[r]espondent caused or allowed the consolidation of refuse,

and therefore the open dumping of waste observed on July 2, 2004.” Pet Brief at 2.

The Agency further claims that that this open dumping resulted in “litter.” Pet. Brief at 2.

Although the Act does not define that term, the Agency notes that the Board has relied upon the

definition provided in the Litter Control Act referring to “any discarded, used or unconsumed

substance or waste.” Pet. Brief at 2, citing 415 ILCS 105/3(a) (2004) and St. Clair County v.

Louis I. Mund, AC 90-64, slip op. at 4, 6 (Aug. 22, 1991). The Agency argues that the building

materials, wood, metal, mattress, tire, and other items observed at the site constitute “litter” and

that respondent has therefore violated section 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2004)).

Furthermore, the Agency notes that Mr. Moss has testified that materials resulting from

building demolition and construction were dumped on the site by a previous owner in 2000 and

2001. Tr. at 23-25. That Agency argues that material including cinder blocks, lumber, drywall,

and plumbing fixtures constitute “construction or demolition debris” within the statutory

definition of that term. Pet. Brief at 3, citing 415 ILCS 5/3.160(a) (2004). Accordingly, the

Agency concludes that the respondent has violated section 21(p)(7) of the Act (415 ILCS

5/21(p)(7) (2004)).

The Agency acknowledges “[r]espondent did not originally place the waste at the site”

and “he removed some of it. Pet. Brief at 3. However, the Agency notes “[t]his Board has held

that present inaction on the part of a current landowner to remedy past illegal disposal of waste

previously placed on the site constitutes ‘allowing’ open dumping, in that the owner allows the

illegal situation to continue.” Pet. Brief at 3-4, citing Sangamon County v. Hsueh, AC 92-79,

slip op. at 4-5 (July 1, 1993). The Agency further notes that “[a] person can cause or allow a

violation of the Act without knowledge or intent.” Pet. Brief at 3, citing County of Will v.

Utilities Unlimited, Inc,

et al

., AC 97-41, slip op. at 5 (July 24, 1997). In this case, the Agency

argues that the respondent addressed the waste on his site in part by burying an estimated 500

cubic yards of it. Pet. Brief at 3, citing Exh. 2 at 1. The Agency claims that this impermissible

burial merely exacerbated the illegal dumping onto the site and provides no defense to the two

alleged violations.

See

Pet. Brief at 4.

RESPONDENT’S BRIEF

The respondent argues that, “[w]here 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.” Resp. Brief at 1, citing People v. Conrail Corp., 245 Ill. App. 3rd 167, 613

N.E.2d 784 (5th Dist. 1993). The respondent argues that a “common sense” interpretation of the

definition of “open dumping” “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.” Resp. Brief at 2, citing 415 ILCS 5/3.305

(2004).

The respondent argues that this case involves only a single source of the materials in

question and emphasizes that he did not originally place the materials at that source. Resp. Brief

at 2;

see

Pet. Brief at 3. The respondent suggest that

he cannot have consolidated refuse “where

he simply changed the position of materials that were already on the site” and neither removed

materials to an unlicensed landfill or added fresh material to an existing unlicensed location.

Resp. Brief at 2. Accordingly, the respondent argues that none of his actions can be

characterized as “open dumping.” Resp. Brief at 2-3.

ISSUES AND ANALYSIS

“Open Dumping” of “Waste”

To prove a violation of any subsection of section 21(p) of the Act (415 ILCS 5/21(p)

(2004)), the Agency must first prove that the respondent violated section 21(a) of the Act by

causing or allowing the open dumping of any waste. 415 ILCS 5/21(a) (2004).

“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 record shows that construction materials were placed on the site by a previous owner

at the end of the year 2000 and the beginning of the year 2001. Tr. at 23-25. Specifically,

respondent’s witness observed a dump truck filled with materials including cinder blocks,

drywall, buckets, lumber, plumbing fixtures, and household furnishings. Tr. at 24-25. The truck

crossed a road and dumped materials on the site. Tr. at 24. The witness agreed that the

Agency’s photographs appeared to show the materials that had been placed on the site during the

construction in 2000-01. Tr. at 25;

see

Exh. 1, Exh. 2 at 12-15 (photographs 1-8).

During his July 2, 2004, inspection, Mr. Johnson observed materials including blocks,

wood, pallet boards, metal, a tire, and what appeared to be a mattress. Tr. at 11; Exh. 2 at 3;

Exh. 2 at 6-8 (photos 1-5). These materials covered an area estimated to cover an area 90 feet

wide and 75 feet long and to have a volume of 500 cubic yards. Exh. 2 at 7, 9. Mr. Johnson also

observed at the site material that was scorched or charred. Tr. at 13; Exh. 2 at 9. Because the

area around those materials was not scorched, Mr. Johnson concluded that those materials had

been burned at another location and brought to the site for disposal. Tr. at 13; Exh. 2 at 9.

Because the record demonstrates that discarded material from one or more sources has

been consolidated at the site, and because it has not been disputed that the site does not meet the

requirements of a sanitary landfill, the Board concludes that “waste” has been “open dumped” at

the site.

“Cause or Allow”

As the respondent stresses, “the evidence is uncontested that Respondent did not

originally place the waste [at] the site. In fact, once Respondent discovered the waste on his

property, he removed some of it.” Pet. Brief at 3. Specifically, the respondent suggests that he

did not cause or allow the open dumping at the site because materials observed there were

present before he owned the property. Resp. Brief at 2.

However, the Board has found that a current owner or operator can “allow” litter where

the owner or operator did not act to remedy a previous violation. IEPA v. Rawe, AC 92-5, slip

op. at 6 (Oct. 16, 1992) (citations omitted). “Present inaction on the part of the landowner to

remedy the disposal of waste that was previously placed on the site, constitutes “allowing” litter

in that the owner allows the illegal situation to continue.”

. Specifically, the Board has held

that passive conduct amounts to acquiescence sufficient to find a violation of Section 21(a) of the

Act.

. (citations omitted). In IEPA v. Goodwin, the Board stated “Mr. Goodwin has owned

and controlled the property and has left the litter that had previously been dumped on the site to

remain. Such inaction qualifies as an “allowance” under 415 ILCS 5/21(p)(1) (2000).” IEPA v.

Goodwin, AC 02-17, slip op. at 4 (July 11, 2002).

While the respondent has suggested that he was not aware that his property included the

area on which waste was found, “the Illinois Supreme Court has determined that one may ‘cause

or allow’ a violation of the Act without knowledge or intent.” County of Will v. Utilities

Unlimited, Inc., AC 97-41, slip op. at 10 (July 24, 1997), citing People v. Fiorina, 143 Ill. 2d

318, 574 N.E.2d 612 (1991). The Board finds that the respondent from February 19, 2004 had

exercised control as owner of the site on which open dumping had occurred and thus allowed the

open dumping of the waste observed there on July 2, 2004.

Litter

Although the Act does not define “litter,” the Board has looked to the definition in the

Litter Control Act: “‘[l]itter’ 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) (2004);

see also

St. Clair County v.

Louis I. Mund, AC 90-64, slip op. at 4, 6 (Aug. 22, 1991).

The record is clear that the site on July 2, 2004, contained discarded materials such as

blocks, wood, pallet boards, drywall, metal, buckets, plumbing fixtures, a tire, and household

furnishings including what appeared to be a mattress. Tr. at 11, 24-25; Exh. 2 at 3; Exh. 2 at 6-

8 (photos 1-5). The Board finds that these materials fall within the definition of “litter” (415

ILCS 105/3(a) (2004)) and that the respondent violated section 21(p)(1) of the Act (415 ILCS

5/21(p)(1) (2004)).

Construction or Demolition Debris

The Act provides that “general construction or demolition debris” means: