BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
)
)
)
)
AC 06-49
v.
)
)
)
(IEPA No. 96-06-AC)
MICHAEL GRUEN and JON ERIC
GRUEN d/b/a JON’S TREE SERVICE
)
)
Respondents.
)
)
NOTICE OF FILING
To: Phillip H. Hamilton
Farrell, Hunter, Hamilton & Julian, P.C.
1310 D’Adrian Professional Park
Godfrey, Illinois 62035-1688
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: April 30, 2007
Electronic Filing, Received, Clerk's Office, April 30, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
)
)
)
)
AC 06-49
v.
)
)
)
(IEPA No. 96-06-AC)
MICHAEL GRUEN and JON ERIC
GRUEN d/b/a JON’S TREE SERVICE
)
)
Respondents.
)
)
POST-HEARING BRIEF OF COMPLAINANT
On May 29, 2006, the Illinois Environmental Protection Agency (“Illinois EPA”) issued
an administrative citation to Michael Gruen and John Eric Gruen d/b/a Jon’s Tree Service
(“Respondents”). The citation alleges a violation of Section 21(p)(1) of the Environmental
Protection Act (“Act”) (415 ILCS 5/21(p)(1) & (7) (2004)), in that Respondents caused or
allowed open dumping of waste resulting in litter. The violations occurred at a property located
at the conjunction of Route 66 and Old Route 66 south of Mt. Olive, in Macoupin County.
Transcript, p. 11; Exhibit 1.
Illinois EPA has demonstrated that Respondents 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)). On April 20, 2006, Respondent Michael
Gruen was the owner of the site, and Respondent John Gruen was the operator. Tr. at 11. The
inspection report admitted into evidence as Exhibit 1 and the testimony at hearing show that
materials including cut logs, deteriorated lumber, wood chips, plastic, a rusted metal tank,
Electronic Filing, Received, Clerk's Office, April 30, 2007
vehicles, a truck bed full of wood, metal and other materials, and a boat full of plastic, metal
scraps, wood, and a used tire were present at the site. Tr. at 13-16; Exh. 1, pp. 3-10. The
inspector estimated that three-quarters of the waste on site was landscape waste. Tr. at 17.
Landscape waste is waste.
Illinois EPA v. Northern Illinois Service Corporation
, PCB AC 05-
40, (September 21, 2006) p. 8,
citing American Tree Service, Inc. v. Illinois EPA
, PCB 94-43,
(Dec. 14, 1994) p. 14. All of the remaining materials observed on site constitute “discarded
material” within the meaning of the term “waste.” In addition, landscape waste in the form of
trees uprooted, transported to another site, and piled up has recently been held to be “discarded
material” within the meaning of “waste.”
Illinois EPA v. Northern Illinois Service Corporation,
supra
at 9. Therefore, Respondents caused or allowed the open dumping of waste observed on
April 20, 2006.
Respondents’ 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.
415 ILCS 105/3(a) (2004); see
St. Clair County v. Louis I. Mund
PCB AC 90-64, (Aug. 22, 1991)
pp. 4, 6. The Board has previously categorized tree branches as waste.
Illinois EPA v. Northern
Illinois Service Corporation, supra
at 9,
citing Illinois EPA v. Harvey
, PCB AC 03-27 (April 1,
2004), p. 5. The Illinois EPA inspector determined that the timber, vehicles, scrap metal, plastic
strewn on the ground, tarp, and items in the back of the truck were of an “unsightly or unsanitary
nature.” Tr. at 34, 39. According to the definition and supporting case law, the wood, plastic, rusted
3
Electronic Filing, Received, Clerk's Office, April 30, 2007
metal tank, vehicles, truck bed and boat full of wood, metal, plastic, tire and other materials
constitute “litter” under Section 21(p)(1) of the Act, and therefore Respondents violated that section.
Respondent Jon Gruen testified that all the vehicles on the property (except the Camaro,
see
Tr. at 69) were used in the business and not “deserted.” Tr. at 57-61. However, one vehicle needs
“brakes put on it” (Tr. at 57), one needs “a master cylinder” (Tr. at 58), one needs “freeze plugs put
in it” (Tr. at 59), and the Camaro needs “a new rear end” (Tr. at 61). Clearly, none of these vehicles
are currently roadworthy, and apparently haven’t been for at least the last year, since the April 20,
2006 inspection. Respondent Jon Gruen holds title or registration papers for at least some of the
vehicles (Resp. Exh. 32-35), and also has “intent to make the repairs” needed. Tr. at 59. He also
intended to “convert the large metal tank into a wood-burning stove” (Tr. at 64), but there was no
evidence that this ever occurred, even though it was out there for “a year or two.” Tr. at 67. In
Illinois EPA v. Yocum, et al.
, PCB AC 01-29 and 01-30 (consolidated) (June 6, 2002), the Board
found that vehicles and wood waste was open dumped (slip op. at 6), even though Mr. Yocum had
titles and intended to use the wood and also the vehicles, either for parts or to restore.
Yocum, supra,
at 4. Therefore, the inoperable vehicles and other materials in the condition observed at the Gruen
property on April 20, 2006 were waste and litter.
Respondent Jon Gruen made a showing at hearing that the wood waste could be used for
business purposes, such as firewood or mulch. Tr. at 42-44. Illinois EPA does not dispute that
Respondent Jon Gruen intends to make use of most of the wood he brings back to the site, and has,
in fact, used some. However, “it’s reached a point, though, that there’s so much wood on site that
it’s starting to disintegrate at the bottom of the piles and it would take a long time to get rid of the
amount of wood that’s there.” Tr. at 19-20. The amount of wood in only one measured area of the
site was 250 feet long by three feet high. Tr. at 17. Some of the wood waste has been on site since
4
Electronic Filing, Received, Clerk's Office, April 30, 2007
December 2004, and is “damp, it’s ridden with bugs, that type of thing.” Tr. at 21. Saplings
growing between the logs indicated there has been little movement of the material. Tr. at 25.
Respondent Jon Gruen plans to use the wood, “but he’s not using it. He’s let the wood site for a
number of years.” Tr. at 29. A plan for use of material at some future date is not dispositive in
determining whether a material is waste or litter.
Illinois EPA v. Yocum, et al.
, (June 6, 2002), p. 8.
Indeed, a person can cause or allow a violation of the Act without knowledge or intent.
County of
Will v. Utilities Unlimited, Inc.,
et al. PCB AC 97-41, (July 24, 1997) p. 5, citing
People v. Fiorini
,
143 Ill.2d 318, 574 N.E.2d 612 (1991).
Respondent Jon Gruen testified that all the material he brings to the site is usable to
somebody. Tr. at 43. However, every material on site contains some type of material that is
“unusable.” “We give it away, like I said, any wood that’s
not usable
.” Tr. at 50 (emphasis added).
“[S]ometimes there’s leftover scraps of firewood
that you can’t use for, you know, anything
, they’re
just little scraps, and we throw it in there and burn it off.” Tr. at 56 (emphasis added). “I’ll send
him [son] out there to sort all the stuff out, the scrap metal from
the stuff that’s not useable
.” Tr. at
65 (emphasis added). “[A]ll the material that’s thrown into the truck bed is not necessarily scrap
metal. It’s just put there until my son can later go through it and decide
what’s valuable and what’s
not
.” Tr. at 70 (emphasis added). By his own admissions, Jon Gruen brings wood and other
materials to the site that cannot be used. At a minimum, this “unusable” material is waste, and
supports this Administrative Citation.
Respondent Michael Gruen did not testify at hearing, but it is undisputed that he is the site
owner. This Board has long held that present inaction of 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.
Illinois EPA v. William Shrum
, AC 05-18
5
Electronic Filing, Received, Clerk's Office, April 30, 2007
(March 16, 2006), p. 8 (citations omitted);
Sangamon County v. Lee Hsueh
, AC 92-79 (July 1,
1993), pp. 4-5. Therefore, Michael Gruen is equally responsible for the violation of Section 21(p)(1)
of the Act as is Jon Gruen.
Respondents’ attorney made a lot out of the fact that there is no statutory “time limit” on a
material turning into a waste from neglectful non-use. While Illinois EPA agrees that the statute
doesn’t set a specific time limit, when a person ceases to take care of his materials and allows them
to degrade into the environment, then his time has passed.
The Illinois EPA photographs, inspection report and the testimony show that Respondents
caused or allowed open dumping of waste in a manner resulting in litter in violation of Section
21(p)(1)) of the Act.
Illinois EPA requests that the Board enter a final order finding that
Respondents violated these sections and imposing the statutory penalty.
Respectfully Submitted,
DATED: April 30, 2007
_________________________________
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
6
Electronic Filing, Received, Clerk's Office, April 30, 2007
PROOF OF SERVICE
I hereby certify that I did on the 30
th
day of April, 2007, 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: Phillip H. Hamilton
Farrell, Hunter, Hamilton & Julian, P.C.
1310 D’Adrian Professional Park
Godfrey, Illinois 62035-1688
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
THIS FILING SUBMITTED ON RECYCLED PAPER
Electronic Filing, Received, Clerk's Office, April 30, 2007
