No. 2--07--0213 Filed: 3-11-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ NORTHERN

IL LI NOI S SERVI CE ) On Petition for Administrative Review COMPANY, ) from the Illinois Pollution Control Board. ) Petitioner, ) ) v. ) IEPA No. 567--04--AC ) THE ENVIRONMENTAL PROTECTION ) AGENCY and THE POLL UTION ) CONTROL BOARD, ) ) Responde nts. )

______________________________________________________________________________ JUSTICE CALL UM delive

red the o pinion of t

he court : InNovember 2004, the Illinois Environmental Protection Ag ency (the Agency ) fi le d an administ rative citation against Northern I llinois Service Company (NI SC), charging that NI S C violated sections 21(p)(1) and 21(p)(7) of the I llinois Environmental Protection Act (the Act) (415 IL CS 5/21(p)( 1), (p)( 7) (West 20 04)). NI SC petitione d for adm inistrativ e revie

w befor e the I llinois Pollution Control B oard (th e Boar d). The B oard fou

nd that NI SC violated both sections of the Act and imposed a

statutor ily required pe

nalty of $3,000 plus the hear ing costs of the Agency

and the Board. NISCseeks judicial review (415 ILCS 5/41 (West 2004)) of the Board's order with respec t to the violation of section 21(p)(1). NI SC argues that the Board erre d in finding that it enga ged in the open dump ing of w aste resulting in litter by piling upr ooted, dead trees on its property
. For the
reasons that follow, we af

firm.No. 2--07--0213

-2- BACKGROUND NISCis an ex ca va ti on an d d em ol it io n c on tr ac to r t ha t o wn s a pi ec e o f p ro pe rt y co mmonly knownas th e R os co e Q ua rr y. In the course of business, NISC uses sand fill from the Roscoe Quarr y to complete its pro

jects, and it also hauls dirt and similar material back to the quarry from other excavati ons. On July 15 and October 4, 2004, Ag ency field inspector Kaare Jacobsen inspected the quarry in respon se to a complaint al leging that NI SC had been openly dumping construction debr is and landscape waste at the quarry
. During the inspections, Jacobsen observed an estimated 9,700 cubic yards of upr

ooted, dead trees piled 10 to 13 fe et high in the north section of the quarry . He also ob se rv ed co nc re te de br is wi th pr ot ru di ng re ba r a nd pi ec es of st ee l c on du it pi le d a t t he qu ar ry. OnNovember 22, 2004, the Agenc y f iled an a dministra tive cita tion with the Board, charging that NI SC violated

sections 21(p)(1 ) and 21(

p)(7) of the Act, w

hich proh ibit: "the open dumping of any waste in a manner which results in any of the follo wing occurrences at the dump site:

(1) litter; * * * (7) deposition of: (i) gen er al construction or demolition debris as defined in Section 3.160(a) of this Act; or (ii) clean construction or d em olition debris as defined in Section 3.160(b) of this Act." 415 IL CS 5/21(p)(1), (p)(7) (West 2004). NISCfiled an amended petition for review on February

7, 2005, contestin

g the fi nding wi th respect to section

21(p)(1 ) of the A ct, on the grounds that dead trees are not litter. A he aring on theNo. 2--07--0213

-3-

petition took plac e on Apri l 20, 2006, at which the following facts were a dduced. Jacobsen testified that during his ins pections of the Roscoe Quarry on July 15 and October 4, 2004, he obser ved an estimated 9,700 cubic ya

rds of "landscape debris." The pile of landsca pe debri s was abo

ut "ten to 13 feet hig

h," and it contained "upr

ooted tre es, also trees that have be en cut." The tree s were la id ina central pile ringed by

an access road, with another ring of dead trees circling the road. He stated that the pile looked lik

e it had "been placed there f

or a lengthy

period of time." When asked whether it occurred to him that the pile of dead trees had potential value as mulch, Jacobsen responded that it had not, because "the way it was on the property, it looked like it was open dump and it is going to be left there for a lengthy period of time." Jacobsen explained that "[t]here could have been a market value for it. But at the ti me of the ins pection, i t was consid ered open dum p material. " He dete rmined

that the la

ndscape materia l was was te and not

garde n mulch, ba sed on "[t

] he way th e trees were ju st layin g [ sic ] there. T hey are just

- -the way the

y were positioned. They were

not processed. They wer

e just laid there to rot." He saw no evidence of any processing of the trees. He estimated that the trees had been there for " probably two to three years," and he sa

w no chan

ge in the position or condition of the tree pile from his first inspection to his second inspection. NISCpresent

ed testimony f

rom Ronald

Foss and Way ne Kling er. Fos s, the owner of a local landscapingbusiness and retail garden center, testified that he worked for NI SC for two to three years in the

late 1980s and early

1990s. Foss had observed the tree pile at the Roscoe Quarry . He said that it "looked like they ha d been knocked over, piled up." I n Foss's opinion, the trees at the Roscoe Quarry

could be "ground up into mulch." Klinger, the president of

NISC, testified that

he purchased the Roscoe Quarry about 10 years ago. At that time, there wa s a "pile of old tre es" on the proper ty. Accord

ing to Kli nger, the tree

pileNo. 2--07--0213

-4-

observed by Jacobsen derived f

rom three sources. Twenty to twenty-five

percent of the trees were present in the pile at the q

uarry w he n NISC purchased it. Fifty percent of the trees had been uprooted by N ISC in the course of exca

vating f or fill at the quarry . The remainder were "stra gglers," i.e. , single trees uprooted

by N ISC from other excavation sites. These straggle rs were taken to the quarry be cause they

were no t disposab le in the u sual fashion. When N ISC is h ired to do a n excavationjob, NISC hires a tree service company

to take the trees out, but "they can't come out for
on e t re e. " N ISC no lo ng er br in gs st ra ggl er s t o t he Ro sc oe Qu ar ry. OnSeptember 21, 2006, the Board entered an inter im opinion and order, and on January

26, 2007, the Board issued its final opinion and order, finding that NISC violated sections 21(p)(1) and 21(p)(7) of the Act. The Board found that the trees constituted "landsc ape waste," explaining that "since the definition [of landscape waste] includes tree limb s, it should a lso be re ad as to g eneral ly include entire trees when they are uprooted

and accumulated in the manner [NISC] has maintained themat the Roscoe Quarry ." Citing an earlier decision of the B oard ( American TreeService, Inc.,
v. Illinois Environmental Protection Agency , Ill. Pollution Control Bd. Op. Case No. 1994-043, slip op. at 16 (December 14, 1994)), the Boa rd stated that "landscape waste" is a subset of "waste." The Board found tha

t the tree s als o qualified as "other discarded materia ls" within the Act's definition of waste because the trees had bee n uprooted and piled at the site, as opposed to having accumulated by a natural process . After concludi ng that N ISC c aused the ope n dumping of waste at the Roscoe Quarry , the Board next determined that the waste resulted in litter, which is defined in the Litter Control Act as "any discarded, used or consumed substance or waste" or

"any thing else of an unsightly

or unsanitaryNo. 2--07--0213

-5-

nature, which has been di scarded , abandoned or otherwise d isposed of

improper

ly. " 415 I

LCS 105/3(a) (West 2004). The Board imposed a statutory penalty of $3,000 and a ssessed hearing costs for the Board and Agency of $672.25. On Feb rua ry 23, 200 7, NISC time ly petit ioned for rev iew of the Boa rd's order with respect to only the violation of section 21(p)(1).

ANA LYSIS Ini ti al ly, we addr

ess the parties'

dispute over the appropriate standard of revie w. NISC argues that the Board's decision should b e re viewed de novo , whil e the A gency claim s that the Boa rd's decisionmay be

overturned only if it is ag ainst the manifest weight of the evidence. We observe that section41(b) of the Act appears to support the Agenc y' s position. See 415 I

LCS 5/4 1(b) (We st 2004) ("Any

final order of the Board under this Act ** * shall be

invalid if it is aga inst the ma

nifest weight of the evidence"). Howeve r, this case involves solely a que stion of law: whether the uprooted, dead tre es on NI SC's prop erty fall within

the defi nition of w aste unde

r the Act . The fa

cts
are undisputed; NISC does not deny the p res ence of

uprooted and dea d trees a t the site, and it acknowledges the source of the tree pile. NI SC argues only tha tthe trees are not waste because they
are not "landscape waste" or any type of " other discarded material." Case law dictates that, in such
a case, the reviewing cou

rt generally

accords some deference to a n agency 's interpretation of the statute it is charged with administering, but its interpretation is not binding on the court and will not be upheld if erroneous. National Environmental Services Corp. v. PollutionControl Board , 212 I ll. App. 3d 109, 112 ( 1991). W e need not definitively r esolve this issue, as we would affirm on any standard of review.No. 2--07--0213

-6-

As alread y no ted, section 21(p) (1) of th e Act pro hibits " the open d

umping of

any waste in
a manner" that results in "litter." 415 I LCS 5/21(p)( 1) (West 20 04). To pr ove a viol ation of th

is section, the Agency

must first prove that NISC caused or allowed open dump ing of w aste. 415 IL CS 5/21(p) (West 2004). "Open dumping" is "the consolidation of re fuse from one or more sources at
a disposal site that does notfulfill the require ments of a

sanitary landfill. " 415 I

LCS 5/3 .305 (West 2004). "Refuse" is defined as " waste." 415 IL CS 5/3.385 (West 2004). "Waste" is define d as:

"any garbage, sludg e from a waste treatment plant , water supply tre atment plant, o r air pollution control facility or other disc arded material, including solid, liquid, se mi-s olid, or c ontained gaseo us materi al result

ing from industria

l,
comme rcia l, mining and agricultural operations, and fr om community activities." 415 IL CS 5/3.535 (West 2004). "La ndscape waste" is define d as: "all accumul ations of

grassor shrubbery

cuttings, leaves, tree limbs and other materia ls accumulated as the result of the care of lawns, shrubbery , vines and trees." 415 IL CS 5/3.270 (West 2004). The Board

has previou sly held that "lands cape waste" is a s ubset of "wast e." American Tree Service , slip op. at 16. Here, the Board

found that the trees were waste for two different r easons. The Board found (1) that the trees qualified as "other discarded material" within the definition of "waste ," and (2) that the trees qualified as "landscape wa ste." NISC d isagre es with bot

h conclus ions. Resolution of the issue requires us to employ the f amiliar principles of statutory c onstruction.No. 2--07--0213

-7-

The cardinal rule of statutory construction is to ascertain and give effect to the intent

of the legislature. Alternate Fuels, Inc . v. Director of the Illinois Environmental Protection Agency , 215 Ill. 2d 219, 237-38 (2004) . Th e langu age of the statut e is the be st indicat

ion of leg islative i ntent. Alterna te Fuels , 215 Ill. 2d at 238. When the lang uage o f a statut

e is clear and unambiguous, a court must give effec t to the pla

inand ordinary

meaning of

the language without resort to other tools of statutory construction. Alterna

te Fuels , 215 Ill. 2d at 238. However, all words and phrases must be interpreted

in light of other relevant provisions of the statute and must not be construed in isolation. Alterna te Fuels , 215 Ill. 2d at 238. NISCcontends

that the tr ees do no t qualify

as " oth er discarded material" within the definition of "waste." We disagree . In Altern ate Fue ls , our supreme court considered whether c ontainers shredded for alternate fuel were " discarded material." I f so, the facility that re ceived and processed the conta iners w ould be considered a pollution control facility and would be required to secure a permi t. Alterna

te Fuels , 215 Ill. 2d at 223. I n applying the

above principles of

statutor y construction, the court noted that the Act does not define the term "discarded" and, thus, it turned to section 3.380 of the Act, which uses the term, for guidanc e. Upon doing so, the court concluded that the term was unambiguous. See Alterna te Fuels , 215 Ill. 2d at 242. Section 3.380 of the Act defines " '[r]ecy cling, reclamation, or reuse' " as " 'any

process by whichmaterials that would otherwise be disposed of or discarded a re collected , separated or processed and returned to the economic mainstream in the form of ra w materials or products.' " Alterna te Fuels , 215 I ll. 2d at 239- 40, quoting 415 I LCS 5/3.380 (West 2002). The court noted that "mater ials" are divi ded into two subcate gories : (1) mate rials that are " 'discarded' ' '; and (2)

" 'materials that would otherwise be disposed of or discar ded [which] are collected, separated orNo. 2--07--0213

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processed and returned to the economic mainstream in the form of ra w mater ials or pro ducts .' " Alterna te Fuels , 215 Ill. 2d at 239-40, quoting 415 I LCS 5/3.380 (West 2002). The court stated: "Whilethe legislature has not defined 'disca rded materials,' the legislature ha s mentioned what it is not: ' materia

ls that would otherwise be disposed of or discarded [which] are *** returned to the economic mainstream in the form of raw mate rials and pr oduct s.' Thus, materia ls are 'discarded'

unless they are

returned to the economic mainstream ." (Emphasis added.) Alterna

te Fuels , 215 Ill. 2d at 240, quoting 415 I LCS 5/3.380 (West 2002). The court concluded that, because the facility processed the materials at issue and returned them as product into the economic mainstre am, the materials were not discarded. Alterna te Fuels , 215 I ll. 2d at 240. Here, there was no evidence presented that the trees had e ver been "collected, separated or processed and returned

to the economic mainstream in the form of raw materials or products." 415 IL CS 5/ 3. 38 0 ( We st 20 04 ). Ja co bs en te st if ie d t ha t t he y sh ow ed ev id en ce of de ca y a nd d id not ch ange position between the July and October inspec tions. The trees "were not processed . The y
were just laid th ere to r

ot." I n addition , NISC

admitted t

h at trees were pr esent at the site w

hen it acquired the prope

rty 10 years ago and that

it had bee

n placing trees on the si te ev er since . NISC also admitted t

hat it brou

ght stra ggle r trees f rom other excavati on sites a

nd place d them on th e pile because the trees were not disposable in the usual fashion. NISC e xplained th at, when

it is hired to do an excava

tion job, NI SC hires a tree s ervice compa ny to take the tr ees ou t, bu t "the y can'tcome out for one tree." Accordingly, we conc lude that the uprooted, dead trees on NI SC's propert y fal l within the definition of waste as other disca rded m ateri al. W e rejec t NISC's argume nt that, be causeNo. 2--07--0213

-9-

Foss testified that the trees have market value as mulch, they cannot be deemed discarded. Whether an item has value has no bearing on whether it is discarded. We a lso reject NISC's ar gument that the trees cannot be deemed waste because they are "totally unlike" the other items specifically mentioned in the definition of waste. NISC's arg ument is premised on the doctrine of ejusdem g enerisand this court's decision in City of Lake Fore st v. Pollution Control Board , 146 Ill. App. 3d 848 (1986). The doctrine of eju sdem gener is , which is used to interpret statutes, provides that, "when a statutory clause specif ically descr

ibes several classes of persons or things and then includes 'ot her per sons or things,' the word 'other' is interpreted as meaning'other such

like. ' " People v. Davis , 199 Ill . 2d 13 0, 138 (2002 ), quo ting Farley v. Marion Power Shovel Co. , 60 Ill. 2d 432 , 436 ( 1975) . Accor ding t o NISC, becau se trees are not like the items specifically me

ntioned in the definition of waste , such as " any garba ge, slud ge from a waste treatment plant," etc., the trees are not waste. 415 IL CS 5/3.535 (West 2004). In Lake Forest , applying the

doctrine of ejusdem g eneris , we overturned the Board's classification

of leaves as waste. Lake

Forest , 146 Ill. App. 3d at 855. There, the city of Lake Forest
enac ted an ordina

nce that permitte d the burn

ing of le aves. A c itizen file d a compla int before th e Board, alleging that

the city' s ordinance violated the Act, which prohibited theburning of "refuse." The issue was w heth er le aves

fell withi n the Act' s def initi on of waste. Wefound tha

t, because leaves grow and fall fromtrees na

turally , leaves are not " of the sa

me natur e as ga rbage or sludg e which is generated an d dis carded by people." Lake Forest , 146 Ill. App. 3d at 855. Here, howe ver, unlike in Lake Forest , the tree s did

not appea r in the Ros coe Qua

rry natural ly; r

ather, N ISC upr ooted who le trees and hauled them to a pile in the

Roscoe Qu

arry inthe course of its excavation business. Put another way, the tre es were "gene rated [in that they were

uprooted] and discarded [in that they we reNo. 2--07--0213

-10-

placed in a pile and left to decay ] by people." I

ndeed, at least some portion of the tree s had be en present for over 10 years. Therefore, we find that, under the facts pr esented , unlike th e leave s in Lake Forest , the upro oted tre es here are "o f the same

natur e as garb age or sludge which is generate d and discarded by people." Lake Forest , 146 Ill. App. 3d at 855. Havingconcluded that the trees qualify as " other discarded material," we need not de termine whether they also fall within the

definition of "la

ndscape waste" under the

Act. The question now becomes whether the trees are litter. Although the Act itself does not define "litter," both parties have cited the definition found in the Litter Control Act. Section 3(a) of the L itter Contr

ol Act def ines "lit ter" a s: "any discarded, used or unconsumed substance or waste. ' Litter' may include, butis not limited to, any garba ge, trash, refuse, debris, rubbish, g rass clippings or other lawn or garden waste, newspa per, magazines, glass, metal, plastic or pape r containers or

other pa ckagin g constr uction ma terial, a bandone d vehicle

(as defined inthe Illinois Vehicle Code), motor vehicl e parts, furniture, oil, carcass of a dead animal, any nauseous

or offe nsive matt

er of an y ki nd, any object lik ely to injure any perso n or crea

te a traf fic haza rd, poten tially infectio us medica

l waste a s define d in Section3.360 of the Environmental Protection Act, or any thing el se of an u

nsightly
or unsanitary nature , which has been discarded, abandoned

or otherwise disposed of improperly." 415 IL CS 105/3(a) (West 2004). Based on our above analy sis, we conclude that the trees fall within the de finition of litter as "any discarded, used or unconsumed substance or waste." 415 IL CS 105/3(a) (West 2004). CONCLUSIO

NNo. 2--07--0213

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Accord ingly, for the

reasons stated, w e affir

m. Affirmed. O'MALL EY and GROMETER, JJ., concur.