ILLINOIS POLLUTION CONTROL BOARD

March 16, 2006

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

JOHN R. MALLOCH,

Respondent.

)

AC 05-63

(IEPA No. 78-05-AC)

(Administrative Citation)

MICHELLE M. RYAN, SPECIAL ASSISTANT ATTORNEY GENERAL, APPEARED ON

BEHALF OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY; and

JOHN R. MALLOCH APPEARED

PRO SE

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

The Board today determines whether respondent John R. Malloch violated the

Environmental Protection Act (Act), 415 ILCS 5/1

et seq

. (2004) at a site located at 2572 County

Road 600E, Dewey, Champaign County. For the reasons below, the Board finds that Mr.

Malloch violated sections 21(p)(1), 21(p)(3), and 21(p)(7) of the Act (415 ILCS 5/21(p)(1),

21(p)(3), and 21(p)(7) (2004)), by causing or allowing the open dumping of waste resulting in

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

construction or demolition debris, as alleged by the complainant Illinois Environmental

Protection Agency (Agency) in an administrative citation. The Board assesses the statutory

penalty of $4,500 as well as hearing costs as described below.

In this interim opinion and order, 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 for a citation before the Board. 35 Ill.

Adm. Code 108.100

et seq

. Unlike other environmental enforcement proceedings in which the

Act prescribes only a maximum penalty,

see, e.g.,

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

specific penalties of $1,500 for each violation of each provision of Section 21(p) of the Act (415

ILCS 5/21(p) (2004)) and $3,000 for each second or subsequent violation. 415 ILCS 5/42(b)(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 April 5, 2005, the Agency issued to the respondent an administrative citation (AC)

alleging violations of the Act at 2572 County Road 600E, Dewey, Champaign County. 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)(3) of the Act (415 ILCS

5/21(p)(3) (2004)) by causing or allowing the open dumping of waste resulting in open burning.

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 the

deposition of general construction or demolition debris or clean construction or demolition

debris. AC at 2.

On May 16, 2005, the respondent filed a petition for review (Pet.). The Board accepted

the petition for hearing in an order dated May 19, 2005.

On November 2, 2005, Board Hearing Officer Carol Webb conducted a hearing (Tr.) at

Champaign City Hall. At the hearing, Special Assistant Attorney General Michelle M. Ryan

appeared and participated on behalf of the complainant, and respondent John R. Malloch

appeared and participated

pro se

. Two witnesses testified during the hearing: Mr. Mike Mullins

of the Agency on behalf of the complainant and John R. Malloch on his own behalf as

respondent. Based on her legal judgment, experience, and observations at hearing, Hearing

Officer Carol Webb found that both witnesses testified credibly in this matter. Tr. at 15. A

single exhibit (Exh. 1), the inspection report dated March 2, 2005, was admitted into evidence at

hearing.

On November 30, 2005, the complainant filed its post-hearing brief (Pet. Brief). On

December 14, 2005, the respondent filed an answer to filing (Resp. Brief).

FACTS

On March 2, 2005, Agency field inspector Mike Mullins inspected property located near

the intersection of roads 600E and 2550N at 2572 County Road 600E near Dewey in Champaign

County. Exh. 1 at 6, 7, 9; Tr. at 7. The Agency has employed Mr. Mullins for seven years. Tr.

at 5. In a four and one-half year period, Mr. Mullins has performed approximately 400 field

inspections for solid waste at facilities such as landfills, open dumps, and salvage yards. Tr. at 6.

The property inspected on March 2, 2005 “is commonly known to the Illinois

Environmental Protection Agency as Dewey/Malloch, John R.” and is designated with Site Code

019800500002. Exh. 1 at 1. From the Champaign County Courthouse, Mr. Mullins obtained a

deed showing that John R. Malloch owns the site. Tr. at 7.

Mr. Mullins inspected the property on March 2, 2005 to determine its regulatory status

and evaluate its compliance with the Act and Board regulations. Exh. 1 at 9. On January 12,

2005, a citizen complained to the Governor’s Office of Citizen’s Assistance of open dumping,

drums floating in a creek, and fluids leaking from vehicles and machinery.

. The Agency’s

regional office in Champaign received the complaint on February 17, 2005.

The site is divided into two sections by a stream or small river. Tr. at 8. The northern

part consists of a wooded area surrounded by open farm fields.

. South of the stream or river,

the area is “primarily a farm field” with “only a few trees.”

. Around the southern part of the

site, Mr. Mullins did not observe a fence or any other means of restricting access. Tr. at 8-9.

Mr. Mullins entered the site from road 2550N. Exh. 1 at 9,

see

Exh. 1 at 14 (site map).

Mr. Mullins observed smoke on the site north of the 2550N road. Exh. 1 at 9. Walking north

toward the smoke, Mr. Mullins encountered the respondent and conducted an informal interview

with him.

. The respondent stated that he owned the property and for many years had

conducted a recycling business permitted by the county there.

. The respondent further stated

that he recycled the following materials: metals from cars; “bumper wraps,” or the composite

material covering vehicle bumpers; and mobile homes.

. Specifically, the respondent stated

that he recovered copper and aluminum from old mobile homes, and Mr. Mullins observed

mobile home frames at the site. Exh. 1 at 10.

When Mr. Mullins asked the respondent about the source of the smoke he observed, the

respondent indicated “that people dump furniture on the site when he is not there.” Exh. 1 at 10.

The respondent further stated that he thought a burning sofa caused the smoke.

. As he

approached the area of the fire, Mr. Mullins observed smoke coming from a pile of metal that

had once possibly been a sofa or other piece of furniture.

.; Tr. at 9;

see

Exh. 1 at 16 (photo

1). Although Mr. Mullins did not see flames there, “the pile was still hot.” Exh. 1 at 10. He also

observed a cinder block in this area. Tr. at 11.

Adjacent to the burned material, Mr. Mullins observed an area approximately 250 feet in

diameter and containing materials including brick, metal, partially burned woods, plastics, “and

what appeared to be pink fiber insulation or clothing.” Exh. 1 at 10; Tr. at 10;

see also

Exh. 1

at 16 (photo 2). Because he saw mobile home frames to the west of these materials, Mr. Mullins

concluded that mobile home salvage occurred in this area. Exh. 1 at 10.

Mr. Mullins also observed “a lot of tires on this site.” Tr. at 10;

see

Exh. 1 at 10; Exh. 1

at 17 (photo 3). Mr. Mullins also testified that he observed a motor home that may not have been

functional, large metal tanks, a piece of construction equipment, and scrap rusted metals. Tr. at

10. The respondent stated that he removes tires from automobiles that he recycles and then

transports those removed tires to another site. Exh. 1 at 10. Mr. Mullins could only observe

approximately one-tenth of the site on March 2, 2005, and he did not determine the total number

of tires there.

. He did estimate that he photographed 100 tires. Tr. at 11;

see

Exh. 1 at 17

(photo 3).

Mr. Mullins also asked the respondent about handling fluids contained in recycled

vehicles. The respondent stated that he transfers gasoline from the vehicles’ fuel tanks into

drums. Exh. 1 at 10. A person collects the drums for use as fuel in a space heater.

. Mr.

Mullins saw “very few automobiles” because the automobile activity appeared to take place in

the northern part of the site across a creek.

. at 10-11

see

Exh. 1 at 14 (site map).

On departing the site, Mr. Mullins observed an area adjacent to the 2550N road at the

entrance to the site at which burning had taken place. Exh. 1 at 11,

see

Exh. 1 at 17 (photo 4).

That area contained ash, what appeared to be a pallet, and a metal or plastic sink. Tr. at 11.

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

* * *

(3) open burning

* * *

(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. . . .”

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

ISSUES AND ANALYSIS

“Open Dumping” of “Waste”

In order to prove a violation of any subsection of section 21(p) of the Act (415 ILCS

5/21(p) (2004)), the Agency must prove first 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 respondent claims “[t]here was no open dumping of waste at this site” (Resp. Brief at

2), but the Board cannot accept this claim. Mr. Mullins’ observations and photographs clearly

show the site contained accumulations of materials including metal, brick, plastic, wood, tires,

and insulation or other fibrous material. Exh. 1 at 10-11; Tr. at 9-12. The respondent stated that

materials originated with cleaning up old farm buildings that had been located at the site. Tr. at

14. Furthermore, the respondent stated that “people dump furniture on the site when he is not

there.” Exh. 1 at 10. Because 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”

The respondent suggests that he did not cause or allow the open dumping at the site

because materials observed there were present when he bought the site in 1970. Tr. at 14.

However, the Board has found that a current owner or operator “allowed” 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). 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). The Board finds that the respondent

has exercised control as owner of the site for 35 years and has caused or allowed the open

dumping of the waste observed there on March 2, 2005.

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 respondent claims that “[w]hat the IEPA calls litter was material from the demolition

of buildings” and “was to be picked up by hand and hauled off the site.” Resp. Brief at 1,2.

Nonetheless, the record is clear that the site contained discarded materials including metal, brick,

plastic, wood, tires, insulation or other fibrous material, and the remains of burning (Exh. 1 at

10-11; Tr. at 9-12) that fall within the definition of “litter” (415 ILCS 105/3(a) (2004)). The

Board is not persuaded by the argument that these materials are not litter only because they

originated in a building. At the very least, the argument fails to account for the presence of as

many as 100 tires. Tr. at 11. The Board is also not persuaded by the apparent argument that the

respondent intended to remove the materials from the site, as the record shows that materials

constituting litter were present there on March 2, 2005.

Open Burning

The Act defines “open burning” as “the combustion of any matter in the open or in an

open dump.” 415 ILCS 5/3.300 (2004). The record is clear that Mr. Mullins observed smoke on

the site and that he observed a pile of hot smoldering materials including a cinder block, wood,

and metal. Exh. 1 at 9-10, 16; Tr. at 9-11. In his response brief, the respondent states that

“there was no burning in various piles on the site,” and that “[w]hat the EPA calls . . . open

burning was from burning trees that were growing on the site.” Resp. Brief at 2-3. These claims

are contradicted by the oral, written, and photographic evidence showing that burning had

occurred at the site and that it consumed materials other than landscape waste.

The respondent also argues “the burn pile at the site should not be defined as open

dumping as a farmer can spread the ashes on a field.” Resp. Brief at 3. This argument

effectively admits that open burning has occurred at the site, and there is furthermore no

indication that material in the burn pile is intended for, or being handled consistently with any

genuine intention of re-use.

See

IEPA v. Cadwallader, AC 03-13, slip op. at 4 (May 20, 2004).

Construction or Demolition Debris

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