ILLINOIS
POLLUTION
CONTROL BOARD
September
16,
1971
ENVIRONMENTAL PROTECTION AGENCY
PCB 71-53
CHARLES
R.
RHODES
Larry
R.
Eaton, attorney
for the Env~ronmenta1Protection Agency
James E,
Henson and Jeffrey Davison,
attorneys for Charles
R~Rhodes
Opinion and Order of the Board
(by Samuel
R~
Aldrich):
Charles
R,
Rhodes was charged with
a number of violations of the Rules
and Regulations
for Refuse Disposal Sites and Facilities
(“Land Rules”)
and
of
the Environmental Protection Act
(uActu),
Respondent owns
and operates
a landfill near Decatur,
Illinois,
At the hearing on
July
16,
1971,
two of
the alleged violations were dropped
by
the
Environmental Protection
Agency (R~ 129)
We find the evidence
establishes several of the charges and impose
a money penalty and
a
cease and desist order~
On July
21,
1971, Mr~ Rhodes filed
a motion to dismiss the complaint,
contending that the Land Rules
are not applicable
to
his landfill
site.
The motion notes that Section 475 of the
1965 Illinois Refuse
Disposal Law specifically excepted from the Land Rules
any county
having
a department of public health.
The Rhodes landfill
is located
in Macon County which has had
a department of health since 1963
(R,266).
Respondent contends that,
although Section 475 was later repealed,
the Land Rules have not been made applicable
to the counties
origi-~
nally exempted.
As we noted in another case
(EPA v~ Bath,
Inc.
and
John L~Walker,
PCB 7l~52) this argument is entirely without merit.
The exemption
afforded Macon County by Section
475 disappeared with
repeal of that Section~ ~We find that
the Land Rules are
fully
applicable to the Rhodes landfill,
The complaint first alleges
a violation of Rule 2~O2of the Land Rules
and of Section
12(a)
and
(b) of the Act.
Rule
2,02 relates
to landfill
sites that
are subject
to
flooding~
Such sites are
to be avoided,
if
possible~
The record clearly shows that the area in question has been
subject to flooding
in
the past when
the
Sangamon
River
has overflowed
its banks
(R~ 297,343)~
Water was observed adjacent to the site in
a ravine which leads
to the
river
(R.
59),
According to the rules, sites already located in areas which may be
subject
to
flooding are to be protected by dikes.
Reference was made
to
the existence
of
a dike although its adequacy
was
not established
CR.
56).
Respondent did install
a floodgate
at
the recommendatiOb
of
an
Aqency inspector
CR.
293),
There was testjmdny that on several
2
439
occasions this
gate was held open by
logs or brush
CR.
54,
57).
Mr.
Rhodes admitted that this did occur in the spring of 1971
(R.
307).
The record indicates that flooding occurs less frequently now that
much of the land on the site has been filled
(R.
297,
343).
It
seems likely that flooding problems will be minimized when
the flood-
gate is again in operation.
We will therefore require that
it be
kept in good repair.
In addition,
respondent is advised to avoid
operating his landfill close to the river so
as
not to create a water
pollution hazard.
Mr. Rhodes is also alleged
to have dumped refuse over
a
large,
impractical area
in violation of Rule 5.03 of the Land Rules.
Certainly
the record indicates that the face of the fill has
at times covered
quite
a large area,
Agency witnesses estimated the face
to be as
much
as
600 feet long
CR.
66).
Adam Larimore, an inspector
for the
Agency, was
of the opinion that 100 feet of open face is the maximum
amount that one tractor operator can handle adequately
(R.78).
His
judgment was challenged by counsel for the respondent ~R. 81),
We are
well aware of the difficulty in arbitrarily distinguishing between
“practical”
and “impractical” in the sense referred to here.
None-
theless,
the fact remains that respondent has failed
to cover the
refuse satisfactorily,
as will be discussed later.
We think that
the large area over which refuse
is dumped precludes
the possibility
of proper covering.
We
find that respondent is in violation of
Rule
5.03.
Respondent is charged with violating Rule 5.07 of the Land Rules by
failing to cover all exposed refuse at the end of each working day.
Violations were clearly shown,
Agency witnesses testified that on
several occasions
daily cover was not provided
(R.
33,
34,
183,
240),
Mr.
Rhodes admitted that cover was not always provided because of
insufficient cover material
or bad weather
CR.
287,
290).
The complaint further alleges improper salvage operations
in
violation
of Rule 5.10(d)
of the Land Rules.
The
Rule
requires
that
salvaged
materials either
be
removed from the site daily or be stored such
that
they will not create
a nuisance,
rat harborage,
or unsightly
appearance.
Mr.
Rhodes indicated that certain materials were
at
times
salvaged
(R.
302)
and that articles
may
remain
on
the
site
for
a week
or longer
CR.
304).
Agency witnesses testified that such articles
were not elevated above
the ground
and thus created
a rodent harborage
CR.
60,
61,
115,
147,
160).
A rat was observed by an Agency inspector
during
a visit to
the
site
(R.
63),
and
Mr.
Rhodes admitted that
he
had seen rats on
the
premises
(R.
303).
As we noted
in
EPA
V.
J.
C.
Dill,
PCB
71-42,
the rules do not require that salvaged naterials be elevated.
Nevertheless,
we agree with
the contention of Agency witnesses that
elevation is an effective deterrent to rodents and therefore
a highly
desirable operating procedure.
The evidence establishes the fact that
salvaged materials were neither removed nor stored so as
to
avoid rat
harborage.
We
find that
a violation was shown.
The final allegation concerns
the deposition of refuse
in standing
water,
contrary to Rule 5.12(c)
of the Land Rules.
There is evidence
that refuse was observed
in water flowing through the ravine mentioned
2
—
440
previously
(R.
59,
178).
However,
the Rule requires proof that refuse
was put into
the water.
In
the absence of additional information con-
cerning the flow characteristics of
the water in the ravine we cannot
know whether or not water was present at the
time the refuse was deposit ~
The record is simply inconclusive
in this
regard.
We
find that no
violation has been est~blished.
One additional matter deserves comment.
Counsel for both complainant
and respondent suggested in their closing statements that the Board
consider modifying
its procedural rules so as to allow negotiated
settlements or compromises between the litigants
CR.
347,
349,
350).
The hope was expressed that such compromises would considerably
shorten proceedings of
this type and reduce costs.
We agree that
a reduction in the time
and expense of litigation
is
a desirable goal.
Counsel for the respondent specifically suggested that the Board
grant
to the Attorney General some authority to negotiate such
agreements
CR.
350).
This requires
no action by
the Board because
the Attorney General already has such authority under Section 333
of
the Procedural
Rules of the Board which states:
All parties to any case
in which a settlement or compromise
is proposed shall file with
the Board
a written statement,
signed by
the parties,
or their authorized representatives,
outlining the nature of,
the reasons for and the purposes
to be accomplished by the settlement.
It was further suggested that
the hearing officer be granted additional
powers
and autho±ity.
The Environmental Protection Act,
Section 33,
explicitly charges the Pollution Control Board with responsibility
for examining the record and rendering decisions.
There
is no
provision for delegating additional responsibility
to the hearing
officer.
To summarize,
we find violations with respect to inadequate protection
against flooding, dumping over
a
large, impractical
area,
failure to
provide daily cover, and improper salvaging.
We shall order that no
further infractions occur and assess
a penalty for past violations of $l~00.
This opinion constitutes the Board’s findings of fact and conclusions
of law.
ORDER
1.
Charles
R.
Rhodes shall cease and desist from violations of the
Rules and Regulations
for Refuse Disposal Sites and Facilities
as follows:
a)
The floodgate near the landfill site shall be kept
in good
repair and in an operational condition at all
times,
b)
Dumping of refuse shall be confined to the smallest practical
area.
c)
Refuse shall be covered daily as required by the Rules.
2
—
441
d)
Salvaging
shall be carried out
in
a sanitary manner,
salvaged
materials being removed from the site daily or properly
stored as required by the Rules.
2.
Charles
R.
Rhodes shall within
35 days after receipt of this
order pay
to the State of Illinois
the sum,
in penalty,
of $1500.
I concur
I dissent
I, Regina E.
Ryan,
Clerk of the Pollution Control Board,
certify
that the Board adopted the above Opinion and~Oçderthis 16
September
,
1971.