ILLINOIS POLLUTION CONTROL BOARD

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
1. POST-HEARING BRIEF OF COMPLAINANT

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS ENVIRONMENTAL

Washington, Illinois 61571

PLEASE TAKE NOTICE that on this date I electronically filed with the Clerk of the

Pollution Control Board of the State of Illinois the following instrument(s) entitled

POST-HEARING BRIEF OF COMPLAINANT.

Respectfully Submitted,

_________________________________

Michelle M. Ryan

Special Assistant Attorney General

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

Dated: December 28, 2006

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2006

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS ENVIRONMENTAL

POST-HEARING BRIEF OF COMPLAINANT

On December 21, 2004, the Illinois Environmental Protection Agency (“Illinois EPA”)

issued an administrative citation to Stacy Hess (“Respondent”). The citation alleges violations

of Section 21(p)(1), 21(p)(3) and 21(p)(7) of the Environmental Protection Act (“Act”) (415

ILCS 5/21(p)(1), (3) & (7) (2002)), in that Respondent caused or allowed open dumping of

waste, resulting in litter, open burning, and the deposition of construction or demolition debris.

The violations occurred at a property located on old Route 24 outside of Washington, Tazewell

County. Transcript, p. 7; Exhibit 1.

Illinois EPA has demonstrated that Respondent caused or allowed open dumping on the

site. “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 inspection report admitted into

evidence as Exhibit 1 and the testimony at hearing show that wood, tires, concrete, appliances,

storm windows, vehicles and vehicle parts, bedsprings, plastic and metal, as well as ash and

remains from burning, were accumulated in various piles on the site. Tr. at 9-13; Exh. 1, pp. 3,

7-12. These materials constitute “discarded material” within the meaning of the term “waste.”

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2006

Respondent admitted that the “majority of the metal” was his responsibility, as well as “maybe

that one tractor tire.” Tr. at 18. Respondent claimed that Mr. J. Veltman was responsible for the

“majority of the plastic, building debris.” Tr. at 16, 18. Mr. Veltman was Respondent’s tenant.

Tr. at 17. Respondent further claims that his tenant’s employees admitted to the burning, as well

as dumping the couch and exercise bike. Tr. at 19.

County of Jackson v. Donald Taylor

(January 10, 1991), AC 89-258, Mr. Taylor

admitted to an ownership interest in land and to dumping some of the materials there, but denied

the majority of the dumping as well as starting the fire.

Id.

at 3. In finding violations of Section

21(q) [predecessor to the current Section 21(p)], the Board found that the fact that Mr. Taylor

didn’t specifically allow the dumping or burning was not dispositive, but noted that he did

nothing to prevent these activities, and that “the debris he placed on the property, may in fact

have encouraged others to dump there.”

Id.

at 9. The facts in Respondent’s case are analogous

to Mr. Taylor’s. Further, a person can cause or allow a violation of the Act without knowledge

or intent.

County of Will v. Utilities Unlimited, Inc.,

et al. (July 24, 1997), AC 97-41, slip op. at

5, citing

People v. Fiorini

, 143 Ill.2d 318, 574 N.E.2d 612 (1991). Therefore Respondent both

caused and allowed the open dumping of waste observed on December 21, 2004.

Respondent’s causing or allowing the open dumping of these wastes resulted in “litter”

under Section 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2004)). The Act does not define

“litter,” but in similar cases, the Board has looked to the definition of “litter” in the Litter

Control Act:

“Litter” 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.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2006

415 ILCS 105/3(a) (2002); see

St. Clair County v. Louis I. Mund

(Aug. 22, 1991), AC 90-64, slip op.

at 4, 6. Using this definition, the wood, tires, concrete, appliances, storm windows, vehicles and

vehicle parts, bedsprings, plastic and metal, as well as ash and remains from burning constitute

“litter” under Section 21(p)(1) of the Act, and therefore Respondent violated that section.

Respondent’s open dumping of these wastes also resulted in open burning in violation of

Section 21(p)(3) of the Act (415 ILCS 5/21(p)(3) (2004)). “Open burning” is defined in Section

3.300 of the Act, 415 ILCS 5/3.300 (2004), as “the combustion of any matter in the open or in an

open dump.” As described above, the burn piles located on the site meet the definition of “open

dumping.” The waste piles contained ash and charred remains, including tire bead rings from the

burning of tires and a melted plastic bucket. Tr. at 10-12. The burning of any or all of this

matter in the waste piles constitutes “open dumping of waste in a manner that results in…open

burning” under Section 21(p)(3) of the Act, and therefore Respondent violated that section.

Respondent’s open dumping of these wastes also resulted in the deposition of

construction or demolition debris in violation of Section 21(p)(7) of the Act (415 ILCS

5/21(p)(7) (2004)). “Construction or demolition debris” is defined in part, as follows:

“General construction or demolition debris” means 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.

415 ILCS 5/3.160(a) (2004).

Respondent admitted that some of the material on site was from a buildings that fell down. Tr. at 18.

The materials from the building, processed lumber, storm windows, and perhaps some of the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2006

appliances meet the definition of “construction or demolition debris” for purposes of Section

21(p)(7) of the Act, and therefore Respondent violated that section.

Respondent stated for the first time at hearing that he did not own the site on the date of the

inspection. Tr. at 17. Unfortunately, Respondent’s interpretation of his legal status with respect to

the site runs contrary to his actions throughout the pendency of this case, as well as established law.

Respondent entered as Exhibit 2 a “Notice of Sale” for several properties, including the site at issue

in this Administrative Citation, Property No. 2.

See

Exh. 2 at 2; Tr. at 21. The Notice indicated that

a “Judgment of Foreclosure and Sale” had been entered on June 24, 2004, and amended on January

11, 2006. Exh. 2, p. 1. The Notice further indicated that the sale would take place on February 9,

2006.

Id.

“A judgment ordering the foreclosure of a mortgage is not final and appealable until the court

enters orders approving the sale and directing the distribution.”

In re Marriage of Verdung

, 126 Ill.

2d 542 (1989). A bid at judicial sale is “merely an irrevocable offer to purchase the property” and it

is not until after confirmation by the court that “a true sale in the legal sense” takes place.

Mortgage

Electronic Registration Sys., Inc. v. Thompson

, 2006 WL 3196517 (Nov. 3, 2006),

citing Citicorp

Savings of Illinois v. First Chicago Trust Co. of Illinois

, 269 Ill. App. 3d 293, 300 (1995). A

purchaser does not obtain the final right to possession of property purchased at a judicial sale until

30 days after the confirmation of the sale. 735 ILCS 5/15-1701(d) (2004). Therefore, Respondent

still “owned” the property in the legal sense until it was sold and the sale was confirmed by the

court. None of these events had yet occurred on December 21, 2004, when the violations were

observed, but rather occurred some time in 2006.

The mortgage foreclosure provisions of the Civil Procedure code provide that the mortgagor

remain in possession of the property during the pendency of foreclosure, unless the mortgage

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2006

documents allow for the mortgagee to be placed in possession, and upon request to the court. 735

ILCS 5/15-1701(b)-(c). The record in this case is not clear as to whether the mortgagee of the site

in this case either had or exercised such a right to possession. However, Respondent’s actions and

the testimony offered tend to show that Respondent retained possession of the site until some

undefined time in the latter half of 2006.

On several occasions during status calls with the Hearing Officer in this matter, Respondent

made statements regarding actions he was taking or intended to take at the site. Respondent

originally reported that he was “working on cleaning the site” during the June 14, 2005 status call.

Hearing Officer Order (June 14, 2005), AC 05-47. A month later, he told the hearing officer that he

planned to “finish cleaning the site within 90 days.” Hearing Officer Order (July 14, 2005), AC 05-

47. In September, Respondent reported additional progress, along with difficulties obtaining

dumpsters. Hearing Officer Order (September 1, 2005), AC 05-47. Several months later,

Respondent stated that more progress was anticipated with the improving weather, and that he hoped

to be finished by May 1, 2006. Hearing Officer Order (March 28, 2006), AC 05-47. Over a year

from when he first reported “working” on the site (and more than four months after the sale date

noted in Exhibit 2), Respondent told the hearing officer he had “almost finished work.” Hearing

Officer Order (June 27, 2005), AC 05-47. Respondent admitted during the hearing that he had

access to the property until such time as it was purchased in 2006. Tr. at 22. Therefore, all of

Respondent’s actions through 2005 and into 2006 indicate that he still had possession of the site,

long after the December 21, 2004 inspection. Because Respondent was in responsible control of the

property when the violations were observed, the arguments presented regarding the foreclosure

actions do not provide a defense to the proven violations.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2006

The Illinois EPA photographs and inspection report and the testimony show that Respondent

caused or allowed open dumping of waste in a manner resulting in litter, open burning, and

deposition of construction or demolition debris in violation of Sections 21(p)(1), (p)(3), and (p)(7) of

the Act. Illinois EPA requests that the Board enter a final order finding that Respondent violated

these sections and imposing the statutory penalty.

Respectfully Submitted,

Dated: December 28, 2006

_________________________________

Michelle M. Ryan

Special Assistant Attorney General

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2006

PROOF OF SERVICE

I hereby certify that I did on the 28

day of December, 2006, send by U.S. Mail with postage

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

following instrument(s) entitled POST-HEARING BRIEF OF COMPLAINANT

To: Stacy Hess

1965 Cruger Road

Washington, Illinois 61571

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, Illinois 60601

_________________________________

Michelle M. Ryan

Special Assistant Attorney General

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2006