ILLINOIS POLLUTION CONTROL BOARD
    Apr11 10,
    1975
    ENVIRONMENTAL PROTECTION AGENCY,
    )
    )
    Complainant,
    )
    )
    v.
    )
    PCB 74—178
    CITYWIDE SERVICES,
    INC.,
    an
    )
    Illinois Corporation, and the
    COUNTY OF KNOX,
    a Political
    )
    Subdivision
    of the State of
    )
    Illinois,
    )
    )
    Respondents;
    )
    )
    )
    )
    CITYWIDE SERVICES,
    INC.,
    )
    Petitioner,
    )
    )
    )
    PCB 74—177
    )
    ENVIRONMENTAL PROTECTION AGENCY,
    )
    )
    Respondent.
    )
    OPINION AND ORDER OF
    THE
    BOARD
    (by Mr.
    Zeitlin)
    These
    two cases concern the operation of a landfill site by Citywide
    Services,
    Inc.,
    on property leased by Knox
    County,
    Ill.,
    from the City
    of Galesburg, who in turn had leased the property from the Burlington
    Northern Railway Company.
    Neither Galesburg nor Burlington Northern are
    parties
    to either action.
    Case PCB
    74—177,
    a Variance Petition, was originally
    filed by Peti-
    tioner Citywide Services,
    Inc. (Citywide)
    on May
    13,
    1974.
    On
    that same
    date
    the Environmental Protection Agency
    (Agency)
    filed an enforcement
    action,
    PCB 74—178,
    against Citywide
    and the County
    of Knox, Illinois,
    (Knox County).
    On May
    16,
    1974, this Board rejected Citywide’s Variance
    Petition as inadequate, finding that it did not contain sufficient
    information
    to achieve compliance with
    the Board’s Procedural Rules for
    such
    a petition. An Amended Petition for Variance
    was refiled on July
    9,
    1974.
    The
    original Petition for Variance by Citywide merely asked that
    Citywide be permitted
    to operate the landfill site for 90 days after
    July 27,
    1974,
    or until filled and contoured as required by the owner,
    Burlington Northern.
    16— 353

    —2—
    The Amended Petition for Variance incorporated by reference the
    Agency’s enforcement complaint, and in effect claimed hardship and
    requested variances from the violations alleged in that complaint.
    (A denial of variance is not tantamount to a shutdown order,
    and merely
    exposes a petitioner to enforcement proceedings,
    to this extent Petitioner
    Citywide’s claim of hardship in its amended variance petition is patently
    deficient.)
    Pursuant
    to motion by Citywide,
    the two cases were consolidated by
    Board Order dated July 18,
    1974.
    HISTORY
    Roughly triangular, the landfill site is located in Knox County,
    Illinois approximately two miles south of Calesburg.
    The two longer
    legs
    of its boundaries are roughly delineated by a public road and the
    Burlington Northern railroad tracks.
    The site includes a small, unnamed
    creek tributary to Lake Bracken,
    more than
    miles distant.
    There is
    some indication
    (Stip.
    Ex.
    C.,
    p.
    3)
    of another small stream on the
    site,
    entering the creek from the west.
    The landfill site was originally leased to the City of Galesburg by
    the owner,
    then named Chicago, Burlington
    & Quincy Railroad Company,
    under an agreement dated February
    1,
    1964,
    providing for successive
    renewal through 1984.
    That lease was assigned by Galesburg
    to Respondent
    Knox County by an instrument dated June
    8,
    1964.
    Both lease and assignment
    thereof contemplated the leasehold’s use for sanitary landfill purposes
    (Stip.
    Ex.
    A).
    A contract between Respondents
    Knox County and Citywide
    (Stip.
    Ex.
    B and C), was executed July 27,
    1964.
    That contract provided for
    the operation of
    the landfill site, by Citywide, for the disposal
    of
    garbage and refuse from Calesburg
    and several smaller municipalities.
    That contract set cover and final grade specifications not
    in conformance
    with later regulatory requirements, which specifications the stipulation
    shows were not adhered to at any rate
    (Stip.
    Ex.
    B,
    “Specifications”).
    Respondent Citywide registered in
    1966 with the Illinois Department
    of Public Health, Division of Sanitary Engineering,
    as required by the
    old Rules and Regulations for Refuse Disposal Sites and Facilities.
    The Agency commenced inspections of the landfill site
    in 1971.
    The
    Stipulation of the parties specifies
    28 inspection dates since 1971.
    The stipulatt~dexhibits include photographs, water sample analysis,
    and
    inspection reports which indiate continued violations since that time
    (Stip.
    Group Ex.
    D,
    E,
    F).
    There is also ample indication of repeated
    warnings from the Agency
    to Respondents following the inspections.
    16
    354

    —3—
    In June,
    1974, Respondents retained a consulting engineer
    to inspect
    and prepare a closing plan for the site.
    That plan,
    (SUp. Ex.
    G),
    details closely the conditions of
    the landfill site, and when compared
    with other exhibits (SUp. Ex. D,
    E, F), demonstrates
    the extent of
    Respondent’s violation and the environmental damage resulting.
    Further,
    that report shows the continuing potential for environmental damage
    which may result in the future from Respondent’s mismanagement of
    the
    site.
    During this period,
    Respondent Knox County made provision for the
    opening of a new sanitary landfill
    site,
    in Sparta Township.
    Knox
    County opposed Citywide’s amended Petition for Variance to
    the extent
    that
    it would permit operation of the site here at issue in conflict
    with operation of the proposed Sparta Township
    site.
    The Sparta site
    does have an Agency permit and was scheduled for operation commencing
    October
    1,
    1974.
    A hearing was held on the consolidated case at Galesburg,
    Illinois,
    on November
    20,
    1974, after publication.
    Petitioner Citywide at
    that
    time moved
    to withdraw its variance petition, which motion was taken
    under advisement by the Hearing Officer,
    and all parties
    at that time
    submitted a Stipulation of Fact and Proposed Settlement pursuant
    to
    Procedural Rule 333 of this Board.
    The contents of
    that stipulation are
    discussed below.
    On January 16,
    1975, Respondent Citywide filed with the Board
    a
    Motion to Postpone ruling on Stipulation
    and Proposal for Settlement,
    asking also for leave to submit a
    Supplemental Stipulation within 30
    days.
    At
    that time Respondent Citywide also waived
    the 90—day rule
    with regard to its variance petition
    until April 16,
    1975.
    In an Order dated January
    23,
    1975, the Board accepted Citywide’s
    Motion
    to Postpone to the extent that
    it rejected the original stipulation
    of the parties as insufficient.
    The Board ordered
    that an Amended Stipulation
    be resubmitted in a final,
    clear
    and cohesive fashion,
    setting out
    timetables and specific duties for the parties.
    The Board further
    ordered that, were an Amended Stipulation not filed with the Board
    within 30 days of the adoption of
    the January
    23,
    1975 Order,
    the Hearing
    Officer proceed to hearing in the matter.
    An Amended Stipulation and Proposal for Settlement was not received
    by
    the Board until March
    12,
    1975.
    In the interim,
    a further hearing
    was held ~n March
    7,
    1975 to present the Board with sufficient information
    to resolve matters
    that the parties could not reach agreement on.
    Public comment received was limited to several individual objections
    to a grant of Citywide’s variance petition.
    VIOLATIONS ALLEGED
    Count One:
    The Agency’s Complaint,
    PCB 74—178 alleges
    in
    Count One a violation of Section 21(a)
    of
    the Act, which
    prohibits open dumping
    of garbage, and Section 21(b),
    prohibiting
    the dumping of any other refuse in violation of Board
    rules.
    16—355

    —4—
    Count
    I further alleges that leachates from the landfill site
    caused violations of Title
    3 of
    the Act,
    and Chapter
    3,
    Water
    Pollution Regulations,
    of
    this Board, for effluents and waters
    of
    the state.
    The alleged specific violations included levels
    of contaminants exceeding the following rules:
    RULE
    CONTAMINANT
    Chapter
    3,
    203(f)
    203(f)
    203(f)
    404(a)
    405
    408(a)
    ammonia nitrogen
    (as
    N)
    boron
    iron
    BOD5
    fecal coliform
    iron
    Count Two:
    Violations of
    the old Rules and Regulations
    for
    Refuse Disposal Sites and Facilities, specificaLly:
    RULE
    COVERAGE
    Those rules continued in effect until July 27,
    1973.
    The Agency
    alleged specific dates of violation commencing in 1971 and running
    through July 1973
    for
    each of these violations,
    and submitted exhibits
    supporting the charges.
    Count Three:
    Continued violations
    after the Board’s adoption
    of Chapter
    7,
    Solid Waste Rules and Regulations.
    Those alleged
    violations specifically
    included:
    RULE
    COVERAGE
    Chapter
    7,
    305(a)
    305(c)
    310(b)
    303(b)
    314(e)
    314(f)
    306
    All violations as referred to by
    continuing nature.
    daily cover
    (6 in.)
    apter
    7
    60 day cover
    (12
    in.)
    final cover
    (2
    ft.)
    liquid and hazardous waste, permit
    requirement
    spreading and compacting
    leachate monitor and control
    vector control
    daily litter collection
    the Agency were alleged
    to be of ~
    3.04
    5.03
    5.04
    5.06
    5.07(a)
    5.07(b)
    5.08
    open dumping
    confinement of dumping
    portable fencing
    spreading and compacting
    daily cover
    (6 in.)
    cover
    (two feet)
    dumping liquids, hazardous
    material
    16—356

    —5—
    STIPULATION
    The
    Stipulation and Proposed Settlement
    (Stipulation) originally
    submitted by the parties to
    this action was less than exemplary.
    It was
    difficult in places to determine
    the final agreements
    of the parties;
    it
    was in
    sonic places referenced information neither in the record nor
    stipulated to,
    and appeared
    to be contradictory
    in
    places.
    The Amended
    Stipulation and Settlement plan
    (Amended Stipulation) filed
    on March
    12,
    1975 resolves these difficulties,
    and permits
    the Board
    to reach a
    proper
    final, determination in this matter.
    The Amended Stipulation,
    although referenced to the original unaccepted Stipulation, sufficiently
    clarified the confusion and contradition which rendered that attempted
    settlement unacceptable.
    To completely list the provisions of the
    Amended
    Stipulation would
    recluire excessive time and not serve any purpose.
    In sum,
    it provides
    for
    the
    closure of the site
    in question, future sampling and maintenance
    at
    that site to
    insure continued compliance with the Board’s
    effluent,
    water and landfill regulations, and contains a provision allowing the
    Board
    to assess penalties
    against Respondent Knox County and Citywide.
    A performance
    bond
    is also required to
    insure compliance.
    Briefly, the
    Amended Stipulation includes
    the following:
    A.
    Closure of Site:
    The present landfill site
    is
    to cease
    all operations except those necessary for closing by March
    15,
    1975.
    The operator
    is
    to provide a minimum of
    two feet
    final cover,
    and suitable revegetation.
    Exhibit
    C
    to the
    Amended Stipulation
    shows
    the proper contour and grades
    which Citywide will achieve
    on the site, using fill as specified.
    All contouring, grading and seeding
    of the
    site shall
    be
    completed by Citywide
    in accordance with
    the compliance
    plan (Exhibit C),
    as soon after March
    15,
    1975,
    as weather
    permits, but no later than August
    15,
    1975.
    Respondent
    Citywide must identify the source of cover material
    to be
    used for completion and closure of the site within
    15 days
    of the adoption of this Order by
    the
    Board.
    B.
    Sampling, Treatment and Maintenance:
    At several points on
    the site
    (Exhibit
    C), water
    samples are
    to be taken and
    analyzed for ammonia
    (NH3), boron,
    iron,
    manganese,
    chloride,
    total dissolved solids
    (TDS),
    and chemical oxygen demand.
    Such samples are to be taken quarterly until April 15,
    1980,
    that
    period renewable if necessary to meet the prescribed
    standards.
    The water from a house well near the site is to be tested
    quarterly until
    the TDS,
    chlorides,
    and iron standards of
    this Board for groundwater are met for two consecutive
    quarters.
    After that time testing will not be required~
    Further,
    an
    old well on
    the site is to be reopened for
    test
    purposes.
    16
    —357

    —6—
    If shown
    to
    be necessary as
    a result of
    the water
    quality samples taken
    at the site,
    a treatment pond
    for leachate shall be constructed on the site.
    Respondent Knox County will dispose
    of treatment
    pond pumpings by transportation
    to
    a local sanitary
    district.
    Knox County must reach an agreement with
    a sanitary district willing
    to take the effluent
    which will allow for such disposal, within 30 days
    after the Order
    in this case has been adopted by the
    Board.
    Even if the construction of this pond is not made
    necessary by poor test sample quality,
    Respondents
    will be required to insure that leachate seeps or
    springs
    do not enter or pollute the watercourse on
    the site.
    Additional steps Include the construction
    of a clay dike, mulching the stream banks to prevent
    erosion, and diversion of runoff.
    C.
    Penalties.:
    Despite Respondents’
    long history of
    non—compliance and violation,
    the Agency has stipulated
    and consented to penalties of $2,000 and $500 for
    Citywide and Knox County, respectively.
    D.
    Bond:
    Respondents have provided a performance bond,
    In
    the amount
    of $143,400,
    to insure that the plans for closing the
    site, and subsequent maintenance, sampling, and treatment are
    followed.
    While the penalties would ordinarily be Insufficient,
    the Amended Stipulation
    and its ~hibits show that the compliance and closure plans
    to be implemented
    will entail considerable expense
    to both Respondents,
    and that both have
    cooperated fully with the Agency as regards these plans.
    The immediate
    additional equipment,
    labor,
    and engineering fees for Respondents will
    amount
    to either $43,400 or $46,321,
    (dependant on length of time of
    closing plan).
    Respondent Knox County will be required
    to absorb sam-
    pling costs over
    5 years, and there is also a substantive probability
    that the parties will be required
    to construct
    a treatment pond.
    The provisions of
    the bond, which assure Respondents’
    complete performance
    of
    the Amended Stipulation requirements,
    is a major
    factor allowing this
    Board
    to accept the proposal of
    the parties.
    This
    is particularly
    true
    in light of the relatively small penalties imposed here.
    The Amended
    Stipulation and the performance bond, make the parties jointly and severally
    liable for the construction of the treatment pond discussed above,
    should
    such construction be necessary.
    The bond coverage for
    that contingency
    Is
    $100,000.
    The other provisions of
    the Amended Stipulation are too numerous
    to
    set
    out here.
    The above constitutes only a partial sunnuary which
    Is expressly
    made a part of this Opinion and Order.

    —7—
    DRAINAGE DITCH DIVERSION
    A drainage ditch presently enters this site from the east.
    The
    issue of whether
    or not this drainage ditch must be immediately diverted
    and prevented from flowing across the site
    ,is the only issue which the
    parties cannot resolve themselves.
    Knox County and Citywide feel that
    diversion of the ditch would be unnecessary, and result In little or no
    benefit
    to the environment.
    The Agency feels
    that limnediate diversion
    of the drainage ditch should be made a part of
    the Board’s Order in this
    matter.
    The parties have left the resolution of this question to the
    Board, and
    the hearing held on March
    7,
    1975 had as
    its sole subject the
    necessity, feasibility, and cost for such
    a diversion.
    The ditch in question is fed initially by drainage from property
    not on
    the site in question.
    On the site, the ditch is fed by a culvert
    carrying flow under a road separating the site from adjacent property.
    The ditch then flows past monitoring point Y and into the creek flowing
    through the site, described above.
    On the site,
    the ditch is bounded on
    both sides by filled areas.
    Agency testimony indicated that the ditch
    collects waters from approximately 30 acres
    of property adjacent to the
    site, and also from one—half of
    the site itself,
    or an additional 30
    acres
    (R
    34,
    35).
    The Agency is of the opinion that the ditch should be diverted for
    two reasons:
    1.
    Flow from points off the site will,
    in effect,
    treat
    leachate from the site itself by dilution.
    This would result in
    false reading of pollutant content in monitoring samples taken at
    point Y
    on the site.
    Such false readings,
    in turn, would result in
    frustration of
    the contingency plan to construct a treatment pond
    If samples show the necessity for such a pond as a result
    of un-
    acceptable sample readings
    (R.
    44).
    2.
    Continued flow, particularly during rainy periods, would
    result in erosion of the banks of the ditch,
    exacerbating the
    leachate problem
    (R.
    46).
    The Agency’s only witness presented calculations indicating
    that these results are likely given a two—year storTh in the area,
    resulting in a flow through the culvert,
    onto the site,
    of two
    cubic feet per second
    (R.
    41).
    Respondents,
    on the other hand, feel that the ditch presents no
    immediate danger to
    the environment, and that diversion of
    the ditch
    should be made a contingency,
    dependant on sampling results in the same
    manner as in the treatment pond contained
    in the Amended Stipulation. Respondents
    16 —359

    —8—
    presented testimony attaching the calculations of the Agency as to
    the
    drainage area off the site contributing
    to
    the ditch flow, and as
    to the
    representative quality of the Agency witness’s observations
    (eg.
    R.
    98,
    99,
    106).
    Respondents’ major contention, however,
    is that the diversion of
    the ditch will not result
    in benefits consistent with the cost of diversion.
    But
    the testimony presented by Respondents was not definitive as to
    the
    cost of diversion.
    While there was testimony that one possible method
    of diversion would cost
    $7,000
    (R.
    104), there was also evidence that
    other methods might be possible, for which costs have not been determined,
    but which would be less expensive
    (R.
    126,
    127).
    The Agency’s case in this matter is clearly more persuasive.
    The
    Agency elicited testimony,
    on both direct and cross—examination, demon-
    strating that failure to divert the ditch would present
    a real danger of
    environmental harm.
    The possibility of such harm outweighs the potential
    cost
    of diversion of the ditch,
    and should be accomplished by Respondents
    as a part
    of the compliance plan to clean up the damage already done in
    the operation
    of this site.
    The parties have not submitted to the Board any definite plan for
    the diversion of the ditch here.
    We need not contemplate on how it is
    to be accomplished.
    The diversion shall instead be accomplished by
    Respondents in whatever manner is consistent with our decision here, and
    is acceptable to the Agency.
    It
    is evident from the testimony that the
    waters carried by
    this ditch must at
    some point flow into the stream,
    discussed above, which crosses the landfill site.
    It
    is only of importance
    here that such confluence not interfere with drainage on
    the site; the
    Respondents are left
    to their own devices in achieving that end.
    This Opinion constitutes the findings
    of fact and conclusions of
    law of the Board.
    ORDER
    IT IS THE ORDER of the Pollution Control Board that:
    1.
    Respondents Citywide Services,
    Inc., and the County of
    Knox,
    Ill.
    are found to have caused or allowed violations of the applicable
    Rules and Regulations
    for Refuse Disposal Sites,
    (Rules), continued
    in
    effect until July 23,
    1973,
    and the applicable Chapter
    3 and Chapter
    7
    Rules and Regulations
    of this Board, on dates as shown in the Stipulation
    of Fact of the parties.
    Such violations were of:
    Rule 3.04
    open dumping
    Rule 5.07(a)
    daily cover
    Rule 5.04
    fencing
    Rule
    5.03
    confined area
    Rule
    5.06
    spreading
    & compacting
    Rule
    5.07(b)
    2 foot cover
    16
    360

    —9—
    Rule 5.08
    liquids,
    hazardous material
    Ch.
    7,
    Rule 305(a)
    daily cover
    Ch.
    7,
    Rule 305(b)
    intermediate cover
    Ch.
    7,
    Rule 305(c)
    final cover
    Ch.
    7, Rule 314(e)
    leachate control
    Ch.
    7,
    Rule 314(f)
    vector co~itrol
    Ch.
    7,
    Rule 310(b)
    liquids, hazardous material
    Ch.
    3, Rule 203(f)
    ammonia nitrogen, iron, boron
    Ch.
    3, Rule 404(a)
    BOD5
    Ch.
    3, Rule 405
    fecal coliform
    Ch.
    3, Rule 408(a)
    iron
    2.
    Respondents Citywide Services,
    Inc., and County of Knox,
    Ill.,
    are further
    found to have caused or allowed violations of Sections
    21(a)
    and 21(b)
    of the Illinois Environmental Protection Act,
    on the dates
    shown in the parties’ Stipulation of
    Fact,
    (Exhibit H).
    3.
    Both Respondents will conform in all ways
    to the plans
    of closing
    and compliance, and
    to the dates of performance thereunder, contained in
    the Stipulation and Proposal for Settlement submitted to this Board,
    as
    amended,
    and in the exhibits thereto.
    4.
    Respondent Citywide Services,
    Inc., shall pay a penalty of
    $2,000 for violations
    as detailed above,
    and in the Stipulation of the
    parties.
    Payment is to be made within
    35 days of
    the date of
    this Order
    by certified check or money order
    to:
    State of Illinois
    Fiscal Services Division
    Illinois Environmental Protection Agency
    2200 Churchill Road
    Springfield,
    Illinois
    62706
    5.
    Respondent County
    of Knox, Illinois shall pay a penalty of $500 for
    violations as detailed above, and In the Stipulation of
    the parties.
    Payment
    is
    to be made within 35 days of the date of this Order by certified
    check or money order to:
    State of Illinois
    Fiscal Services Division
    Illinois Environmental Protection Agency
    2200 Churchill Road
    Springfield, Illinois
    62706
    6.
    Respondents Citywide Services,
    Inc.,
    and County of Knox, Ill.,
    shall jointly within 30 days of
    the adoption of this Order by the Board
    submit,
    in
    a form acceptable to
    the Agency,
    a performance bond
    in the
    amount of
    $143,400.
    Such bond will be submitted
    to the Agency and will
    assure compliance with the plans for closing,
    sampling, treatment and
    maintenance
    as detailed in the Amended Stipulation.
    16—361

    —10—
    7.
    The drainage ditch discussed in Paragraph G of the Amended
    Stipulation submitted by the parties hereto shall be diverted in a
    manner consistent with this Opinion,
    the responsibility for such diversion
    being joint and several upon Respondents
    Citywide Services,
    Inc., and
    County
    of Knox, diversion to be accomplished on or before August 15,
    1975,
    or upon the completion of all closing requirements contemplated in
    paragraph C of the Amended Stipulation, whichever is
    sooner.
    8.
    The Variance Petition of Citywide Services,
    Inc.,
    PCB 74—177 is
    dismissed.
    I,
    Christan
    L. Moffett,
    Clerk of the Illinois Pollution’ Control
    Board hereby certify that
    th,e above Opinion and Order were adopted on
    t~e1tb
    ,
    1975 by a vote of
    Illinois Pollution
    :rol Board
    16
    —362

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