BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

NOTICE OF FILING
CERTIFICATE OF SERVICE
POST-HEARING BRIEF OF RESPONDENT
A. INTRODUCTION
B. ARGUMENT
CONCLUSION
CERTIFICATE OF SERVICE

ILLINOIS ENVIRONMENTAL

) AC 05-40

PROTECTION AGENCY,

)

) EPA No. 567-04-AC

Complainant,

)

NORTHERN ILLINOIS

)

SERVICE COMPANY,

)

Respondent.

)

NOTICE OF FILING

TO: Michelle M. Ryan

Special Assistant Attorney General

Illinois Environmental Protection Agency

Division of Legal Counsel

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

PLEASE TAKE NOTICE that I have filed with the Office of the Clerk of the Pollution

Control Board the Post-Hearing Brief of Respondent, a copy of which is herewith served upon

you.

NORTHERN ILLINOIS SERVICE COMPANY,

Respondent,

By Peter DeBruyne, P.C.

By /s/

Peter DeBruyne, Its Attorney

Peter DeBruyne

838 North Main Street

Rockford, IL 61105-1254

Telephone (815) 964-3810

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006

CERTIFICATE OF SERVICE

I hereby certify that I did on the 13

day of June, 2006, by regular mail, with postage

thereon fully prepaid, by depositing in a United States Post Office Box a true and correct copy of

the foregoing Notice of Filing on the following:

Michele M. Ryan

Special Assistant Attorney General

Illinois Environmental Protection Agency

Division of Legal Counsel

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

Dorothy Gunn, Clerk

Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 60601

by an electronic copy of the same foregoing instrument on the same date via electronic filing to:

Dorothy Gunn, Clerk

Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 60601

_____________________________

Peter DeBruyne

Peter DeBruyne, P.C.

838 North Main Street

Rockford, IL 61103

Telephone (815) 964-3810

Lewis B. Kaplan

838 North Main Street

P.O. Box 1254

Rockford, IL 61103

Telephone (815) 963-3090

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

) AC 05-40

Complainant,

)

) (IEPA No. 567-04-AC)

)

NORTHERN ILLINOIS

)

SERVICE COMPANY,

)

Respondent.

)

POST-HEARING BRIEF OF RESPONDENT

A. INTRODUCTION

Complainant, Illinois Environmental Protection Agency (“Illinois EPA”) bears the

burden of proof with respect to each allegation in its Complaint.

Aurora Metal Co., Faskure

Division v. Illinois Pollution Control Board, 30

Ill.App.3d 956, 333 N.E.2d 461 (2

Dist. 1975);

see also 415 ILCS

5/31.1(2). It has failed to do so in this case. The Illinois Environmental

Protection Act at 415

ILCS

5/33(c)(i) and (ii) provides that the Pollution Control Board (“PCB”)

is to take into account in its orders and determinations the “character and degree of injury to, or

interference with the protection of the health, general welfare and physical property of the people

. . . ” and “the social and economic value of the pollution source; . . . .”

B. ARGUMENT

Illinois EPA has alleged in its Complaint that respondent “caused or allowed the open

dumping of waste in a manner resulting in litter, a violation of §21(p)(1) of the Act, 415

ILCS

5/21(p)(1) (2002).” The general character of the testimony with respect to this was that the litter

was composed of uprooted trees and/or dead trees. Both complainant’s Exhibit 1 and Field

Inspector Kaare Jacobsen’s testimony (Tr. 11 & 12) describe the material as landscape waste.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006

Though the PCB held in

American Tree Service, Inc. v. Illinois Environmental Protection

Agency,

PCB 94-93, 1994 WL 717836, that “landscape waste” was to be considered a subset of

“waste,” it did not disagree with the reasoning in C

ity of Lake Forest v. Pollution Control

Board

, 146 Ill.App.3d 848, 497 N.E.2d 181 (2

Dist. 1986). It noted that the holding in C

ity of

Lake Forest v. Pollution Control Board

, 146 Ill.App.3d 848, 497 N.E.2d 181 (2

Dist. 1986)

was “still good law.”

American Tree Service, Inc. v. Illinois Environmental Protection Agency,

PCB 94-93, 1994 WL 717836, at p. 11. In arriving at its holding, the Second District in

City of

Lake Forest, supra,

noted at 146 Ill.App.3d 848, 855:

The doctrine of

ejusdem generis

states that when a statutory clause

specifically describes several classes of persons or things and then

includes “other persons or things,” the word “other” is interpreted to mean

“other such like.”

(Coldwell Banker Residential Real Estate Services of

Illinois, Inc. v. Clayton (1985),

105 Ill.2d 389, 396, 86 Ill.Dec. 322, 475

N.E.2d

536; St. John’s Evangelical Lutheran Church v. Kreider

(1977), 54

Ill.App.3d 257, 259, Il lll.Dec. 916, 369 N.E.2d 370.) Here, in determining

the meaning of “other discarded materials,” we must look to the examples

provided by the legislature,

i.e.

garbage and sludge. We cannot say that

leaves, which naturally grow and fall from trees, are of the same nature as

garbage or sludge which is generated and discarded by people. We also

note the legislature specifically included leaves in its definition of

landscape waste” in the Act (Il1.Rev.Stat.l985, ch. 111 1/2 , par. 1003(uu))

as a separate category of waste, indicating a legislative intent that leaves

do not come within the general definition of “waste” under section

2(ll)

the Act (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1003(

ll)).

This doctrine of statutory construction is applicable here in considering the definition of

landscape waste at 415

ILCS

5/3.270:

“Landscape waste. ‘Landscape waste’ means all accumulations of grass

or shrubbery cuttings, leaves, tree limbs and other materials accumulated as the

result of the care of laws, shrubbery, vines and trees.”

Again, the word “other” must be construed to mean “other such like” and dead or uprooted trees

are totally unlike all of the specifically mentioned items in the definition. Further, to consider

uprooted trees or dead trees as within the definition of landscape waste would do violence to the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006

definition inasmuch as the definition defines “landscape waste” in relevant part as resulting from

the care of “trees.” Clearly uprooted or dead trees do not result from the “care” of trees. Thus

trees would not be within the definition of waste because they are not within the subset of

landscape waste and likewise would not be considered as within the “waste” definition because

uprooted or dead trees are totally unlike the items specifically mentioned in 415

ILCS

5/3.535

such as “garbage, sludge from a waste treatment plant . . . .”

Illinois EPA’s further problem of proof is found in the definition of the word “discarded,”

which is in included both in the definition of “waste” and “litter” in the Litter Control Act.

“Discarded,” as defined by Webster Third New International Dictionary

is “to drop, dismiss, let

go, or get rid of as no longer useful, valuable, or pleasurable.”

There was no evidence

presented at the hearing that any of the dead or uprooted trees, from whatever source, were

discarded by respondent. The trees referenced were in three categories: 1) those physically on

the premises when respondent purchased the premises; 2) those from the premises taken down by

respondent in preparing or in renovating the premises, and 3) those very few trees from

respondent’s worksites which did not economically justify the hiring of a third party to haul them

away, i.e. “stragglers.” The evidence of “value” of such trees, which will be discussed below,

demonstrates that these materials were not discarded. It should further be pointed out that the

word “trees” is not included in the definition of “litter” in the Litter Control Act and, following

the

ejusdem generis

doctrine of statutory construction, substances totally unlike and of a different

character from those specifically mentioned are not included. Thus the definition of “litter”

“Litter” means any discarded, used or unconsumed substance or waste. “Litter” may include, but is not limited to,

any garbage, trash, refuse, debris, rubbish, grass clippings or other lawn or garden waste, newspaper, magazines,

glass, metal, plastic or paper containers or other packaging construction material, abandoned vehicle (as defined in

the Illinois Vehicle Code), [FN1]

motor vehicle parts, furniture, oil, carcass of a dead animal, any nauseous or

offensive matter of any kind, any object likely to injure any person or create a traffic hazard, potentially infectious

medical waste as defined in Section 3.360 of the Environmental Protection Act, [FN2]

or anything else of any

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006

which includes items clearly of no value to anyone, e.g. “garbage, trash, refuse, debris, rubbish,

oil, carcass of a dead animal . . . ” would not extend to trees. Further, uprooted or dead trees are

hardly similar to “grass clippings,” clearly of no use, and it is difficult to conceive that a

reasonable person would consider an uprooted tree as included in the category “lawn or garden

waste.” Thus the definition of litter in and of itself seems to exclude uprooted trees as within its

category.

The Court in

Miller v. Pollution Control Board

, 267 Ill.App.3d 160, 642 N.E.2d 475, 483

Dist. 1994) noted in relevant part:

“A person of common intelligence can understand the terms

‘litter.’ . . . ‘litter’ like ‘junk’ is capable of being understood by a

person of common intelligence. Given its ordinary meaning, ‘litter’

refers to material of little or no value which has not been properly

disposed of. . . .

The unrebutted evidence provided by the respondent demonstrated that the uprooted or dead

trees on respondent’s premises were of substantial “value.”

First, 65 to 75 percent of the trees observed by Field Inspector Kaare Jacobsen were

home grown (Tr. 48, hereinafter “Tr.”) and the remainder of the trees observed by the Field

Inspector were not the result of whole scale dumping from respondent’s construction activities.

Instead, contrary to Jacobsen’s assumptions (Tr. 21-22), Wayne Klinger, president of

respondent testified credibly that isolated trees for which it could not hire a commercial

contractor were removed by it and deposited on the premises (Tr. 42-45). Klinger credibly

testified that the documents Jacobsen assumed were invoices for the deposit of trees on the

premises instead were invoices from commercial contractors who were removing the trees for

respondent and depositing them on another site (Tr. 45-47).

unsightly or unsanitary nature, which has been discarded, abandoned or otherwise disposed of improperly. 415

ILCS

105/3(a).

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006

Respondent called expert witness Ronald Foss to testify (Tr. 26). Foss explained that he

operated two businesses, Foss Landscapes and Outdoor Living and Garden Center (Tr. 27). Foss

Landscapes has been in operation for 12 years and works with, among other things, brick pavers,

trees, shrubs, and mulch (Tr. 27). It is certified by the state of Illinois to do state and federal

work and municipal projects (Tr. 28). The retail garden center sells, among other products,

mulch (Tr. 28). Foss had observed the uprooted or dead trees on respondent’s site in the years

2004, 2005, and on the Monday before the hearing (Tr. 29-30). Foss pointed out that the trees

could be ground up into mulch which is placed around trees and shrubs to keep weeds down,

hold moisture in, put nitrogen back into the soil, and for decorative purposes (Tr. 30-31). Foss

testified that he has purchased mulch in both of his businesses and also manufactured mulch (Tr.

31). Foss noted that he has ten acres of trees and as he cleared them he would hire a contractor

with a tub grinder costing three or four hundred dollars an hour to grind up the trees into mulch

(Tr. 31). Even after paying the hourly charge, Foss testified that the mulch he obtained was half

the cost of the normal $12.50 per cubic yard (Tr. 36). Foss added that the trees that he ground up

for mulch were identical to the trees on respondent’s site (Tr. 32).

Foss identified respondent’s Exhibits 1 and 3 as invoices to his business Outdoor Living

in April 2006 for brown mulch in the amount of $12.50 per square yard. He further identified

respondent’s Exhibit 2 as an invoice for red mulch to Outdoor Living in the amount of $14 per

square yard. Foss explained there was a red dye injected into the mulch and thus it was sold as a

designer mulch (Tr. 34). These were typical of the prices that Foss’ retail outlet would pay for

the mulch (Tr. 33). Foss further explained that the sale price from his retail outlet to the general

public was $21.95 a cubic yard for standard mulch and $28.95 a cubic yard for the colored

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006

mulch (Tr. 35). These prices were commonly received by Foss’ retail outlet for the mulch (Tr.

35).

Jacobsen agreed with Foss that the trees he observed on respondent’s premises which he

referred to as “landscape waste” could have a “market value” (Tr. 17). Jacobsen further

admitted that he was familiar with wood mulch and that it had economic value because people

bought it and used it in their gardens (Tr. 16). Jacobsen further testified that he was familiar

with the purposes of mulch which was, according to Jacobsen, aesthetic, for dressing plants,

holding in moisture and building around a house (Tr. 16). Jacobsen testified that it came into his

mind during the inspection that the wood on the property was open dumped material but it did

not come into his mind that the wood had the potential of being used for mulch (Tr. 17).

From the above testimony and evidence, it is an objective fact that the trees on

respondent’s premises had economic value, and, as such, could not be considered litter.

Complainant’s Exhibit 1 reported the presence of 10,000 cubic yards of trees (complainant’s

Exhibit 1, page 1) which if sold at wholesale, according to the testimony of value from Foss

would yield $125,000 if undyed and $140,000 if dyed. At retail, the trees would bring $215,000

undyed and $285,000 if dyed. This is clear economic value. The only support complainant has

for its case is the whim, albeit innocent, of Jacobsen that when looking at the pile of wood he

thought of open dumped material rather than of mulch. This arbitrary classification of

supposedly polluting material based on the momentary thoughtlessness of a Field Inspector

cannot convict respondent. As noted above, the PCB is required to take into account the

economic value of the pollution source. On this point, complainant has failed in its burden of

proof.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006

Furthermore, Wayne Klinger, president of respondent, testified that respondent applied

for an EPA open burning permit in September 2004. The permit was introduced and accepted

into evidence as respondent’s Exhibit 4. It was only after the application for the permit that Field

Inspector Jacobsen filed his inspection report (October 4, 2004; complainant’s Exhibit 1).

Likewise, complainant filed a Complaint with respect to the trees in November but complainant

issued an open burning permit for the trees on December 21, 2004. As noted in the introduction,

the PCB is to take into account the “character and degree of injury to, or interference with the

protection of the health, general welfare, and physical property of the people.” The PCB should

consider that the complainant thought so little of the alleged violation that it permitted

respondent to burn the material while at the same time it was citing it for an environmental

violation.

CONCLUSION

The dead and uprooted trees on respondent’s premises are not explicitly listed within the

definitions of landscape waste, waste, or litter. They are not akin to the items that are listed

within those definitions. Thus, the Legislature did not intend that the trees would be treated as

within any of these categories. The dead and uprooted trees as agreed to by both parties had

economic value. As such, they could not be considered litter. The PCB’s mandate as stated

above in 415

ILCS

5/33(c)(i) and (ii) suggest that the PCB should find against complainant here.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006

Respectfully submitted,

NORTHERN ILLINOIS SERVICE COMPANY,

Respondent,

By PETER DeBRUYNE, P.C.

By _______/s/____________________________

Peter DeBruyne, One of its attorneys

____________/s/__________________________

Lewis B. Kaplan, One of its attorneys

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006

CERTIFICATE OF SERVICE

I hereby certify that I did on the 13

day of June, 2006 by regular mail, with postage

thereon fully prepaid, by depositing in a United States Post Office Box a true and correct copy of

the foregoing Post-Hearing Brief of Respondent on the following:

Michelle M. Ryan

Special Assistant Attorney General

Illinois Environmental Protection Agency

Division of Legal Counsel

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

Dorothy Gunn, Clerk

Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 60601

and an electronic copy of the same foregoing instrument on the same date via electronic filing to:

Dorothy Gunn, Clerk

Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 60601

___________/s/__________________

Peter DeBruyne

Peter DeBruyne, P.C.

838 North Main Street

Rockford, IL 61103

Telephone (815) 964-3810

Lewis B. Kaplan

838 North Main Street

P.O. Box 1254

Rockford, IL 61103

Telephone (815) 963-3090

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006