ILLINOIS POLLUTION CONTROL BOARD

July

7,

1977

~NVIRONM.ENTAL

PROTECTION AGENCY,

Complainant,

v.

)

PCB 76—262

R.

B. JOOS EXCAVATING CO., a

Delaware Corporation,

)

Respondent~

Mr. Patrick C.

Chesley, Assistant Attorney General, appeared

on behalf of the Complainant.

Mr. James

H. Eunce appeared on behalf of the Respondent.

OPINION

AND

ORDER OF THE BOARD

(by Dr. Satchell):

On October 22, 1976 the Environmental Protection Agency

(Agency)

filed

a complaint

alleging

R.

E.

Joos Excavating

Company has sporadically run a refuse disposal site in viola-

tion of Rule 202(h)

(1)

of the Solid Waste Regulations

(Regulations)

and of Section 21(e)

of the Environmental

Pro-

tection Act

~Act).

A hearing was held on April

20, 1977.

At

that time the parties presented to the Board

a stipulation of

facts upon

which

to base the decision of this

case.

Also

the filing of an amended complaint to

conform the complaint

to the proof was agreed to by the parties

(R.

14).

The stipulated facts provide that Respondent’s principal

business

is excavating but the company also engages

in land

clearing, demolition and general trucking,

Respondent employs

approximately

30

people.

Respondent operates a sand and

gravel

pit of approximately four acres on Section 26, Township

9 North,

Range

7

East of the Fourth Principal Meridian, Peoria County,

Illinois.

In

the process of operating the sand and gravel

pit’,’~..

Respondent excavated a large trench commencing at the road

adjoining the premises and continuing back

from the road

wherein

it dumped trees, brush and other growth

from clearing

operations

at the site.

Dirt,

gravel and silt from the sand

---

—2—

pit operations was also dumped.

Usable

sand is trucked

away, though most of the sand

has

now been

depleted.

In

February 1968 Respondent began dumping

dirt, broken concrete,

tree stumps and other material generated

from the activities

at the sand and gravel pit.

Occasionally

demolition waste

from Respondent’s other projects was also

dumped.

All waste

deposited was from Respondent’s own activities,

In 1969

Respondent opened the area to outsiders.

In

1970 Respondent

received a permit from the Department of Public

Health.

In

1974, prior to the expiration of Respondent’s permit, Respon-

dent applied for a new permit from the Agency.

This

permit

was denied.

Respondent’s permit expired on

July 27,

1974.

Since that date only Respondent has placed waste

material at

the site, specifically material in connection with its busi-

ness of excavating and demolition.

This activity has

been

sporadic but has included the dates set forth in the

complaint.

At no time since the inception of activities

at

the site

in 1968 have any food materials, garbage or other

objects

likely to encourage vector harborage been dumped by

Respondent,

or, to Respondent’s knowledge, anyone else.

Respondent acknowledges Agency inspections

and receipt of

copies of those inspection reports.

Respondent also

received

correspondence from the Agency notifying

him

of the

existence

of violations.

After a letter threatening

legal action and a

fine on October

1,

1976 Respondent requested information

as to

procedure for obtaining a permit.

Respondent was

in the process

of following the Agency procedure when the

complaint herein was

filed.

At no time prior to the filing of the complaint

was

Respondent told to close the dump and was only

advised that it

might be in violation of the Act.

The parties

further stipulated that the

operation by the

Respondent of the site

is of social and economic value.

The

use of

-he sibe

does

not

interfere

w.i

Lh

the

present

use

of

adjacent

property.

There have been no complaints

from the

neighbors.

The

environmental

suitability

of

the

present

loca-

tion

of

the

solid

waste

management

site

is

not

known.

Under

these

facts

Respondent

contends

in

its brief filed

May

20,

1977

that

it

is

within

the

exemption

of Section 21(e)

of

the

Act.

This

section

of

the

Act

provides

that permits are

necessary unless the refuse is generated by the

operator~sown

activity.

The Board has dealt with this issue

previously

in

EPA v.

Cit

of Pontiac, PCB 74-396, 180 PCB

303

(August

7,

1975)

~

Peop e of the State of Illinois v.

Commonwealth Edison

Company, PCB 75—368,

24

PCB 197

(November 10,

1976)

among

others.

---

—3—

Respondent’.s

argument in this case is substantially the

same

as that put forth in Commonwealth Edtson, ~

that

is that

the Board’s interp~~iono teAct

is contrary

to

the~”cleár~andunambiguous” language of Section 21(e),

The Board once again reaffirms its position in Pontiac and

Commonwealth Edison that the intent of Section

~2TT~T~as

to

~~minorT~ounts

of refuse which could be disposed of

without environmental harm

on the site where it was generated.

In Commonwealth Edison the

Board stated

The

Pontiac opinion was before the Legislature

when

the amendment to 21(e) was executed.

If

indeed

the

Legislature did find the Board’s interpretation

incorrect,

it would have been a simple matter to

give

us direction in the amendment.

Instead the Legislature

went

beyond Pontiac and stated that even small

amounts

of

refuse co~T~~t

meet the exception should they

be

of

a h~zardousnature,

a commonly accepted designation

fo±~

particularly dangerous pollutants.

Id at 201.

Nothing

has been p~~sentedto convince the Board

to

change

its

interpretation of Section 21(e),

Based on the stipulated facts the Board finds

Respondent

in

violation of Rule 202(b) (1)

of the Regulations and

Sec-

tion 21(e)

of the Act.

Prior to its final determination

the

Board

must

consider the factors of Section 33(c)

of

the Act.

The

injuryiñ this case is largely unknown because

of a lack

of

environmental assessment of the site, however, there

is

always

injury to the integrity of the permit system when

waste

management sites are run with disregard for the envi-

ronment and the law.

The parties have stipulated the site

does have

social

and economic value; the existence of a

viable business is certainly a positive value.

The suita-

bility of the site has not been determined because of

the

failure

to present an adequate permit application

(Stip.

#9).

However,

the Board notes that the permit application indi-

cates that the bottom of the pit is sand and the water level

is one

foot below

(Ex.

C at 5).

The site

is also in

Kickapoo

Creek

Valley and the entire valley has a sand bottom

(Ex. C

at 5).

These attributes indicate that the site would not

be

suitable

for

a waste management site

The record provides

no

specific

facts relating to technical practicability

and

econonic reasonableness.

Absent presentation of adverse

factors the Board must assume that this

is not a contested

issue.

---

—4—

Respondent did ignore repeated communications from the

Agency advising Respondent that its operations were contrary

to law

(Ex.

E

-

N).

were placed in

is unknown.

society’s risk.

agaLnst unknown risks.

and conclusions of law in this matter.

ORDER

It is the Order of the Pollution Control Board that:

1.

R.

E.

Joos Excavating Company

is

found to be

in violation of Rule 202(b) (1) of

the Solid

Waste Regulations

and

Section 21(e)

of the

Environmental Protection Act.

2.

Respondent shall cease and desist all further

violations of the Regulations or the Act.

3.

Respondent shall pay a penalty of $1500 within

35 days of this Order.

certified check or money order payable to:

State of Illinois

Fiscal Services Division

Environmental Protection Agency

Springfield,. ILlinois 62706

I, Christan

L. Moffett,

Clerk of

the

Illinois Pollution

Control Board, hereby certify

the

ibove Opinion and Order were

adopted on the

71)?

day of

_________,

1977 by a vote of

~2

~

~4~,;)i/~1~

/:~jL~(f Jc~

Christan L. Moffett,/tjerk