BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
ADMINISTRATIVE
CITATION
LERI<
S
OFFICE
COUNTYOFJACKSON,
)
JAN
O92DO
Complainant,
)
$TRT2
OFILUNOIS
ollutfon
Control
Board
v.
)
AC
09-8
)
(Site
Code:
0778035009)
DAN
KIMMEL,
Respondent.
COMPLAINANT’S
POST
HEARING
BRIEF
Complainant,
the
County
of
Jackson,
files
its
post
hearing
brief
in
the
matter.
INTRODUCTION
AND
PROCEDURAL
MATTERS
On
July
30,
2008,
the
Complainant
filed
an
Administrative
Citation
against
Dan
Kimmel,
the
Respondent,
under
Section
31.1
of
the
Illinois
Environmental
Protection
Act
415
ILCS
5/1
et.
seq.(2008)(the
Act).
It
is
alleged
the
Respondent
violated
Section
21
(p)(1)
and
(p)Q7)
of
the
Act.
The
Respondenttimeiyfiled
his
response
to
the
Citation
on
August
27,
2008.
Hearing
Officer,
Carol
Webb,
heard
this
matter
on
December4,
2008,
in
Murphysboro,
Illinois.
On
December
8,
2008,
she
filed
her
Hearing
Report
with
the
Board.
FACTS
On
July
8,
2008,
Environmental
Compliance
Inspector,
Don
Terry,
inspected
a
site
known
herein
after
as
the
site
(Site
Code
No.
0778035009)
situated
in
a
rural,
unincorporated
part
of
Jackson
County,
Illinois.
Tr.
7,
lines
2-11.
See
Also
Complainant
Ex.
2.
The
inspection
was
conducted
pursuant
to
the
Jackson
County
Health
Department’s
delegation
Page
1
of
5
agreementwiththe
Illinois
Environmental
Protection
Agency.
Tr.
6,
lines
14-20.
The
site,
at
the
time
of
the
inspection,
was
owned
by
the
Respondent.
Tr.
7,
lines
12-3.
See
also
Complainant’s
Ex.
2.
At
the
site
Mr
Terry
observed
abandoned
vehicles,
scrap
metal,
a
mobile
home
and
a
variety
of
other
construction
demolition
type
materials..
Tr.
7,
lines
14-22
and
Complainant’s
Ex.
2.
See
also
Complainant’s
Ex.
1
(Inspection
photos).
Mr.
Terry
also
testified
that
none
of
the
vehicles
depicted
in
the
photos
in
Complainant’s
Exhibit
1
were
operable
and
had
been
used
for
more
than
seven
days
prior
to
his
inspection
on
July
8,
2008.
Tr.
10,
lines
19-24
and
Tr.
11,
lines
1-4.
He
stated
he
could
see
some
of
the
debris
with
his
naked
eye
from
the
public
way
adjoining
the
property.
Tr.
11,
lines
18-20
&
Tr.
13,
lines
15-20.
The
Respondent
generally
admitted
to
thewaste.
Tr.
16,
lines
8-19
and
Tr.
17,
lines
5-7.
It
must
be
further
noted
that
Respondent
also
generally
admitted
to
the
waste
issue
in
his
petition
to
contest
the
administrative
citation
that
was
filed
with
this
Board
on
August
27,
2008.
Mr
Terry
stated
the
site
did
not
have
the
proper
permits
for
storing
waste
items.
Tr.
12,
lines
1-4.
Mr.
Terry
further
stated
that
there
had
been
previous
inspections
at
the
site;
and
administrative
citations
had
been
filed
againstthis
Respondent
at
this
site.
Tr.
12,
lines
12-
21.
He
recalled
that
at
least
one
resulted
in
a
Board
order
in
2006.
hI.
Complainant
requested
the
Board
take
judicial
notice
of
its
previous
decision
in
AC
06-21
dated
November
2,
2006.
Tr.
15,
lines
3-1
5.
That
decision
pertained
to
thesame
Respondent
for
the
same
site.
Id.
Page
2
of
5
In
its
case
in
chief
the
Respondent
provided
testimony
that
was
cleaning
the
site.
Tr.
16,
lines 6-19
and
Tr.
17,
lines
5-6.
Respondent
did
not
offer
a
defense
to
the
allegations.
His
only explanation
to
the
allegations
was
that
he
was
cleaning
the
site and
that
he
wasbeng
harassed.
Tr.
16,
line
24.
ARGUMENT
Open
dumping
is
defined
as
‘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
is
defined
as
“waste”
(415 ILCS
5/3.385
(2006)).
Disposal
is
defined
as
“the
discharge,
deposit,
injection,
dumping,
spilling,
leaking
or
placing
of
any
waste.
..
into
or
on
any
land
.
.
.
“415
ILCS
5/3.185
(2006)).
Litter
is
defined
in
the
Litter
Control
Act as
‘any
discarded,
used
or
unconsumed
substance
orwaste.
. .
abandoned
vehicle
(as
defined
in
the
Illinois
Vehicle
Code.
..)..
. or
anything
else
of
unsightly
or
unsanitary
nature,
which
has been
discarded,
abandoned
or
otherwise
disposed
of
improperly.”
415
ILCS
105/3
(2006).
Section
3.535
defines
waste
as
“any
garbage.
.
.
or
other
discarded
material.
.
.
.“
General
construction
or
demolition
debris
is
defined
in
Section
3.160
of
the
Act
(2006)
as
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
roof
coverings.
. .
.“
Finally,
an
abandoned
vehicle
is
defined
as
any
vehicle
in
a
state
of
disrepair
rendering
it
incapable
of
being
driven
or
any
vehicle
that
has
not
been
moved
or
used
for
seven
consecutive
days
or
more.
625
ILCS
5/1-101.05
Page
3
of
5
(2008).
The
evidence
presented
herein
clearly
shows
Mr.
Kimmel
caused
or
allowed
the
deposition
of
litter,
waste
and general
construction
demolition
debris
at
the
site.
It is
not
contested
the
Respondent
owned
and
controlled
the site
at
all
material
times.
Further,
if
violations
are
determined
herein,
Mr. Kimmel
is
subject
to double
fines
for
the Section
21
(p)(1)
issue
because
itwould
be
a subsequentviolation
under4l
5
ILCS 5142(b)(4-5)(2008).
Taking
the
inspection
report,
the photos
of
the
site, the
inspector’s
testimony
and the
Respondent’s
statements
leaves
little room
for the
Respondent
to
argue
a
defense
to
this
charges.
Nevertheless
the
Respondentexplains
he
has been
cleaning
the
site.
However,
even
if this
were
true, it
would
not
provide
him
with a
defense
to
the
administrative
citation.
This
Board
has
repeatedly
held
that
clean
up efforts
are
not
a
mitigating
factor
under
the
administrative
citation
program.
City
of Chicago
v.
City
Wide
Disposal,
Inc.,
AC
03-1
1
(September 4,
2003).
More
importantly,
and despite
his argument,
the
Respondent
does
not
deny
he
is
responsible
for
the
waste
and debris
on
his
site.
CONCLUSION
Therefore,
based
on
the
record,
the findings
of the
Hearing
Officer
and
the
arguments
presented
above,
Complainant
requests
this Board
to
find
that
the Respondent
violated
Section
21 (p)(l)
and (p)(7)
of
the
Act on
July
8,
2008,
and
impose
a fine
of
$4,500.00
($1,500.00
for
the
(p)(7)
violation
and
$3,000.00
for
the
(p)(l)
violation).
Page
4 of
5
Respectfully
submitted,
Daniel
Brenner
Assistant
State’s Attorney
Jackson County
Courthouse,
Third Floor
Murphysboro,
Illinois
62966
618-687-7200
For the
Complainant
Page 5
of 5
PROOF
OF
SERVICE
I
hereby
certify
that
I
did
on
the
6
1h
day
of
January
2009
send
by
U.S.
Mail,
with
postage
thereon
fully
prepaid,
by
depositing
in
U.S.
Post
Office
Box
a
true
and
correct
copy
of
the
following
instrument(s)
entitled
COMPLAINANT’S
POST
HEARING
BRIEF.
To:
Carol
Webb
Dan
Kimmel
Hearing
Officer
1065
Dumaroc
Road
Illinois
Pollution
Control
Board
DeSoto,
IL
62924
1021
North
Grand
Avenue
East
P.O.
Box
19274
Springfield,
1L62794-9274
and
the
original
and
nine
(9)
true
and
correct
copies
of
the
same
foregoing
instruments
on
the
same
date
by
U.S.
Mail
with
postage
thereon
fully
prepaid.
To:
Dorothy
Gunn,
Clerk
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
West
Randolph
Street,
Suite
11-500
Chicago,
IL
60601
Daniel
Brenner
Assistant
State’s
Attorney
Jackson
County
Courthouse,
Third
El.
Murphysboro,
IL
62966
61
8-687-7200