ILLINOIS POLLUTION CONT1OL BOARD

May

10,

1972

ENVIRONMENTAL PROTECTION AGENCY 

)

V.

)

PCB 72-47

LLTap PraISTIC AND

RONd~D LzdIDEP

Wilil ~rn Cf. see Lt, Il1ino~s Attorney General, by John W.

Leskera

Esg.

C~a:ieLa.nt hLtorney General, for the Complainant

~1ii~

i~mL. ~iminer,

III, Esq., for hespondent Smistic

Donald F. Weihi, Esq.,

for Respondent Hayden

OPINiON OF THE BOARD (by Mr. Dumelle)

This

complaint, filed February 8, 

1972, charges William Smistic

and

Henalci 

Hayden (respondents) with

numerous violations of statute

end

rojulation 

reqard 

to the oue~ation

oJ: a 

landfill

for

sn:Lid

wee L~disposal

Iear~up en

the

ch~rqes

was hold in 

East

St. Louis

l~.1~~S

April 

1972.

Courd ~

of

the complaint alieqes that. on

Lhe dates in 

ques

~icn

(datea 

wituin

a

period time from Nay

14, 1971 thru September 10, 1971)

respondent Smistic was

owner 

and r

espondent Hayden was operator

a

certa:Ln

3andfill 

in or

abouL 

the

City of 

East St.

Louis, illinois,

St. CJ.e:Lr County. 

The Poard finds

that 

this

allcqtion 

clearly

established 

by the

testimony (Ii. 26, 

28,

30, 54, 89, 127).

Ceunt_2 alleqes 

that

the respondents have never registered the

landfill with the Illinois Department of 

Public Health, in

violation

of Rule

1

01 of the Pubs and Requlations for

Refuse Disposal Sites

and Facilities

(hereinafter refo~.red to as the ‘Nuica”)

There

is no evidence in the record to cstab1i~h non—reqistraLion,

There-

fore, the Board finds that

no violation

of Rule 1.01 has been proved.

Count 3

alleges

th~1t

the respondents

have

conducted the refuse

disposal operation

in question since

July 1, 19711,

without

at any

time

obtaining a permit therefor from the

Iilieoi.s

En\~~ronmental

Protection

~qency

(hereinafter

referred

to as the “Aqency”)

violaticn

of Sect..io~~

21

Cc) of the

Illinois

Environmental

Protection

Act

(hereinafter referred

to as the uAct~~)

Section

21(e) of the Act provides, in part, that. ‘no person

1.

conduct any

refuse—collection

or re:~ase—dispesal operateons,

except Ear refuse qenerated by the

operate:

‘s own

activities,

without

4—491

a

permit granted by the Agency...

.“

There is conflicting testimony on the question of whether the

dumped refuse was generated by the operator’s own activities. Mr.

Smistic, the 

owner,

testified that the only person who was allowed to

dump at the site was Mr. Hayden, the operator, and that the only

refuse which was dumped there was demolition material from Mr. Hayden’s

own demolition operations

in St. Louis and East St. Louis.(R. 127—131).

However, Mr. Hart, the Illinois Environmental Protection Agency Sanitary

Inspector, testified that he personally inspected the site on June 21,

1971, and, during a conyersation with the gate attendant, learned

that money was being collected from the truck drivers (R. 31, 32) 

The

gate attendant also admitted to the inspector that he was taking in

from 75 to 100 trucks per day (R. 32).

It seems highly unlikely that Mr. Hayden would be charging a

fee to his own trucks. Therefore, the Board finds that refuse

other than that from 

Mr.

Hayden’s own operations was also being

dumped at 

the

site, and Lherefore a permit was legally required. The

evidence, 

however, established

that no State permit for the landfill

was ever issued until January 24, 1972 (R. 

28, 90, 121). The

respond:ents’ attitude concerning compliance with the permit requirement

was made apparent during a conversation betweenMr. Smistic ~nd one

of the State inspectors on June 14, 1971. The inspector testified

(R.

28)

that he

told Smistic he needed a permit to fill the area

and that 

Smistic replied,

‘I’m going

to

fill it, I’m going to contest

it,

and I’m going to fill

it if I have to stand up by 

the gate with a

machine gun to fill it.” This attitude will not be tolerated.

The Board finds that the respondents were in violation of Section

21(e) of 

the

Act from July 1,1970 to January 24, 197Z.

Count

4 alleges that the respondents caused or allowed open

dumping of refuse at the landfill in violation of Section 21(b) of

the Act 

and

in violation of Rule 3.04 of the Rules on eleven specified

dates. 

Open

dumping is a broad violation that includes a 

number

of

specific violations alleged elsewhere in the instant complaint. In

view of our findings on these more specific counts, we do not find

it necessary to decide whether or not they also constitute open dumping,

Count 5 alleges that the respondents caused, threatened or allowed

the discharge 

contaminants into the environment so as to cause or

tend to cause 

water

pollution, in violation of Section 12(a) of the

Act, also on the same eleven specified dates as in Count 4 of the

complaint. There is no evidence in the record to indicate that the

landfill operations actually caused or tended to cause water pollution.

No testing was ever

done (P. 100). The only testimony on this issue

was

from Mr. Ilensing,

an Illinois Environmental Protection Agency

Sanitary Inspector, 

who

stated there could “possibly” be some surface

and ground water pollution (P. 1CC) 

That testimony alone is iiisuffi-

cient to 

establish that

the refuse “caused or tended to cause” water

pollution.

4

—

492

Furthermore, the dumped materials themselves are not “discharged”

within the meaning of Section 12(a) of the Act. They are “deposited’~

upon the land, and therefore the more appropriate section to cite in

this case should have been Section 12(d) of the Act.

The Board does not find any violations of Section 12(a) of the

Act.

Couflt 6 a?leg~’~’~’

the

respondents deposited refuse into standing

water in vio1ationd~’d~ele5.12(c) of the Rules, also on the some

eleven specified dates as in Counts 4 and 5 of the complaint. The

evidence indicates that the standing water at the~site covered an area

of two to three acres (R. 24, 85) and was three or four feet deep

(R. 24). The Board finds that refuse 

was

deposited into the standing

water on five or the alleged dates, naft~ely: 

May

14, 1971 (R. 23, 24),

June 14, 1971 (R, 27) 

June 21, 1971 (P. 32) 

July 12, 1971 CR. 58)

and July 22, 1971 (P. 87) 

in violation of Rule 5.12 (c) of the Rules.

As to the remaining six alleged dates, the evidence does show

that there was refuse in the water on those dates but does not

indicate that

it wa~.‘ctuallv 

r~~’~tedtherein on those dates.

Count 7 al1eg~.u teat the respondents did not spread and compact

refuse as it was admitted to the site,

in

violation of Rule 5.06 of

the Rules, on eight specified

dates. The Poard finds that the roe-

pondents did not cvv~~dand compact the refuse on the fill face in the

water on four of the ai ~eged dates, namely~ June 21, 1971, June 25,

1971, July 12, l971~

ai~d 

July 20, 1971 (P. 72)

The evidence, however.

fails to establish that spreading and compacting

was not done on 

the

other dates alleged.

Count 8 alleges that the respondent.s did not provide proper

cover, in violation of Rule

5.07 

the Rules, on 

the

same eleven

specified

dates as in Counts 4, 5, and 6 of the complaint. Rule 5.07

provides, in part that “a compacted layer of at least six .inches of

material shall

be used to cover 

all

exposed refuse at the end of each

working day;...”

The evidence does indicate that on all the alleged 

dates there

was improper cover at

the times the State insoectors were present.

However,

the only 

alleced dates

for which 

there was evidence

that

the

cover remained inadequate at

the

end of the working day were:

May

14, 197 (P. 25, 59) 

June 14, 1971’ (P. 58)

June 21, 1971 (P. 58)

June 25, 1971 (P. 

58) July

12,

1971 (P. 58)

and July 20, 1971

(P.

58,

112)

In summary, the ‘Board finds:

1.  That respondents Smistic and Hayden were the owner and operator

respectively of the subject landfilJ.;

That the resoondents conducted a refuse disposal operation

without obtaining a State perrnJ ~ therefor from

July I, 

1970 to

—

493

January 24, 1972, in violation of Section 21(eJ of the Act;

3.  That the respondents deposited refuse into standing water on

five separate dates, in violation of Rule 5.12(c) of the Rules;

4. That the respondents

did not. spread and compact refuse on four

separate dates, in violation of Rule 5.06 of the Rules;

5.  That the respondents did not provide proper cover on six

separal:e dates, in violation of Rule 5.07 of the Rules;

That the respondents have not violated Rule 1.01 (registration),

and Section 12(a)

of the Act (water pollution); and,

That 

the respondents are jointly and severally liable to pay to

the

State of Illinois,

on or before June 15, 1972, the total

sun of 

$2,000.00

(Two Thousand Dollars) as a penalty for the

aforementioned violations of the Act and Rules.

This opinion 

constitutes the Board’s findings of fact and

conclusions of law.

ORDER

1.  The respondents shall cease and desist from all the aforementioned

vjolation~ of 

the Act

and Rules,

Should, the respondents cease operations at the site, they shall

comply with Rule 

5.07 (b)

of the Rules as to fiiiai cover.

3.  The respondents are jointly and severally ordered to pay to

the State of Illinois, on or before June 15, 1972, the

total sum of $2,000.00 (Two Thousand Dollars) as a penalty for

the aforementioned violations of the Act and Rules. Penalty

payment by certified

check or money order should be made payable

to the State of Illinois

shall he sent to the Fiscal Services

Division, Environmental Protection Agency, 2200 Churchill Road,

Springfaeid, Illinois 62706.

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

Board, hereby

certi~~the above 

Opinion and Ordered was adopted by

the Board on the ‘day of $ay, 1972 

by a _________vote~

‘~

~‘

hristan L. Moffett, Clerk~ie

Illinois Pollution Contro~/~dard

4— 494