ILLINOIS POLLUTION CONTROL BOARD

October 24

1972

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

 PCB 72—196

RAFACZ

LANDSCAPING

AND

 SOD FARMS,

 INC.,

an Illinois corporation,

Respondent.

Samuel Morgan, Special Assistant Attorney General, for the

Environmental Protection Agency;

Joseph P. Della Maria, Jr. for Respondent.

OPINION

AND

ORDER OF THE BOARD

 (by Mr. Parker):

The Complaint filed on May 9,

 1972 in this enforcement

proceeding charged Walter Rafacz and Henry Rafacz,

 individually

and doing business as Rafacz Sod Farm, with operating

 a land-

fill located near Orland Park

 (in Cook County) in violation of

several provisions of the Rules and Regulations for Refuse

Disposal Sites and Facilities.

 The specific violations charged

were: allowing open dumping of refuse prohibited by Rule

3.04,

failing to provide adequate fencing required by Rule 4.03 (a), fail-

ing to provide the shelter for operating personnel required by

Rule 4.03(c), failing to spread and compact the refuse per

Rule 5,06, failing

 to provide daily cover as required by Rule

5.07(a), failing to confine the dumping to

the smallest

practical

area per Rule 5.03, and operating the landfill without a permit

 in violation of Section 21

Ce)

 of the Environmental Protection Act.

At

the public hearing held August 29,

 1972, Respondents repre-

sented that only

 a single proper party Respondent should be

named,

 that being Rafacz Landscaping and Sod Farms,

 Inc., an

Illinois corporation,

 the lessee of the land

 (R.5).

 The Agency

accepted this representation

 (R.6,

 124),

 and accordingly we

consider the Complaint to have been amended correspondingly.

The

parties also entered into the following stipulation of facts on

the day of the public hearing

 (R.9-l0):

1.

 Between April

22,

 1971,

and

the institution of the

instant proceedings the respondent has continuously been the

lessee and operator of the land commonly known at the Rafacz

Sod Farm located at 151st

Street and 88th Street

 in Orland

Park,

 Cook County, Il1inois~

6— 31

2.

 At various times during said period:

(a)

 said land had been used for open dumping;

(b)

 no site fencing or cable had been constructed

or erected around said land to prevent such dumping;

(c)

 said open dumping included demolition and

combustible materials;

(d)

 said materials had not been rapidly spread and

 compacted;

(e)

 no daily cover

 to a depth of six inches had been

provided for said dumped materials;

and

(f)

 the color photographs taken by Rene Van Someren

on July 10, July 13, and July 22,

 1972, and February

9,

 1972, and hereby offered in evidence as cornp1ainant~s

Group Exhibit

 1, truly and accurately represent condi-

tions on said

 land as of said dates.

The Agency also withdrew

(R.

13)

 the allegations of failing

to have

 a permit

 (Act,

 Sect.

21

 (e)) and failing to provide a

shelter

 (Rule 4.03(c)).

The evidence introduced at the public hearing showed that

Respondent had since about 1968 placed several thousand truck

loads of loose bricks

 (brickbat),

 lumber,

 rocks and other

demolition wastes on land located in a flood plain to make a

roadway and turnaround for trucks to use in removing peat from

the site

(R.

35,

41,

63,

 85).

 Mr. Henry Rafacz, President of

Respondent, said that he paid about $15.00 per load for this

fill

(R.

40)

The

 record also shows that open dumping of other waste

materials, including some garbage

 (see Group Exh.

1),

 tires,

refrigerators, couches and the like,

 also took place, presumably

 by outsiders without permission and in spite of the fact that

“no dumping” signs had

 been posted and enforced

(R.

38,

42,

53,

65,

81,

86,

 88),

An Agency investigator visited the site in April of 1971 and

was assured by Mr. Rafacz that

 “the area would be cleaned up”

(R.

96,

 101), but in July of 1971 substantial piles of debris

remained to be spread and leveled

 (see photos Group Exh.

1).

While some spreading and leveling had been done by June of 1972,

this work had not been completed and combustibles present on

the site had been left uncovered

(r.

 103)

 By August of 1972

the leveling and spreading had been completed,

 and apparently

the site was closed

(R.

 106)

 A cable was not strung across the

site entrance until July of 1972

 even though

 Mr. Rafacz received

the first complaint about open dumping in 1968

(R.

 82) and knew

outsiders were engaging in dumping activities

(R.

38)

—2—

6

—

Respondent’s main defenses appear to be that this was not

a commercial landfill operation and thus should not be treated as

a landfill subject to regulation, that building demolition wastes

 deposited on the land for purposes of constructing

 a roadway

should not be included in the term “refuse”

 as used in the Act, and

that Respondent did not “cause or allow” open dumping within the

meaning of the Act.

Insofar as the brick piles being used to form a roadway are

concerned, we agree with Respondent that these materials do not

constitute “refuse” within the meaning of the Environmental Protection

Act.

 We do not, however, accept Respondent’s contentions in respect

of the dumped garbage and other putresible materials.

The Act defines

 “refuse” as

 “any garbage or other discarded

solid materials”

 (Section 3

 (a)).

 While this Board has often held

that building demolition wastes may constitute

 “discarded solid

materials” under the Act, it is, of course, essential to any such

holding that the materials truly have been “discarded” and not

simply stockpiled for a later productive use.

 Here,

 the loose

bricks and the like had been purchased and stockpiled for ongoing

use in forming and extending the roadway as the sod removal opera-

tions moved along the land.

 The bricks had not been “discarded”

within the meaning of that term as used in the Act.

 We are mindful,

too, that the record here fails to show that the Rafacz stockpiling

of these non-putresible materials caused or might tend to cause

any harmful effects upon the environment.

 We conclude, therefore,

that the allegations of the Complaint have not been proven insofar

 as the brick stockpiles are concerned.

Turning now to the dumping of putresible wastes, the record

evidence shows, and the parties have stipulated, that open dumping

took place, that the dumped materials were not spread, compacted

or covered, and that site fencing was not provided.

 We believe the

record adequately shows that Respondent did cause or allow the open

dumping,

 since Mr. Rafacz was aware that it was going on for

several years, knew that the

 “no dumping” signs were not being

respected,

 and yet failed to fence off the area until ver y recently.

We accordingly find that Respondent has violated Rules 3.04

(open dumping),

 4.03

(a)

 (fencing),

 5.06

 (spreading and compacting),

5.07

(a)

 (daily cover), and 5.03

 (confinement to the smallest

practical area).

 In view of the fact that the dumping appears not

to have been extensive, and taking cognizance of the cooperation of

Respondent evidenced by the recent fencing, we believe only

 a nominal

money penalty in the amount of $250.00 is appropriate.

This opinion constitutes the Board’s findings of fact and

conclusions of law.

—3-.

8—33

ORDER

1.

 Respondent shall immediately cease and desist from

causing or allowing open dumping of garbage and other putresible

refuse at its Orland Park sod farm.

2.

 Respondent shall pay to the State of Illinois by November

30, 1972

 the sum of $250.00 as a penalty for the violations found

in this proceeding.

 Penalty payment by certified check or money

order payable to the State of Illinois shall be made to:

Fiscal Services

 Division, Illinois Environmental Protection Agency,

2200 Churchill Road,

 Springfield, Illinois

 62706.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Boa~Ji,certify t~ieabove Opinion and Order wasA adopted on the

~‘-

 ~day

of

 1972, by

 a vote of

 to ~

6

—

34