The Accidental Open Dump: An Illinois Appeals Court Upholds Administrative Penalties for Improper Storage

The Illinois Environmental Protection Act broadly prohibits open dumping, which it defines as “the consolidation of refuse from one or more sources at a disposal site” (other than an actual landfill). It also empowers the Illinois Environmental Protection Agency to issue administrative citations when the dumping results in particular occurrences, such as the deposition of “general construction or demolition debris” or “litter.” These points were highlighted in the recent Illinois appellate court decision, Northern Illinois Service Company v. IEPA.

The Northern Illinois Service Company probably didn’t mean to start their own unlicensed landfill. In fact, although their work crews collected waste from various job sites in a pile at their property, the material was eventually shipped off to a proper disposal site whenever it got large enough to justify a trip. The waste, generated by the company itself, consisted mostly of remainders from construction sites, such as silt fence, pallets, and packaging. Nonetheless, when an IEPA inspector visited the site and saw the pile (which appeared to have been there for at least two weeks) he issued a citation, including a civil penalty of $7,500. The pile was noted to contain both “litter” and “construction or demolition debris.”

The Company challenged the citation before the Pollution Control Board and eventually the appeals court. They made two primary arguments:

  1. 1. This was not dumping, because the material would only be there temporarily before being hauled to a proper landfill.

  2. 2. This was not construction or demolition “debris” in that it didn’t actually contain materials from a demolished building, just incidental construction waste

Both the Board and the appeals court sided against the Company. Illinois law, they noted, regards dumping as the “placing of any waste . . . into or on any land . . . so that such waste or hazardous waste or any constituent thereof may enter the environment . . . .” 415 ILCS 5/3.185 (West 2012). The Company had not taken any measures to cover the material to keep it contained to the area before being shipped. Furthermore, the appeals court noted that the Company did not keep a regular schedule for transporting the material to a landfill, and worried that the disposal rules could be unenforceable if any potential violator could just claim to have amorphous future plans to move their open dump to a proper location.

The appeals court also rejected the Company’s proposed definition of “construction or demolition debris.” The court found this definition “strained and impractical” and warned that it could reach “absurd” results, particularly because the comingling of construction debris and work material is inevitable at most work sites.

Separately, the IEPA cited the Company for allowing the accumulation of water in used or waste tires on its property. 415 ILCS 5/55(k)(1) (West 2012). Although the Company claimed that the tires were not “used” because they were being held for additional use, such as shock absorption or being filled with concrete and serving as the base for a pole, the IEPA found no evidence supporting this statement. The Company undermined themselves by sending the tires to a tire-disposal facility after the inspection. The appeals court agreed that the IEPA’s decision was not against the manifest weight of the evidence, noting that the waste-tire provisions of the Environmental Protection Act would be unenforceable if unsubstantiated claims of an intent to put the tires to use could serve as an ironclad defense to the

The simplest lesson to take away here is that while it is understandable for a company to want to limit the number of waste hauler visits they pay for, any collections of waste they keep on property in between visits may be subject to state landfill ordinances, especially if no measures are taken to keep the material covered or otherwise contained. Companies should keep track of whether their material pile meets one of the seven aggravating conditions that could trigger an administrative citation. 415 ILCS 5/21(p)(1)-(7) (dumping is aggrevated if it occurrs in a manner which results in any of the following occurrences at the dump site: litter, scavenging, open burning, deposition of waste in standing or flowing waters, proliferation of disease vectors, liquid discharge from the dump site, or deposition of construction or demolition debris).

It may also be advantageous to set a regular schedule for waste removal, although that alone might not be sufficient to avoid a citation.

The Second District’s decision can be read here.

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