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J.r. Bliss, Inc. v. Pollution Con. Bd

OPINION FILED OCTOBER 30, 1985.

JERRY RUSSELL BLISS, INC., PETITIONER-APPELLANT AND CROSS-APPELLEE,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS-APPELLEES AND CROSS-PETITIONERS.



Petition for review of order of Pollution Control Board.

JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Respondent, Jerry Russell Bliss, Inc., has filed the instant petition under section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1041) for review of a decision entered by the Illinois Pollution Control Board (Board) upon a complaint filed by the Illinois Environmental Protection Agency (IEPA) against respondents, Jerry Russell Bliss, Inc. (Bliss, Inc.), Russell Bliss, Jay Covert, and Illinois Central Gulf Railroad (ICG). The IEPA has filed a cross-petition seeking review of the decision of the Board in dismissing counts I and II of its complaint.

In its original complaint, the IEPA alleged waste disposal violations (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1021), water pollution and water pollution hazard violations (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1012), and special waste hauling permit violations (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1021(d)). After a hearing, the Board dismissed counts I, II and III of the complaint as to all respondents and further dismissed the remaining alleged violations against all respondents except Bliss, Inc., and Jay Covert. Bliss, Inc., and Covert were found to have committed water pollution hazard violations and special waste hauling permit violations. Bliss, Inc., was fined $3,000, and its special waste hauling permit was revoked. Covert, who is not a party to this appeal, was fined $100.

The record discloses the following facts: On the morning of April 14, 1982, Patrick McCarthy and two other employees of the IEPA began surveillance of the McKinley Street Bridge in Venice, Illinois. The purpose of this surveillance was to ascertain whether a Bliss Oil Company truck would go into the nearby ICG railroad yard. At approximately 1:45 p.m. McCarthy saw a truck with a Bliss Oil Company insignia affixed to it cross the bridge and proceed to the ICG yard. After the truck entered the yard, it began spraying a black liquid on the ground.

McCarthy and the two other IEPA employees immediately went to the yard in order to sample the material being sprayed. McCarthy entered the yard, stopped the truck, showed the driver his IEPA identification card, and asked the driver his name. The driver replied that his name was Jay Covert. When McCarthy asked the driver if he could take samples of the truck's liquid contents, the driver said that he could not allow this without permission from his boss. McCarthy asked the driver whom he should contact to get permission. Referring to the telephone number on the side of the truck, the driver said whoever answers the telephone. The driver possessed no special waste hauling manifest, bill of lading, or any other documentation concerning the load. Neither photographs taken of the truck nor the conversation between the driver and McCarthy were admitted to establish any connection between this load and Bliss, Inc.; however, the truck's license number, as noted by McCarthy, was listed on a special waste hauling permit issued to Bliss, Inc.

After speaking with the driver, the IEPA employees took five samples of the black liquid material: one from the truck's dripping spray boom and four from the puddles of material surrounding the truck. A laboratory analysis of this material showed that the tested material contained over 10,000 parts per million of trichlorethylene. Trichlorethylene, or TCE, is listed by the Board as a toxic hazardous substance.

Perry Mann, an IEPA geologist, testified that the area where the spraying occurred is located approximately 1,200 feet from the Mississippi River. He stated that the soil in this area was a combination of silty clays, sands, and gravels and is prone to leaky artesian conditions, that is, water levels from below ground may tend to rise above the surface. He further testified that the surface water would tend to flow toward the Mississippi River. Mann admitted that his testimony was based upon the reports of others and not upon his own site-specific review of the ICG yard.

James Compagno, manager of the Venice ICG yard, testified that prior to April 14, 1982, "Bliss Oil" performed road-oiling services for the yard on a regular basis. Compagno testified that his signature of approval had been affixed to a copy of a Bliss, Inc., invoice requesting payment for an April 14, 1982, delivery of road oil.

On appeal Bliss, Inc., contends that: (1) the Board considered improper evidence in linking Bliss, Inc., to the alleged violations; (2) the findings that there were water pollution hazard violations are against the manifest weight of the evidence; and (3) respondent's special waste hauling permit could not be revoked because the permit had already expired prior to the Board's decision. On cross-appeal the IEPA contends that the Board should not have dismissed the waste disposal violations alleged against the respondents in counts I and II of the complaint.

The first contention made by Bliss, Inc., is that the evidence linking it to the spraying of the contaminated oil was insufficient. Specifically, it is argued that the Board improperly considered the following evidence in making its determination that Bliss, Inc., was culpable: (1) the conversation between the truck driver and IEPA employee McCarthy; and (2) the photographs taken of the truck at the ICG yard.

• 1 In administrative review, a court need only determine whether there was sufficient competent evidence to support the decision under review. (Lee v. Illinois Racing Board Laboratory (1980), 87 Ill. App.3d 667, 670-71, 410 N.E.2d 171, 175.) In the present case McCarthy testified that the truck which he saw spraying the contaminated oil had a Bliss Oil Company insignia affixed to the door. Additionally, the license plate number of this truck, which was obtained through McCarthy's observations, matched the license plate number of a truck listed on the special waste hauling permit issued to Bliss, Inc. It was established through Compagno that Bliss Oil Company had performed road-oiling services for the Venice ICG yard on a regular basis prior to April 14, 1982. Furthermore, a copy of an invoice identifying itself as being sent by Bliss, Inc., was sent to the Venice ICG yard. This invoice, which requested payment for an April 14, 1982, delivery of road oil, was approved for payment by Compagno and sent to the ICG office in Chicago. Although we agree that it would have been impermissible for the Board to consider evidence of the conversation and the photographs, neither of which was admitted into evidence, there is sufficient competent evidence in the record to link Bliss, Inc., to the spraying of the contaminated oil.

• 2 The second contention made by Bliss, Inc., is that the determination that there were violations of sections 12(a) and 12(d) of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, pars. 1012(a), 1012(d)) is contrary to the manifest weight of the evidence. Specifically, Bliss, Inc. alleges that there is no proof in the record that TCE was present in sufficient quantity or concentrations to constitute a water pollution hazard.

Sections 12(a) and 12(d) of the Environmental Protection Act provide that no person shall:

"a. Cause or threaten or allow the discharge of any contaminants into the environment in any State so as to cause or tend to cause water pollution in Illinois, either alone or in combination with matter from other sources, or so as to violate regulations ...


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