ILLINOIS POLLUTION CONTROL BOARD

February 14, 1973

ENVIRONMENTAL PROTECTION AGENCY

v.

)

~72—268

LEHMKUHL CONSTRUCTION COMPANY, INC.

Thomas A. Cenqel, Assistant Attorney ~enera1, 

Ofl

behalf of

Environmental Protection Agency

Edward 

Maag

and I~arrySterling on behalf of Respondent

Opinion and Order of the Board (by Nr. Lawton)

By complaint filed on June 28, 1972 and amended on July 31,

1972

and September 28,

1972, Lehmkuhl Construction ComPany, Inc.

(“Respondent1) 

owner and operator of certain landfill facilities

located at the rear of 300 Front Street in East St. Louis, Illinois,

was charqed with numerous violations of the Environmental Protection

Act (Ill. Rev. Stat. 1969, Ch. 111 1/2) 

hereinafter called the

“Act and the Rules and Regulations for Refuse Disposal Sites

and Facilities, hereinafter called the “Refuse Rules.” Specifically,

Respondent is charged with causin~ or allowing the open dumping

of refuse in violation of ~21(b) of the Act and Rule 3.04 of the

Refuse Rules on twenty separate dates from September 24, 1971

through August 21, 1972; failure to properly spread and compact

refuse in violation of Rule 5.06 of the Refuse Rules on April 4

and 5, May 4 and August 21, 1972; failure to provide proper

daily cover in violation of Rule 5.07(a) of the Refuse Rules

on the same twenty dates of the alleged open dumping offenses;

and failing to prohibit the deposition of refuse in standing

water in violation of Rule 5.12(c) of the Refuse Rules on twelve

separate dates from January 25, 1972 through August 21, 1972.

An additional date of alleged infraction of Rule 5.12(c), July

3, 1972, had been added to the five dates originally listed in

the complaint by amendment, but the second amended complaint,

filed on September 28, 1972, omitted said date. We, therefore

will not consider any evidence relating to an alleged Rule

5.12(c) infraction on July 3, 1972.

In addition to all of the above alleged violations, Respon-

dent stands charged with operating the site since T)ecember 20, 1971

in violation of special condition ~3, relating to having avail-

able at the site adeguate materials to apply proper daily and final

cover, and special conditions ~6 and 7, relating to properly

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spreadina and compacting refuse as well as to the anolication of

proper cover, of its Permit, #1971-52 (Comp. Ex. 3)

A public hearing on the charges was held in the East St.

Louis City Hall on December 29, 1972. The evidence introduced

at the bearing did indeed prove that serious violations of the Act

and Refuse Rules had occurred on several occasions and revealed

that the site had been operated in a manner bordering on flagrant

malfeasance for several years:

1. Open Dumping of Refuse: Aqency witnesses testified that

they observed refuse, consisting primarily of demolition materials,

wood, bricks, concrete and paper products, being openly dumped

the site on Sent. 24, 1971 (R. 22) 

;

Sept. 30, 1971 (R. 28)

Oct. 21, 1971 (R. 30) 

;

Oct. 29, 1971 (R. 36, Comp. Ex. ~4)

Dec. 2, 1971 (R. 44—46); Dec. 20, 1971 (R. 40—41) Jan. 10 and

25, 1972 (R. 48—52); Feb. 10, 1972 (R. 72, Comp. Ex. 5(a) 

—

(1));

Feb. 15, 1972 (F. 72—73, Comp. Ex. 5(a) 

—

(1)); Feb. 25, March

7 and March 10, 1972 (R. 72—73); April 4 and 5, 1972 (R. 82—86,

Comp. 

Ex.

8(a) 

(1)); May 4 and 16, July 3 and 13 and Aug.

21, 1972 

(F.

72-73) 

They further testified that the refuse

being clumped was not being covered, but was being pushed over

the face of a steep bank, into a large hole, or merely over a

rise 

by a Caterpillar

bulldozer.

On virtually

every visit,

Agency representatives spoke with officials at the site and ad-

vised them of the apparent violations, and they were either

assured that cover material had been ordered and would arrive

shortly (F. 41) 

;

or that they were operating under oral per-

mission from “Springfield” (F. 20-30); or that operation pursu-

ant to the requirements of the Refuse Rules would he too difficult

(F. 46, 76)

While we are somewhat distressed over the relatively short

length of time spent by the Inspectors at the site during each

of their visits, we feel that some of the evidence overwhelmingly

indicates that materials had been dumped at the site and left

uncovered for many days. Specifically, Comp. Ex. 5 consists of

fifteen photographs taken from virtually the same locations five

days apart: Exhibits 5(a) 

(c)

Ce)

(g)

(i) and (k) were

taken on February 10, 1972, and Exhibits 5(b), (d) 

(f)

(h)

(j)  (1), (m), (n) and (o) were taken on February 15. These

photographs vividly depict vast mounds of unspread, uncompacted

and uncovered refuse in the identical condition some five days

apart, and, combined with the testimony referred to above, are

sufficient to prove violations on these two dates. Similarly,

testimony that refuse was observed being dumped and then pushed

by a Caterpillar over a steep fill face without beinq covered

on April 4 and 5, 1972 (F. 82-86) combined with Comp. Ex. 8(a)

through (1) amply prove the alleged violations on these dates

as well.

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It is very possible that Respondent omenly dumped refuse

on the other sixteen dates alleged in the second amended com-

plaint. But for us to hold that such violations actually occurred

in the absence of testimony that exposed refuse observed one day

was observed in the same state on another day would be unfair.

Similarly, to show that Respondent has failed to apply proper

daily or final cover would require more than a fifteen minute

spot visit by an investigator with no follow—up or verification

at the end of the day, on the next day, or at some later date.

2. Failure to Properly Soread and Compact Refuse: Viola-

tions were shown to have occurred on April 4 and 5, 1972 (F. 82—

86, Comp. Ex. 8) 

;

similar offenses were alleged to have occurred

on May 4 and Aug. 21, 1972, but apart from rather scanty testi-

mony that cover material was not observed being applied on these

dates (during the visit of the Inspectors), no further proof

was offered. That is hardly enough evidence to convince the

Board that proper cover had not been auplied by the end of 

the

day in question, or indeed within a few minutes after the In-

spectors had departed.

3. Failure to Apply Proper Daily Cover: Respondent is

charged with having failed to apply proper daily cover 

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the

same twenty dates of alleged open dumping offenses. For the

same reasons noted in numbered paragraoh (1.) above, we find

such violations were proven to have occurred on February 10 and

15, 1972 (R. 72—73, Comp. Ex. 5) andcn April 4 and 5, 1972

(R. 82-86, Comp. Ex. 8).

4. Failing to Prohibit the Deposition of Refuse in Standing

Water: Violations were proven to have occurred on Jan. 25, 1972

(F. 52—53); February 10, 15 & 25, 1972 (F. 73, Comp. Ex. 5)

March 7 and 10, April

4, May 16, July 13 and August 21, 1972

(F. 73). Comp. Ex. 8(i) and (j) graphically depict the refuse

deposited in standing water on April 4, but no similar evidence

was offered for the other dates of alleged offenses.

5. Permit Violations: Based uoon the evidence cited above,

we find that Respondent

had violated special conditions 3, 6 and

7 of its permit.

In sumrnary,we find that the evidence proves that Respondent

has violated the applicable laws and regula tions with regard to

the open dumoinq of refuse on four occasions, failing to properly

spread

and

compact refuse on two occasions, failing to apply

proper daily cover on four occasions, failing to prohibit the

deposition of refuse in standing water on ten occasions, and with

having violated provisions of its permit to operate the site.

Mr. Lehmkuhl, it appears, cannot be found and did not attend

the hearing. Counsel 

for Respondent made clear that Respondent

does not feel responsible for Mr. Lehmkuh1~s behavior, especially

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with regard to the allegations that he had offered an Agency

Inspector one hundred dollars on two separate occasions (F. 50, 54;

Hearing Officer Ex. 1 and 2).

The principal thrust of Respondent’s

defense would appear to be based upon an improper search and seizure

argument, since Agency inspectors entered Respondent’s property unin-

vited and without a search warrant. This argument is plainly wrong.

Sections 4(c) and (d) of the Act (Ill. Rev. Stat. 1969, Oh.

111—1/2, §1004(c), (d)) read as follows:

(c) The Agency shall have the authority to conduct a program

of continuing surveillance and of regular or periodic

inspection of actual or potential contaminant or noise

sources, of public water supplies, and of refuse disposal

sites.

Cd) The Agency shall have the authority to enter at all reason-

ble times upon any private or public property for the purpose

of inspecting and investigating

to ascertain possible viola-

tions of the Act or of regulations thereunder, in accordance

with constitutional limitations.

Furthermore, paragraph three of the standard conditions attached

to Respondent’s own permit, states:

During or after

the construction or the installation of refuse

disposal site or facility for which a permit has been issued,

any agent duly authorized by the Environmental Protection Agency

shall have the right and authority to inspect such work and

operation.

There is no indication that Agency personnel violated any consti-

tutional limitations in their inspection of Respondent’s operation

or that they violated any of Respondent’s constitutional rights.

Furthermore, Respondent’s operation, under the permit granted by

the

Environmental Protection Agency, conveys explicit authority to the

Agency to conduct precisely the type of inspection of which Respondent

complains. Inspection pursuant to such previously granted consent

cannot be deemed in contravention of any constitutional guarantee.

The Agency introduced testimony relating to the condition

of the site on ten separate occasions subsequent to August 21,

1972, the last date of alleged violation appearing in the

second amended complaint. Counsel for the Agency said these dates,

from October 4, 1972 through December 28, 1972 (the day before

the hearing) related to Complainant’s allegations of violations

“continuing through the close of the record in this case.” As

have held in the past, we will no longer tolerate such omnibus

pleading or 

the

introduction of proof of violations allegedly

occurring after the complaint has been filed (and, as here,

amended on several occasions) unless proper notice has been

given, and Respondent has been afforded fair and adequate oppor-

tunity to meet 

the

charges against him (EPA v. Mystik Tape, a

Division of Borden, Inc., #72-180, (January 16, 1973); EPA v.

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George Rosenbalm, d/b/a Mount Morris Sanitation Service, #71-299,

January 16, 1973). Accordingly, 

will not consider evidence

of violations allegedly having occurred on those dates.

In addition to the numerous violations proven to have

occurred at this site, the overall picture presented is that

of an extremely sloppily—run operation. Respondent appears

to have disregarded and ignored applicable rules and regula-

tions, and even its own permit, in the operation of this

facility, either due to ignorance of the requirements therein

or to a deliberate decision not to comply. There is no way for

us to know which of the above conclusions is correct since Mr.

Lehmkuhl has not appeared and 

Mr.

Roberts and Mr. Vaughn both

refused to testify at the hearing. We are disappointed by their

uncooperative attitude but feel that 

the

record is more than

adequate to enable us to reach a fair determination of the issues

even without their participation.

At the end of the hearing on this matter, counsel for

respondent stated that 

“...

(we) are going to cease and desist

and terminate the complete operation and ask for instructions

on how to wind this thing up and finish it.” As part of its

Order in an enforcement action, the Board is specifically author-

ized by Section 33(b) of the Act to revoke a permit as a penalty

for violations found to have occurred (Ill. Rev. Stat., 1969,

Chap. 111-1/2, §1033(b)). Accordingly, we will order the revo-

cation of the permit previously issued for the operation of this

site.

In addition, for the many serious and flagrant violations

found herein, we will assess a monetary penalty in 

the

amount

of $5,000 and will order Respondent to submit within fifteen

days a plan for the final covering, closing and fencing of

this site, and to have fully accomplished such termination

of operations within thirty days of the date of receipt of

this order. A substantially higher money penalty could

easily have been justified,espec.ially in view of the many

repeatedly ignored warnings given to Respondent’s represen—

tatives about 

the

condition of the site; it is extremely

unlikely that we will look so kindly upon such severe viola-

tions of the law relating to refuse disposal sites in the

future.

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The above constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

1. Permit #1971-52 granted to Lehmkuhl Construction Company,

Inc., Dupo, Illinois, on November 30, 1971 to install and

operate a solid waste disposal site at the rear of 300

Front Street, East St. Louis, Illinois, is hereby revoked.

2. Respondent shall pay to the State of Illinois, within thirty-five

(35) days of the date of receipt of this Order, the sum of

$5,000.00 for the violations found in this proceeding.

Payment shall be made by check or money order payable to the

State of Illinois, and shall be sent to “Fiscal Services

Division, Enviornmental Protection Agency, 2200 Churchill

Road, Springfield, Illinois 62706.”

3. Respondent shall forthwith cease and desist all violations

of the Act and Refuse Rules at said site and shall not

cause or allow such violations to recur in the future.

4. Respondent shall submit to the Board and the Agency within

twenty (20) days of receipt of this Order, a comprehensive

plan detailing how the site shall be entirely covered,

comoletely closed and fenced in within sixty (60) days of

receipt of this Order.

I, Christan Moffett, Clerk of the Pollution Control Board, certify

that the Board adopted the above Opinion and Order this ~

day of~~    

1973, by a vote of 

,3~

C~V/Y~~.L~J

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