BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AL
ROTECTION AGENCY,
omplainant,
AC 06-50
.
(IEPA No. 98-06-AC)
ARK GATES,
Respondent.
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NOTICE OF FILING
ILLINOIS ENVIRONMENT
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To:
Lincoln, IL 62656
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,
________________________________
Mark Gates
P.O. Box 161
_
Special Assistant Attorney General
Agency
d Avenue East
ois 62794-9276
17) 782-5544
Dated: February 19, 2008
Michelle M. Ryan
Illinois Environmental Protection
1021 North Gran
P.O. Box 19276
Springfield, Illin
(2
Electronic Filing - Received, Clerk's Office, February 19, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AL
ROTECTION AGENCY,
omplainant,
AC 06-50
.
(IEPA No. 98-06-AC)
ARK GATES,
Respondent.
)
POST-HEARING BRIEF OF COMPLAINANT
ILLINOIS ENVIRONMENT
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On May 29, 2006, the Illinois Environmental Protection Agency (“Illinois EPA”) issued
an administrative citation to Mark Gates (“Respondent”) . The citation alleges violations of
Section 21(p)(1) and (7) of the Environmental Protection Act (“Act”) (415 ILCS 5/21(p)(1) &
(7) (2004)), in that Respondent caused or allowed open dumping of waste resulting in litter and
the deposition of clean or general construction or demolition debris. The violations occurred at
a property located one half mile east of Union, Illinois, off County Road 2550 North in Logan
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)). Respondent was in operational control of
the site on April 26, 2006. Tr. at 8;
see generally
Amended Response to Administrative Citation,
1
1
Marla Lewis Gates and Mark Kingsley Lewis were dismissed from this action on October 19, 2006, for failure of
service.
Electronic Filing - Received, Clerk's Office, February 19, 2008
filed May 29, 2007 (indicating future intentions with respect to site; concerns about
Respondent’s lack of presence during April 26, 2006 inspection; admissions to placing some of
the materials at the site). Throughout the six inspections of this site by Illinois EPA from 1998
through 2006, Respondent was the only person with whom the inspector had any communication
regarding the site.
Id.
. The inspection report admitted into evidence as Exhibit 1 and the
testimony at hearing show that materials including abandoned mobile homes, a large storage
box, vinyl siding, a metal table, bricks, telephone poles, drywall, dimensional lumber, shingles,
scrap metal, a metal bathtub, used tires, wood pallets and rebar were present at the site. Tr. at 9-
11; Exh. 1, pp. 3-12. These materials had been exposed to the weather for several years, and at
least some of them had been in an unchanged condition since the original 1998 inspection.
Therefore, Respondent caused or allowed the open dumping of waste observed on April 26,
2006.
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.
415 ILCS 105/3(a) (2004); see
St. Clair County v. Louis I. Mund
PCB AC 90-64, (Aug. 22, 1991)
pp. 4, 6. According to the definition and supporting case law, the mobile homes, vinyl siding, metal,
bricks, telephone poles, drywall, dimensional lumber, shingles, used tires and wood pallets
constitute “litter” under Section 21(p)(1) of the Act, and therefore Respondent violated that section.
Electronic Filing - Received, Clerk's Office, February 19, 2008
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).
The inspector observed abandoned mobile homes, vinyl siding, bricks, drywall, dimensional lumber,
shingles, a metal bathtub and rebar at the site. Tr. at 9-10. A mobile home is a “structure” under
Section 5/3.160(a), and a metal bathtub is a “plumbing fixture” under the same section. Further,
“[d]imensional lumber qualifies as construction or demolition debris under the Act.”
Illinois EPA v.
Yocum, et al.
, PCB Nos. AC 01-29 and AC 01-30 (Consolidated), June 6, 2002, p. 7;
aff’d
,
Yocum, et
al. v. Illinois Pollution Control Board
, (4-02-0709), June 20, 2003 (unpub.). All of these wastes
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 indicated in his filings that he intended to use some of the waste materials open
dumped on the site.
See, e.g.
, Amended Response to Administrative Citation, filed May 29, 2007,
pp. 7-9. However, he waste near the entrance to the site had not moved or been used in eight years.
Tr. at 9. 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.
, PCB AC 01-29 and 01-30 (consolidated)
(June 6, 2002), slip op. at 8. Furthermore, a person can cause or allow a violation of the Act without
Electronic Filing - Received, Clerk's Office, February 19, 2008
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 also indicated that he “asked” to be present during any inspection, (Tr. at 14) and
apparently took issue with the fact that he was not present during the April 26, 2006 inspection. Tr.
at 12. However, Respondent admittedly did not own this property (Tr. at 14;
see also
Exhibit 1) and
there is no evidence in the record that he has any valid legal claim on this issue.
The only issues raised by Respondent in his defense at hearing were his lack of access to the
property during his divorce proceedings and an oblique reference to third parties not present at the
hearing. Respondent’s divorce proceedings commenced on January 4, 2007 (Tr. at 14), more than
eight months
after
the inspection on which this Administrative Citation is based. The third party
reference (Tr. at 15) is so obscure and unsubstantiated that it does not appear to have any evidentiary
value, and as such it should be disregarded in its entirety.
The Illinois EPA photographs, inspection report and the testimony show that Respondent
caused or allowed open dumping of waste in a manner resulting in litter and the deposition of
construction and demolition debris in violation of Sections 21(p)(1) and (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.
Electronic Filing - Received, Clerk's Office, February 19, 2008
Respectfully Submitted,
DATED: February 19, 2008
_________________________________
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, February 19, 2008
THIS FILING SUBMITTED ON RECYCLED PAPER
PROOF OF SERVICE
I hereby certify that I did on the 19 day of February, 2008, 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:
Lincoln, IL 62656
and an electronic copy of the same foregoing instrument on the same date via electronic filing
To:
lerk
t, Suite 11-500
Chicago, Illinois 60601
________________________________
th
Mark Gates
P.O. Box 161
John Therriault, Acting C
Pollution Control Board
James R. Thompson Center
100 West Randolph Stree
_
pecial Assistant Attorney General
Agency
d Avenue East
ois 62794-9276
17) 782-5544
Michelle M. Ryan
S
Illinois Environmental Protection
1021 North Gran
P.O. Box 19276
Springfield, Illin
(2
Electronic Filing - Received, Clerk's Office, February 19, 2008
