ILLINOIS POLLUTION CONTROL BOARD
September
15,
1976
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB 76—59
RALPH
FISCHBACH and FLOYD
FISCHBACH,
Respondents.
MR. Richard W. Cosby, Assistant Attorney General, appeared on
behalf of Complainant.
Mr. Ronald
0. Roeser appeared on behalf of Respondents.
OPINION
AND
ORDER OF THE BOARD
(by Dr. Satchell):
This matter comes before the Pollution Control Board
(Board)
upon a complaint filed by the Environmental Protection Agency
(Agency)
on March
1,
1976.
The complaint alleges that Ralph
Fischbach and Floyd Fischbach own and operate a refuse disposal
site located on approximately five acres
in section 24 of
Township 42 North, Range
7 East of the Third Principal Meridian,
Kane County, Illinois.
The complaint further alleges that
Respondents beginning July 27,
1974 and continuing every day
of operation to the date of filing have operated the waste
management site without an operating permit in violation of
Rule 202(b) (1)
of the Chapter
7: Solid Waste Regulations
(Regulations) and Sections 21(b)
and 21(e)
of the Environ-
mental Protection Act
(Act), and that on seven named dates
Respondents failed to place a compacted
layer of six inches
of
sui.LabIc material on all exposed refuse aL Lhe
end
of each
day of operation in violation of Rule 305(a)
of the Regulations
and Section 21(b)
of the Act.
The Board has stated many times that a Section 21(b)
violation is not properly based on operating without a permit,
Environmental Protection Agency v
E.
&
E. Hauling,
Inc.
16 PCB 215 (1975).
The allegation of a violation of Sec-
tion 21(b)
stemming from operating without a permit is
dismissed.
A hearing in this matter was held on May 14,
1976.
At
the hearing there was testimony from Kenneth P.
Bechely, an
Agency employee, and both Respondents.
23—471
—2—
Evidence was presented concerning visits of Mr.
Bechely
to the site on four occasions July 11, 1974, July
31,
1974,
August 14,
1974 and August 19,
1975
(R.
8,
17,
18,
19).
The
wastes at the site include pottery wastes, brickbat, plaster-
board, cardboard and some plastic
(R.
10,
16).
The pottery
was mostly broken molds which is basically inert material
CR.
11).
On the July 11,
1974 visit, the amount of plaster-
board was possibly as much as
40 percent of the total volume
dumped
CR. 14).
If the plasterboard is disposed of in wet
conditions it will break down into its various components,
primarily calcium and sulfate
(R.
15).
If deposited in
large amounts there can be environmental degradation to
nearby water courses and ground water
(R.
15).
The area
of the fill is low and the water table is at times high
(R.
15)
On the August
14,
1974 visit Mr. Bechely did not note
any plasterboard or wallboard on his report
CR.
18).
On
August
19, 1975, Bechely observed mostly brickbat and pot-
tery waste
(R.
21,
24).
Also there was no cover for fill
that had been deposited for some time
(R.
27).
Mr. Bechely
estimated the total volume to be between 100 and 150 cubic
yards of material
(R.
26).
At any one time the exposed
area is probably less than half an acre
(R. 28).
The
Fischbach Farm Implement Company is on the site
(R.
29,
30).
There are some other buildings
to the west of the Fischbach
brotherst
farm
implement site
CR.
30).
Mr. Bechely observed that the material was placed at
irregular intervals and that spreading and compaction was
done at irregular intervals
(R. 31).
The cover that was
applied to the older areas of the fill was satisfactory
CR.
38).
Mr. Bechely stated that on the dates of his
visits he observed no environmental harm but did not know
about long term effects
(R.
45).
Floyd W. Fischbach testified to the fact that he and his
brother applied for
a permit
on
August
30,
1974, and
in
1975
and 1976
(R.
52,
54).
Currently they do have
a permit appli-
cation before the Agency
(R.
54,
55).
The Agency has rejected
two applications because they were made on the wrong forms
which the Agency had sent out.
The Fischbachs claim to have
never received the first denial
CR.
53,
54, 77).
The Agency
has also asked for more information on all the applications
(R.
77, 78).
23
—
472
—3—
The materials being dumped on the Fischbachs’ property
are molds from a pottery and material that the Illinois
Highway Department and the Kane County Highway Department
bring in from highway repairs
CR.
57).
The area being
filled slopes down to an existing creek
(R.
58).
The Re-
spondents would like to bring
it up to a level that can
be used for parking their equipment
CR.
58).
The area is
being filled with three to four feet of material
(R.
60).
Without the fill the area is of no use
CR.
60,
61).
The
loads of material are small and delivered at irregular
intervals
(R.
61).
The highway departments are bringing
in some dirt
CR.
63).
Respondents have never given permission to place drywall
or plasterboard on their property; however, someone brought
these materials
in at night on three or four occasions with-
out permission
CR.
65,
66).
Respondents called the police
who eventually found the individual and since then there
have been no reoccurrences
(R.
66,67).
Mr. Fischbach
states he has never had any complaints from adjoining
landowners
(R.
69).
Ralph A. Fischbach testified only to verify the testi-
mony of his brother, Floyd Fischbach
CR.
80).
The facts before the Board are undisputed.
Respondents
have brought in refuse from the pottery plant and the high-
way departments on a regular basis to raise the level of the
outer edge of their
land.
During a short period in 1974 an
unknown person dumped plasterboard in Respondents’
fill area.
The Board
finds Respondents
in violation of operating a
waste management site without an operating permit, Rule
202(b) (1)
of the Regulations and Section 21(e)
of the Act.
The Board also finds Respondents in violation of Rule 305(a)
of the Regulations and Section 21(b)
of the act for failure
to place daily
cover.
The Board must also consider the factors of Section 33(c)
of the Act.
In this case actual injury to the environment
has
not
been established; however, as Mr. Bechely pointed out
it is difficult to determine what long term damage will result
from a landfill.
This
is the purpose of the permit system,
to protect the health and welfare of the population from
shortsighted mistakes before they happen.
Although there is
not much information in the record as to site suitability,
the Board finds the site appropriate.
The technological
feasibility of obtaining
a permit in this situation is not
a problem.
Because of the use of inert material obtaining
23—473
—4—
a permit should not be a problem, upon the presentation of
the proper information to the agency.
Respondents have
indicated that applying daily cover in this instance
is
not economically feasible
(R. 75).
The cost of hiring some-
one with the machinery every day would prohibit the Fischbachs
from filling in their “backyard”
CR.
75).
The Board notes
inert material may not need daily cover; however, any such
judgment must be made by the Agency with the information
available from permit applications and periodic inspections.
The Board finds that Respondents have violated the
Regulations and the Act.
Respondents have shown good faith.
The Fischbachs have covered the area at various intervals
(R. 75).
They have also filled out all requested application
forms from the Agency
CR.
78)
.
The landfill in question
is
small and would appear not to be a source of pollution.
The
Board finds that to protect the integrity of the permit system
Respondents must obtain the required permit within 120 days
of this Order.
If a permit is
not. issued Respondents
shall
cease and desist further operation of the landfill and shall
apply final cover pursuant to Rule 305(c)
of the Regulations.
In this case the Board
finds that a penalty
is not necessary
to aid in the enforcement of the Act.
This Opinion constitutes the Board’s findings of fact and
conclusions of
law.
ORDER
It is the Order of the Pollution Control Board that:
1.
Respondents are found to be in violation of
Rules
202(b) (1)
of the Solid Waste Regulations
and Section
21(e)
of the Act and Rule 305 (a)
of
the Regulations and Section
21(b)
of the Act.
2.
The
allegation
of
violation
of
Section
21(b)
of
the Act based on the Rule 202 (b) (1) violation
is dismissed.
3.
Respondents shall obtain a permit from the Agency
within 120 days of this Order.
If the permit is
not obtained Respondents will cease and desist
further operation and final cover shall be placed
in compliance with Rule 305(c)
of the Solid Waste
Regulations.
23—474
—5—
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above 0 inion and Order
were adopted on the
/~‘~‘
day of
~
1976 by
a vote of
~
23—475