ILLINOIS POLLUTION CONTROL BOARD

August 30,1971

ENVIRONMENTAL PROTECTION AGENCY

v.

)

PCB #71—32

OSCAR

E.

DENNY,

d/b/a/

)

D.

&

S. LANDFILL

Robert F.

Kaucher for Environmental Protection Agency

Ted Harvey

for Oscar

E. Denny

Opinion and Order of the Board

(by Samuel

R. Aldrich):

On February

25,

1971,

the Environmental Protection Agency

(“Agency’t)

filed

a complaint against Oscar E.

Denny

(“Denny”).

Respondent

operates

a landfill

for solid waste disposal near Belleville,

Illinois.

The complaint alleges numerous violations

of the Envir-

onmental Protection Act

(“Act”)

and of

the Rules and Regulations

for Refuse Disposal

Sites and Facilities

(“Land Rules”).

At

a

prehearing conference held April

21,

1971,

the wording of the com-

plaint was amended to indicate

that the alleged violations occurred

before,

on and since August 11,

1970.

As

in similar cases involving landfills

(EPA v.

Sauget,

#71-29,

and EPA

v.

Clay Products Co.,

#71-41)

the evidence establishes

certain charges and fails

to establish others.

We order that

violations cease and

a money penalty be paid.

The complaint

first alleges open dumping

in violation of Section 21

(a)

of the Act and of Rule

3.04 of the Land Rules.

As in the Clay

Products

case we note

that open dumping is

a general term embracing

a number of more specific infractions with which the respondent

is

also charged.

In view of our findings on the more specific infrac-

tions

it is unnecessary for us

to decide whether open dumping has

also occurred.

Respondent

is alleged to have had open burning at his landfill

site.

A witness

for the Agency testified that he observed a large pile of

brush being burned on August

11,

1970

(R.

92,153).

A photograph

taken on August

12,

1970,

and introduced by the Agency

(EPA Ex.

4)

shows material that has been burned.

Oscar Denny admitted that tree

limbs had been burned in August but stated that no such burning had

occurred for over

six months

(R.

238,239).

A witness

for Denny

indicated that burning refuse is occasionally brought to the site

but that it is dumped

in a separate area and extinguished with dirt

(R.

283).

Nevertheless,

the evidence indicates that material was

burned on August

11,

1970, and we find that Denny has caused or

allowed open burning.

2-331

---

Denny

is

alleged to have

violated

Rule

4

•

02

of

the

Land

Rules

and

Section

12(a)

and

(d)

of

the

Act

by

operating

his

landfill

so

as not

to

prevent

leachate

from

contaminating

the

ground

waters

or

streams

in

the

area.

There

is

ample

evidence

that

leachate

was

coming

to

the

surface

and

running

off

into

water

impounded

on

the

site

(R.

87,103,114).

However,

Rule 4.02 does not apply to

contamination

of

water

by

leachate

at

an

existing

landfill

site.

This

rule

relates

only

to

siting,

not

to

operation

of

a

landfill.

The

question

remains

as

to

whether

a

violation

of

Section

12

of

the

Act

has

occurred.

The

first

issue

for

the

Board

to

decide

is

whether

the

water

impounded

on

the

Denny

site

constitutes

“waters

of

the

State”

under

the

Act

and

is

to

be

protected

from

pollution.

The

record is

simply

inadequate.

In

future

cases

we will

expect

the Agency

to

describe

the

receiving

waters

such

that

we

can

make

a

determination.

A

second

issue

is

the

extent

to

which

the

leachate

would

be

expected

to

alter

the

properties

of

the

receiving

water

so

as

to

interfere

with

“legitimate,

uses”

under

Section

3(n)

of

the

Act.

In

order

to

decide

this

issue

we

must

be

provided

with

a

description

of

the

amount of

leachate

relative

to

the

volume

of

receiving

water

and

of

the

nature

of

the

leachate

•

In

the

present

case

is

no

evidence

that

the

leachate

created

or

was

likely

to

create

a

nuisance

or

render

the

impounded

water

unfit

for

any

legitimate

use.

We

do

not

feel

that

the

simple

fact

of

water

coming

to

the

ground

surface

at

a

landfill

site

is

prima-facie

evidence

of

water

pollution

under

Section

12.

Such

water

may

make

little

or

no

contact

with

refuse

or

may

contact

only inert materials.

There

is

insufficient

proof

that

the

Denny

operation

was

creating

a

water

pollution

hazard

pursuant

to

Section

12.

We

note

further

the

statement

of

an

Agency witness

that

leachate

tends

to

come

to

the

ground

surface

when

refuse

is

not

properly

compacted

and

covered

(R.87).

In

that

event

the

leaching

problem

will

likely

be

corrected

in

the

Denny

case

once

proper

compaction

and

covering

is

provided.

The

Agency

alleges

that

Denny

permitted

access

to

the

site

“during

all hours of the day”, in violation of Rule 5.02 of the Land Rules.

However, as we noted in the Clay Products case, that rule does not

limit

the

hours

of

operation

but

rather

prohibits

access

when

no

employee

is

present.

We

find

the

allegation

to

be

deficient.

Rule

5.03

requires

the

dumping

of

refuse

on

the

site to be confined

to the smallest practical area.

The

evidence

on

this

point

is

inadequate.

The record contains

estimates

of

the

size of

the

entire landfill area but no clear indication of the area being

actively used.

An

inspector

for

the Agency testified that in

his

opinion the

fill

face

was

too large for the refuse

to

be

compacted

immediately with the equipment on

hand

(R. 94,95).

Nevertheless,

in the absence of more objective evidence we find no violation

has been proved.

2—

---

Respondent

is alleged to have permitted unsupervised unloading, and

to have provided no portable fences ;or policing of the area.

An

Agency witness testified that on November

19,

1970,

no operational

personnel were present at the site despite the fact that trucks

were dumping refuse at the

time

(R.

97,98).

Furthermore,

the same

witness testified that no portable fencing was provided

(R.

98).

Rule 5.04 requires

the use of portable fences “when necessary to

prevent blowing litter from the unloading site”.

Oscar Denny denied

that blowing litter was

a problem but admitted that litter could

be blown into

the impounded water

CR.

242).

The regulation specifi-

cally requires fencing to avoid material blowing from the unloading

site.

There

is evidence that litter was blowing from the unloading

site during one visit by an Agency inspector and that no effort was

being made

to collect scattered material

(R.

98,99).

We

find

Respondent

to be

in violation of Rule

5.04.

The Agency further alleges th~tDenny has failed to spread and com-

pact refuse as required by Rule

5.06.

The record indicates that

on November

19,

1970,

refuse was dumped without being spread or

compacted

(R.

98).

Indeed,

no one was even operating equipment at

the site.

The rule requires re&use

to be spread and compacted as

rapidly

as it

is

admitted to the

site.

A violation of the rule

was

therefore shown.

Respondent

is charged with operating his refuse disposal site with-

out covering the refuse at the end of the working day, contrary

to Rule

5,07(a).

There

is ample proof of such violations.

The

Agency introduced photographs showing that certain recognizable

objects remained uncovered for two consecutive days

(EPA Ex.

2,

3,

7,

8).

In

fact,

the record indicates that some refuse present in

August of

1970, was still uncovered on February

2,

1971

CR.

168).

We note, however,

that the amount of refuse left uncovered has

decreased somewhat in recent months.

A witness for

the Agency

testified that by March

26,

1971, much old refuse had been covered

adequately

CR.

172),

By April

19,

almost all refuse had been

covered

CR.

192),

Denny is also alleged to have permitted improper salvage operations

and scavenging,

in violation of Rules

5,10 and 5.12(a).

As we

noted in the Clay Products

case,

the difference between salvaging

and scavenging is not altogether clear,

There

is evidence of manual

sorting of refuse

(scavenging)

by truck drivers

CR,

100).

Oscar

Denny testified that salvage operations were carried out

at the site,

salvaged materials being placed in

a pile

(R.

237).

However, photo-

graphs introduced by the Agency show several junked automobiles and

other

items presumably meant

for salvage lying scattered

among other

refuse

(EPA Ex.

9).

There was

testimony that

the automobiles were

not being compacted or covered, nor were they being remove~dfrom

the

site

CR.

113).

Such operations are clearly improper.

Not only

do they interfere with

the fill operation;

they also create

a

potential rat harborage and give

the landfill

an unsightly appearance.

2

—

333

---

The Agen~y’sfinal allegation is that Denny allowed refuse to be

deposited in water contrary to Rule 5.12(c).

There is considerable

evidence that refuse was seen in water

(R. 64,66,104,184).

However,

the rule requires proof that refuse was put into the water.

A

witness for the Agency did testify that refuse was being discharged

into standing water on two occasions

(R.

100,103)..

The record in-

dicates that on or prior to one of these occasions

(November 19)

some rainfall occurred in the area

(Denny Ex.

2).

Although we

recognize that rainfall may create additional problems for a land-

fill operator, it does not automatically justify viqiations of the

rules.

The regulation

does not provide for any exceptions

in this

regard.

Rule 4.03(b)

suggests but does not require that separate

operational areas be operated within the ~siteto allow for wet or

dry weather operation and access.

Respondent apparently has no

plans for a suitable alternate disposal site during wet weather.

Relative to the second date, November 30,

a date preceded by mini-

mal rainfall

(Denny Ex.

2),

the record is clear that refuse was

discharged into water

CR.

103).

We find,

therefore, that a violation

has been established.

There

is considerable testimony concerning the presence of

a septic

liquid at the

site.

Oscar Denny admitted that septic tank pumpings

had been deposited at the landfill

(R.

236).

He testified that as

of July

1,

1970, he had refused

to accept such wastes after being

informed he was violating

the

law.

Rule 5.08 clearly prohibits

the discharge of septic tank pumpings without written approval

of the Department of Public Health.

However, the complaint does

not allege violations of Rule 5.08,

failing even to mention the

deposition of liquids or hazardous materials.

The complaint is

clearly deficient.

Nevertheless,

as we noted in the Sauget case,

the disposal of septic tank wastes is

a most unsanitary practice

and future violations will not be tolerated.

In summary,

we find violations with regard to open burning, unsuper-

vised unloading, fencing, policing of the

area, spreading,

compacting,

and covering,

scavenging, improper salvaging,

and deposition of refuse

in standing water.

We note that conditions at the site have improved

considerably in recent months, although evidently only after the

complaint was

filed.

Letters

to Denny from the Agency enumerating

deficiencies

apparently evoked little or no action

CR.

127,156).

Recent photographs submitted by the respondent

indicate improved

operating methods

(Denny

Ex.

3-10).

Agency witnesses testified

that improvements had been made

CR.

l67.l72,l74,l89).

We

shall

order Denny to cease and desist any further infractions.

As

in

the Sauget case we shall assess

a penalty of $1000 to deter future

violations.

This opinion constitutes

the Board’s findings of fact and conclu-

sions of law.

2—334

---

ORDER

1. Oscar E.

Denny shall cease and desist from violations of the

Rules and Regulations

for Refuse Disposal Sites and Facilities

and of the Environmental Protection Act as follows:

(a)

Open burning

shall not be permitted.

(b)

No unloading shall be permitted without supervision.

Cc)

Portable fences shall be required when necessary to

prevent the scattering of litter,

and scattered litter

shall be collected.

(d)

Refuse shall be spread and compacted as rapidly as it

is admitted to the site.

Ce)

Refuse shall be covered daily as required by the Rules.

(f)

Scavenging shall not be permitted.

(g)

Salvaging must be carried out in a sanitary manner,

salvaged materials being removed from the

site daily or

properly stored as required by

the Rules.

(h)

The deposition of refuse in standing water shall not

be permitted.

2.

Oscar E.

Denny shall within

35 days

of the filing of this

order remit to the Environmental Protection Agency the sum,

in penalty,

of $1000.

/~

I concur

I dissent

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:

I, Regina E. Ryan,~Clerkof the Pollution Control Board, hereby

~‘~rtify that the Bãard adopted the above opinion and order this

3QtI~uiay of August,

1971.

2

—

335