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07/21/89 the Environmental v. the Pollution Control

July 21, 1989

THE ENVIRONMENTAL PROTECTION AGENCY, APPELLANT

v.

THE POLLUTION CONTROL BOARD ET AL., APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

542 N.E.2d 1141, 186 Ill. App. 3d 995, 134 Ill. Dec. 634 1989.IL.1132

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE CHAPMAN delivered the opinion of the court. RARICK and HOWERTON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CHAPMAN

Petitioner, the Illinois Environmental Protection Agency (Agency), pursuant to section 31.1 of the Illinois Environmental Protection Act (Ill. Rev. Stat., 1986 Supp., ch. 111 1/2, par. 1031.1), filed an administrative citation against James Presnall, alleging that James Presnall had violated sections 21(p)(4), 21(p)(5) and 21(p)(9) of the Act. The Environmental Protection Agency's citation was initiated after inspection by the Agency unveiled that Presnall's purported sanitary landfill facility had openly burned refuse, had uncovered refuse remaining from a prior operating day, and had deposited refuse at improper portions of its facility. Presnall filed a petition for review with the Illinois Pollution Control Board. The Board's opinion, issued September 17, 1987, ruled that the Agency's administrative citation was improperly issued to James Presnall. The citation was ordered stricken and the matter was accordingly dismissed. Upon motion for reconsideration filed by the Agency, the Board issued a supplemental opinion on December 17, 1987, affirming the Board's September 17, 1987, order. The Environmental Protection Agency does not appeal the Board's decision as to dismissal of the charge of open burning under section 21(p)(4) of the Act. However, the Agency does appeal the dismissal of the other charges brought pursuant to sections 21(p)(5) and 21(p)(9).

It is undisputed that James Presnall owns the property in question, which is located in Centreville, Illinois. Mr. Presnall testified at the hearing before the Illinois Pollution Control Board that he operates an asphalt paving and salvage business at the site. The property was at one time a swampy low area, and portions of it continue to lie in a low area which is periodically subjected to flooding. Mr. Presnall testified that, during his 27 years of operation at the site, he has brought in loads of "hard fill" to fill the marshy ground to render it useful for conducting business operations. He described "hard fill material" as dirt, wood, concrete and asphalt. The Environmental Protection Agency inspectors, on the other hand, testified that they observed quantities of refuse on the site. Site inspector Kenneth Mensing testified that in his opinion, said refuse consisted of nonsalvageable material including construction or demolition debris, wood, boards, metal, concrete, asphalt and bricks.

Mr. Presnall denies the Agency's allegations that he dumps refuse on his land. He contends that he has the right to dump "hard fill material" on his property. He admits, however, that residents of Centreville dump their trash outside the fence surrounding his property and that instead of leaving the trash in the street, he testified that he often has his employees bring the trash onto his property.

After the hearing, the Pollution Control Board issued its opinion, wherein it ordered the citation against James Presnall stricken and the matter dismissed. The Board based its finding on its statutory interpretation of a section 21(p) offense as enforced by the administrative citation process. The Agency argues on appeal that the Board erroneously interpreted those portions of the Environmental Protection Act pertinent to this case. The Agency contends that James Presnall does in fact operate a sanitary landfill operation and is required to have an Agency permit. Although a permit has not been issued to Mr. Presnall, the Agency contends Mr. Presnall is subject to the administrative citation process under section 31.1 for the alleged violations of Environmental Protection Act sections 21(p)(5) and 21(p)(9).

The statutory language at issue is section 21(p) of the Illinois Environmental Protection Act, which reads in pertinent part:

"§ 21. No person shall:

(p) Conduct a sanitary landfill operation which is required to have a permit under subsection (d) of this Section, in a manner which results in any of the following conditions: . . .." (Ill. Rev. Stat., 1986 Supp., ch. 111 1/2, par. 1021(p).)

The statute then lists 12 conditions that are prohibited. Subsection (d), which is referred to ...


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