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

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