ILLINOIS POLLUTION CONTROL BOARD
January
16, 1973
ENVIRONMENTAL PROTECTION AGENCY
v.
)
#71—299
GEORGE ROSENBALM,
d/b/a MOUNT MORRIS
SANITATION SERVICE
Lee A. Campbell, Assistant Attorney General,
on behalf of
Environmental Protection Agency
William Gunner on behalf of Respondent
Opinion and Order of the Board
(by
Mr.
Lawton):
Respondent is the operator of a refuse disposal site located
on the St. Clair farm,
about four miles east of Mount Morris
in
Ogle County.
He
began operations at the site in Seotember,
1964
on five or six acres of the farm, primarily serving the residents
of Mount Morris and nearby industries.
Complaint was filed on
October
1,
1971 alleging numerous infractions of the Environmental
Protection Act
(Ill.
Rev.
Stat.
1969,
Ch. 111 1/2), hereinafter
called the “Act’
and the Rules and Regulations for Refii~eDisposal
Sites and Facilities, hereinafter called the “Refuse Rules,”
at
the
site,
including the conduct of operations without a permit,
open dumping of garbage and refuse on eight separate occasions,
failure
to properly spread and compact refuse on six occasions,
failure to properly cover the refuse on eight dates, open burning
of refuse
on three dates and the deposition of contaminants on
the land
in
such
a manner as to create
a water pollution hazard.
The first hearing was held on January 17,
1972 whereupon the com-
plaint was amended to include the additional charge of failing
to confine dumping operations
to the smallest practicable area
on eight dates;
the second and final hearing was held over ten
months later,
on November 21, 1972,* and we can only presume that
the inordinate delay was brought about by the Board’s monetary
shortage and an unwillingness on the part of the complainant to
assume the court reporting costs while
such condition existed.
Although the site was registered
as early as
1968 with the
Illinois Department of Public Health,
no operating permit had
ever been obtained and Respondent admitted he “didn’t know
(he)
was supposed to have a permit.”
(1R.
16)
*Record references herein shall be as follows:
1R, followed b~ia
page number shall refer to the record of the Jan.
17 hearing;
2R followed by
a page number shall refer to the record of the Nov.
21 hearing.
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411
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Evidence indicated that inspections as early as 1966, and
continuing through 1970 revealed the existence of uncovered re-
fuse,
junked cars and exposed appliances at the site
(1R. 136—159)
Respondent was informed of the possibility of groundwater contamina-
tion attributable
to his operations
(1R.
178) and was requested
by the Environmental Protection Agency on several occasions to
close the site down
(1R.
82—106, 178—180;
2R
145)
As to the specific violations charged in the complaint, we
find the evidence supports the allegations as follows:
1)
September
29,
1970:
open burning of refuse
(lR. 167—168,
181-182; EPA Ex.
#22A
&
B); failure to properly spread, compact
or cover refuse
(1R. 167-168);
failure to confine dumping to
smallest practicable area
(lR.
176);
2)
January
12,
1971:
open burning of refuse, failure to
properly spread,
cover and compact refuse and garbaqe,
or to con-
fine refuse to the smallest practicable area
(2R.
28-33)
,
open
dumping of refuse and garbage
(2R.
28), open burning
(2R.
30);
3)
February
8,
1971:
o.pen dumping of garbage and refuse,
failure to properly spread, compact or cover refuse, or
•to confine
dumping to the smallest practicable area
(2R.
35-36);
4)
March 23,
1971:
open dumping of garbage and refuse, failure
to properly spread, compact or cover refuse,
or to confine dumping
to the smallest practicable area
(2R.
38—44);
5)
May
19,
1971:
open dumping of refuse and garbage, failure
to properly spread, compact or cover refuse,
or to confine dumping
to the smallest practicable area, deposition of liquid or hazardous
substances on the land without permission so as to create a ground-
water contamination hazard
(2R.
46-47).
6)
June 2,
1971:
open dumping of garbage and refuse,
failure
to proper~lyspread, compact or cover refuse
(2R.
48—49);
7)
June 21 and 22, 1971:
open dumping of refuse and garbage,
failure to properly spread, compact or cover refuse
(1R. 117—133;
EPA Ex.
#16-A through
J)
Respondent appeared pro se at the first hearing but was re-
presented by
counsel at the second.
At the commencement of the
second hearing, counsel for Respondent raised several objections
relating to amendments on the face of the complaint which had
been made at the first hearing,
as well as to the constitutionality
of
the Act and the Board.
The latter we have considered and
dismissed on several occasions in the past
(cf.
EPA
V.
Granite
City Steel Co.,
#70-34,
March
17,
1971; EPA v.
Modern Plating
Corporation,
#70-38,
71-6, May 3,
1971).
As to the former, the
6
—
478
—3—
first hearing was conducted nearly three and one—half months after
the complaint had been filed, and Respondent had been afforded
ample opportunity to secure counsel.
In any event,
the exceeding-
ly long delay between the first and second hearings on these
charges made moot any objections based upon the inability of
Respondent to adequately investigate and prepare to meet the
numerous allegations in the complaint.
Nevertheless, we caution
the Agency and its representatives to avoid unfair, omnibus plead-
ings which either intend to sweep within its purview prospective
violations which may occur subsequent to the filing of the complaint,
or are so vague and indefinite as to fail
to give the Respondent
fair notice of the specific dates of alleged infractions of the
law so as
to enable him to properly prepare
a defense.
It is not
difficult to list the dates of the alleged violations,
or to
amend the complaint, giving proper notice of
such amendments
as prescribed by the Board’s Procedural Rules, where additional
infractions are found and are to be proven up by the Agency at
the hearing.
But to affix to the allegations of violations
on specific dates as listed in the original complaint additional
alleged violations supposedly occuring from a date certain in
the past up to and through the close of the record in the case
is exceedingly unfair and entirely unnecessary.
Cf. EPA v.
Mystik Tape,
#72-180,
PCB
,
January 16, 1973.Therefore,
the testimony of Mr. Pritchard relating to alleged violations
occurring on seven dates subsequent to the date Of the complaint
will not be considered by the Board
(2R.
65-91).
The record in this case indicates that,
after much urging
by the Agency, Respondent closed the site on June 30,
1971
(lR.
97-105,
2R.
93)
and that final cover was completely applied by
October, 1971
(lR.
107,
110,
112)
.
Evidence further indicated
that while
a certain amount of uncovered materials still exist
at the site
(2R.
89-91), the general condition has substantially
improved
(2R.
117, 120-129).
We are somewhat distressed by the
fact that the original complaint in this case was filed some
three months after the site had been closed, and related to
violations which had occurred more than one year earlier,
although some violations did ocbur during the month the site
was closed.
But the difficulty and potential unfairness inherent
in such delays was exacerbated by the more than ten months separating
the first and second hearings into this matter.
As
a result,
the
hearings which concluded in November, 1972 dealt partially with
alleged violations which had occurred more than two years before;
and due to internal difficulties at the Board, the date of this
decision renders the remedy even more remote to the offense than
that.
Surely the Agency and the Attorney General can speed up
the time between detection and prosecution of pollution violations
so as to avoid the possibility of unfairness which so obviously
existed in the present case.
Taking all of the above problems into consideration, we are
inclined to dismiss the proceedings without penalty but we do
~lieve it important not to let clear violations of the laws
6
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479
—4—
and regulations pertaining
to landfill sites go unpunished.
For
this reason and as a deterrent to others, we will impose a nominal
penalty of $300
for the violations found herein.
The above constitutes the Board’s findings of fact and con-
clusions of law in this matter.
ORDER
1.
Respondent Rosenbalm shall pay to the State of Illinois,
within thirty days of the date of receipt of this Order,
the sum of $300.00 as penalty for the violations found in this
proceeding.
Payment shall be made by check or money order
payable to the State of
Illinois, and shall be sent to
“Fiscal Services Division, Environmental Protection Agency,
2200 Churchill
Road,
Springfield,
Illinois 62706.”
I, Christan Moffett, Clerk of the Pollution Control Board, certify
that the Board adopted the above Opinion and Order this_________
day of
,
1973,
by
a vote of
.,
6
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480