ILLINOIS POLLUTION CONTROL BOARD
March 14
,
:1~974
ENVIRONMENTAL PROTECTION AGENCY
COMPLAINANT
v.
)
PCB 73—336
JOE SHALLENBERGER, d/b/a SHALLEN-
BERGER EXCAVATING~
AND
SEWER COMPANY
and SINCERO PESCAGLIA
RESPONDENTS
MR. DALE TURNER, ASSISTANT ATTORNEY GENERAL, in behalf of the EN-
VIRONMENTAL PROTECTION AGENCY
MR. JAMES P. KELLSTEDT, ATTORNEY, in behalf of JOE SHALLENBERGER
OPINION AND ORDER OF THE BOARD (by Mr. Marder)
This case comes to the Board on complaint of the Environmental
Protection Agency, filed August 9, 1973, alleging violations of the
Environmental Protection Act and our Regulations, with regard to a
refuse disposal site. Hearings were held on October 24, 1973, Dec-
ember 14, 1973, and February 5, 1974.
The complaint alleges that: 1) At all times pertinent to this
action, Sincero Pescaglia owned a certa~in parcel of property identi-
fied as located in the Southwest 1/4 of Section 15, Township 24 North,
Range 5 West in Cincinnati Township, Tazewell County, Illinois, and
such property consists of 15 acres, more or less.
2) Joe Shallenberger at all times pertinent, to this action oper-
ated a refuse disposal site on the abovementioned property.
3) During the period of time from June 16, 1971, until the date
this action was filed, including but not limited to certain dates
listed in Paragraph
3 of the complaint, Respondents caused or allowed
open dumping of
refuse at the abovementioned site, in
violation of
Sec. 23 (6) of the Environmental Protection Act.
4) During the pe-riod of time from
June
16, 1971, until this act-
ion was filed, including but not limited to certain dates listed in
Paragraph 4 of the complaint, Respondents caused or allowed open burn-
ing of refuse at the abovementioned site in violation of Sec. 9 (c)
of the Environmental Protection Act.
5) During the period of time from June 16, 1971, until this act-
ion was filed, including but not limited to certain dates listed in
Paragraph 5 of the complaint, Respondents caused or allowed open dump-
11—563
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ing in violation of Rule 3.04 of the Rules for Refuse Disposal, here-
inafter referred to as Rules.
6) During the period of time from June 16, 1971, until this action
was filed, including but not limited to certain dates listed in Para-
graph 6 of the complaint, Respondents caused or allowed open burning
in violation of Rule 3.05 and Rule 5.12 (d) of the Rules.
7) During the period of time from June 16, 1971, until this action
was filed,
including but not limited to certain dates listed in Para-
graph
7 of the complaint, Respondents failed to clearly show the open-
ing and closing hours and days of operation of the facility, and failed
to provide a shelter for operating personnel in violation of Rule 4.03
(a) and 4.03 (c) of the Rules.
8) During the period of time from June 16, 1971, until this action
was filed, including but not limited to certain dates listed in Para-
graph 8 of the complaint, Respondents failed to confine the dumping of
refuse at said facility to the smallest practical area, in violation
of Rule 5.03 of the Rules.
9) During the period of time from June 16, 1971, until this action
was filed, including but not limited to certain dates listed in Para-
graph 9 of the complaint, Respondents failed to provide portable fenc-
ing to prevent blowing litter from the site and to police the fill and
surrounding area to collect all scattered material, in violation of
Rule 5,,04 of the Rules.
10) During the period of time from June 16, 1971, until this action
was filed, including but not limited to certain dates listed in Para-
graph
10 of the complaint, Respondents failed to provide sufficient
equipment in operational condition at the site, in
violation of Rule
5.05 of the Rules.
11) During the period of time from June 16, 1971, until this action
was filed, including but not limited to certain dates listed in Para-
graph 11 of the complaint, Respondents failed to properly spread and
compact refuse as rapidly as it was admitted to the site, in violation
of Rule 5.06 of the Rules.
12) During the period of time from June 16, 1971, until this action
was filed, including but not limited to certain dates listed in Para-
graph 12 of the complaint, Respondents failed to apply a compacted lay-
er of at least six inches of cover mater.ial to all exposed refuse by
the end of the work day, in violation of Rule 5.07 (a) of the Rules.
13) During the period of time from June i6~ 1971, until this action
was filed, Respondents failed to provide a compacted layer of cover
material at least two feet in depth, over the entire surface of all
completed
portions of the fill within
six months following final
place-
ment
of the refuse, in violation of Rule 507 (b) of the Rules.
—3—
14)
On or about April 6, 1972, and July 20, 1972, but not limited
to those dates, Respondents failed to prohibit scavenging Operations at
the site, in violation of Rule 5.02 (a) of the Rules.
On February 13, 1974,
the parties submitted a joint stipulation as
to facts in the case.
It was stipulated that until August 29, 1973, Joe Shallenberger and
Sincero Pescaglia owned the property described in Paragraph 1 of the
Complaint.
After August 29, 1973, the property was held solely by Joe
Shallenberger.
It is stipulated that at all times pertinent to this action the site
was used as a refuse facility.
It is stipulated that during the period charged
In the Complaint and
particularly
the dates seb forth in Paragraphs 3,4,5,6,9,11,12,13
and
14 of the Complaint, Respondents operated the site in substantial viol-
ation of Sec. 9 (c) and 21 (b) of the Environmental Protection Act and
Rules 3.04, 3.05, 5.12 (d), 5.04, 5.06, 5.07 (a) (b), and 5.02 (a) of
the Rules, as charged in the Complaint.
It is stipulated that Respondents applied for a permit to operate
the site as a refuse disposal facility which was received by the Agency
on or about Sept. 9, 1971, and the application was denied by the Agency
on October 27, 1971, because the application
lacked information. On
March 6, 1972, the Agency received a letter from Mr. Pescaglia inquiring
about a permit. On March 15, the Agency responded that
it had not re-
ceived any additional information in regards to Respondents’ application.
It is stipulated that if called to testify, Gilbert Stauffer, sanitar-
ian with th~eEnvironmental Protection Agency, would testify that he vis-
ited the site in question on June 16, 1971, June ~l7,1971, July 20, 1971,
July 29, 1971, August 5, 1971, August 6, 1971, August 26, 1971, December
3, 1971, January 27, 1972, and January 28, 1972, and on those dates ob-
served apparent violations of the Act and Rules charged in the Complaint
on those dates.
It is stipulated that if called to testify David Beck, sanitarian
with the Environmental Protection Agency, would testify he visited the
site in question and observed apparent violations of the Act and Rules.
It is stipulated that if called to testify David Laithert, sanitarian
with the Environmental Protection Agency, would testify that he visited
the site on January 12, January 27, January 28, April 6, July 19, July
20, September 5, September 6, October 13, December 8, 1972; February 6,
March 28, April 19, May 23, June 29, July 11, and July 12, 1973, and
that he observed apparent violations of the
Act and Rules charged in
the Complaint on these dates.
It is stipulated that if called to testify John Diefenbach, sanitarian
with the Environmental Protection Agency, would testify that he visited
11—565
—4—
the site on February 29, 1972, and observed apparent violations of the
Act and Rules as charged in the Complaint on that date.
It is stipulated that if called to testify Mrs.
Susan Kortkamp, em-
ployed by the Tazewell County Department of Public Health, would testify
that she visited the site on August 12, 1972, and observed apparent viola-
tions of the Act and Rules as charged in the Complaint on that date.
Evidence, in the form of the stipulation, shows violations of all char-
ges alleged in the Complaint by the Agency. Testimony at the hearing was
entered to help the Board reach a proper Order and penalty.
The Board finds Respondents in violation of all charges alleged in the
Complaint, on all dates, and for the period of time charged.
Two
witnesses testified for Respondents to offer evidence to mitigate
the violations.
The first was one of the Respondents, Sincero Pescaglia.
He testified
that the site was used
to
dump building material and wood
pallets that were generated in the construction work of Mr. Shallenberger
and
himself.
He testified further that there was no other appropriate
dump in the area to handle this type of refuse (R. 14)
.
The tract is
not near any major highway and the area for dumping is a swamp (R. 15).
Cover was not applied on the site daily, but cover was periodically placed
on the
material (R. 16).
There was also no material that deteriorates
quickly placed in the piles. There has been garbage dumped on the site
(see Agency Ex. 2 & 5), but the witness testified that neither Respondents
nor agents of Respondents have ever dumped garbage on the site.
He felt
that trespassers have been coming onto the site and doing this dumping.
The site is private and not held to be a public dump (R. 17). The witness
further testified that the lock on the entry gate has been broken numerous
times (H. 18)
The record shows that Respondents applied for a permit to construct an
to operate on September 9, 1971. (Stipulated Ex. A) This application wa
denied for inadequate, information on October 27, 1971 (Stipulated Ex. B)
On March 2, 1972, Mr. Pescaglia wrote inquiring about the
permit (Stipu-
lated Ex.
C),
and on March 13, .1972, the Agency informed him that no fur-
ther information had been received by the Agency (Stipulated Ex. D).
The witness further testified that the area around his site had other
pollution sources (See Agency Exhibit 12 showing other sites). These in-
clude the Powerton Station of Commonwealth Edison, two auto junk yards,
and otners (R. 23, 29). He further stated that the area that the dumping
uses is a swamp (R. 28). The witness further testified that there had
been no other complaints about the dump except those of the Agency.
William L. Waldmeier, mayor of Pekin, was next to testify for Respon-
dents. He testified to the fact that there was no other public dump in
the area that would accept the
kind
of material Respondents are
dumping.
The city of Pekin landfill will not accept this type of material because
they have had problems with compaction (R. 43).
It must be noted that this action was brought under the
Rules and Reg-
11—566
—5—
ulations for Refuse Disposal which were continued ‘in effect by Sec. 49
(c) of the Environmental Protection Act until new regulations were en-
acted by the Board. The Board did on July 19, 1973, enact’ new regulations
when it adopted the Solid Waste Regulations, Chapter 7. Since the action
was brought after that date, all charges for the period of time between
July 19, 1973, and the bringing of this Complaint are dismissed.
The Board in writing an Order on this matter has taken into consider-
ation all of the elements described in Sec. 33 (c) of the Environmental
Protection Act. We note that Respondents ‘have no other place to dump
their material in the area. We also note that the area where Respondents
dump is one of hea~.ryair pollution (Powerton Station) and that there are
other junk yards in the area. The Board finds that this does not excuse
Respondents from their multiple violations of the Act and Regulations for
such an extended-period of time.
The Board will order Respondent to cease and desist all violations of
the Act and Regulations applicable this date, within 120 days of the re-
ceipt of this Order. In the interim, Respondent will have 90 days to
apply for the appropriate permit and submit a compliance plan to correct
all violations to the Agency.
The Board assesses a penalty of $1000 for the violations detailed
above. It is noted that testimony offered by Respondent as to the prob-
lem with proper disposal has been considered. Mr. Pescaglia no longer
owns any interest in the property, and so only the monetary penalty
order shall apply to him.
This Opinion constitutes the findings of fact and conclusions of law
of the Board.
ORDER
IT IS THE ORDER of the Pollution Control Board that:
1) Respondents, jointly and severally, shall pay to
the State of
Illinois the sum of $1000 within 35 days from the date of this
Order.
Penalty payment by certified
check or money order pay-
able
to the State of Illinois shall be made to: Fiscal Services
Division, Illinois Environmental Protection Agency, 2200 Chur-
chill Road, Springfield, Illinois 62706.
2) Joe Shallenberger, d/b/a Shallenberger Excavating and Sewer
Co.., shall, within 90 days from the receipt of this Order, sub-
mit a proper permit application as provided for in Chap. 7 of
the Regulations of the Pollution Control Board, containing a
compliance plan for abatement of all violations of the Act and
Rules. Approval of the permit shall be construed as Agency ac-
ceptance of the compliance plan.
3)
Joe Shallenberger and Shallenberger Excavating and Sewer Co.
shall within 120 days from the receipt of this- Order cease and
desist all violations of the Act and presently applicable solid
waste regulations.
11 —567
—6—
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control Board,
certify that the above pinion and Order was adopted by the Board on the
I~
day of
______________,
1974, by a vote of
~
to
a
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