BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
ADMINISTRATIVE
CITATION
JAN
092009
COUNTY
OF
JACKSON,
)
ution
OF
Controg
ILLINOIS
Board
Complainant,
v.
)
AC
09-9
(Site
Code:
0778035022)
ALVIN
VALDEZ
and
RUBEN
J.
)
VALDEZ,
Respondent.
)
COMPLAINANT’S
POST
HEARING
BRIEF
Complainant,
the
County
of
Jackson,
files
its
post
hearing
brief
in
the
matter.
INTRODUCTION
AND
PROCEDURAL
MATTERS
On
July31,
2008,
the
Complainant
filed
an
Administrative
Citation
against
Alvin
and
Ruben
J.
Valdez,
the
Respondents,
under
Section
31.1
of
the
Illinois
Environmental
Protection
Act
415
ILCS
5/1
et.
seq.(2008)(the
Act).
It
is
alleged
the
Respondents
violated
Section
21
(p)(1)
and
(p)(7)
of
the
Act.
The
Respondenttimelyfiled
their
response
on
August
27,
2008;
and
an
amended
response
on
October
17,
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
June
25,
2008,
Environmental
Compliance
Inspector,
Don
Terry,
inspected
a
site
known
hereinafterasthesite
(Site
Code
No.
0778035022)
situated
in
a
rural
partof
Jackson
County,
Illinois.
Tr.
8,
lines
14-7.
SeeAlsoComplainantEx.
2.
The
inspection
was
conducted
Page
1
of
5
pursuant
to
the
Jackson
County
Health
Department’s
delegation
agreement
with
the
Illinois
Environmental
Protection
Agency.
Tr.
7,
lines
8-15.
The
site,
at
the
time of
the
inspection,
wasownedby
the
Respondent,
Alvin
Valdez,
Ti.
8,linesl8-9.
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..
Ti.
8,
lines
22-4,
Ti.
9,
lines
1-2,
Tr.
11,
lines
22-4 and
Complainant’s
Ex.
2.
Complainant’s
Ex.
1 (Inspection
photos).
Mr.
Terry
also
testified
that
most of
the
vehicles
depicted
in
the
photos
in
Complainant’s
Exhibit
1
could
not
be
driven
norwere
used
for
more
than
seven
days
priorto
his
inspection
on
June
25,
2008.
Tr.
12,
lines
6-15
and
Tr.
13,
lines
5-12.
Ruben
Valdez
also admitted
that
some
of
the
vehicles
were
inoperable
and
had
not
been
driven
for
at
least
a
week
priorto
the
inspection.
Tr.
25,
lines
5-10, 24
andTr.
26,
lines 1,
10-9.
Mr.
Terry
testifies
that he
could see
some
of
the
debris
with
his
naked
eye
from
the
public
way
adjoining
the
property.
Ti.
14,
lines
1-3
and
Ti.
17,
lines
18-22.
Mr.
Terry
also
stated
that
the
other
Respondent,
Ruben
J.
Valdez,
had
told
him
that
he
had
brought
some
of
the
abandoned
vehicles
onto
the
site.
Ti.
14,
lines
20-4
and
Ti.
15,
lines
1-4.
The
Respondents
generally
admitted
tothe
waste.
Ti.
15,
lines
22-4,
Ti. 16,
lines
1-5,
Ti.
17,
lines
8-13,
Tr.
19,
line
24
and Ti.
20,
lines
1-24.
It
must
be
further
noted
that
Respondents
also
generally
admitted
to
the
waste
issue
in
their
petition
to
contest
the
administrative
citation
that
was
filed
with
this
Board
on
August
27,
2008
and
its
amendment
filed
October17,
2008.
Mr.
Terry
stated
the
site
did
not
have
the
proper
permits
for
storing
waste
items.
Ti.
14,
lines
8-10.
Page
2
of
5
Mr.
Terry
further stated that
there
had been
previous inspections
at
the site.
Tr.
14,
lines
11-3. Additionally
there had been a
previously
dismissed administrative
citation
involving
these
Respondents, forthis
same site code, docketed
as AC
07-34, Tr. 24, lines
1-
9.
In its
case in
chief and in their written
responses,
filed earlier,
the
Respondents take
the
position
they were storing items
for parts or
recycling. Tr. 20-5.
They also objected
to
the
inspectors
entry onto their
land,
Tr. 18, lines
8-22; and also
believed the previously
dismissed
matter, AC
07-34,
had
cleared them
of any
wrongdoing
with respect
to the same
present
allegations.
Tr. 23-4. Mr. Terry,
however,
did state new debris
had been placed
on
their site
since
his
previous
inspections. Tr. 14,
lines
11-9.
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
anywaste.
.
. 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
or waste. .
. 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
Page 3 of 5
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
(2008).
The
evidence
presented
herein
clearly
shows
the
Respondents
caused
or
allowed
the
deposition
of
litter,
waste
and
general
construction
demolition
debris
at
the
site.
It
is
not
contested
the
Respondents
owned
and/or
controlled
the
site
at
all
material
times.
Respondents
attack
the
inspection
as
an
unlawful
search
and
seizure.
There
are
several
problems
with
this
attack.
First,
there
had
been
previous
inspections
of
the
site
where
there
apparently
had
not
been
any
objections
by
the
Respondents.
Moreover,
debris
had
been
found
at
these
inspections.
Second,
ample
evidence
was
provided,
contrary
to
Respondents’
unproven
and
contradictory
assertions,
that
some
of
the
debris
could
be
seen
from
the
public
road.
Therefore,
Respondents
could
not
have
an
expectation
of
privacy.
There
is
no
illegal
search
and
seizure
if
there
is
no
expectation
of
privacy.
Miller
v.
Ill.
Pollution
Control
Bd.,
267111.
App.3d
160;
642
N.E.2d
4
th
Dist.
1994);
See
also
Countyf
Jackson
v.
Kamarasy,
AC-04-63
and
64
(June
16,
2005).
Nonetheless,
the
burden
of
persuasion
with
this
defense
lies
with
the
Respondents.
iç[
Respondents
have
not
met
their
burden
of
persuasion.
Respondents
next
argue
that
the
previous
dismissal
by
the
Board
(AC
07-34)
serves
as
a
legal
defense.
They
believe
because
the
matter
was
dismissed
the
alleged
debris
or
Page4of
5
waste
or violations,
at
that
time,
were
unfounded
and
the
Respondents
were
not
in violation
of
regulatory
and
statutory
requirements.
There
are
several
problems
with
the
Respondents’
argument.
First,
the
previous
matterwas
dismissed
without
prejudice
and
did
not
adjudicate
the
issue of
the
Respondents
alleged
violations
of
Section
21
of
the
Act. Second,
the
inspectortestified
that
additional
debris
had
been
added to
the
site
since
the
inspections
that
led
to
the
2007
administrative
citation.
That
has
not
been
refuted.
Third,
the
bLirden
of
persuasion
with
this
defense
would lie
with
the
Respondents.
The
Respondents’
argument
must
fail
because
additional
debris
had
been
added
to the
site;
and
the
Respondents
have
failed
to
meet
its
burden
with the
defense.
CONCLUSION
Therefore,
based
on
the
reord,
the
findings
of
the
Hearing
Officer
and
the
arguments
presented
above,
Complainant
requests
this
Board
to
find
that
the
Respondents
violated
Section
21(p)(l)
and
(p)(7)
of
the
Act
on
June
25,
2008,
and
impose
a
fine
of
$3,000.00
($1
500.00
for
each
of
the
alleged
violations).
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
[did
on
the
6
th
of
January
2009
send
by
U.S.
Mail,
with
postage
thereon
fully
p
repaid,
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
Hearing
Officer
Illinois
Pollution
Control
Board
1021
North
Grand
Avenue
East
P.O.
Box
19274
Springfield,
IL
62794-9274
Alvin
and
Ruben
J.
Valdez
211
N.
Walnut
P.O.
Box
162
DeSoto,
IL
62924
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.
Daniel
B
er
Assistant
State’s
Attorney
Jackson
County
Courthouse,
Third
Fl.
Murphysboro,
IL
62966
618-687-7200
To:
Dorothy
Gunn,
Clerk
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
West
Randolph
Street,
Suite
11-500
Chicago,
IL
60601