ILLINOIS POLLUTION CONTROL BOARD
    August 14, 1975
    ENVIRONMENTAL PROTECTION AGENCY,
    Complainant,
    PCB 74-~415
    WAUCONDA
    SAND
    AND
    GRAVEL
    COMPANY,
    an
    Illinois
    Corporation,
    Respondent.
    Mr.
    Jefferey
    tierden,
    Assistant
    Attorney
    General,
    appeared
    for
    the
    Complainant,
    Mr. Joseph
    L.
    Rorke,
    Jr.,
    Attorney,
    appeared
    for
    the
    Respondent.
    o:PINi~t
    AN~
    ORDER
    OF
    THE
    BOARD
    (by
    Mr.
    Zeitlin):
    This matter comes before the Board on an enforcement
    complaint filed by the Environmental Protection Agency
    (Agency) on November
    8,
    J974.
    The complaint alleged
    that
    Respondent Wauconda Sand and Gravel Company
    (Wauconda) had
    operated an
    80 acre solid waste management site in Lake
    County,
    Illinois, without an operating permit from the
    Aqency~ thereby in violation
    of
    Rule
    202(b)
    (1)
    of
    Chapter
    7:
    Solid Waste of the Pollution Control Board
    (Board)
    Rules and
    Regulations,
    and Section 21(b)
    of the Environmental Protection
    Act
    (Act).
    Ill.
    Rev. Stat., Ch.
    111
    1/2, Section 1021(b) (1973).
    An
    amended complaint was subsequently filed on March 28,
    1975;
    the amended complaint was essentially similar to the
    oricilnal,
    adding only an allegation of violation of Section
    21(e)
    of the Act.
    The amended complaint was subsequentl:y
    withdrawn by the Attorney General at the hearing held in
    this matLer on April
    14,
    1975,
    in Wauconda,
    Illinois
    (R,
    3)
    At
    the hearing held, there was no question of two
    important facts.
    First, Respondent Wauconda
    was
    in operation
    as
    a
    sol:id waste management site after July
    27,
    1974.
    Second,
    Nauconda did not have an operating permit,
    as required
    by this Board!s Rules, at any time prior
    to the filing of
    the complaint
    in this matter.
    These matters were admitted
    by Respondent~spresident
    (R.25,
    29), and its counsel
    (R.105).
    Respondent~sdefense instead emphasized its diligence
    in.
    attempting to obtain
    a permit,
    and various matters of
    mitigation.
    18— 344
    —2—
    The facts presented at the hearing unquestionably show
    a violation.
    Although Respondent apparently did expend
    considerable effort to obtain a development and operating
    permit for the site in question,* the record also shows that
    these efforts did not commence until January,
    974
    (R.39).
    The record shows that Respondent’s president was familiar
    with other provisions of the solid waste management rules as
    passed by the Board in
    973,
    and that if
    permit application
    preparations had started at that time,
    the permit could have
    been completed and submitted
    In May or June,
    1974
    (R.79).
    In determining whether a finding of violation,
    and an
    assessment of a penalty, are warranted here,
    the Board must
    examine the factors contained in Section 33(c)
    of the Act.
    The Board has previously stated the necessity of a viable
    permit system for solid waste management sites,
    to prevent
    serious injury to the environment.
    The injury inflicted by
    a failure to comply with the permit system requirements
    is
    of sufficient magnitude to require both findings of violation
    and the imposition of penalties.
    Against this, however,
    must be balanced the social and economic value of the source
    in question.
    Testimony
    in this matter indicates that the
    landfill site in question provides refuse disposal for
    300,000 area residents;
    the need for the site was also
    testified to by citizen witnesses
    (R.31,37,98).
    It appears
    that the site has been in operation for about 33 years
    (R.93),
    and that it has remained open while many surrounding
    sites have closed.
    But it must be remembered
    that the potential for damage
    from an 80 acre solid waste management site
    is also great~
    the site
    in question receives in excess of 1,500 cubic yards
    of refuse daily, mostly of domestic origin.
    The Board noted,
    when adopting the Solid Waste Regulations,
    that sanitary
    landfills must be properly planned, particularly as regards
    ground water and subsurface characteristics, to prevent
    pollution of any ~aters
    of the state.
    In the Matter of:
    Chapter
    7:
    Solid Waste Rules and Regulations,
    R72—5,
    8 PCB 695,
    697,
    698
    (1973)
    .
    We require permits
    in such
    situations to prevent potential environmental problems from
    being realized.
    ~
    R.22-31;
    Resp.
    Ex.
    b)
    18— 345
    The technical practicability and economic reasonableness
    of obtaining
    the
    required permit for the subject site were
    the subject of considerable testimony.
    As noted above,
    however,
    it appears that timely commencement of application
    preparations would have resulted in a timely filing of the
    permit application.
    (A permit application was filed on
    November 23,
    1974
    (R.2),
    and was subsequently rejected by
    the Agency on January 20,
    1975.)
    There was also, at the hearing, considerable testimony
    by citizen witnesses as to conditions on the site
    (e.g.
    R.64-9l.
    That testimony,
    and the accompanying exhibits,
    indicate that operation of the present site, in its present
    configuration, may well be causing problems for adjacent
    citizens.
    It is just such problems that the permit requirement
    is designed to prevent.
    Balancing these factors,
    it
    is
    apparent that a finiling of violation is required, and that
    the imposition of a penalty is necessary for the protection
    of the permit system.
    A final defense of the Respondent,
    that the permit in
    question was issued by virtue of the Agency’s inaction, must
    also be discussed.
    It was Respondent’s contention that its
    operating permit application, which was not rejected for
    lack of adequate information by the Agency until after a
    period of 59 days, was issued by virtue of Rule 205(g)
    of
    the Board’s Solid Waste Regulations.
    However,
    it
    is apparent
    from Respondent’s Exhibit B that the application submitted
    to the Agency was concerned with developmental and operating
    permits.
    By so designating the permit applicati6iL Respondent
    allowed the Agency
    90 days to take action on its application.
    Its defense,
    therefore,
    falls.
    Further,
    the
    existence
    of a
    valid permit would be a matter of mitigation, and not approach
    the merits of this issue;
    the period in question is that
    between July
    27,
    1974,
    and the date on which the complaint
    was filed, November
    8,
    1974.
    Balancing all
    the
    factors above, it is the opinion of
    the Board that a penalty of $2,000 will be sufficient in
    this case to protect the permit system.
    That system is
    necessary to insure that Respondent’s site,
    and all others
    like it, will be run in an environmentally acceptable manner.
    The penalty which we impose here is for violation of Rule
    202(b) (1)
    insofar as the Agency has withdrawn its allegation
    of violation of Section 21(e)
    of the Act.
    18—346
    —4—
    The Board has previously stated that a violation of
    Rule 202 (b) (1) will not support a finding of violation of
    Section
    21(b)
    of the Act.
    e.g.,
    EPA v. E
    & E Hauling,
    PCB 74-473
    (March 26,
    1975); EPA v.
    Robinson,
    PCB 74-391
    (April
    4,
    1975.
    Due to serious problems of notice to Respondent
    of the nature of the alleged violations, and the inadrnissable
    quality of certain evidence presented at the hearing held in
    this matter,
    the Board does not here approach the issue of
    whether a failure to comply with substantive provisions of
    Chapter
    7:
    Solid Waste,
    will support
    a
    finding of violation
    of Section 21(h)
    of the Act.
    No violation of Section 21(b)
    of the Act has been shown here;
    that section of the complaint
    alleging open dumping must be dismissed.
    This Opinion constitutes the findings of
    fact and
    conclusions of law of the Board
    in this matter.
    ORDER
    IT IS THE ORDER OF THE POLLUTION CONTROL BOARD THAT:
    1.
    Respondent,
    Wauconda
    Sand
    and
    Gravel
    Company,
    Inc.,
    is found
    to have operated a solid waste management
    site without the required permit from the Environmental
    Protection Agency,
    in violation of Rule 202(b) (1)
    of
    Chapter
    7:
    Sol~.dWaste of the Pollution Control Board
    Regu1ations~ from July 17,
    1974, until November
    8,
    1974.
    2.
    For the above described violation, Respondent
    Wauconda Sand and Gravel Company shall pay
    a penalty of
    $2,000,
    payment to be made by a certified check or
    money
    order
    to:
    State of Illinois,
    Environmental Protection Agency,
    Fiscal Services Division,
    2200 Churchill Road,
    Springfield,
    Illinois
    62706
    3.
    That portion of the complaint
    in this matter
    alleging violation of Section 21(b)
    of the Environmental
    Protection Act is dismissed.
    I,
    Christan
    L. Moffett, Clerk of the Illinois Pollution
    Control Board, hereby certify the above Opinion and Order
    were adopted on the
    J~/19)
    day of August,
    1975 by a vote of
    Christan
    L. Moffé
    ,
    Clerk
    Illinois Polluti
    ontrol Boa~
    18—
    347

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