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RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
JUN 2 8 2006
ILLINOIS ENVIRONMENTAL
)
STATE OF ILLINOIS
PROTECTION AGENCY,
)
Pollution Control Board
Complainant,
)
(IEPA No. 96-06-AC)
v
.
MICHAEL GRUEN and JON ERIC
)
CO
G
GRUEN, d/b/a JON'S TREE SERVICE
)
Respondents .
)
NOTICE OF FILING
To
:
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Ave. East
P.O. Box 19276
Springfield, IL 62794-9276
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Pollution Control Board the Petition for Review and Brief in Support of Petition for Review of
Michael Gruen and Jon Eric Gruen, d/b/a Jon's Tree Service, a copy of which is herewith served
upon you .
Phillip H . Hamilton, #6201288
Ebony R. Huddleston, #6288261
Farrell, Hunter, Hamilton & Julian, P .C
.
1310 D'Adrian Professional Park
Godfrey, IL 62035
Phone: 618-466-9080
Fax: 618-466-9105
Email: lawfirm@fhhjpc.com
 
PROOF OF SERVICE
I hereby certify that I did on thei'
k
ttday of 2006, send by UPS, with
postage thereon fully prepaid, by depositing in a United States Post Office Box a true and correct
copy of the following instrument entitled NOTICE OF FILING
To
:
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Ave . East
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 Certified Mail, Return Receipt Requested, with postage thereon fully prepaid
To :
Dorothy Gunn, Clerk
Pollution Control Board
James R. Thompson Center
100 West Randolph St ., Ste. 11-500
Chicago, IL 60601
Ph ip H. Hamilton, #6201288
Ebony R. Huddleston, #6288261
Farrell, Hunter, Hamilton & Julian, P.C
.
1310 D'Adrian Professional Park
Godfrey, IL 62035
Phone: 618-466-9080
Fax: 618-466-9105
Email: lawfirm@thhjpc .com
 
Gruen, d/
Jon's-Tree Service .
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
V .
MICHAEL GRUEN and JON ERIC
GRUEN, d/b/a JON'S TREE SERVICE
Respondents .
lip H. Hamilton, #6201288
Ebony R. Huddleston, #6288261
Farrell, Hunter, Hamilton & Julian, P .C .
1310 D'Adrian Professional Park
Godfrey, IL 62035
Phone: 618-466-9080
Fax: 618-466-9105
Email: lawfirm@fhhjpc.com
(IEPA No. 96-06-AC)
F'E~EIVED
CLERK'S OFFICE
JUN 2 8 2006
STATE OF
ILLINOIS
Pollution Control Board
NOTICE OF APPEARANCE
I hearby file my Appearance in this proceeding, on behalf of Michael Gruen and Jon Eric
 
PROOF OF SERVICE
I hereby certify that I did on the
1 1 8,
`-day of 1 2006, send by UPS, with
postage thereon fully prepaid, by depositing in a United States Post Office Box a true and correct
copy of the following instrument entitled NOTICE OF APPEARANCE
To
:
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Ave. East
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 Certified Mail, Return Receipt Requested, with postage thereon fully prepaid
To :
Dorothy Gunn, Clerk
Pollution Control Board
James R. Thompson Center
100 West Randolph St ., Ste. 11-500
Chicago, IL 60601
Philli H. Hamilton, #6201288
Ebony R. Huddleston, #6288261
Farrell, Hunter, Hamilton & Julian, P.C .
1310 D'Adrian Professional Park
Godfrey, IL 62035
Phone: 618-466-9080
Fax: 618-466-9105
Email: lawfirm@fhhjpc.com
 
RECEIVED
CLERK'S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN 2 8 2006
STATE OF ILLINOIS
Pollution Control Board
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
)
(IEPA No. 96-06-AC)
41
MICHAEL GRUEN and JON ERIC
)
G
O~
GRUEN, d/b/a JON'S TREE SERVICE
)
Respondents .
)
PETITION FOR REVIEW
Come now Respondents, Michael Gruen and Jon Eric Gruen, d/b/a Jon's Tree Service,
by and through their attorneys Farrell, Hunter, Hamilton & Julian, P .C ., pursuant to the Illinois
Environmental Protection Act, 415 ILCS 5/31-1, and for their Petition for Review state as
follows
:
1
.
Michael Gruen is the property owner and Jon Eric Gruen, d/b/a Jon's Tree Service
is the operator ("Jon's Tree Service") of a facility located in Macoupin County, Illinois,
commonly known to the Illinois Environmental Protection Agency as Mt . Olive/Gruen
.
2 .
Said facility has been assigned Site Code Number LPC#1178135010 by the
Illinois Environmental Protection Agency
.
3 .
The facility is used in connection with a tree service operated by Jon Eric Gruen,
d/b/a Jon's Tree Service .
4 .
Jon's Tree Service operates in the business of trimming and removing trees and
tree limbs; and stacking, drying, and selling hardwoods for use as firewood
.
1
 
5
.
On April 20, 2006, Jan Mier, of the Illinois Environmental Protection Agency's
Springfield Regional Office, inspected the above-described facility . A copy of her inspection
report setting forth the results of said inspection is attached hereto as Exhibit 1
.
6 .
Jon's Tree Service petitions the Illinois Pollution Control Board for review of the
following issues :
(a)
Based on observations made by Jan Mier, the Illinois Environmental
Protection Agency erred in finding that Jon's Tree Service caused or allowed the open dumping
of waste in a manner resulting in litter in violation of Section 2l(p)(1) of the Illinois
Environmental Protection Act ("Act"), 415 ILCS 5/21(p)(1)
.
(b)
Jon's Tree Service is not subject to a civil penalty of $1,500
.
7
.
"Litter" as defined under the Act prohibiting open dumping on property resulting
in the occurrence of litter refers to material of little or no value that has not been properly
disposed of. Miller v. Pollution Control Bd ., 267 111. App. 3d 160, 642 N .E.2d 475 (III. App. Ct
.
- 4" Dist. 1994) .
8
.
The inspector's written report along with the photographs taken by the inspector
are inconsistent with "open dumping" so as to result in "litter ." The materials located on the
premises are used in the course of business of Jon Gruen. The materials are of value and are
placed on the premises in a manner consistent with its use in business
.
9
.
Jon Gruen d/b/a Jon's Tree Service cuts down trees and trims trees for a fee to his
customers. The service includes removal of the trees and branches from the customer's property
.
Limbs under six inches are run through a chipper and sold as mulch . Other timber which is not
desirable as hardwood is split and sold to farmers for use in their operations . Mr. Gruen stores
the more desirable hardwoods for sale during the fall and winter as firewood. The hardwoods
2
 
must first be dried, so it is suitable for burning in a fireplace or wood burning stone. This is the
reason for the logs shown in the drying process in the pictures that are part of Exhibit 1
.
Notably, Macoupin County, Illinois has no zoning ordinance prohibiting the storage, stacking or
drying of timber for sale as firewood. The timber in question also does not meet the definition of
"landscape waste", which includes an accumulation of tree limbs and other materials
accumulated as the result of the care of trees . This is because the leftover timber is converted to
other viable and appropriate commercial uses
.
10 .
The materials are not scattered about the premises so as to constitute litter. By the
inspector's own admission on the Inspection Narrative and comments pertaining to the
photographs, the wood at the site is "stacked" and "lining" the drive and fence . Photo #s 001-
004, and 009-010
.
11
.
The photos show pieces of wood stacked in piles and concentrated in certain areas
Id. The materials are purposefully placed throughout the premises so as not to block the drive
and are accessible in order to be used for business purposes
.
12
.
The inspector incorrectly classifies additional tree limbs which are not conducive
to stacking or lining as "new waste" . Photo # 005 . These additional tree limbs are located in one
pile on the premises in preparation of being used in the course of business
.
13 .
The drums are also located in one area of the premises "along the east portion of
the fenced area." Photo #s 006-007. Some of the excess timber which is not suitable for sale as
firewood is burned in the drums. Macoupin County ordinance does not prohibit this burning
.
14 .
All of the vehicles noted in the photos are currently used by Jon Gruen in his tree
service business. The vehicles are operational and are not junked
.
3
 
15 .
As there has been no violation of Section 21(p)(1) of the Act, Jon's Tree Service
is not subject to the statutory civil penalty of $1,500
.
16. Respondents request a hearing in Macoupin County, Illinois in compliance with 35
Ill. Adm. Code 101 .600
.
WHEREFORE, Michael Gruen and Jon Eric Gruen, d/b/a Jon's Tree Service request that
the Illinois Pollution Control Board reverse the determination that Jon's Tree Service violated
the Illinois Environmental Protection Act and reverse the imposition of the statutory civil penalty
of $1,500. Jon's Tree Service requests such further relief as the Board deems equitable and just
.
Respectfully submitted
:
MICHAEL G
and JON RIC GRUEN, d/b/a JON'S
Ph
p H. Hamilton, #6201288
Ebony R. Huddleston, #6288261
Farrell, Hunter, Hamilton & Julian, P .C
.
1310 D'Adrian Professional Park
Godfrey, IL 62035
Phone: 618-466-9080
Fax: 618-466-9105
Email: lawfirm@fhhjpc.com
4
 
Revised 06/18/2001
(Open Dump - 1)
EXHIBIT
SECTION
DESCRIPTION
VIOL
-
ILLINOIS ENVIRONMENTAL PROTECTIONACT :REQUIREMENTS
1 .
9(a)
CAUSE, THREATEN OR ALLOW AIR POLLUTION IN ILLINOIS
2
.
9(c)
CAUSE OR ALLOW OPEN BURNING
3
.
12(a)
CAUSE, THREATEN OR ALLOW WATER POLLUTION IN ILLINOIS
4 .
12(d)
CREATEAWATER POLLUTION HAZARD
5 .
21 (a)
CAUSE OR ALLOWOPEN DUMPING
X
6 .
21(d)
CONDUCT ANY WASTE-STORAGE, WASTE-TREATMENT, ORWASTE- DISPOSAL
OPERATION :
(1)
Without a Permit
X
(2)
In Violation of Any Regulations or Standards Adopted by the Board
X
7 .
21(e)
DISPOSE, TREAT, STORE, OR ABANDON ANY WASTE, OR TRANSPORT ANY
WASTE INTO THE STATE AT/TO SITES NOT MEETING REQUIREMENTS OF ACT
AND REGULATIONS
X
8
21(p)
CAUSEORALLOW THE OPEN DUMPING OF ANY WASTE IN AMANNER WHICH RESULTS
IN ANY OF THE FOLLOWING OCCURRENCES AT THE DUMP SITE
:
(1)
Litter
x
(2)
Scavenging
(3)
Open Burning
(4)
Deposition of Waste in Standing or Flowing Waters
(5)
Proliferation of Disease Vectors
(6)
Standing or Flowing Liquid Discharge from the Dump Site
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
Open Dump Inspection Checklist
County :
MACOUPIN
LPC# :
1178135010
Region
:
SPFLD
Location/Site Name :
MT. OLIVE/GRUEN
Date :
4/20/06
From
12:25 PM
To
12:55 PM
Previous Inspection Date
:
1/5/06
Inspector(s)
:
JAN MIER
Weather :
60 F, SUNNY, WINDY
No. of Photos Taken: #
13
Est. Amt. of Waste
:
200
yds3
Samples Taken
:
Yes #
No
X
Interviewed :
No one on site
Complaint #
:
C-05-045-C
Michael Gruen
Jon Gruen
Responsible Party
1132 Terrace Drive
210 Cooper Avenue Lot #19
Mailing Address(es)
and Phone
St. Louis, MO 63117
East Alton, IL 62024
Number(s) :
314/991-8649
618/259-0262
 
LPC #
1178135010
Inspection Date :
4/20/06
Informational Notes
1 .
[Illinois) Environmental Protection Act : 415 ILCS 5/4
.
2 .
Illinois Pollution Control Board : 35 Ill. Adm. Code, Subtitle G
.
3. Statutory and regulatory references herein are provided for convenience only and should not be construed as legal
conclusions of the Agency or as limiting the Agency's statutory or regulatory powers . Requirements of some statutes
and regulations cited are in summary format. Full text of requirements can be found in references listed in 1 . and 2
.
above .
4 .
The provisions of subsection (p) of Section 21 of the [Illinois] Environmental Protection Act shall be enforceable either
by administrative citation under Section 31 .1 of the Act or by complaint under Section 31 of the Act
.
5 .
This inspection was conducted in accordance with Sections 4(c) and 4(d) of the [Illinois] Environmental Protection Act
:
415 ILCS 5/4(c) and (d)
.
6 .
Items marked with an "NE" were not evaluated at the time of this inspection
.
Revised 06/18/2001
(Open Dump
- 2)
(7)
Deposition of General Construction or Demolition Debris; or Clean Construction or
Demolition Debris
9 .
55(a)
NO PERSON SHALL :
(1)
Cause or Allow Open Dumpinq of Any Used or Waste Tire
(2)
Cause or Allow Open Burning of Any Used or Waste Tire
35 ILLINOIS ADMINISTRATIVE CODE REQUIREMENTS
SUBTITLE G
,,
10.
812.101(a)
FAILURE TO SUBMIT AN APPLICATION FOR A PERMIT TO DEVELOP AND
OPERATEALANDFILL
X
11
.
722.111
HAZARDOUS WASTE DETERMINATION
12 .
808.121
SPECIAL WASTE DETERMINATION
13 .
809.302(a)
ACCEPTANCE OF SPECIAL WASTE FROM A WASTE TRANSPORTER WITHOUT A
WASTE HAULING PERMIT, UNIFORM WASTE PROGRAM REGISTRATION AND
PERMIT AND/OR MANIFEST
tHEfi REQUIRI EMEN .
14 .
APPARENT VIOLATION OF
: ( ) PCB
; ( ) CIRCUIT COURT
CASE NUMBER
:
ORDER ENTERED ON
:
15 .
OTHER
:
 
cc: DLPC/FOS - Springfield Region
Illinois Environmental Protection Agency
Inspection Narrative
LPC#1178135010 -
Macoupin County
Inspection Date :
4/20/06
Mt. Olive/Gruen
Inspector: Jan Mier
FOS File
C-05-045-C
On April 4, 2006, I conducted a re-inspection at the above-referenced site . The original
deadline date for the Administrative Citation Warning Notice was March 31, 2005 . An
extension was given until May 31, 2005 . A second extension was given until July 29,
2005. A third extension was given until December 31, 2005 . A final extension was
given until March 15, 2006. Mr. Gruen has submitted receipts for firewood he has sold
and metal and vehicles he has scrapped, but I am unable to note any improvement in the
site because of the large amount of wood on site
.
I arrived at 12:25 p.m. No one was on site and the gate was locked so I walked around the
perimeter of the property . Photo #001 is a partial view of the west side of the property
where logs are lining an approximate 250' fence. Photo #002 shows the entrance drive to
the site with cut wood lining each side . Photo #003 shows a portion of the wood stacked
along the drive. Some wood has deteriorated and is starting to crumble. Tree saplings
are also growing in the stacked wood (see photo #004) . New waste has appeared on site
since the last inspection (see photo #005). Five drums are along the east portion of the
fenced area (see photo #006). One drum was smoldering and filled with ash (see photo
#007). There are about eight vehicles on site, four of which are shown in photo #008
.
Mr. Gruen, the site operator, has stated the white truck is in use for his tree trimming
business. A large metal tank is also in photo #008
.
I walked along the north side of the fenced area and observed cut stacked logs and large
weathered logs south of them (see photo #009) . Photo #010 shows stumps and logs that
have weathered to the point of degrading . Photos #011, #012 and #013 show the vehicles
on site. Two pick truck beds are filled with wire, metal, plastic, mowers and vehicle
parts. A mobile home on site is being used for storage, according to Mr. Gruen. I
departed at 12 :55 p.m .
Continuing violations observed during the inspection are noted on the attached checklist .
 
.4K
Page 1 of 7
Illinois Environmental Protection Agency
Bureau of Land
Division of Land Pollution Control
DIGITAL PHOTOGRAPHS
File Names: 1178135010- 04202006-[Exp. #].jpg
LPC #1178135010- Macoupin County
Mt. Olive/Gruen
FOS File
Date: 4120/06
Time: 12:33 p.m .
Direction : E
Photo by: Jan Mier
Exposure #: 001
Comments :
Weathered logs lining
the west side of the
property
Date: 4/20106
Time: 12:36 p.m .
Direction: W
Photo by: Jan Mier
Exposure #: 002
Comments :
Logs lining the drive
on the east side of the
property
 
Page 2 of 7
Illinois Environmental Protection Agency
Bureau of Land
Division of Land Pollution Control
DIGITAL PHOTOGRAPHS
File Names: 1178135010 - 04202006-[Exp. #].jpg
LPC #1178135010- Macoupin County
Mt. Olive/Gruen
FOS File
Date: 4/20106
Time: 12:36 p.m .
Direction: N
Photo by: Jan Mier
Exposure #: 003
Comments :
Logs and crumbled
lumber
Date: 4120106
Time: 12:37 p.m .
Direction :
Photo by: Jan Mier
Exposure #: 004
Comments
:
Tree growing through
logs along driveway
 
Illinois Environmental Protection Agency
Bureau of Land
Division of Land Pollution Control
DIGITAL PHOTOGRAPHS
File Names: 1178135010 - 04202006-[Exp. #].jpg
Page 3 of 7
LPC #1178135010- Macoupin County
Mt. Olive/Gruen
FOS File
Date: 4/20106
Time: 12:37 p.m .
Direction: SW
Photo by: Jan Mier
Exposure #: 005
Comments :
Tree limbs and logs
with mobile home and
truck in the
background
Date: 4120106
Time: 12:38p.m .
Direction: NW
Photo by: Jan Mier
Exposure #: 006
Comments:
Mobile home,
abandoned truck, logs,
drums, garbage cans
and tree limbs
 
'llok
Illinois Environmental Protection Agency
Bureau of Land
Division of Land Pollution Control
DIGITAL PHOTOGRAPHS
File Names: 1178135010 - 04202006-[Exp. #j.jpg
Page 4 of 7
LPC #1178135010- Macoupin County
Mt. Olive/Gruen
FOS File
Date: 4120/06
Time: 12:38 p.m .
Direction: W
Photo by: Jan Mier
Exposure #: 007
Comments :
Drum with smoldering
ash, grill and log
Date: 4120/06
Time: 12:39 p.m .
Direction: W
Photo by: Jan Mier
Exposure #: 008
Comments
:
Metal tank, garbage
cans, vehicles and logs
 
Page 5 of 7
Illinois Environmental Protection Agency
Bureau of Land
Division of Land Pollution Control
DIGITAL PHOTOGRAPHS
File Names: 1178135010 -- 04202006-[Exp. #].jpg
LPC #1178135010-Macoupin County
Mt. Olive/Gruen
FOS File
Date: 4120106
Time: 12:39 p.m .
Direction : S
Photo by: Jan Mier
Exposure #: 009
Comments :
Stacked and unstacked
logs with empty motel
in background
Date: 4/20/06
Time: 12: p.m.
Direction : S
Photo by: Jan Mier
Exposure #: 010
Comments :
Weathered stumps and
logs
 
File Names: 1178135010 - 04202006-[Exp. #].jpg
Page 6 of 7
Illinois Environmental Protection Agency
Bureau of Land
Division of Land Pollution Control
DIGITAL PHOTOGRAPHS
LPC #1178135010- Macoupin County
Mt. Olive/Gruen
FOS File
Date: 4/20/06
Time: 12:46 p.m .
Direction: NW
Photo by: Jan Mier
Exposure #: 011
Comments :
Back of truck, truck
bed with garbage in it,
and vehicle
Date: 4120/06
Time: 12:47 p.m .
Direction: NE
Photo by: Jan Mier
Exposure #: 012
Comments :
Truck bed with sapling
growing next to it,
containing wire, metal,
vehicle parts, truck bed
with garbage, and
other vehicles on site
 
Page 7 of 7
Illinois Environmental Protection Agency
LPC #1178135010- Macoupin County
Bureau of Land
Mt. Olive/Gruen
Division of Land Pollution Control
FOS File
DIGITAL PHOTOGRAPHS
File Names: 1178135010 - 04202006-[Exp. #]jpg
Date: 4120/06
Time: 12:47 p.m .
Direction : N
Photo by: Jan Mier
Exposure #: 013
Comments :
Vehicles looking north
 
PROOF OF SERVICE
I hereby certify that I did onthey
day of 2006, send by UPS, with
postage thereon fully prepaid, by depositing in a United States Post Office Box a true and correct
copy of the following instrument entitled PETITION FOR REVIEW
To :
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Ave. East
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 Certified Mail, Return Receipt Requested, with postage thereon fully prepaid
To
:
Dorothy Gunn, Clerk
Pollution Control Board
James R. Thompson Center
100 West Randolph St., Ste. 11-500
Chicago, IL 60601
Phillip H. Hamilton, #6201288
Ebony R. Huddleston, #6288261
Farrell, Hunter, Hamilton & Julian, P .C
.
1310 D'Adrian Professional Park
Godfrey, IL 62035
Phone: 618-466-9080
Fax: 618-466-9105
Email: lawfirm@fhhjpc .com
 
RECEIVED
CLERKS OFFICE
BRIEF IN SUPPORT OF PETITION FOR REVIEW
Come now Respondents, Michael Gruen and Jon Eric Gruen, d/b/a Jon's Tree Service, by
and through their attorneys, Farrell, Hunter, Hamilton & Julian, P.C., and for their Brief in
Support of Petition for Review, state as follows
:
Complainant, Illinois Environmental Protection Agency ("Agency") erred in its
determination that Respondents violated the Illinois Environmental Protection Act . The Agency
has incorrectly classified materials on the premises of Jon's Tree Service as open dumping of
waste in a manner resulting in litter . Jon's Tree Service has not violated Section 21(p)(1) of the
Illinois Environmental Protection Act, 415 ILCS 5/21(p)(1), so as to be subject to a civil penalty
of $1,500. The Illinois Pollution Control Board should reverse the Agency's determination and
remove the imposition of the civil penalty of $1,500 against Jon's Tree Service
.
FACTS
Michael Gruen is the owner of property commonly known to the Illinois Environmental
Protection Agency as Mt. Olive/Gruen located in Macoupin County, Illinois. This facility has
been assigned Site Code Number LPC#1 178135010 by the Illinois Environmental Protection
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN 2 8 2006
ILLINOIS ENVIRONMENTAL
)
STATE OF ILLINOIS
Pollution Control Board
PROTECTION AGENCY,
)
Complainant,
)
v .
)
MICHAEL GRUEN and JON ERIC
GRUEN, d/b/a JON'S TREE SERVICE
)
Respondents .
)
(IEPA No. 96-06-AC)
 
Agency . Jon Eric Gruen is the operator of Jon's Tree Service which does business at this
facility. Jon's Tree Service uses this facility to operate its business of trimming and removing
trees and tree limbs ; and stacking, drying, and selling hardwoods for use as firewood
.
On April 28, 2006, an inspector with the Illinois Environmental Protection Agency's
Springfield Regional Office inspected the above-described facility . Exhibit 1. Based on the
observations made by Jan Mier, the Illinois Environmental Protection Agency determined that
the facility was in violation of Section 21(p)(1) of the Illinois Environmental Protection Act
("Act")
.
Section 21(p)(1) of the Act states in pertinent part
:
In violation of subdivision (a) of this Section, cause or allow the open dumping of any waste in
the manner which results in any of the following occurrences at the dump site
:
(I) litter. 415 ILCS 5/2l(p)(1)
.
Based on this finding, the Agency issued an Administrative Citation subject to a civil
penalty of $1,500 pursuant to Section 42(b)(4-5) of the Act, 415 ILCS 5/42(b)(4-5). This section
of the Act states in pertinent part
:
In an administrative citation action 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)
.
ARGUMENT
1
.
The inspector's written report is inconsistent with a finding of open dumping resulting
in litter
.
"Litter" as defined under the Illinois Environmental Protection Act refers to material of
little or no value that has not been properly disposed of
. Miller v. Pollution Control Bd ., 267 III
.
App. 3d 160, 642 N.E.2d 475 (III. App. Ct . - 4`h Dist. 1994). The materials mentioned in the
inspector's written report and photographs are of value and are used during the course of
business for Jon's Tree Service. Jon Gruen's business involves removal of trees from a
2
 
customer's property. The hardwoods are stacked and allowed to dry and are then sold as
firewood in the fall and winter . The hardwood must be dried so that it is suitable for burning in a
fireplace or wood burning stove. In addition, the materials can not be considered to have been
disposed as they are not scattered about the premises so as to constitute litter . By the inspector's
own admission in the Inspection Narrative, the wood at the site is "stacked" and "lining" the
drive and fence. Exhibit 1, p. 1 and Photo #s 001-004, and 009-010. These photographs show
pieces of wood stacked in piles and concentrated in certain areas. The materials are not placed in
disarray but are accessible in order to be used for business purposes . If the materials were
simply litter, such care would not have been taken to stack and line the materials
.
Tree saplings and deteriorating wood is not unusual in an area containing hundreds of
pieces of wood. Tree saplings and weathered wood are found in any residential or commercial
area and are not categorized as litter or open dumping. Jon Gruen should not be penalized
because its primary business is maneuvering large amounts of wood where weathered wood and
the growth of tree saplings is likely depending on the amount of wood sold and collected during
a given time frame
.
The inspector incorrectly classifies additional tree limbs as "new waste ." Photo # 005
.
However, these additional tree limbs are not conducive to stacking or lining, so the materials are
located in one pile on the premises in preparation of being used in the course of business
.
Simply because these materials have appeared on the premises since the last inspection does not
automatically qualify them as waste materials . It is reasonable to know that because Jon Gruen
is currently engaged in the business of trimming trees, that tree limbs would be moved to and
from the premises
.
3
 
The inspector also makes mention of five drums. These drums are located in one area of
the premises "along the east portion of the fenced area." Exhibit 1, p. 3 and Photo #s 006-007
.
Some of the material left over from the removal of the trees is burned in the drums - a practice
not prohibited in Macoupin County, Illinois. These drums are not haphazardly scattered among
the premises but are lined up along a fence . The placement of the drums allows for accessibility
for use in the business
.
The materials described in the inspector's report are not conclusive that Jon's Tree
Service is engaged in open dumping of waste as would constitute litter, because such materials
are used in the course of business .
II . The materials located on the premises are used during the course of business for Jon's
Tree Service
.
Jon Gruen uses the materials located on the premises for business purposes . The materials
are not abandoned so as to constitute open dumping resulting in litter. Jon Gruen has stated that
the white truck viewed in Photo # 008 is in use for business purposes . Exhibit 1, p. 3. As for
Photos # 011-013, the materials contained in the pick-up truck beds serve as inventory for sale
by Jon's Tree Service
.
Because the materials located on the premises operated by Jon's Tree Service are used for
business purposes, there has been no violation of Section 21(p)(1) of the Act . Therefore, Jon's
Tree Service is not subject to the statutory civil penalty of $1,500
.
CONCLUSION
The Illinois Environmental Protection Agency erred in determining that the premises
operated by Jon's Tree Service is in violation of the Illinois Environmental Protection Act. As
discussed above, Jon's Tree Service does not use the premises for open dumping of waste in a
4
 
manner resulting in litter. Rather, these materials are used during the course of business and
such use of materials does not violate Section 21(p)(1) of the Act
.
The inspection report produced by Jan Mier recognizes that the materials on the premises
are used in the course of business and the materials are stacked and lined on the premises
indicating order of the materials of the premises . Use of these materials during the course of
business is inconsistent with open dumping so as to constitute litter .
WHEREFORE, Michael Gruen and Jon Eric Gruen, d/b/a Jon's Tree Service request that
the Illinois Pollution Control Board reverse the determination of the Illinois Environmental
Protection Agency and dismiss the civil penalty of $1,500 . Jon's Tree Service requests such
further relief as the Board deems equitable and just .
Respectfully submitted :
MICHAEL GRUEN and JON ERIC GRUEN, d/b/a JON'S
TREE SER
BY :
Phillip H. Hamilton, #6201288
Ebony R. Huddleston, #6288261
Farrell, Hunter, Hamilton & Julian, P .C .
1310 D'Adrian Professional Park
Godfrey, IL 62035
Phone: 618-466-9080
Fax: 618-466-9105
Email: lawfirm@fhhjpc .com
5
 
PROOF OF SERVICE
I hereby certify that I did on the
7'w"
day of
J 2006, send by UPS, with
postage thereon fully prepaid, by depositing in a United States Post Office Box a true and correct
copy of the following instrument entitled BRIEF IN SUPPORT OF PETITION FOR REVIEW
To :
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Ave. East
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 Certified Mail, Return Receipt Requested, with postage thereon fully prepaid
To
:
Dorothy Gunn, Clerk
Pollution Control Board
James R. Thompson Center
100 West Randolph St ., Ste. 11-500
Chicago, IL 60601
P
p H. Hamilton, #6201288
Ebony R. Huddleston, #6288261
Farrell, Hunter, Hamilton & Julian, P.C .
1310 D'Adrian Professional Park
Godfrey, IL 62035
Phone: 618-466-9080
Fax: 618-466-9105
Email: lawfirm@fhhjpc.com

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