BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RCV
ILLINOIS ENVIRONMENTAL
)
CLERK’S
OFFICE
PROTECTION AGENCY
)
3
Complainant,
)
AC 07-30
STATE
OF
ILUNOIS
PoUuton
Contro
Board
vs.
)
(IEPA No. 375-06-AC)
BOBBY
G.
MYERS
and DONALD D.
)
MYERS,
)
)
Respondents.
)
NOTICE OF FILING
TO: MICHELLE RYAN, Esquire
Illinois Environmental Protection
Agency
1021 North GrandAvenue East
Iv
P.O. Box 19276
Springfield, IL 62794-9276
PLEASE TAKE NOTICE that on this
date, I mailed to the Clerk of the Illinois
Pollution Control Board
of the State of Illinois the following instruments/documents
entitled POST-HEARING RESPONSE OF RESPONDENTS.
Dated January 26, 2009.
Respectfully
submitted,
BY:
H. WESLE WILKINS, Respondents
Attorney
H. WESLEY WILKINS
Atty. Reg. No. 3127822
Attorney for Respondents
602 South Main Street
P. 0.
Box 691
Anna, IL 62906
(618)
833-7725
(618) 833-7227 (FAX)
BEFORE THE
ILLINOIS
POLLUTION CONTROL
BOARD
ILLINOIS ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
FFIQ
Complainant,
)
AC 07-30
,
OIfLjQ
cLINo,s
vs.
)
(IEPA
No. 375-06-AC)
BOBBY
G.
MYERS and DONALD
D.
)
MYERS,
)
)
Respondents.
)
POST-HEARING
BRIEF
OF
RESPONDENTS
NOW
COMES
the Respondents,
BOBBY G. MYERS
and DONALD
D. MYERS,
the
Respondents
herein, by and through
their attorney,
H. Wesley
Wilkins, and in response
to the Administrative
Citations
and the Post-Hearing
Brief
of
Complainant
filed herein,
DOES HEREBY
answer, respond
and submit the
following
post-hearing
brief of the
Respondents,
as follows:
FACTS
In
1989, Lillie and Paul
Bryan Myers
deeded their homestead
property
to their
four children,
Harold D.
Myers, Barbara
L. Cerney, Donald
D. Myers and
Bobby
G.
Myers, which
property
is located at
3050
Mountain
Glen
Road, Cobden,
Union
County,
Illinois.
For forty
(40)
years or more, without
any
assistance
or involvement
by
his
remaining
siblings, Donald
D. Myers has
operated a salvage
operation
on the
subject
property. In recent
years, his
son
Donald Myers, Jr.,
has
assisted
in the
operation
of the salvage operation
and
also resided on the
property.
On
December
1
5, 2006, IEPA Inspector,
Garrison Gross, inspected the subject property.
Subsequently,
although Mr. Gross did not do a title search
to
determine the specific
ownership of the subject property, he did conduct
a cursory inspection of property
records at the Union County Courthouse and
determined the equal ownership of said
property by the Myers siblings. On January
3,
2007, with
full knowledge that the
property alleged to be in violation was
equally owned by four (4) parties, the Illinois
Environmental Protection
Agency
issued an Administrative Citation to only two (2)
of
the owners, being the Respondents, Bobby
G. Myers and Donald D. Myers, without
naming the remaining owners. Said Administrative Citation specifically alleged
that the
Respondents: 1) caused or allowed the
open
dumping of waste
in a manner resulting in
litter, in violation of 415 ILCS 5I2l(p)(l);
and 2) caused or allowed the open dumping of
waste in a manner resulting in open burning,
in
violation of
415 ILCS 5121(p)(3). On
December 4, 2008, an administrative hearing
was held at the Union County Courthouse
on thesecitations, the transcript of which has been submitted or made available
to this
Board. The Respondents respectfully dispute not only the allegations
of the
Administrative Citation, but also the abuse of
prosecutorial and administrative discretion
in this IEPA enforcement action.
LEGAL ARGUMENT
1)
The Illinois Environmental Protection
Agency
has failed
to
prove
that
the
Respondents
caused
or allowed
the open dumping of waste in
a
manner
resulting in litter, in violation of 415
ILCS 5/21(p)(i).
In order for the Agency to prove this violation, it
must
prove
each of the following
elements: That the Respondents
1) ‘caused or allowed’; the 2) “open
dumping” of; 3)
2
“waste”,
in a manner resulting in 4) “litte?’.
As previously stated, Donald D. Myers has operated a salvage operation on
the
property
located at 3050 Mountain Glen Road in the vicinity of Cobden, Illinois. In
recent years, he has been assisted in this operation by his son, Donald Myers, Jr.
Pursuant
to
the operation of their salvage business,
they
have
collected and salvaged
numerous
automobiles, trucks, trailers, tires, mobile homes, and various other vehicles,
equipment and different items
to provide
for
their livelihood.
To
be sure, the
photographs
submitted into evidence, without objection, depict the somewhat
trashy condition of the Myers property. But this is a salvage business operated in a
remote, rural area. And the photographs also clearly show that this property was not an
open dump site as alleged, but rather a rural
salvage
business,
containing what
salvage operations do, namely salvage vehicles, salvage engine parts, salvage tires, a
salvage mobile home, various other operable vehicles not in violation
(a Case
track-
hoe),
and
vehicles/equipment
clearly used for the purpose of operating a salvage
business (truck with a cutting torch in the back). Even Mr. Gross acknowledged in his
testimony that he saw evidence of a salvage operation, including the truck with a cutting
torch used to “scrap” vehicles, and that vehicle components, like engines and
transmissions,
were
being removed from automobiles on the site (see Transcript - Page
23, Line
14). Mr.
Gross
further
acknowledged
in his testimony that many of the items
which he
saw during his initial visit were
no
longer
there during subsequent site
inspections,
again evidencing
the fact that this was an operational salvage business.
Accordingly, this site is not an “open dump” as alleged, but rather an ongoing rural
salvage business operated solely
by
Donald Myers, Sr. and Donald
Myers, Jr.
3
In her brief,
opposing
counsel correctly sights
the
definition
of “open dumping”
as
“the consolidation
of refuse
from
one or more sources
at a
disp6sal
site”. However,
she then incorrectly
attempts
to “connect-the-dots”
by
equating
and/or
defining
“refuse”
as “waste’ which
includes
... “any garbage or other
discarded material”.
Certainly
“garbage”
j
waste.
But saying
that all “discarded
material”
is
“refuse” and/or
“waste”
as referenced and
applied to the
facts
of this case
are both factually
and legally
incorrect
as there is a clear
distinction
between the two.
To
be
sure,
by
its very
nature, a salvage
operation
involves the collection
and
consolidation of “discarded
material”,
namely, items
which
someone
either believes
have no further
usefulness or no
longer want,
but in which the
salvage operator
sees
as having use
and value. In the
case at bar,
this collection and
consolidation of what
could be considered
as “discarded
material”
by Donald D. Myers,
Sr., and
his son, on
the subject
property, primarily
consisted of
used motor vehicles,
vehicle
parts,
tires,
equipment
and/or other items collected
for
salvage, sale and reuse.
In
contrast,
any
old appliance,
furniture, discarded
household
items and construction
materials,
and the
domestic trash
and garbage found/observed
on the Myers
property is, without
question,
“waste”, as
used/defined
in the statutes. However,
there
is no evidence that
this
“waste”
was
either
placed
there or allowed
to be there
by Mr.
Myers
and he specifically
denies
that he was or is
responsible
for the same either
being
there
or remaining
upon
his
property.
It is
unfortunately
not
uncommon in
rural areas, that
these
out-of-the-way,
often
isolated salvage
operations
often become
unintended
“open dumps”, not
because
of
4
the actions of the salvage operators,
but because of
those
who dump garbage, waste
and refuse on private property without permission. And
as testified to by
Donald
D.
Myers,
Sr., in the case at bar, he has experienced continuing problems with
people
dumping junk, trash, litter, garbage, debris
and
waste
on his property, all of which was
without his permission, which illegal
dumping he has previously cleaned-up and
repeatedly
reported
to law enforcement, without
any resulting arrests and/or
prosecution
(see
Transcript
- Page 37, line 11). And even Mr. Gross testified that he
uncovered
some evidence that “things” were being brought
to the Myers
property
not by
them (see Transcript - Page 24, Lines 3-4). Accordingly,
the Respondents neither
caused nor allowed the open dumping of “waste” on their property
as alleged.
Perhaps even more significantly, in order
to
prove
a violation of Section 21(p)(1) of
the Act, the IEPA is required
to
prove
that the open dumping of waste by the
Respondents
“resulted
in litter”. In her brief, opposing counsel correctly
states that
“litter” is not statutorily
defined in the Act, although she has provided
a
definition of
“litter” which she submits is the proper definition according
to “supporting case law”.
Yet in Miller vs. Pollution Control Board
(1994) Appellate Fourth District, 642 N.E.2d
475, “litter” was
defined
by the Court as “material of little orno
value which has not
been properly disposed
of.”
In the case at bar, without
question and by any definition,
the trash, garbage,
debris, etc. found on the property, which
Respondents’ assert was
placed there by
others, is “litter”. However,
also without question, the salvage vehicles,
salvage engine
parts,
salvage tires,
a
salvage
mobile home, various other
operable vehicles not in
violation (a
track-hoe),
and vehicles/equipment clearly
used
for
the purpose of operating
5
a
salvage
business (truck with valid registration
and license, with a cutting torch in the
back) were all items or material which
had considerable value, which served,
in fact, as
the basis for
the livelihood of Donald D. Myers and
his son.
In this
testimony, Garrison Gross testified that
many of the tires and other items
which he saw on the
Myers property during his initial inspection were
gone when he
reinspected the property
(see Transcript - Page 16, Lines
18-20). And, in his
testimony, Donald D. Myers
testified that the vehicles, tires,
etc.
which were
present on
his
property had value
in that the vehicles had been
junked, hauled-off and along with
the tin, metal and steel in the tires which were
on the property, all had been sold
for
scrap (see Transcript - Page
35, Line 20 through Page
36, Line 20). Accordingly,
Respondents submit that these items which
were admittedly
possessed by
Donald
D.
Myers on the subject property
as a part of his salvage business are,
by
definition,
not
“litter” as they have value. And,
contrary to opposing counsel’s
assertion that these
items were “litter”, simply
because they had been exposed
to
the weather
and
overgrown with weeds, there is no legal
requirement that salvage businesses
have
all of their salvage items or material
covered or stored indoors,
nor would it be
uncommon
for items in rural
salvage yards to be overgrown
with weeds, even over
the
course
of a single growing season from April
through September, especially
when
located
in a remote or rural area,
since the same are not
regularly mowed or groomed.
Therefore, for the reasons
hereinabove-stated,
the Respondents submit that
the
IEPA has failed to meet its burden
of proof in proving
a
violation
of 21(p)(1) of the
Act and submits that the same should
be
dismissed,
with prejudice.
6
2)
Respondents do not deny that personal landscape waste and tires were
burned
in
a
“burn pile” on
the property, but deny that the same was in
violation of Section 2l(p)(3)
of the Act.
For the reasons previously cited
herein, Respondents deny that the
tires
which
were burned in the burn pile were “waste” property under
the
Act,
or that
the
open
burning of landscape waste is in violation of the Act, and therefore, hereby
submit that said Administrative Citation
should be dismissed, with prejudice.
3) The prosecution of Bobby G. Myers, simply because he is one of four (4)
owners of the subject property, without the prosecution of all other remaining
owners,
constitutes selective enforcement and prosecutorial abuse of discretion
which is arbitrary, capricious, unconscionable, and
unjust.
It is uncontroverted that Respondent, Bobby G. Myers, had absolutely nothing to
do with the salvage business operated by his brother, Donald D. Myers, for 40 or more
years on the former family farm located at 3050 Mountain Glen Road, Cobden, Union
County,
Illinois. IEPA Inspector Garrison Gross testified that
he
never saw Bobby
Myers around the site during his three
(3) inspections, nor was there any evidence that
he was in any way
involved
in the operation of the salvage business. Bobby Myers
also testified that he had never had any involvementwhatsoever in
the
salvage
operation during his more than 25 years
as
Union County Treasurer,
which elected
position he continues to hold (see Transcript - Page 30, Lines 22-24).
He
derived
no
income from the
salvage
business,
never deposited, nor was ever involved with
any of
the items placed, found or removed from the property, and in fact,
seldom, if ever even
goes
to the property (see Transcript - Page 32, Line 12 through
Page 33, Line 4). His
only
“crime” was that he saw that
the real estate taxes were paid on the family farm
when none of his
other
three (3) siblings were responsible enough to do so. And for
7
that, he is now charged with IEPA Administrative
Citations as a
one-fourth (1/4) owner
of the real
property alleged to be in violation.
To be sure, if these violations have, in fact, been proven, which counsel submits
they have not, then Respondent Donald D.
Myers, as the operator
of the salvage
business,
should
be found
responsible
and required to pay the required penalties. But
if
Respondent Bobby G. Myers is also “convicted” of these violations simply because of
his
ownership interest in the property, then why were the other partial owners not also
charged and prosecuted?
In her brief, the Special Assistant
Attorney General concedes that in addition to the
Respondents, the other Myers siblings, Harold Myers and Barbara Myers, are also
liable for the alleged violations
on the site because of their ownership interest in the
property. She also concedes that Donald Myers, Jr., also should have been named as
a party because he has been an operator of the salvage business for the last several
years.
She then, however, attempts
to explain-away why this selective
prosecution/enforcement occurred in this
case
while
at the same time having the
audacity
to argue
that this Board has
neither the power nor the authority to insure that
the
prosecution of this case is done in a fair, equitable and justiciable
manner.
In short,
this is simply not true.
Counsel
does not
argue that
the failure to name Harold Myers, Barbara Cerney
and/or
Donald Myers,
Jr.,
is
a
defense
to the citations issued herein. But the Board
has the
responsibility
to
insure that the
filing,
enforcement
and prosecution of IEPA
Administrative Citations are conducted in
a
fair,
equitable and just manner, according to
the
due process rights of the citizens of Illinois. Counsel for the
Respondents has
8
been
in the practice
of law for some
29
years,
previously serving as
Union County
State’s
Attorney for 12
years, as a
Special Assistant Illinois
Attorney
General, as a
Court-Appointed
Special Prosecutor
in eight
(8)
southernmost Illinois
counties, and
as
a Municipal
Attorney prosecuting
ordinance
violations for six (6)
different southern
Illinois municipalities.
In addition,
Counsel for
the Respondents
has been in private
practice, representing
criminal
defendants
charged with everything
from speeding
to
first—degree
murder,
as
well
as respondents
cited for administrative
violations
such
as
those
charged herein.
And with all due
respect
to
the Special Assistant
Attorney
General, in all of my
years of practice,
the prosecution
of Bobby G. Myers
at
all, and
if
so, the failure to also
name as parties
and
prosecute
his siblings, Harold
Myers
and
Barbara Cerney, represents
the
most selective enforcement
and abuse
of prosecutorial
authority and/or discretion
which
counsel for the Respondents
has
ever
witnessed.
The
site
in question
was inspected
by Inspector
Garrison
Gross on three
(3)
separate occasions,
first on May
13, 2005,
then on December
5,
2006,
and
then
sometime in
2008
(see
Transcript Page 15,
Lines 6-17).
Opposing counsel
explains in
her brief that
the Illinois EPA
did not know
of Harold Myers,
Barbara Cerney
or Donald
Myers, Jr.,
at the time the
inspection was conducted
on December
5, 2006.
However,
no title search
was done to discover
the same,
allegedly because
of
the strict
time
frame of the
Act which requires
Administrative
citations to
be
served
on Respondents
within 60 days
after the
date of the observed
violation.
However, title searches
are readily
available in
Union County and no
title
search
conducted in
this county
has
ever taken
more
than
7-14 days. And,
apparently
it also didn’t
take Inspector
Garrison Gross
long
to
do his own search
and discover
all of the owners
of the cited
9
property
in listing
“Bobby G. Myers,
fl!”
(meaning
“and others’
in his written report
submitted shortly
after the
December
5, 2006
inspection (which
report has been
admitted
into evidence), with
his testimony
also evidencing
the fact that he had
determined
that there were
four (4)
people
who owned the
cited property from
the
Quit-
Claim Deed
obtained from
Union
County
records (which
deed
has also
been admitted
into evidence),
clearly
indicating
that the
property was owned
by
the Respondents
çj
Harold
Myers and
Barbara Cerney
(see
Transcript
- Page 17, Line 22
through Page 18,
Line 4). Yet, in spite
of this knowledge
that all of
the responsible parties
were not
named, the IEPA
continued in
the prosecution of this
citation.
Throughout
the prosecution
of this citation,
from and after
December
of 2006 to the
present,
the Respondent,
Bobby
G.
Myers
has attempted
to correct and/or
receive an
explanation
as to why
he is being
charged
herein, and
if it’s because of his
being
a
partial
owner of the property,
why the remaining
owners
are also not being
charged.
Opposing counsel
argues
that it was because
of the “strict-time
frame” of
60 days
between the
time of
the
observed
violation
and the service
of the Administrative
Citations
upon
the Respondents.
But doesn’t
fairness,
justice and due process
require
that
all or none of the parties
legally responsible
for the
alleged violations
be charged,
or none
of them?
Shouldn’t the IEPA
have
a
legal
and ethical responsibility
to
determine
the entirety
of the ownership
of the
sited property before
they
arbitrarily
choose
who to cite and
prosecute?
And once the
correct ownership
of the property
was
discovered
by the IEPA,
shouldn’t
the IEPA have either
timely
amended
or refiled
their
Administrative
Citations
to either delete
Bobby G. Myers
as a party
or name the other
owner/operators
as parties,
even if it would
have required
another
site
inspection
and
10
report
being
generated
by Garrison
Gross,
especially
since
the
evidence
herein
clearly
proves that
he visited/revisited
the property
on
multiple occasions
anyway?
In closing,
in
Complaint’s
brief, opposing
counsel
argues
that these
questions
and
the absolute
abuse
of prosecutorial
power,
discretion
and authority
evidenced
herein
should
be ignored
by the
Board.
But
to
do
so is to justify
the unfair,
inequitable
and
selective
prosecution
of
the
Respondents
herein,
which
prosecution
could
have
been
easily corrected
long
ago, but
which opposing
counsel
simply
refused
to correct,
either because
of
the
extra work
which
would
be
required of
salaried
state officials,
or,
worse
yet,
simply because
“she
didn’t have
to”. Therefore,
the Respondents
submit
that for the
reasons
stated above,
the IEPA
has failed
to meet
its burden
of proof
with
respect
to the two
(2)
Administrative
Citations
filed
herein,
and if
the
Board finds
that
either
or both of
the same
have been
proven,
that Bobby
G. Myers
be dismissed
as
a
party
Respondent
in this
cause.
Respectfully
submitted,
BOBBY
G. MYERS
and DONALD
D. MYERS,
Respondents
BY:______________
H.
WESLEY
WIttINS,
their Attorney
11
PROOF
OF SERVICE
I
hereby certify
that I did,
on January 26, 2009,
send by U. S.
Mail, postage thereon
fully prepaid,
by depositing in the
United
States
Post
Office Box
at Anna, Illinois, a
true
and correct copy
of the foregoing
pleading
and/or
instrument, on the
following parties:
Michelle E.
Ryan
Special
Assistant Attorney
General
Illinois Environmental
Protection
Agency
P.
0. Box
19276
Springfield,
IL
62794-9276
John Therriault,
Acting Clerk
Pollution
Control
Board
James R. Thompson
Center
100
West Randolph
Street
Suite 11-500
Chicago, IL
60601
H. WESLEY
WILKINS
Atty.
Reg.
No.
3127822
Attorney
for Respondents
602 South
Main Street
P. 0. Box
691
Anna, IL
62906
(618) 833-7725
(618) 833-7227
(FAX)
H.
2?
WESLEY
zL
M’LKINS
12
I WESLEY WILKINS
-- Attorney
at Law
Phone (618)
833-7725
FAX
(618)833-7727
Mr. John Therriault,
Acting Clerk
Pollution Control
Board
James R.
Thompson
Center
100 West Randolph
Street, Suite
11-500
Chicago, IL 60601
602 South
Main
Street
P.O. Box
691
Anna,
Illinois
62906
E-Mail:
wilkins@midwest.net
GD
JAN
2
I
4iI
Re:
IEPA vs. BOBBY G.
MYERS and DONALD
D. MYERS -
Case
No. AC
07-30;
IEPA
No. 375-06-AC
Dear Mr.
Therriault:
Please find enclosed
an original
and one (1) copy
of my Post-Hearing
Brief of
Respondents and
Notice of Filing.
Please file the same
for consideration
by the Illinois
Pollution
Control
Board and return
a
file-stamped
copy of the same to
me
in the
enclosed self-addressed,
stamped
envelope.
As always, your
cooperation in this
regard will be most
appreciated
and I will await your
response.
HWW:ww
Enclosures
4
Respectfully
yours,
cc:
Michelle Ryan
Special Assistant
Attorney General
January
26, 2009
Wilkins