ILLINOIS POLLUTION CONTROL BOARD
May 13, 1982
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
)
v.
)
PCB 80—125
k.
J. WELIN,
Respondent.
MARY JO MURRAY, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
OF THE COMPLAINT.
CLIFFORD E. STONER, PEDDERSON, MENZIMER, CONDE, STONER & KILLOREN,
APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by I. Goodman):
This matter comes before the Board upon a complaint filed
by the Illinois Environmental Protection Agency (Agency) on
July 1, 1980. The complaint alleges that since July 2, 1977
the Respondent, Allen J. Welin (Welin), violated Section 21(a)
of the Illinois Environmental Protection Act (Act) and Rules
201, 202(a), 301 and 305(c) of the Pollution Control Board Rule~
and Regulations, Chapter 7: Solid Waste. For the period of the
complaint, Welin is alleged to have owned 2.83 acres of vacant
land north of the City of Belvidere, Boone County, Illinois and
to have allowed open dumping of refuse thereon. Welin is also
charged with failing to obtain a waste site developmental permit,
failing to obtain a waste site operating permit, and since at
least November 17, 1977 failing to provide final cover over
portions of this triangular shaped site.
On March 13, 1981, the Agency filed a Motion for Leave to
File an Amended Complaint and an Amended Complaint to join the
National Division of the Moline Corporation as a party—respondent.
On April 27, 1981, the Hearing Officer denied the Agency’s motion
to amend. On May 6, 1981, the Agency filed a Motion for Leave
to File an Interlocutory Appeal from the Order of the Hearing
Officer and a Motion for Continuance of the Hearing. On May 14,
1981, the Board denied the appeal, while granting an extension
of the hearing date, On May 28, 1982, the Agency filed a Motion
for Consolidation of this case with PCB 81-88, EPA v. National
Division of Moline Corp, which the Board denied on June 10, 1981.
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2
Hearings were held on October 9,
1981, October 29, 1981, and
November 10, 198L The Respondent’s
Motion to Dismiss at the
Close
of Petitioner~sEvidence,
filed on December 1, 1981 is
hereby denied. On January
4,
1982 the Agency timely filed its
Closing
Argument~ Respondent’s
closing brief was due January 6,
1982 but never filed. On January
21, 1982, the Agency filed a
motion to close the record. On February 4, 1982, the Board
granted the Agency~smotion and closed the record in this
proceeding
At hearinq the Agency presented
three witnesses who testi-
fied about the i1~ispections each had conducted at the Welin site.
Between June
28,
1977 and October 20, 1981 the site had been
visited at least sixteen times. The first witness, Clarence
Bieze, a former Agency landfill inspector, testified that he
inspected the site on March 21, April 26, May 10, and June 5,
1979 (B. 17-3). Bieze testified that concrete was present
along the southeast edge of the
property and foundry sand was
located
over the entire area,
which was graded but without any
surface
cover. He found
a
rope
barrier across
the entrance to
restrict
access and no evidence
of recent refuse dumping.
Bieze
saw no evidence of erosion
due to
gullies or depressions
or of any leaching to the Kishwaukee River, which is approxi-
mately 100 yards froe the southern boundary of this site.
Supporting demonstrative
evidence
included three photographs
and
inspection
reports
~Compl.
Ex. 1, 2, 3, 4, and 5).
Mark Hutson then testified that while employed by the Agency
he had inspected the site
on September 7, October 12,
and November
14, 1979;
and on January
21, February 14, and April 11, 1980
(R. 79-113). Hutson~s testimony
included basically the same
observations recited by Bieze and that in addition, he had seen
a bulldozer parked in one corner of the property, track marks
across the property and sparse vegetation. Again, supporting
demonstrative evidence included
photographs and inspection
reports
(Compl. Ex, 6A~6G,
61, 7 and 8).
Robert
Wengrow,
an Agency
employee, testified that he
conducted inspections of the site on June 28, August 26, and
September 20,
1977; and on
July 26, and October 22, 1979; and
October 20, 1981. Foundry sand cores, concrete, metal, slag and
some asphalt
were
visible at
the site at each visit (R. 204—252).
During
the July
26, 1979
inspection
Wengrow also noticed erosion
gullies on
the
southern slope
of the property (R. 213). On
October
22,
1979 Wen
row noted that
the southern slope of the
property had approximately a one to one drop—off. He also
observed that the site had
been
scraped since his last visit
(B. 215),
His testimony was
also supported by one photograph
and by inspection reports (Compl.
Ex. 11 and 12).
Despite intermittent
efforts
by Bieze and Hutson during
their inspections,
they
were unable to contact either Welin
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or
anyone at the Welin household,
which was located across the
street from the sites However,
after each of these inspections,
the
Agency did send letters
notifying
Welin that the site needed
a
two
feet final cover (Compi. Ex.
B—H). During Wengrow’s
September 20, 1977 inspection, he
spoke briefly with Welin
explaining the necessity of a final
cover (B. 211—212). During
this
same inspection, Wengrow
took a surface composite sample of
foundry
sand from the site, This
sample was later analyzed at
the
Agency’s Chicago laboratory
by Florence Lippe and Bernard
Pontius
(B. 450—514), In conducting
a water leach test
the
sample was
tested for certain
parameters and the results as
recorded
were accepted into
evidence
as exhibit 13B, 16, 17A,
and
1TB
(B.
450-514). Two
and a half
years later, on February
14,
1980, Hutson collected a
composite
sample of foundry sand
from
four different locations at the
site
(B.
95). This sample
was
analyzed at the Agency’s
Champaign
labortory by Steven M. Muir
(B. 518—539). The results for the
parameters tested in the pH5
leach test are contained in Exhibits 6H,
19A, 19B, and 19C.
Calvin Cooke, a former landfill
manager of AAA Disposal
Systems, Inc., testified that he
had visited the Welin site
twice, in December of 1978 and March
of 1979, to inspect a D—7
Caterpillar bulldozer which was parked in
the corner of the
property. During the March, 1979
visit
Cooke drove directly
onto the property, there being no
barrier (B. 166). While
inspecting the bulldozer, he spotted foundry
sand adhered to
the
machine’s scraping blade (R.
173). During this same visit,
Cooke witnessed a load of foundry
sand being dumped
on the
site
from
a five—yard capacity green
International dump truck (B.
187).
He
did not then know the identity
of the driver, but later
identified him to be William Roby (B.
169—171).
The
Respondent Welin
testified
that he had never asked anyone
to
deposit
refuse on his
property or
granted permission to anyone
to do so.
He also testified
that he
had never seen any evidence
of
dumping
since he became
the
owner of the property in 1974,
subsequent
to
his
mother’s
death,
He further stated that he had
put up fence posts and rope to prohibit
access to the property.
Five witnesses testified on behalf
of Respondent. William
Rohy, a
dump truck driver for the
Moline
Foundry from July 1978
until June 1979, stated that during
this time he had hauled
foundry sand to the Boone County
Landfill and the AAA Landfill,
but never
hauled or dumped
foundry
sand on the Welin site (B.
363-365).
Roby was, however,
the
man identified by Cooke to
have been the
driver of the dump
truck he observed at
the Welin
site in March of 1979 (B. 169—171).
William Meyers, plant manager
of the Moline Foundry which is
located a mile and a half from the
Welin site, testified that the
foundry never dumped its foundry
sand
at the Welin site, but
rather at
the
Boone County Landfill,
the AAA landfill or the
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4
Rockford Airport Landfill (B. 401-402). The Moline Foundry
currently generates about 120 tons per week of foundry sand for
disposal. Prior to the
inauguration of its manifest system in
February of 1980, there is no company record of how much foundry
sand left the plant or where it was disposed (R. 382-3, R. 393-7).
James F. Cordray, who is involved in an excavating business
with his brother, stated that he owned the Caterpillar bulldozer
which was parked on the Welin property for about three years. He
said it was used to level off the dirt and debris from his exca-
vating business which he dumped on the Welin property prior to
1979 (R. 404—406). He asserted that he never saw anyone dumping
foundry sand on the site and never saw the Moline Foundry’s dump
truck on the property CR. 406-407).
Robert Mickey, a grain merchant and farmer who lives about
one mile from the Welin site, testified that he drives past the
site about two to four times a day and has never seen the Moline
Foundry’s green dump truck on the property or dumping of foundry
sand (B. 413). He indicated that he is familiar with foundry
sand because he bought a bankrupt foundry adjacent
to his grain
operations. He stated that the Caterpillar bulldozer was usually
just parked on the Welin property, rather than being actively
utilized (B. 419).
The Respondent’s expert witness, Thomas P. Kunes, PE., of a
consulting engineering firm specializing in waste management and
environmental control, testified that he inspected both the Welin
site and the Moline Foundry on September 11, 1981. He took
samples of foundry sand from each place and performed an EP
Toxicity Test for lead and cadmium and a Water Leach Test.
Comparing the test results, Kunes concluded that it was reasonably
certain that the foundry sand on the Welin site, at a depth he
estimated to be eight to fifteen feet deep, came from the Moline
Foundry (Resp. Ex. 1-5; R. 270—352). Additionally, Mr. Kunes
stated
that he believed any remaining leaching potential at the
site to be
insignificant and that the site posed no danger of
any water contamination or environmental harm. Furthermore, he
believed there was no need for additional cover, but rather the
foundry sand itself should support revegetation.
The evidence provided by the Agency and Welin’s witnesses
establish
that foundry sand, sand cores and construction material
are present at the Respondent’s site. These types of materials
constitute solid waste pursuant to Chapter 7 definitions.
Pursuant to Rules 201 and 202 of this same Chapter, development
and operating permits are required when solid wastes are deposited
at a site, as they were in this case. EPA v. Rafacz Landsc~pi~
and Sod
Farms,
Inc., PCB 72—196, 6 PCB 31 (October 24, 1972).
Moreover, the “cause or allow” language of Rules 201 and 202(a) of
Chapter 7 precludes the argument that the materials were brought
upon Welin’s property without his permission and that no permit
is, therefore, needed. The Board has repeatedly held that it is
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5
the responsibility of the landowner to insure that his land is
being used properly and is not subject to nuisance dumping. EPA
v Dobbeke et al., PCB 72—130, 5 PCB 219 (August 22, 1972); EPA
v. Village of Karnak, PCB 74—381, 16 PCB 13 (March 6, 1975);
EPA
V.
Maney et al., PCB 79—262, 39 PCB 363 (August 31, 1980).
Section 21(a) of the Act reads: “No person
shall...cause
or allow the open dumping of any other refuse in violation of
regulations adopted by the Board.” The Respondent has testified
that he never permitted anyone to dump. However, the photographs
and the testimony of numerous
Agency witnesses clearly establish
that refuse has been dumped on
a massive scale which involved the
use of heavy equipment. The Agency has offered
no evidence that
the Respondent,
who
travelled frequently and was usually away
from
the
site, actively permitted open dumping or that he actually
caused the dumping. However, the Board has previously held
that
“allow” includes inaction on the part of the landowner. The Board
finds that the Respondent’s passive conduct amounts to acquiesence
sufficient to find a violation of Section 21(a) of the Act. EPA
v. Dobbeke et al., PCB 72—130, 5 PCB 219 (August 22, 1972).
Assuming good faith on the part of Welin and total lack of
knowledge about any dumping activities, he is still liable for
violations of the Act. EPA v. Village of Port Byron, PCB 72-67,
6 PCB 9 (October 24, 1972); Meadowlark Farms, Inc.
V.
Illinois
Pollution Control Board, 17 Ill.App.3d 851, 308 N.E. 2d 829, at
836 (1974); Bath, Inc. v.
Illinois Pollution Control Board, 10
Ill.App.3d 507, 294 N.E.2d 778 (1973). Although the Respondent
has claimed that there has been no indication of regular dumping
activities at the site, the evidence indicates otherwise. The
Respondent’s own witness, James F. Cordray, has even admitted
dumping cement, dirt, and excavating materials at the site during
the time period of the Complaint (R. 405—406). Additionally,
there is no question that the site did not have requisite permits,
thereby violating Section 21(d) previously
Section 21(e) of the
Act.
Finally, Welin is alleged to have failed to provide a final
cover at this site as required by Rules 301 and 305(c) of Chapter
7. Rule 305(c) requires a compacted layer of not less than two
feet of suitable material be placed over the entire surface of
each portion of the final lift within sixty days. Despite
numerous warnings and requests by the Agency, as of the time of
the last hearing, no final cover had been provided at the site
(B. 215—216). Accordingly, the Board finds that the Agency has
met its burden of proof with respect to each of the violations
alleged against Welin.
This leaves two issues for the Board’s consideration: the
nature and extent of the pollution abatement order to he entered
against Welin, and the amount, if any, of the monetary penalty
to be imposed. The Respondent argues that he should not be
required to provide a final cover at the site. Welin’s expert
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6
witness claims that the uncovered site poses no environmental
threat, and revegetation would suffice. Therefore, Welin argues
that the additional mitigating factor of cost should be considered.
Welin testified that the property is currently assessed between
$2,000 and $3,000 with a market value of approximately $10,000
and $12,000. The Respondent obtained verbal estimates for final
cover from two parties (one being the Cordray firm). One put
the cost of final cover between $35,000 and $40,000; the other
between $50,000 and $60,000 (R. 431, 438—39). The Agency does
not specifically allege that the materials deposited on this
site constitute a hazard to the environment. The Board, however,
must consider this question in light of
the possible mitigating
cost factor.
This low—lying site is located approximately 100 yards north
of the Kishwaukee River. During high water stages it is probable
that the river could
have reached the site’s edge (Compi. Ex. U.
Therefore, the
environmental concern is the potential for overland
runoff into the river, as well as leaching.
To establish the
existence of foundry sand at this
site, three different analyses
were conducted
on samples taken by Agency personnel and Kunes.
The first, a water leach test, was performed by Florence Lippe
and Bernard Pontius, rebuttal
witnesses for the Agency, on the
sample taken by Wengrow in 1977 (Compl. Ex. 13B, 16, l7A and l7B).
The results established that the concentrations for
iron, manganese
and lead exceeded effluent standards.
Secondly, a pH5 leach test
was conducted by Steven Muir
of the Agency on a composite sample
collected by Hutson from four different locations at the site
(Compl. Ex. 6H, l9A, l9B and l9C). These results indicated that
for seven of the
parameters tested, effluent standards as con-
tained in Part IV of the Board’s Chapter 3: Water Pollution
were exceeded.
Kunes conducted an Extraction Procedure (EP Toxicity) Test
on the samples he had taken from the Welin site. This testing
procedure was designed to identify wastes likely to leach
hazardous concentrations of particular toxic constituents into
groundwaters under conditions of improper management of a land-
fill site. Extracts are obtained by simulating the leaching
action that occurs in landfills and are analyzed to determine
whether any toxic contaminants identified in the National
Interim Primary Drinking Water Standards (NIPDWS) are present.
If so, and the concentrations are greater than ten times that
specified in the NIPDWS, the waste is considered hazardous.
Using this formula, Kunes’ results were negative.
The pH5 leach test values obtained by the Agency can be
compared to EP Toxicity values, since the agitation time, the
temperature, and the pH of the sample are the same for both
procedures. However, the pH5 results must be divided by a
factor of twenty since these results are initiallycalculated
on the sample’s dry weight basis, rather than from a portion of
the sample which has been leached. Once done, the Agency’s pH5
47-12
7
test results indicate that the waste sample
exceeds the NIPDWS
for lead. The discrepancy between the Agency’s results and Kunes’
could be due to the number of years between the two samplings or
perhaps because Kunes failed to sufficiently agitate his sample
(R. 531—32).
The Board recognizes that the EP Toxicity Test was designed
to indicate the leaching potential to groundwater from an impro-
perly managed landfill, and that this case is primarily concerned
with the environmental threat posed by overland runoff. Neverthe-
less, these results, along with the evidence of levels exceeding
effluent standards, serve as clear evidence that harmful amounts
of toxic pollutants may be transported to the river by an even
more direct route than leaching. The potential for leaching is
also enhanced due to the configuration of the southern or river-
side boundary. Therefore, despite the cost, the Respondent will
be required to provide at least a two feet final cover to the site.
When considering this case, those factors contained in
Section 33(c) of the Act were weighed. The site’s proximity
to the Kishwaukee River increases the possibility of water
contamination. Due to the apparently large amount of foundry
sand buried at the site, such a threat is pervasive. The erosion
gullies and the one—to-one drop-off of the riverside boundary
further evidence the need to contain the pollution source. The
degree of injury imposed on the environment and the public’s
health and welfare could easily have been minimized but for the
Respondent’s recalcitrant disregard of the Agency’s warnings.
For almost five years the site has been subjected to dumping,
nuisance dumping at the least, and has remained uncovered.
Containing the pollution source with two feet of cover is
technically practical, although economically burdensome. There-
fore, in considering a penalty amount, the Board has taken into
consideration Welin’s cost figures. Although unsubstantiated,
it is evident that he will have to spend a substantial sum to
cover this site. Therefore, the Board will impose a penalty of
$500 to aid in the enforcement of the Act.
This Opinion constitutes the Board’s finding of fact and
conclusions of law in this matter.
ORDER
1. The Respondent, Mr. Allen J Welin, has violated Rules 201,
202(a), 301, and 305(c) of Chapter 7: Solid Waste Regu—
lations and Section 21(a) previously Section 21(b) and
Section 21(d) previously Section 21(e) of the Illinois
Environmental Protection Act.
2. The Respondent shall immediately cease and desist from all
further violations.
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8
3. Within 150 days of the date of this Order, the Respondent
shall:
(a) place final cover on the site; and
(b) take all steps necessary to adequately police the site
to prevent open dumping (including the providing of a
suitable fence, entrance gate, and lock for the purpose
of barring access by the public to the property, and
the posting of permanent signs to deter dumping).
4. Within 45 days of the date of this Order, the Respondent
shall, by certified check or money order payable to the
State of Illinois, pay a penalty of $500 which is to be
sent to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, IL 62706
IT IS SO ORDERED.
Board Members J. Durnelle and N. Werner dissented.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and Order
was adopted on the
~
day of
____________,
1982 by a
vote of
2..~
Christan L. Mof
Clerk
Illinois Pollution ontrol Board
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