ILLINOIS

POLLUTION CONTROL BOARD

November 14, 1972

ENVIRONMENTAL PROTECTION AGENCY

v.

)

4 72—329

I

VILLAGE OF WEST

SALEM

)

Thomas

A. Cengel, Assistant Attorney General, for the

Environmental Protection Agency

Paul A. Croegaert and William Bowen, for the Village of West

Salem

opinion

of the Board (by

Mr. Currie):

The Village of West Salei (“Respondent”)

stands

charged

with numerous violations of the Illinois Environmental

Protection Act (“Act”)

and

the Rules and Regulations For

Refuse Disposal Sites and Facilities (“Rules”) in the operation

of a landfill site located a mile and a half from the Village

in Edwards County. Complaint was filed on August 7, 1972

and public hearing on the charges was conducted on October

4, 1972.

Evidence indicated that the Village had never obtained

a permit

from the State of Illinois to operate the site

CR. 7l).1 Upon learning of the need for a permit, the Village

had retained an engineer to assist in the preparation

of the necessary plans and applications, but he had informed the

Village that it would cost several thousand dollars to supply

the preliminary, supporting materials CR. 188—190, 204-206).

The Village maintained that it could not afford such an ex-

pense, especially since

negotiations for a county—wide or

regional disposal program had been in the works for several

years, and its adoption would mean the abandonment of this

site CR. 189—192, 256—260). The Village has a population

of less than 1,000 persons, is presently embarked on a major

program to upgrade its lagoon system at a cost in excess of

$75,000,

and

to inprove its treatnent plant at a cost in ex-

cess of $20,000 CR. 227—228). For these reasons4 the Villaqe

decided not to pursue the permit CR.

256).

with

a thorouqh

appreciation of the financial difficulties facing smali

1. For statutory and regulation provisions requiring pctrmits

see the discussion in EPA v. CITY OF WOODSTOCK, 172-L59,

5 PCB

(Nov. 14, 1972).

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communities throughout Illinois, we nevertheless find that

the Village has not obtained a permit to operate the site;

that the permit system is a vital part of the State’s pollution

control program which

cannot be ignored; and that landfill

operators who take upon themselves the duties of such

operations, must also assume the accompanying legal respon-

sibilities.

Evidence further Indicated that a good deal of wood

products, metal, and tin materials had accumulated on the

north and west sides of the fill CR. 18—19, 30, 39—40, 56,

72, 79-80, 86) but that it could easily have been there for

many years CR. 112). Agency witnesses testified that the

Village did not employ adequate equipment at the site, specifi-

cally noting that a large tractor ts necessary to properly

cover the discarded materials CR. 112, 139-142). The Village,

again pointing to its financial condition, said that even a

used Caterpillar tractor would cost some $35,000 CR. 187),

and that, in

any

event, the backhoe it was renting

and using

at the site was adequate CR. 228-229, 245). Testimony in-

dicated that

the backhoe is not left at the site

every day

for

fear of vandalism, but is brought there on the days it

will be used and used elsewhere on other city projects at

other times CR. 244). And the Village stated that as soon

as it had received the Agency’s complaint, it closed the

site CR. 181) and, according to the Village President, covered

it as well CR. 183—184). The Village also said it now

transports its garbage and wastes to a site in Olney, twenty

miles away CR. 184), effectively doubling the costs of dis-

posal for its residents CR. 242).

A major aspect of the complaint against the Village in-

volves the deposit of numerous 50—gallon barrels or drums on

the site, brought from a nearby industry, thampion Labor-

atories. An Agency

witness

testified that an oily substance,

looking something like paint or sludge, appeared to be seep-

ing from the barrels, running onto the ground, into a

drainage ditch at the foot of the fill CR. 74-76). The

Agency maintained that the substance seeping from the barrels

was a hazardous material CR. 76) but ran no tests on the sub-

stance to determine its actual chemical makeup. The Agency

also contended that the substance constituted a water pollution

hazard although its witness admitted that he had never seen

any

water

whatsoever in the “ditch” at the foot of the fill

CR. 122), even after a rainfall CR. 129). Several other

witnesses raised the possibility that the “ditch” might

merely be a depression in

the landscape, and not a waterway

at all; and a

Sanitary Engineer testified that

it indeed was

not a ditch,

and that the closest stream was about 1/4 mile

away and didn’t even run all year around CR. 206). He added

that although there was a possibility that runoff from the

site could reach the stream, it was improbable that it

ever

8— 248

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~d

P. 206—207).

The Vice-President of Chancion Laboratories said that

the material in the barrels

was the residue

of Johnson s wax

used in the clant, and that it was not harmful (P. 158—160)

he added that no oil used at the plant was deposited at the

site (P. l63~

.

And the Village Water

Superintendent, who

ran the site, testified that only five or six barrels would he

broucho

there

every month and a half, that the damaged ones

would he dumped in a small space and the good ones returned

to the dent for re-use, and that it was his belief that the

contents of the barrels consisted of the residue of a paraffin

or wax based substance (P. 234—236).

Carbace, refuse, oil barrels, paper and metal materials,

and. household wastes were observed at the site in an

unconfined

area, un~mread, uncompacted and uncovered on December 16 and

17, l97~, The condition thus created constitutes a clear

violation of the Act and Rules on these occasions, hut we find

that the evidence respecting the allegation of open dumping

of rarbage on the other dates enumerated in the complaint

to be insufficient.

While the overwhelming weieht of the evidence indicates

that a rood deal of refuse, metal and wooden materials, exist-

ed on the site for many years, we find the proof insufficient

to hold the Village resoonsible for open dumping violations,

but fo believe the fact that t:-ie materials were there for

so l.:~.: indicates that it was not adequately spread, compacted

or covered as provided by law. We find the evidence

in-

sufficient to hold

the Village responsible for depositing a

“hazardous material at the site, but do find that they

deposited a “liquid” material at the site without first

having obtained written approval from the State, in violation

of the Rules. But we also find the Agency has failed to

prove the creation of a water pollution hazard since it is

questionable that any water ever flowed in

the ‘ditch”

at

the foot of the fill, and doubtful that any runoff from the

site ever reached nearby waterways. In order to show that a

water pollution hazard has been created, there must be more

proof than merely the fact that a small amount of sludge-

like material night have seeped from empty barrels onto the

ground, and might have found its way into a shallow depression

in the ground in which no water was ever seen. Before

a water pollution hazard can he shown, there must at least

be some evidence of the existence of some water into which

the allegedly contaminating material can flow. Here, this bur-

den of proof was not met.

Furthermore, testimony indicated that the subsoil in the

area of the fill was clay, having an extremely low porosity

(R. 218)

.

Therefore it would appear unlikely that leachate

6 — 249

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from the pits could have reached an intermittent stream a

good distance away. But in any event, the Agency offered no

proof that contaminants from the site had in fact reached

the stream or were likely to, and therefore we are unable

to find that a water pollution hazard has been created.

Finally, the Agency testified that it observed flames

and open burning at the site on February 26, 1971, generating

a “huge black smoke” from what appeared to be rubber or

tar

paper in the fire (R. 59)

.

No evidence at all was

offered regarding the cause of the fire, which was almost

out by the time the Agency’s witness arrived,

and it might

just as easily have been accidentally as deliberately started.

We therefore find no violation on this date.

In summary, there were numerous allegations of violation

on several separate occasions, only a few of which were proved.

It appears the Village has acted admirably in correcting

its problems, and has even abandoned the site in response to

the Agency’s complaint, and begun to haul its refuse to a

site much farther away, and at a considerably greater ex-

pense. We will impose a small penalty for the violations

found herein, order the Village to put a final cover on the

site (if, in fact, this has not already been done)

,

and not

to reopen the site without first having obtained the proper

permits from the Agency.

This opinion constitutes the findings of fact and cpn-

clusions of law of the Board.

IT IS THE ORDER of the Pollution Control Board that:

1. Penalty in the amount of S200 is assessed against the

Respondent for the violations found herein. Payment

shall be made within 35 days of receipt of this Order by

certified check payable to the State of Illinois, and

sent to: Fiscal Services Division, Illinois Environ-

mental Protection Agency, 2200 Churchill Road, Spring-

field, Illinois 62706.

2. Respondent shall apply final cover to the entire land-

fill site within 35 days of receipt of this order, and

shall cease and desist using said. site as a landfill or

refuse disposal facility until such time as it has se-

cured appropriabe permits for such operations from the

Illinois Environmental Protection Agency.

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

certify that the Board adopted the above Opinion & Order

this~~~~ day of___________________

,

1972, by a vote

of

~/_~

6

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250