ILLINOIS POLLUTION CONTROL BOARD

March 29, 1973

)

ENVIRONMENTAL PROTECTION AGENCY 

)

v.

)

PCB 72-200

)

CITY OF DU QUOIN 

and

)

UNITED ELECTRIC COAL COMPANY   

)

MAURICIO DOMINGUEZ, SPECIAL ASSISTANT ATTORNEY GENERAL, FOR 

THE

ENVIRONMENTAL PROTECTION AGENCY;

JERRY B. SMITE!, FOR CITY OF flU QUOIN; R.K. PEEK AND R.N. GRADY

FOR UNITED ELECTRIC COAL COMPANY

OPINION 

AND

ORDER OP TILE BOARD (by Mr. Seaman):

This case was filed by the Environmental Protection Agency on

May 10, 1972, against the City of Du Quoin and United Electric Coal

Company. The complaint charged United Electric as owner 

and

Du

Quoin as operator of a refuso disposal facility located near

Dii

Ouoin, with operation of a refuse disposal facility without a

in violation of Section 21(e) of the Environmental Protection

Agency (“Act”); causing or allowing dumping of garbage in violation

of Section 21(a) of the Act; causing the open dumping of refuse in

violation of Section 21(b) of the Act; causing or allowing open

burning of refuse in violation of Section 9(c) of the Act; open

dumping of refuse in violation of Rule 3.04 of the Rules for Refuse

Disposal Sites and Facilities (“Rules”), remaining in effect pursuant

to Section 49(c) of the Act; causing or allowing open burning in

violation of Rule 3.05; failure to provide proper daily cover in

violation of Rule 5.07(a); failure to provide proper final cover

in violation of Rule 5.07(b); and failure to provide adequate vector

control in violation of Rule 5.09.

United Electric Coal Company filed a general denial and two affirma-

tin~defenses culminating in a Motion to Dismiss the complaint against

it. The first affirmative defense is that it has not been in

possession of the land since 1954 

and

is therefore not accountable

under the Act. The second affirmative defense, consists of a lease

between United Electric and the City of Du Quoin. This lease states

in part “Lessor hereby gives to the lessee the right and privilege

7— 

419

-2-

at all times during the continuance of this lease to use said

leased premises for a city garbage dump and the lessor shall in no

manner be held liable for same.” As to the affirmative defenses,

the fact that a person has leased a parcel of land to another person

and is not in possession of the land does not absolve that person

of his responsibility to comply with the laws of the state. Whether

or not a civil action against the lessee lies for recovery of any

penalties assessed against United Electric is not the concern of

this Board. Accordingly, we find that the company’s affirmative

defenses are without merit and therefore deny the Motion to Dismiss.

The City of Du Quoin and the Agency filed a Stipulation which in

effect admits the violations as alleged in the complaint. The

Stipulation includes the following language:

“The dumping area was not confined. The garbage and

refuse was frequently mixed with trees and brush.

As a consequence, it was difficult to compact the

garbage and refuse and to provide the required daily and

final cover. At all times mentioned in the complaint,

the amount of uncovered refuse varied from time to time

from a minimum of approximately 200 feet of exposed

face to approximately 1,000 feet of exposed face. The

exposed face, from time to time, became so steep that

spreading and compacting and providing the daily and

final cover was difficult with the equipment located

on the premises. The employees at the refuse disposal

site left the premises at 5:00 p.m. during Monday

through Friday and at 3:00 p.m. on Saturday. Uowever,

refuse material continued to be deposited on the premises

by contractors and other persons served by the refuse

disposal site. As a consequence, the dumping was un-

supervised and deposited at random in the various

areas of the dump. In addition, the refuse was not

spread, compacted and provided with daily cover. There

has been rio evidence of open burning upon said premises

within the last year.”

The photographs submitted as Agency Group Exhibit 1 through 5

graphically document this unfortunate situation. The situation

has improved subsequent to the filing of the complaint. The

City is in the process of obtaining a permit for the facility

(Stipulation, pp. 2-3) and recent inspections (Respondent’s

Exhibits 1 and 

2) have shown that the dumping has been confined

arid that the

proper daily and final cover is being provided.

Brief quotes from the Agency inspection reports indicate the

progress

being 

made.

In

the Agency inspection of September

27, 1972

(Respondent’s Exhibit 1) the inspector states “Site is showing

definite improvement.” From the Agency inspection of November 27,

1972 (Respondent’s Exhibit 2) the :inspectors state: “Present opera-

7 —

420

-3-

tion is confined, spread, compacted arid fairly well covered.”

The City’s attempt to upgrade the facility are described by the

mayor of Du Quoin. He states that he fired the previous operator

(R. p.4). He has obtained information on proper operation from

the Illinois Municipal League (R. p.2)

from the Agency (R. 

p.5)

and

from 

consulting engineers (Stipulation, pp.

3-4).

find 

that the City of Du Quoin and United Electric Coal Company

have 

violated the Act and Rules, with the exception of open burn:ing,

as alleged by the Agency. The Stipulation, 

and

the copious sets

of photographs submitted as EPA group exhibits 1 through 5 provide

more than adequate support for such findings.

United Electric is

found in violation although they did not actively participate

the operation.

We

have consistently held that ownership confers

responsibility

on the owner to comply with the law. United Electric

cannot contract away its obligation to obey the Act. See

EPAv.

ProducersMini~eta1, 

PC B 72-403.

This 

opinion constitutes the findings of fact and conclusions

of

law of the Board.

0 RI) ER

1. The City of Du Quoin and United Electric Company are each

penal~

~zed

$500 for violations of the Act and Rules as found in the

Opinion.

Payment shall 

be made by certified check

or money

order payable to the State of I ilinois, and shall

be

sent to

Fiscal Services Division, Illinois Environmental Protection

Agency, 

2200 Churchill Road, Springfield, Illinois 62706,

said 

payment to

be made within thirty-five (35) days from

the

receipt of this Order.

2.

Respondents 

shall cease

and

desist from further violations

the

Act arid Rules, except that Respondents shall have l2()

days 

from the (late of this order to obtain a permit

pursuant

to Section 21(e) of the Act to operate the facility.

I

Christan IL. Moffett

Clerk of the Illinois

Pollution Control

Board, hereby certi

f~

the above

OpiVion 

and Order were adopted by

the Board on 

the

~f~’ 

day of

1973, by a vote of

_~____.

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421