ILLINOIS POLLUTION CONTROL BOARD

May

 26, 1971

ENVIRONMENTAL PROTECTION AGENCY

#71—29

SAUGET

 & COMPANY

OPINION AND ORDER OF THE BOARD

(BY

SAMUEL R, ALDRICH):

Mr. Robert F.

 Kaucher, Special Assistant Attorney General,

for the Environmental Protection Agency.

Mr.

 Harold G. Baker, Jr., Belleville,

 for Sauget

&

Company and

Paul Sauget

The Environmental Protection Agency filed a complaint against

Sauget and Company,

 a corporation.

 On motion of the Assistant

Attorney General, Paul Sauget, operator of the company, was added

as

 a party respondent.

 The complaint alleged that before, on and

since November

 30, 1970, Respondent had allowed open dumping at

his solid waste disposal site

 in violation of Section

 21(a) and

(b) of the Environmental Protection Act

 (“Act”)

 and Rule 3,04 of the

Rules

 and Regulations for Refuse Disposal Sites and Facilities

(“Land Rules”).

 The complaint also alleged that since November

30,

1970,

 Respondent had permitted the open burning of refuse, had failed

to provide adequate fencing or shelter, had allowed unsupervised

unloading, had not spread and compacted the refuse as it was ad-

mitted,

 and had not covered the refuse

 at the

 end of each

 working day.

~Further, during the same period,

 Respondent allegedly had disposed

of liquids and hazardous materials without proper approval, had

imposed no insect or rodent control, had dumped refuse over

 a large

impractical

 area and had permitted scavenging and improper salvaging

operations.

 The aforementioned acts

 are all in violation of various

provisions of the Land Rules and/or of the Act.

 At the hearing on

April

 13, 1971,

 allegations of inadequate

 fire protection and allowing

the feeding of domestic animals were dismissed at the request of the

Agency.

At the hearing the Agency asked that

 the wording of its complaint

be amended by the substitution of

 “Before,

 on and since” for “Since”

in all except the first alleged violation.

 As will become apparent

later in the opinion,

 the failure of the Agency to include the more

comprehensive wording was

 a critical factor in determining the number

of violations of which the Board could find Sauget guilty.

 Respon-

dent claimed surprise, contending that if the request were granted he

would be deprived of an opportunity to prepare

 a defense against

~the new charges.

 We agree with Respondent!s contention and dismiss

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629

the request for amendments

 to the complaint.

 We hold, however, that

Respondent was adequately warned by the Agency

 complaint against

surprise of allegations on November

30.

Before considering the issues in

the

 case, we must deal with

Respondent~smotion to dismiss the complaint.

 Respondent argues that

the entire complaint should be dismissed

on

 constitutional grounds,

contending that

 the delegation of rule-making power to the Pollution

Control Board is unconstitutional.

 He further contends that the

Board cannot impose any

 fines because of constitutional prohibitions.

In PCB 70-34, EPA v.

 Granite City~SteelCo.,

 we held that regulatory

powers in highly technical fields are commonly delegated to admin-

istrative agencies

 at every level of government.

 Responsibility for

all rule-making activities would impose an impossible burden on

legislatures.

 We further held that the pollution statutes provide

sufficient standards to guide the Board~s judgement and adequate

procedural safeguards ~to avoid arbitrary action.

 We have also held,

in PCB 70~-38and

 71-6, consolidated,

~

that the Board has the constitutional authority to impose money penal-

ties.

 We find Respondent~s constitutional arguments

 to be without merit.

The evidence offered in the case leaves little doubt that Sauget

 & Company allowed open dumping at its solid waste disposal site. The

Agency introduced photographs showing that certain identifiable

objects were visible on sucdessive days.

 This

 is in clear violation of

Section 21(a)

and

(b)

 of the Act and Rules

 3.04 and

 5,07(a)

 of the

Land Rules which prohibit open dumping and require that all exposed

refuse be covered at the end of each working day.

 Indeed the record

indicates that some refuse present on May

22,

 1970, was still uncovered

on March

8,

 1971.

 Paul Sauget, secretary—treasurer

 of Sauget

 & Company,

admitted that refuse had not always been covered by

 the end of each

day

 (R.l69).

 He explained that this was mostly due

 to mechanical

breakdowns of the equipment and contended that the

 “rule book” allows

for such problems.

 However, Respondent did not attempt to prove that

the failure to cover on the

 days specified by the Agency was due to

mechanical breakdown,

 Further, there can be no excuse for permitting

any refuse to remain uncovered for

 a period of almost

 a year.

 We do

note, however, that conditions

 at the site have improved somewhat in

recent months.

 Respondent has attempted to cover the refuse on

a

regular basis, but efforts in this regard have been hampered by the

tremendous volume of material accepted.

An important issue

 in the case

 is the type of cover material used.

The record indicates that since March of 1966 Respondent had used

cinders as cover,

 Paul Sauget testified that he had been told by

the Chief Sanitary Engineer of the Department of Public Health

that cinders were acceptable

 as cover.

CR.

 157).

 We agree that

Sauget could rely upon

 the statement of the Department of Public

Health as

 a defense against

 a charge of improper covering.

 Rule

5.07 of

 the Land Rules states that cover material must permit only

minimal percolation of surface water when properly compacted.

Clearly, cinders cannot be properly compacted and they allow more

than minimal percolation.

 They are thus not acceptable

 as cover

material

 and their use

 is in violation of the regulations.

1

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630

The practice of covering with cinders must stop.

Respondent

 is alleged to have allowed open burning at his waste

disposal site in violation of Section 9(c)

 of the Act and Rule -3.05

of the Land Rules.

 Photographs taken on December

1,

 1970,

and

introduced by the Agency show material burning on

 the surface

of

the refuse.

 There

 is some evidence that both surface and sub—surface

 burning occurred on November 30,

 1970.

 Paul Sauget testified that

burning

 is not done intentionally but that some fires start accident-

ally.

 He claimed that when this

 happens, attempts

are

 made

 to extin-

guish the fire.

 However,

 a witness from the Agency testified that

on December 1,

 1970, while Agency personnel were present no attempt

was made by defendant’s employees

 to put out

 a fire,

 There

 is reason

to believe

 that Respondent has been negligent in his attempts

to

stop open burning at the landfill site.

Several witnesses testified that Sauget

&

 Company did not have ade-

quate fencing at its waste disposal site,

 a violation of Rule 4.03

(a) of the Land Rules.

 The Rule also requires that the

 site be furnished

with an entrance gate that can be locked.

 These provisions are designed

to prevent promiscuous dumping which renders impossible

 the proper

daily compaction

 and covering of the refuse.

 Testimony by witnesses

for the Agency indicated that the site in question was not adequately

fenced nor provided with

 a proper gate.

 These conditions were said

to exist on November

30,

1970

 (R.31,89).

 The record indicates that

improvements have been made since that time.

 Fencing was apparently

installed on two sides of the landfill site between February

8,

and

March

 22, 1971

(R.

 122)

 Respondent~did not dispute the Agency’s ob-

servations of November

 30, but indicated that sinc~that date steps

had been taken to restrict access to the site.

 The record is unclear

as to the adequacy of

 some of these measures

 and we

 are undecided

whether permanent fencing should be provided on

 all sides of the

landfill

 site.

 The record indicates that the liquid waste disposal

facility is adequately fenced.

Rule 4.03(a)

 of the Land Rules also requires that the hours of

operation of

 a landfill site be

 “clearly shown”.

 This

 is necessary

in order to inform the public as

 to when dumping is permissible and to

facilitate proper supervision.

 Witnesses for

 the Agency testified

that hours of operation were

 not posted

on

 their visits to the site

on November

30,

1970

 and March

 22, 1971

 (R.89,1l9).

 This was dis-

puted by Respondent who claimed that signs had been posted since

July

1,

1970

 (R.l67).

 From the record it is evident that on several

occasions

 the hours of operation were

 not clearly shown,

 as required

by the regulation.

Again with regard

 to fencing, Rule 5.04 of

 the Land Rules requires

that portable fences be used when necessary to prevent blowing of

litter from the unloading site.

 Witnesses for

 the Agency testified

that portable fencing had not been provided on three separate occasions

since November

30,

1970

CR.

 31,60,115).

 Respondent claimed that porta-

ble fences had been used near

the

 face of the landfill since

November

 30 but did not specifically dispute the contentions of

the Agency

 that fencing was absent on certain dates.

—

631

The Agency also alleged that Sauget

&

 Company further violated

Rule 5.04 by allowing unsupervised unloading at its waste disposal

 site.

Again

 the evidence is contradictory.

 A witness for the Agency testi—

fied that the gate

 to the liquid waste disposal facility was open and

unattended on two occasions

(R.

 119,121).

 Respondent indicated that

an attendant was always present

 (R.168)

 but the record is not entirely

clear

 as to the degree of supervision provided at the liquid waste

facility.

Sauget

 & Company is alleged to have violated Rule 5.06 of the Land

 Rules by not spreading and compacting

 the refuse as it is admitted.

Testimony by witnesses

 for the Agency indicated that this violation

occurred on two occasions

(R.

 90,115).

 One of

 the witnesses interpreted

the Rule

 to mean that

 refuse

 must be compacted

 and covered by the next

day

(R.

 136).

 This interpretation was not disputed, and we accept

it,

Since we have already ruled that Respondent

 is guilty of not covering

refuse by the next day, he must also be

 in violation of Rule

 5.06.

Additionally,

 several witnesses testified that Sauget

 & Company had

not confined the dumping of refuse to the smallest practical area,

in

violation of Rule 5,03 of the Land Rules,

 The words “smallest practical”

are only vaguely descriptive.

 We interpret such an area to mean one

which can be properly compacted and covered by the end of the working

day,

 We have already found that the Respondent failed to cover his refuse

properly.

 The record does not permit

 us to decide whether the size of the

receiving area contributed in part to this failure,

Respondent

 is alleged to have had no proper shelter at his solid

waste disposal

 site,

 in violation of Rule 4.03(c)

 of the Land Rules,

Although the absence of shelter in the landfill area was not disputed,

 the testimony of Paul Sauget indicated that such

 a structure had been

present in the liquid disposal area since

1959

 (R,l73),

 The shelter

was said to possess drinking water and toilet facilities,

 and to be

accessible

 to persons working

 in the landfill area,

 We find that the

Respondent has provided proper shelter for operating personnel.

The Agency complains that Sauget

 & Company had disposed of liquids

and hazardous materials without prior approval,

 Rule

 5,08 of the Land

Rules requires that such disposal be approved by

 the Department of

Public Health,

 Much testimony was received concerning the disposal

of liquids in the liquid waste facility.

 A witness for the

Agency described the odor emanating from these liquids

 as “very

nauseous”

 (R,ll9)

 but no attempt was made

 to identify the components

of the liquids chemically.

 Agency witnesses testified that they

did not know whether or not the liquids were hazardous.

 Respondent

had registered his

 liquid waste facilities with

 the Department

and no further permit is required.

We

 find that operations at the

liquid waste disposal area

 are not in violation of any regulations,

We

 are concerned, however,

 that substances deposited in this area

may indeed be hazardous.

 The proximity of the site to the Mississippi

 River makes

 it particularly importcnt

 that such substances be

1

—

632

identified.

 We will therefore order that Sauget

 file with

the

Agency and Board

 a list of chemicals being disposed or an affidavit

from Monsanto

 (the only user of the chemical dumping

 site) that the

chemicals do not pose

 a threat to pollution of the Mississippi River

by underground

 seepage.

 If the wastes prove to be of

 a hazardous nature,

Sauget

 & Company

 will be

 required

 to obtain

 a letter of approval from the

Agency according to provisions

 of 5.08 before continuing to handle such

wastes.

Although Respondent’s operations

 at the liquid disposal area do

not violate

 the regulations,

 there is testimony that liquids have some-

times been deposited at the solid waste facilities.

 An employee of the

Agency witnessed the disposal of liquid wastes

 at the landfill on three

occasions since November 30,

1970

 (R.1l4,ll7,l2l)

 All disposal of

liquids at the solid waste facilities

must

 cease.

Paul Sauget admitted allowing “midnight driver sanitary people” to

dump at the landfill

 (R.l60).

If,

 as we surmise,

 this

 is pumpings from

septic tanks

 it is obviously

 a most unsanitary practice and is in clear

violation of Rule 5.08 of the Land Rules,

Sauget

&

 Company is also alleged

 have operated

its

landfill

 opera-

tion

without

insect

and

rodent~ control,

 violation

Rule

 5.09

the Land Rules.

 There is

ample

 evidence

that

 rats have lived

the

site

(R.

 32,39,91).

Paul

Sauget

professed

not

 know that

control

was

required

(R.170).

The

problem

insect

and

rodent

control

likely

due

to failure to provide adequate cover for

 the refuse.

 Richard Ballard

of the Department of Public Health testified that in the absence of daily

covering pest control will never be attained

 (R.92)

There

 are still more complaints.

 The Agency alleges that Sauget

&

Company has violated the regulations dealing with scavenging

 (Rule 5,12(a),

the manual sorting of refuse)

 and salvaging

 (Rule

 5.10, not defined).

Paul Sauget testified that salvage operations were permitted at the site

for purposes of safety to the bulldozer and operator and so that the

refuse could be compacted properly

 (R.l72)

 He denied the Agency’s con-

tentions that salvaging interfered with the landfill operation and that

salvaged materials were allowed to remain at the site

 in violation of

Rules

 5.10(c)

and

 (d) of the Land Rules.

 A witness

 for the Agency

did

testify that on March

8,

 1971,

 the sorting operations

 created less

interference

 than those which he observed earlier

 (R.6l)

 ~t is diffi-

cult to determine from the record whether many

 of the activities wit-

nessed constitute

 a violation of the ban on scavenging or of unsanitary

sa:

vage operations.

 It is clear that materials have been illegally sorted

by band at the dumping site

 (R.l15)

 This must cease,

 Scavenging

is

prohibited and salvage must be conducted at an area remote from the

operating face of

 the fill,

cases

where

the

Respondent

had

prior

warning

and

the

violations

were

not

flagrant,

the

Board

assessed

 penalties

of

$1000

(~Av,~~,Coolin,PCB

70-2,

and

EPA

Neal

Auto

 Salvage,

 Inc.,

PCB

70-5)

Where

Respondents

had

prior

warning

history

actual violation,

 fines of

 $1500 were assessed

 (EPA

v,EliAmi~oni,

PCB 70-15, and EPA v.

R.

 H. Charlett,

 PCB 70-17).

 This, however,

should not be construed as foreclosing fines of greater amount lb

appropriate circumstances.

This opinion constitutes the Board’s findings of fact and

conclusions of law,

ORDER

 Sauget

 & Company and

Paul

 Sauget are

 comply with Rules

5.06 and 5,07(a)

 of the Rules and Regulations

 for Refuse Disposal

Sites and Facilities by completing the compaction and covering

all exposed refuse by

 the end

each

working

 day.

2.

 Sauget

 & Company and Paul Sauget are

 to cease

 and desist

the

use

cinders

cover

material,

3.

 Sauget

&

Company and Paul Sauget are

 to cease

 and desist

the

open

dumping

ref-use

violation

Section

21(a)

and

(b)

the Environmental Protection Act and

Rule

3,04

the

Rules

and

RegulatIons

fo~: Refuse

Disposal

Sites

 and Facilities.

4,

 Sauget

 & Company and Paul Sauget are to cease and desist

the open burning of refuse in violation

 of Section

 9(c)

 of the Environ-

mental Protection Act and Rule

 3.05 of the Rules and Regulations

for

Refuse

Disposal

Sites

and

Facilities.

Sauget

Company

and

Paul

Sauget

are

cease

and

desist

the

disposal

liquids

its

solid

waste

disposal

facility

violation

Rule

5,08

the

Rules

and

Regulations

for

Refuse

Dis-

posal

Sites

 and Facilities,

Sauget

&

Company

and

Paul

Sauget

are

comply

with

Rules

4,03(a)

and

5.04

the

Rules

and

Regulations

for

Refuse

Disposal

Sites

and

Facilities

with

regard

the

posting

hours

operation

and

the

provision

proper

fencing,

Every

point

practicable

vehicle

access

shall

fenced,

Sauqet

Company

and

Paul

Sauget

are

 cease

 and desist

the

sorting

refuse

 by hand

violation

Rules

5~,10 and/or

5.12(a)

of

 the Rules

 and Regulations for Refuse Disposal Sites and Facilities,

before

June

15,

1971,

Sauget

Company

 and Paul Sauget

shall

file

with

the

Agency

and

the

Board

list

chemical

compounds

being

deposited

the

liquid

waste

disposal

facility,

 or an

affidavit

of Monsanto Company that

the

 chemicals do not pose a threat of

pollu-

tion

the

 Mississippi River

underground

seepage.

 Upon failure

to furnish such information,

 the Board shall hold

 a supplemental

hearing on five days’

 notice

the

parties

and

shall

 enter such

further Order as shall

appropriate.

—

634

9.

 Sauget

 & Company and Paul Sauget shall remit to the

Environmental

 Protection Agency the sum,

 in penalty, of $1,000.00.

I, Regina

B.

 Ryan, Clerk of

 the Pollution Control Board,

 certify

that

 the Board adopted the above opinion and order this

2~L

day

of

 May,

 1971.

~

 ~-~/

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