ILLINOIS POLLUTION CONTROL BOARD

March

26, 1975

ENVIRONMENTAL PROTECTION AGENCY,

)

)

Complainant,

)

)

)

PCB 74—473

)

E & E HAULING,

INC., an Illinois

)

corporation

)

)

Respondent

)

Mr. Stephen

Z. Weiss, Assistant Attorney General, appeared for

the Complainant.

Mr. Henry N.

Schaffer, Attorney, appeared for the Respondent.

OPINION

& ORDER of the Board

(by Mr. Zeitlin)

The Complaint in this matter,

filed by the Attorney General for the

Environmental Protection Agency

(Agency)

on December

17,

1974,

alleges

violations of Rule 202(b)(l)

of Chapter

7:

Solid Waste Rules and Regulations

of

the Pollution Control Board

(Board) and of Section 21(b)

of the

Illinois Environmental Protection Act

(Act).

We must note at

the start of our discussion of this matter that the

Agency’s Complaint is partially invalid.

The Agency alleged and directed

its proof at hearing to the fact that E & E operated a landfill site

without a permit.

Section 21(b)

of the Act,

however, prohibits open

dumping in violation of Board regulations.

There has been no allegation,

either in pleadings or testimony,

that any of Respondent’s activities

constituted open dumping,

as defined

in Section 3(h)

of

the Act. The

Board cannot find any violation of Section 21(b),

in that no proof

regarding any violation

of that Section was offered,

nor does any language

in the pleadings concern the question of open dumping.

We therefore

conclude that those portions of

the Complaint concerning

a violation of

Section 21(b)

of the Act must be dismissed.

The Board,

in determining violations

of the Act or of

its own

Regulations,

cannot amend a complaint

to conform with the intentions of

the

parties.

For

that reason, we cannot reach a finding of violation as

to Section 21(e)

of

the Act, which does concern the permit requirement.

“To be found in violation,

a party must be properly charged and given

notice of what he must defend against.”

E.P.A.

v. Village

of Winnetka,

PCB 73—404,

Nov.

22,

1974,

opinion at

3;

see also, Fry Roofing

Co.

v.

Pollution Control Board,

20 Ill.

App.

3d 301,

314 N.E.

2d 350,

354

(1974).

16

—215

---

—2—

The presentation of facts constituting a violation of Section 21(e)

of

the Act cannot cure this basic due process defect.~Nor,

it should be

noted, did the Agency avail itself of the benefits of Board Procedural

Rule 328, which here would have allowed a conformance of the pleadings

to

the proof offered at hearing.

Turning then to the remaining charge,

regarding violation of Rule

202(b) (1), Respondent E

& E Hauling,

Inc.

(E&E),

is alleged to have

operated

a solid waste management

site in DuPage County without the

required operating permit from the Agency during the period from July

27,

1974 until December 17,

1974,

on which date the Complaint

in this

matter was filed.

At a hearing held in

the matter

on February

7,

1975

the parties entered

a Stipulation

of Facts which forms much of

the basis

of

this Opinion.

Although no witnesses were heard at

that hearing,

statements were entered by the Attorneys for E &

E and the Agency regarding

the circumstances surrounding

the facts which had been stipulated to.

By

the nature of these facts,

the statements and circumstances must be

seen

as arguments regarding factors

of mitigation or aggravation in

this

matter.

The parties have stipulated that Respondent has operated the subject

solid waste management ~sitein DuPage County since June,

1970.

The site

is currently operating and will continue

to do so until about March

15,

1975.

In an amendment to the stipulation

received by the Board on March

10,

1975 the parties have stipulated that E

& E will cease accepting

refuse at the site by March

15,

1975, although final cover and seeding

may not

be completed until July 31,

1975.

E

& E has been accepting

approximately 8,000 yards

of domestic’refuse and building material daily

on a five—day work—week basis,

as a part of its operations on

the site.

Commencing on October 15,

1973, and continuing through September 5,

1974,

B

&

E received a series of nine letters from the Agency indicating

that a permit would be required for the site in question subsequent

to

July

27,

1974.

E

& B responded to

two of the letters in October, 1973

and Nay,

1974,

indicating its intent to cease operation on

the site

before July 27,

1974.

In response

to the E

&

E letters, the Agency

confirmed B & E’s understanding of

the date after which a permit would

be required. All of the communications were attached as exhibits

to the

Stipulation,

and indicate clearly that the parties understood the requirement

that E

& B have an operating permit after July 27,

1974.

On July 26,

1974, E & E submitted an application for an operating

permit

to the Agency.

That application was denied on August

22, 1974

for lack of adequate information.

After replacing its consulting engineers,

E

& E on December

11 and 19,

1974 filed with the Agency additional inforamtion regarding its permit

application.

E & E’s re—application for an operating permit has not yet

been acted upon by the Agency.

16—216

---

—3—

The parties

also stipulated to testimony which would have been

offered by a Mr. Kenneth Bechely,

an Agency Surveillance Associate

assigned to inspect E

& B’s site.

Mr. Bechely’s stipulated testimony

covered three points:

1.

Mr.

Bechely inspected B

& B’s site on four occasions subsequent

to July 27,

1974, and noted on

each occasion that refuse was being

accepted at

the

site.

(One

of the dates, however was subsequent to the

filing of

the Complaint

in this matter and is not germane

to the resolution

of whether B

& E was

:in

fact operating without a Permit.)

2.

The operational permit system employed by the Agency is necessary

to determine whether solid waste disposal sites are environmentally

sound.

The information contained

in

a complete permit application

discloses what,

if any,

effect

the operation of a site may have on

ground

or surface waters.

Such information is necessary

to assure that

a site, and operations on

it,

are environmentally sound.

3.

The information accompaning B

& B’s July 26,

1974 application

was insufficient

to allow the Agency to determine whether

or not that

site was environmentally sound.

Regardless of whether a site may be

operated

fri general compliance with the Board’s Solid Waste Regulations,

such operation is not determinative of whether there are conditions

present which

could yield actual water pollution.

Mr.

Bechely also took photographs of

the E

& B site

on September

6,

1974, and said photographs were attached to

the Stipulation as an exhibit.

It is clear from the facts stipulated

to

that Respondent B

& B did

operate

a solid waste management

site during the period

alleged

,

and

that

it did so without an operating permit from the Agency.

Further,

B

& B has not seriously contended that

it was justified in such operation

without a permit.

E

& B has stated that it felt, until July,

1974, that

it would be able to close the

site in question prior to the period for

which violations are alleged here.

The Board agrees with the Agency

that Respondent’s misconception as

to the time of cessation of

its own

activities

is insufficient

to justify non—compliance with the Act and

the Regulations. While E

& E may have relied on a consulting engineer in

preparing its first application, which engineer E

& B later discharged,

such reliance does not constitute sufficient grounds to excuse compliance

with the applicable regulations. All the factors leading to E & B’s

operation without the required permit were within the control of E

&

B.

A finding of violation is mandatory.

In mitigation,

it does not appear that B

&

B’s

eleventh—hour permit

application,

submitted one day before an operating permit was required,

was a deliberate attempt to avoid an obligation under Rule 202(b)(l).

Further,

the Agency inspection reports,

appended as exhibits

to the

Stipulation, indicate that the E

& B site was operated largely

in accord

with other applicable Board Regulations.

For that reason,

it is the

finding of the Board that

a penalty of $2,000 will act as

a sufficient

deterrent in similar matters.

16—217

---

—4—

Implicit in our finding here is

a reaffirmation of

the Board’s

commitment

to the permit process which

it

instituted as

a part of

the

Solid Waste Regulations.

The Board agrees with the Agency that to

protect the environment,

a viable,

enforced permit system is necessary

for the orderly regulation of solid waste management sites.

Where the

necessary permit has not been acquired as a result of factors wholly

within the control of the individual required

to have such permit,

a

finding of violation and the imposition of a penalty are both appro-

priate.

It is fully reasonable and practical for the Board

to require

such permits to protect the public interest against the possibility of

environmental harm.

Weighing these and the other factors set Out in

Section 33(c)

of the Act, we find Respondent’s operation without the

required permit unjustified under the circumstances.

This Opinion constitutes

the findings of fact and conclusions

of

law of the Board in

this matter.

ORDER

IT IS THE ORDER of

the Pollution Control Board that:

1.

Respondent E

& E Hauling,

Inc.,

is found to have operated a

solid waste management site in DuPage County, without the required

operating permit from the Agency,

in violation of Rule 202(b) (1)

of

Chapter

7:

Solid Waste Rules and Regulations, during the period July

27,

1974,

to December 17,

1974.

2.

Respondent B

& B Hauling,

Inc., shall pay

as a penalty

the sum

of

$2,000, payment 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

Environmental Protection Agency

2200 Churchill Road

Springfield,

Illinois

62706

3.

Respot~dentE & B Hauling,

Inc., shall cease and desist all

refuse disposal activities,

and shall promptly initiate efforts

to

properly close and apply final cover to the site

in accordance with

applicable Board Regulations, unless the proper operating permit shall

have been received within

60 days of the date of

this Order.

4.

That portion

of the Complaint

in this matter alleging violation

of Section 21(b)

of the Environmental Protection Act is dismissed.

I,

Christan

L. Noffett,

Clerk of

the Illinois Pollution Control

Board hereby certify tha

the above Opinion

& Order were adopted on the

~4~~1*

day of

_________________,

1975 by a vote of _____to

0

~4anL.Nofftt,erk)

Illinois Pollution Control Board