ILLINOIS POLLUTION CONTROL BOARD

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

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ROTECTION AGENCY,

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,

________________________________

Rob Pinski

529 S. Madison St.

Special Assistant Attorney General

Dated: November 13, 2008

Michelle M. Ryan

Illinois Environmental Protection

1021 North Gran

P.O. Box 19276

Springfield, Illin

Electronic Filing - Received, Clerk's Office, November 13, 2008

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

POST-HEARING BRIEF OF COMPLAINANT

ILLINOIS ENVIRONMENT

)

On April 8, 2008, the Illinois Environmental Protection Agency (“Illinois EPA”) issued

an administrative citation to Rob Pinski (“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) (2006)), in that Respondent caused or allowed open dumping of waste

resulting in litter, open burning, and the deposition of clean or general construction or demolition

debris. The violations occurred at a property located at 1043 North Walnut Street, St. Johns,

Perry County. Transcript, p. 6; 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 (2006).

“Refuse” means “waste,” (415 ILCS 5/3.385 (2006)), and “waste” includes “any garbage . . . or

other discarded material” (415 ILCS 5/3.535 (2006)). Respondent admitted to the Illinois EPA

inspector that he hauled waste from a demolition site in DuQuoin to the St. Johns site. Tr. at 9.

Joseph Cosentino was dismissed from this action on June 5, 2008, due to the fact that he predeceased this action.

Electronic Filing - Received, Clerk's Office, November 13, 2008

Respondent also admitted in his Response to the Administrative Citation that he “told the home

owner (Miss Cook) that [he] was going to take the wood and burn it in the country” and that he

“took 3 pick up truck loads of wood to the country and burnt it.” Petition for Review, filed May

12, 2008, p.1. Respondent further indicated that this activity took place the day prior to the

inspection on February 29, 2008.

Id.

The inspection report admitted into evidence as Exhibit 1

and the testimony at hearing show that materials including vinyl siding comparable to that seen

at the demolition site, demolition wood, and ash from burning were commingled at the site.

Tr.

at 12-15; Exh. 1, pp. 4-5, 10-16. Therefore, Respondent caused or allowed the open dumping of

waste observed on February 29, 2008.

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) (2006)). 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) (2006); 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 vinyl siding, dimensional lumber,

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

section.

originally contained in the Administrative Citation. This substitution issue will be addressed further, below.

demolition site in DuQuoin, Illinois EPA is focusing its arguments on the Area A waste.

See

Transcript, p. 15.

At hearing, Complainant moved to substitute this violation of 21(p)(7) for the violation of 21(p)(4), which was

The disposal site contained three distinct areas of waste, labeled in the inspection report as Areas A, B, and C.

See

Exh. 1, p. 10. Because the waste in Area A was the most consistent with the materials apparently removed from the

Electronic Filing - Received, Clerk's Office, November 13, 2008

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

Section 21(p)(3) of the Act (415 ILCS 5/21(p)(3) (2006)). Charred wood, warped vinyl siding,

and ash were consolidated in a pile immediately below a tree, which had limbs that were

scorched up to 15 or 20 feet high. Tr. at 12-13; Exh. 1, pp.11-13. As argued a

rywall; plumbing fixtures; non-asbestos insulation; roofing shingles and other

ed asphalt pavement; glass; plastics that are not sealed in a

manner that conceals waste; electrical wiring and components containing no

June 20,

caused or allowed the open dumping of this waste. Because the open dumping resulte

open burning of waste, Respondent also violated Section 21(p)(3) of the Act.

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

ction or demolition debris in violation of Section 21(p)(7) of the Act

(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, an

demolition of utilities, structures, and roads, limited to the following: bricks,

concrete, and other masonry materials; soil; rock; wood, including non-hazard

painted, treated, and coated wood and wood products; wall coverings; plaster;

roof coverings; reclaim

hazardous substances; and piping or metals incidental to any of those materials.

415 ILCS 5/3.160(a) (2006).

The inspector observed vinyl siding and dimensional lumber at the site. Tr. at 9-10. These materials

derived from the house located at the DuQuoin demolition site, which was a “structure” under

Section 5/3.160(a). 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),

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.

Electronic Filing - Received, Clerk's Office, November 13, 2008

Respondent indicated in his Petition for Review that he didn’t know that it was illegal to

burn the demolition debris. Petition for Review, p.1. However, 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 further stated in his Petition for Review that after the Illinois EPA inspector told him he

“could not take anything off the job site and burn it,” he “complied with this request…nothing else

was desposed (sic) of illegally.” Petition for Review, pp.1-2. However, this statement is impeached

by the photos sent to the Illinois EPA inspector later that same day, which showed the Area A burn

pile in flames. Exh. 1, p. 17; Transcript p. 16.

Respondent also reported that the Illinois EPA inspector told him that he “was going to get 3

warning tickets most likely if [he] compled (sic) with this agrement (sic)” to dispose of the

remaining waste properly. Petition for Review, p. 2. In fact, Respondent did receive an

Administrative Citation with three violations. However, the third violation was inadvertently listed

in the original Administrative Citation as a violation of 21(p)(4), when it should have been 21(p)(7).

Section 21(p)(4) prohibits open dumping resulting in waste in standing or flowing water, which has

never been at issue in this case. Rather, the violation of 21(p)(7) was correctly cited in the

inspection report attached to the Administrative Citation, and demolition debris was clearly the

subject of the discussion between the Illinois EPA inspector and Respondent on the date of the

inspection. Respondent has never addressed the error in the one violation originally cited, and

Illinois EPA became aware of this error immediately prior to hearing, at which time Illinois EPA

moved to substitute a corrected page. Transcript, pp. 5-6. The corrected violation clearly comports

with the activities Respondent has admitted occurred at the dump site, and which were contained in

the inspection report. Petition for Review, p.1, Exh. 1, pp. 2-5, 10-13. Respondent was originally

Electronic Filing - Received, Clerk's Office, November 13, 2008

expecting “3 warning tickets,” which is the same number he received. He apparently did not prepare

to defend against the 21(p)(4) violation, as he did not raise it in his Petition for Review or

is 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

DATED: November 13, 2008

________________________________

subsequently, nor did he appear at hearing to defend himself at all. For all these reasons,

Respondent will suffer no prejudice if this error is corrected.

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, open burning and the

deposition of construction and demolition debr

sections and imposing the statutory penalty.

Respectfully Submitted,

Michelle M. Ryan

Special Assistant Attorney General

ental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

Illinois Environm

Electronic Filing - Received, Clerk's Office, November 13, 2008

PROOF OF SERVICE

I hereby certify that I did on the 13 day of November, 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:

Du Quoin, IL 62832

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

________________________________

Rob Pinski

529 S. Madison St.

John Therriault, Acting C

Pollution Control Board

James R. Thompson Center

100 West Randolph Stree

pecial Assistant Attorney General

Illinois Environmental Protection

1021 North Gran

P.O. Box 19276

Springfield, Illin

Electronic Filing - Received, Clerk's Office, November 13, 2008