ILLINOIS POLLUTION CONTROL BOARD

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

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ROTECTION AGENCY,

(IEPA No. 375-06-AC)

. MYERS and DONALD D.

NOTICE OF FILING

ILLINOIS ENVIRONMENT

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,

________________________________

H. Wesley Wilki

602 S. Main St.

Special Assistant Attorney General

Dated: January 5, 2009

Michelle M. Ryan

Illinois Environmental Protection

1021 North Gran

Springfield, Illin

Electronic Filing - Received, Clerk's Office, January 5, 2009

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ROTECTION AGENCY,

(IEPA No. 375-06-AC)

. MYERS and DONALD D.

POST-HEARING BRIEF OF COMPLAINANT

ILLINOIS ENVIRONMENT

On January 3, 2007, the Illinois Environmental Protection Agency (“Illinois EPA”)

issued an administrative citation to Bobby Myers and Donald Myers (“Respondents”). The

citation alleges violations of Section 21(p)(1) and (3) of the Environmental Protection Act

(“Act”) (415 ILCS 5/21(p)(1) & (3) (2006)), in that Respondents caused or allowed open

dumping of waste resulting in litter and open burning. The violations occurred at a property

located at 3050 Mount Glen Road, west of Cobden, in Union County. Transcript, p. 6-7; Exhibit

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 (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)). Respondents have been legal owners of

the property since 1989. Respondent’s Exh. 1; Tr. at 7, 30. Respondent Donald Myers has also

been an operator of the site for 40 years. Tr. at 35. The inspection report admitted into evidence

Electronic Filing - Received, Clerk's Office, January 5, 2009

as Exhibit 1 and the testimony at hearing show that materials including an abandoned mobile

home, waste vehicles (some with missing parts and open or missing windows), construction and

demolition waste, used tires, furniture, paper, plastic bags, plastic buckets, wood, plastic pipe, a

spray tank, a white appliance, and other unidentifiable “blue” items were present at the site. Tr.

at 9-13, 19; Exh. 1, pp. 3-18. These materials had been exposed to the weather, and many of the

vehicles and tires were overgrown with weeds (Tr. at 11-13; Exh. 1, pp. 3, 5, 8-16), indicating

that they had been present in their current location for a significant period of time. Therefore,

Respondents caused or allowed the open dumping of waste observed on December 5, 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) (2006)). The Act does not define

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

“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 mobile home, waste vehicles,

construction and demolition waste, used tires, furniture, paper, plastic bags, plastic buckets, wood,

plastic pipe, a spray tank, a white appliance, and other unidentifiable items constitute “litter” under

Section 21(p)(1) of the Act, and therefore Respondents violated that section.

Respondents’ 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) (2006). “Open burning” is defined in Section

3.300 of the Act, 415 ILCS 5/3.300 (2006), 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

Electronic Filing - Received, Clerk's Office, January 5, 2009

dumping.” Testimony at hearing and photographs from the site taken December 5, 2006,

demonstrate that landscape waste and over 100 used tires were burned, Tr. at 10; Exh. 1, pp. 6-

7. Tire beads and carcasses are visible in photographs 4-5, and the charred tree trunks in

Photograph 6 is clear evidence that landscape waste mixed with the tires had been “pushed up

into a pile and set on fire.”

Respondents did not contradict any of this testimony at hearing.

Tr. at 28-41. This burning constitutes “open dumping of waste in a manner that results

in…open burning” under Section 21(p)(3) of the Act, and therefore Respondents violated that

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

, AC 05-18 (March 16, 2006), p. 8 (citations omitted);

Sangamon County v. Lee Hsueh

AC 92-79 (July 1, 1993), pp. 4-5. Although Respondent Bobby Myers testified that he had no

involvement in Respondent Donald Myers’s salvage operation, he was aware of the operation

since before he became an owner of property in 1989. Tr. at 30. And although he visits the site

“very seldom” (Tr. at 33), Respondent Bobby Myers was also aware that the “tires and junk”

were in violation of the Act, at least as of June 28, 2005, the date that he and Respondent Donald

Myers wrote to Illinois EPA to assure that “this situation will be corrected.” Exh. 2. More than

seventeen months later, Respondent Bobby Myers had not helped to remove any of the waste on

the property, nor had he contracted with anyone to do so. Tr. at 32. On December 5, 2006, the

problems at the site remained. Exh. 1.

Respondents appear to be claiming through testimony that Respondent Donald Myers was

conducting a salvage operation, and intended to use some of the waste materials open dumped on the

Electronic Filing - Received, Clerk's Office, January 5, 2009

See, generally,

Tr. at 19-20, 22-23, 35. However, Respondent Donald Myers testified that the

waste vehicles from the December 5, 2006 inspection were “disposed of and a lot of them…done

been junked out, hauled off, sold for scrap.” Tr. at 36. Although Respondent Donald Myers

received compensation for these waste vehicles (

), the fact that they had value does not prevent

them from being legally defined as waste.

Tr. at 20. Indeed, the fact that they ended up being

“disposed” following the issuance of the Administrative Citation supports Illinois EPA’s

determination that they were waste. 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.

and 01-30 (consolidated) (June 6, 2002), slip op. at 8.

Respondents’ main argument appears to be that the other two owners of the property,

Respondents’ siblings, Harold Myers and Barbara Cerney, were not named as Respondents in this

matter. Tr. at 32. These two parties admittedly have taken no responsibility for the site (

Illinois EPA concedes that they are also liable for the violations at the site, because 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). However, the fact of their liability does not diminish or extinguish the

liability of Respondents Bobby and Donald Myers. In addition, at hearing Respondent Donald

Myers identified “Junior” as another operator of the site when he testified that he “pretty well let

him do anything” since 1999. Tr. at 36. Although “Junior” now appears to be a liable party as well,

he was not named as a Respondent, either. At the time of the December 5, 2006 inspection, these

three parties were not known to Illinois EPA in relation to this site. The Act requires, without

exception, that Administrative Citations be served on Respondents “within not more than 60 days

after the date of the observed violation.” 415 ILCS 5/31.1 (2006). This strict timeframe explains

Electronic Filing - Received, Clerk's Office, January 5, 2009

why Illinois EPA does not conduct title searches to determine property ownership before issuing

Administrative Citations.

Tr. at 18. Respondents Bobby and Donald Myers were aware of the

violations and promised to have them remedied well in advance of the inspection that resulted in this

Administrative Citation, and they were therefore named as Respondents. Equity does not require the

inclusion of Harold Myers and Barbara Cerney at this date, but even if it did, the Board possesses

only those powers conferred upon it by the Act (

Village of Lombard v. Pollution Control Bd.

Ill.2d 503, 506, 363 N.E.2d 814, 815, 6 Ill. Dec. 867, 868 (Ill. 1977) (citations omitted)). Equity

powers are not among those.

415 ILCS 5/5 (2006). Therefore, Respondents’ argument on this

point falls flat.

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 and open burning in

violation of Sections 21(p)(1) and (3) 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: January 5, 2009

_________________________________

Michelle M. Ryan

Special Assistant Attorney General

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

Electronic Filing - Received, Clerk's Office, January 5, 2009

PROOF OF SERVICE

I hereby certify that I did on the 5 day of January, 2009, 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

and an electronic copy of the same foregoing instrument on the same date via electronic filing

t, Suite 11-500

Chicago, Illinois 60601

________________________________

H. Wesley Wilki

602 S. Main St.

John Therriault, Acting C

Pollution Control Board

James R. Thompson Center

100 West Randolph Stree

pecial Assistant Attorney General

Michelle M. Ryan

Illinois Environmental Protection

1021 North Gran

Springfield, Illin

Electronic Filing - Received, Clerk's Office, January 5, 2009