ILLINOIS
    POLLUTION
    CONTROL BOARD
    July 22, 1971
    ENVIRONMENTAL PROTECTION AGENCY
    )
    )
    )
    v.
    )
    # 71—a
    )
    )
    DONALD M. ASEBAUGH
    )
    Mr.
    George
    E. Brazitis, Special Assistant Attnrney fleneral
    for the EPA.
    Mr. Donald Ashbaugh, pro se.
    Opinion
    of
    the
    Board
    (by
    Mr.
    Currie):
    Mr.
    Ashbaugh
    was
    charged
    with
    numerous
    violations
    in
    re-
    gard
    to the operation of a landfill near Effingham.
    We find
    two of the charges amply proved and impose money penalties as
    well as a cease—and—desist order.
    Open dumping of refuse is and has long been forbidden
    (Environmental
    Protection
    Act,
    1
    21;
    Rules
    and
    Regulations
    for
    Refuse Disposal Sites
    and
    Facilities, Rule 3
    •
    04)
    •
    The operator
    is required to spread, compact, and cover refuse regularly.
    There is much evidence as to open dumping long before Jtuaust
    10, 1970
    (it. 22—38), the first date.charged in the comnlaint,
    but the respondent is entitled to notice of the charges he must
    defend against, and we think it time the Aqency stopped trying
    to prove violations
    that
    are
    not
    charged.
    The
    same
    applies
    to
    evidence
    showing purported violations on September 21, l~7O
    (it. 42
    ,
    43).
    See’EPA v. Hyman—Michaels Co., 4 71—24, decided
    today.
    The first date charged is August 10, 1970, and there is
    no
    doubt
    there
    was
    a
    great
    deal
    of
    uncovered
    refuse
    at
    the
    site
    on
    that
    date
    (it.
    39).
    But
    there
    is
    also
    no
    doubt
    that
    Mr.
    Ashbaugh
    has, already
    been
    punished
    for
    this
    violation;
    he
    was
    prosecuted in court, pleaded guilty, and was ordered to pay. a
    $200 fine
    (R. 17$ EPA mc.
    1)
    •
    It is elementary that he cannot
    be
    punished
    twice
    for
    the
    same
    offense,
    Sen
    if
    the
    second
    penalty
    is
    a
    civil
    one,
    and
    the
    Agency,
    as
    a
    responsible
    jnsblic
    agency,
    ought
    not
    to
    have
    tried
    to
    do
    so..
    But the evidence is clear, as charged, and it is not denied,
    that additional refuse was dumped at the already offensive site
    about September 14: ‘It had progressed from what was
    .!~
    2—151
    relatively circular
    area
    (of 1/2
    acre,
    see p.
    39
    somewhat and
    had actually been dumped around the shelter and into the
    access
    lane or on site road”
    (R.
    40).
    Pictures
    (EPA Ex.
    5A,
    5B)
    showed the deplorable conditions and the complete absence of
    attempts to cover or compact.
    A neighbor testified
    in gory
    detail about the odor,
    vermin,
    and unsightly conditions provail—
    ing on his property
    as
    a result of open dumping at the site
    during this period
    (R,
    51-59).
    For this second offense
    a
    penalty of
    $1000
    is warranted;
    Mr. Ashhaugh was
    let off rather
    easy the first time for an egregious violation,
    and the record
    shows he had been amply warned in the past as
    to his obliqations
    (R,
    23,
    27,
    29,
    30,
    33,
    35),
    There are numerous allegations
    as
    to violations
    on January
    10—11,
    1971, hut
    the record
    is clear
    that Mr. Ashhauqh had
    terminated his interest in the premises before that
    time
    (P.
    67,
    94)
    .
    It was, however,
    alleged and proved that he Failed to
    apply
    the required
    final cover upon ahancloninq
    the site
    (Pule
    5,07
    (h)),
    This is shown by ample evidence that
    the piles of uncovered re-
    fuse remained until January
    10
    and beyond
    (FPA Fxs,
    ~QP,
    F,
    73-74)
    ,
    with
    no suggestion that
    they had
    been denosited
    there
    after Mr. Ashbaugh terminated his control
    on January
    7.
    In
    February,
    it was estimated,
    the refuse stood
    four feet
    deep
    over an area
    of 25Y
    X 300~
    (F,
    74),
    We think ample notice of
    this charge was conveyed by the
    last sentence of paracraph
    6
    of the complaint,
    that the respondent
    “has railed
    to satisfactorily
    close his sanitary landfill site,”
    An additional ~l000 will
    he
    assessed for
    this violation, which indicates
    a continuinc
    inattention to fundamental obligations,
    In determining
    the amount of the penalty we have considered
    a number of factors,
    including the seriousness of the infractions,
    the respondent~sapparent ability to pay,
    and his past compliance
    record.
    The only defense
    is that respondent~s equipment broke down
    (F.
    62,
    85),
    but he made
    no adequate attempt to hire replace-
    ments
    (F,
    88)
    ,
    and an August breakdown
    can never excuse
    a failure
    to cover all the way to January,
    We refrain from ordering Mr. Ashhaugh to clean uo the
    site,
    as that
    is being done by his successor, who plans to operate
    a
    lawful landfill
    (11,
    44,
    75—76),
    This opinion constitutes
    the Board’s findings of fact and
    conclusion of law,
    OBDER
    1)
    Donald
    M. Ashbaugh
    shall not cause or allow the open dumping
    of refuse,
    at the site described
    in the record or elsewhere,
    2)
    Donald
    M. Ashbaugh
    shall within 35 days after receipt of this
    order pay to the State of Illinois the
    sum of $2000
    as
    a
    2— 152
    penalty
    for the violations
    found
    in the Board’s opinion.
    I,
    Regina E.
    Ryan,
    Clerk of the Pollution Control Board,
    certify
    that the Board adopted the above opinion this
    22
    day
    of
    July
    ,
    1971,
    2
    153

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