ILLINOIS POLLUTION CONTROL BOARD
May 3, 1973
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
vs.
)
PCB 72—484
JERRY PARKS, Respondent.
Mr. Delbert Haschemeyer, Assistant Attorney General for the EPA
3.
Raymond Lawler, Attorney for Respondent
OPINION AND ORDER OF THE BOARD (by Mr. Henss)
Respondent Jerry Parks owns and operates a refuse disposal
site located about 1 mile east of Marion, Illinois in Williamson
County. An enforcement action was filed by the Illinois Environ-
mental Protection Agency on December 11, 1972 alleging that
Respondent had operated the site since July 1, 1970 without an
Agency permit in violation of Section 21(e) of the Environmental
Protection Act. Respondent is also charged with: open dumping
of garbage in violation of Section 21(a) of the Act (8 counts);
open dumping of refuse in violation of Section 21(b) of the Act
and Rule 3.04 of the Rules and Regulations for Refuse Disposal
Sites and Facilities (8 counts); failure to make necessary
physical improvements before placing said facility in operation
in violation of Rule 4.03 of the Rules; failure to confine dumping
to smallest practical area in violation of Rule 5.03 of the Rules
(16 counts); failure to properly restrict access to said facility
in violation of Rule 5.02 of the Rules (16 counts); failure to
provide sufficient equipment in operational condition in violation
of Rule 5.05 of the Rules (16 counts)~failure to spread and
compact refuse in violation of Rule 5.06 of the Rules (16 counts);
failure to provide proper daily cover in violation of Rule 5.07(a)
of the Rules (16 counts); and, failure to provide proper final
cover in violation of Rule 5.07(b) of the Rules (16 counts).
Attorney for Respondent filed a multitude of Motions and
Objections that must be resolved before the substantive aspects
of this case can be dealt witb~. As to Respondent~scontention
that the Agency Complaint failed to allege facts sufficient in
law to charge Respondent with responsibility and liability, that
the Complaint consists wholly of conclusions and failed to inform
I
—
66E
—2—
Respondent of charges against him, that the Complaint failed
to contain a concise statement of facts upon which Respondent
is claimed to be in violation, we say that the Complaint is
specific, concise, and complete to every requirement of our
Procedural Rule 304 and Section 31 of the Act and accordingly
deny Respondent’s Motion.
Respondent’s charge that the definitions of “refuse”,
“garbage”, “sanitary landfill” as found in Section 3 of the Act
and the words ‘toperator’s own activities” contained in Section
21(e) of said Act are vague, indefinite, uncertain, and violative
of due process of law is also found to be lacking in merit and
is denied. On the issue of constitutionality and delegation of
legislative authority we have repeatedly held, as we do in this
case, that the Act is valid and constitutional. Constitutionality
of the Act has recently been upheld by the Illinois Appellate
Court in EPA vs. Ford_Ill. APP. 2d_ (Feb. 73).
Respondent also contends that he was forced to be a witness
against himself by being called to testify as an adverse witness.
That defense is not available in a civil case such as this one.
If Respondent sincerely felt his testimony would be self incrim-
inating in some criminal proceeding he should have pleaded the
Fifth 2~niendmentand refused to testify at the time he was called
as a witness. Since Respondent failed to so plead, Motion for
Dismissal on this ground is denied. Respondent’s Motion fof
Dismissal on grounds that no jury trial was provided is also
dismissed. The Act makes no such provision. Finally, Section 4(d)
of the Act explicitly authorizes Agency personnel to enter at all
reasonable times upon any private or public property for the
purpose of inspecting and investigating alleged sources of pollution.
We find no evidence in the record showing that Agency investigators
violated this provision. EPA investigators came on the premises
peacefully and at reasonable times for the purpose of viewing the
area and taking pictures. Such conduct for the purpose of this
civil hearing does not violate Respondent’s Constitutional Rights.
Therefore, we deny the Motion for Dismissal which alleges that
evidence was illegally seized.
Testifying as an adverse witness for the Agency, Respondent
Parks stated that the 2 acre disposal site is adjacent to a
trailer park and that the location was partially under water most
of the time. Access to the site is limited to a road constructed
from old gob material. Parks, who jointly owns the site with his
mother, contends that he did not operate a dump or landfill but
rather a “recycling center” (R. 14) since he uses some of the
materials that are dumped at the site. He did not deny that he
has allowed dumping at the site (R. 15) and admitted observing
tin cans, garbage (R. 17), bricks, wood and tar paper. Parks
7
—
666
—3—
stated that he had specifically requested that materials from
the demolition of an old court house be dumped at his site (R. 18).
In addition, Parks stated that after a building he owned had
partially burned he dumped the remains at the site. Respondent
admitted there was dumping almost over the entire area of the
property (R. 21). He also admitted his site is not fenced (R. 21)
and that he did not maintain any equipment atthe site on a
continuous basis. He explained that equipment has been at the
site only 3 or 4 times within the previous year to level the
refuse when site “gets full” (R. 22). When asked if dirt had
been applied for daily cover as a normal practice, Respondent
answered that he did not want any dirt because he was planning
to use the site for commercial purposes (R. 23). Respondent
later admitted that he did not know for what specific commercial
purpose the land was to be used (R. 40). It was also admitted
by Respondent that no final cover had been applied at the site (R. 23).
At one point Respondent claimed that he could not bury refuse
at the site because the equipment would sink (R. 34). Respondent
later conditioned this answer by stating “a little old light
tractor might get in there but I wouldn’t want to attempt it”.
Respondent attempted to show some degree of compliance by
stating that he now had a gate at the site and access was now
restricted. Testimony was also introduced to show that Parks
had been responsible for the covering and compacting of part of
an unknown number of gob piles placed on the site years earlier
by “some coal company” (R. 42). However, we note that Respondent’s
cover operation consisted of placing bricks and other refuse over
the gob material (R. 44).
Agency investigators testified to making visits to the site on
all specific dates alleged and claimed to have observed tin cans,
paper, metal objects typical of household appliances, tree trimmings
and logs, concrete, rubber, lumber, bottles and garbage, milk and
egg cartons, food containers including baby food jars and other
assorted materials from demolished buildings. Investigator Badding
stated that he had never seen a fence around the site (R. 64) and
had never had access restricted by a gate or a chain. Photographs
taken by Agency investigators and introduced as evidence corroborate
this testimony. Consecutive visits on July 7 and 8, 1971 and
January 31, and February 1, 1972 show tree trimmings, appliances,
tin cans, metal barrels, tires and tire rims, milk cartons, cinder
blocks, a chair, bottles, metal pipe, chunks of concrete, and wood
materials spread over large areas including water filled areas.
Photographs taken on February 1, 1972 even show two dump trucks
in the process of unloading at the site. On August 8, 1971 Agency
investigators took photographs of the signs Respondent testified
to placing at the ~site. These signs contained captions such as
7
—
667
—4,-
“No dumping, cans, btls, garbage”, “Construction Company dumping,
no cans or bottles”, “Dump only dirt, rocks, bricks & construction
debris, no trash”, and “Do not dump on lead in road, dump as far
on the edges as possible, no cans, bottles or garbage allowed”.
The Agency introduced as Exhibits 32
-
37 a series of letters
written by Respondent to the Agency in order to show that Respondent
has been aware of violations at his site since at least May 12,
1970. It is interesting to note that Respondent’s letter constantly
refers to “the dump” and do notcontain any reference to a “recycling
center”. Investigator Badding testified that Respondent Parks had
been sent a copy of the Rules and Regulations ~or Refuse Disposal
Sites and Facilities (R. 132) but could not remember on what date
they were sent.
Respondent raised several defenses:
a. that he could not stop indiscriminate dumping
of garbage and refuse by outsiders even with gates,
b. that he was doing the State a favor by covering
the gob piles with demolition materials,
c. that other pollutional activities near his site
were ad bad or worse than his own, and
d. at a recycling center it would not be fair to
have to cover reuseable materials such as wood
and bricks.
We approve Park’s goal of covering the gob material. Our dis-
agreement is with his method. It is our belief that Respondent
only recently decided to classify his site as a “recycling center”
and overlooked Rule 5.10 of the Rules and Regulations for Refuse
Disposal Sites and Facilities. This Rule allows salvage operations
under the following conditions:
a. all salvage operations be conducted in a sanitary
manner,
b. salvage operations be confined to an area remote
from the operating face of the fill,
c. salvage operations shall not interfere with, or
otherwise delay the fill operation, and
d. all salvage materials shall be removed from the
landfill site daily, or properly stored such
that they will not create a nuisance, rat harborage,
or unsightly appearance.
Respondent has not complied with any of these conditions.
It is our Opinion that Respondent is guilty of all violations
alleged in the Complaint except that portion pertaining to appli-
cation of final cover.. Agency photographs taken on November 8
7
—
668
—5—
and December 20, 1972 reveal refuse items not readily discernible
in previous photographs. We believe that the operation may be
continuing and therefore the final cover rule may not be applicable.
We find it inexcusable that Jerry Parks has ignored repeated
Agency warnings about violations at his refuse disposal site for
the past 2 1/2 years. His references to “doing the State a favor”
by covering his gob piles, having violators arrested if they are
caught dumping trash on his site, having his father keep an eye
on the site “when he is able”, his classification of the operation
as a recycling center, and his two photographs showing a few bricks
deposited in low spots at the nearby trailer park are feeble efforts
at mitigating the impact of the violations.
Respondent Parks has attempted to show this Board that com-
pliance with our regulations will create a financial hardship. As
foundation for this claim, Parks related the details of his father’s
illness, his brother’s unemployment and his own financial obligations.
In view of the fact that Parks chose to ignore our Regulations for
the past 2 1/2 years, we believe any hardship now claimed mus.t be
viewed as self imposed.
Considering all the facts of this case we believe that a
cease and desist order is required along with a penalty of $500.
ORDER
It is the Order of this Board that:
1. Jerry Parks shall pay to the State of Illinois
by May 25, 1973, the sum of $500 as penalty for
violations found in this proceeding. Penalty
payment by certified check or money order payable
to the State of Illinois shall be mailed to:
Fiscal Services Division, Illinois EPA, 2200
Churchill Road, Springfield, Illinois 62706.
2. Respondent shall immediately cease and desist
from all violations found in this Opinion. The
site shall be closed to further dumping and final
cover shall be applied within 60 days of this Order.
3. Operations at this site shall not be started again
until Respondent has obtained an Agency permit for
his site.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify the above Opinion and Order was adopted
this 3~ day of May, 1973 by a vote of ‘I to ~
7
—
669
I
I