dsc, Inc., was iu existenc. at the time of the
o9-197
No person shall:
I. The Board finds the following:
respondents.
Ii. The Board imposes a penalty of $3,000 against respondent,
Covert.
IT IS SO ORDERED.
59~204

;ia~Lhjl5

Pu) LU LION C~iNLROL BOARD

Aug~t 2, 1984

1LLI~:

ACENC

)

PCB

83~17

BULB            

1NC~ £~

r ~

r

~ !~~a ~tpcra~.tor,

~tn ~art*~

MR. VINCFNW N. ~ORBLH, ASSIflANT aTTORNEY GENERAL, APPEARED FOR

THE COMPLAIN8NL;

MR. 9HOMAS J. Iu9b~ ATTORNI~AT~LAW,APPEARED FOR RESPONDENTS

RUSSELL 

EL1SS~

JBRR&’RUSSELL BLISS, INC., AND JAY COVERT;

(PINION AND URDEr~~ THE BOARD iby Bill Forcade):

Ttis

matteL ~es before the Board on the five—count complaint

filed February 4, 1983, by the Illinois Environmental Protection

Agency (~Agtuc; ;JaLEat Nusnell Bliss (“Bliss”), Jerry—Russell

Bliss un.    

1c,1), Jay Covert and Illinois Central Gulf

Rat ~on5 (“Ccj    

fo~c ~spondents are charged with various

‘;oa i us ~ h Ic. h1i~ B tsc, Inc and ICC are charged

~‘tithviolatiocs ci ccipter 3. Special Waste Hauling (“Chapter

9”) coulattoui; 

~‘t~

F’tas, Icca is charged with violating

cit~~ sta::d~~   

cc sts special waste hauling permit.

~th cur~plaint ai (~p~

air.

incido~stthat cucurred on April 14, 1982,

a tank tr  sith BaiSs Inc. insignia spread a partial

A contaruanate~oil on the ICC railroad yard in Venice,

r

B

dJnng

cc ht~d

Oi ia~uary

4, 1984. Or January 9, 1984,

A~5cy filel a a tion to amend cite complaint to correct

~ephicaa errors which the hearinj officer granted. On

.‘

24, l9aB, the Ygency fised a motion to amend the Record,

c~ r~edcc granted by tne hearing officer, On February 27,

~3A. he attorney for respondents Bliss, Blj~ss, Inc. and Covert

~in t~idayr 

filing the complaint, in violation of 35 Iii.

ça

O3~l2E~The Board, on March 21, 1984, denied the

~cr

~~,tts’

eot4o~:to dismiss because the issue was moot and no

59 191

prejudice 

had resulted from t:t~ 

d~1ny. The Board finds 

further

support for 

this

ruling in G~~e3. Hoffman & Sons Inc. 

v.

Pollution Control Board, 

16 11, App. 3d 325, 306 N.E~2d 

330

fl~7~4T~?he court found 

that failLre to comply with 

the

hearing date requirement 

dia no~result ~n the 

loss of

jurisdiction and dismissaL 

Cu ~iaj 5 1984, attorney for

respondents, Bliss, Covert 

an B 

i~,

Inc., filed a supplemental

brief not 

in

the briefing 

scheduJe The Agency 

filed a motion to

strike 

the

additional pleading aid 

the respondents filed 

a reply.

While the 

Board generally 

frc ~rs or ~nch pleadings, no 

new

arguments 

were presented. 

Tt~~jcrry~s aotion 

in opposition to

respondents~ brief is denied.

Count I of the complaint 

claigeF all four 

respondents with

causing or allowing the dispo.al 

of waste in violation of S21(a),

(d), and (e) of the Act. 

Count II charges Bliss, 

Inc. 

and

Russell 

Bliss,

the corporatio&b 

president, with delivery of 

a

special waste to a facility 

that wa~not permitted under Chapter

7:

Solid Waste regulations 

in violation of Rule 302 

(a) of

Chapter 9. Count III chargeb 

ICG with accepting a special waste

for

disposal from a special 

waste hauler without a completed 

and

signed Part V manifest in 

viola ion of Rule 302 (a) of 

Chapter 

9.

Count IV charges all four 

respondent~with violating ~l2 (a) and

(d)

of

the Act by causing 

or allowing the 

discharge 

of con~~

taminants to enter the 

en~7iron~ent-o2 tI’e Sfatc~so as to 

cause 

or

tend to cause a water 

pollution hazard in 

Illinois, 

The final

count, Count V, charges Bliss, 

Inc with violating

S21(d) of 

the

Act by violating four of 

the atandard conditions of its Illinois

special waste hauling permit

The

evidence 

in this mattnr

the aub~’ect of numerous

objections 

at hearing, 

The 1~g~

ca led five witnesses and

introduced a number of exhibits 

includ_ng

photographs, lab

reports,

and documents,

The hearing officer

made a number 

restrictive evidentiary 

ruling.’ at the uroceeding from which no

offers of proof or appeals 

we~e uade to ‘~he Board, Respondents

Bliss,

Bliss, Inc. and Covert 

presented no

testimony 

in this

matter at

hearing. They 

did submit fi~ur lab

reports 

into

~zidence,

Respondent ICG 

d~~ln~t apucar at

the hearing. 

The

Bcard~

disposition of 

the five~~~coentcomplaint

is based

primarily

on the sufficiency of 

the ev~denc~and it is,

therefore,

important to 

review the evidence aicsented.

April 14, 1982, 

three enpioy e of tBe Illinois

~nvironmenta1 Protection 

Agency observed ~ tanker truck enter

Illinois

from Missouri 

via the HcK1v1~y Bridge

(R.

l2~l3), The

truck cab

had ~Bliss Oil 

Inc.. Ellieville

N~ssouri, 527 6666w

nainted 

each door (R. 

l2~13) The trick ha~ the MissourI

license number 27~~246(R. IP,. 

~he Igency employees followed the

truck into the ICG railyard 

in Venice I~1inois

(R, 14). 

The

truck began to spray a black 

liquid upor the

qr~undthe 

length

of

the yard

until stopped by 

Agancy amp oyee Patrick Mccarthy

and

~‘~G

employee, Mr. Hemline (R, 8  

After stopping the vehicle,

McCarthy showed the driver 

h~iaAgency I D card

and asked if he

could take a sample of the 

liquid material that the

truck sprayed

on the ground (R.

23). 

The driver, who identified

himself as Jay

Covert, refused to allow a sample 

to be taken

from the truck

(R.24), and

told McCarthy that 

he would have

to get permission

from 

his

boss, McCarthy then asked who his boss was and the

driver indicated

that he could 

contact

his boss at the phone

number on the

side of the truck (R. 

28),

Numerous photographs

were taken 

the truck, 

clearly showing

the license number,

~B1iss, inc.~name, address 

and phone number

painted on the cab,

as well as the name ~Jay” 

painted

on the hood (Cornp1ainant~s

Exhibit 

Nos, 1, 5, 7a, and 

9). These 

photographs show the truck

standing in a large puddle 

of black 

liquid with more liquid

dripping 

off the spray booms, 

Other 

photographs show a fresh

path 

of

black liquid with puddles 

through 

the ICG yard

(Complainant~sExhibit Nos, 3a, 

3h,

4a, and 4b). All

photographic exhibits were 

admitted 

only against respondent

Covert (R. 106—108),

After the driver refused 

to allow the 

contents of his tank

truck 

to

be sampled, McCarthy asked 

him if 

he had a special waste

manifest or bill of lading 

for

the load CR. 30). The driver told

McCarthy that he had no such documents CR. 30). McCarthy then

obtained a sample of the liquid by placing a lab—approved

sampling

container directly underneath the nozzle of 

the spray

boom, thereby, catching the liquid that was dripping onto 

the

ground (R, 3l)~ Additional samples were collected from 

pools of

black liquid formed around the wheels of the truck and 

in the

path of sprayed liquid thoughout the yard CR. 31)~ Analysis 

of

the samples by the Agency revealed that the liquid was 

composed

of

*2 fuel

oil which was contaminated with between 10,600 

and

10,900 micrograms per gram 

(parts

per million) of trichioro”

ethylene

(TCE). TCE is listed 

as a toxic

hazardous substance

under Resource Conservation 

and Recovery

Act regulations, 

C.F,R. 261,31. The Board has 

adopted

this federal listing 

its

waste

disposal regulations 

35 Ill. Adm0 Code 721, Appendix H.

The

contaminated oil had a 

flash point

under l40~Fahrenheit

(Complainant~sExhibit 

Nos, Il, 12,

and 13). After taking 

these

samples,

McCarthy again attempted to determine the nature 

of the

liquid

material deposited 

in the yard

by asking 

the driver what

the origin

of the material was, 

The driver again

refused 

respond

to MeCarthy~s inquiries 

(R. 47), A

number of 

photographs

were taken

by the Agency 

of the sampling sites

and

sampling

procedure

and were admitted 

against respondent,

Jay Covert

(Comp1ainant~sExhibit Nos. 

1, 2, 3a, 3b,

4a, 4b, 6a, 6b, 

and

Th).

Agency employee, Patrick 

McCarthy, testified

that 

recognized

the driver of the 

tank truck

as

Jay

Covert, a 

person

known by

McCarthy to be an 

employee and driver for Bliss, Inc~~

(R~. 76~77),

This identification 

was based on

two photographs

from the

Agency~sgeneral 

files which

were purported to 

be of Jay

Covert

These photographs w~ie hot

produced at hearing 

CR.

7i~73),

The hearing off 

ice~ adnitted

the testimony concerning

how ~cOarthy

made the identification

and

stated that questions

dec~t~

it its reliability 

went to the weight

to be attached to

thac. ~aentifieatron,

not it~ admissibility

CR. 100).

Re~pondent, Bliss, Inc., was

issued special waste hauling

pen it Nc, 0186

for

the peried between January

27, 1982, through

March 31, 1983,

the Illinois Environmental

Protection Agency

(d. ~.l. ~116). This permit consistc of an

application, letter of

Is’~u~

v..a

and a list of standarc conditions.

These documents were

adrni ted as Comp1ainant~s ~x ibits Nos. 14 and

14a, 

against

31js~i Inc. and

Russell 

BIno (J~ 132—133).

The relevant

information from

the

permi~ indicates that the

applicant was

Jerry Russell

Bliss, 

Inc., tIe president

of the corporation was

Russell Bliss,

and that the 

elephone number

of the corporation

was (314)

527—6666, 

One of the vehicles listed

on the permit

application

was a 

1978

GMC

taik and tanker truck,

containing a

‘3,500

gallon tank bearing a 

Mtsc’ouLi license

No. 27—246. 

The

permit

was signed by Russell 

Bliss

on January 18, 1982, 

in his

capacity as

president 

(Complannart~s Exhibit No, 14).

After

the incident at 

the ICG

yard, Jerry Russell 

Bliqa,

Inc. sent ICS a bill

for

$1,500 for

delivery of 3,000 

gallona o1f~’

Nc,

2 oil 

April 

14, 1982

(Complainant~sExhibit No, 

17). The

invoice was imprinted with the name

~‘JerryRussell Bliss, inc.~’

an~ ias

prepared May 

7, 1982. The ICG

district manager, 

James N.

Caip gno,

testified that 

ICG ~ad a special

contract with 

Jerry

Russ~11

Bliss, Inc. to provide 

road oiling,

when needed, 

fox. d;st

control at

the Venice 

ICG rail yard (R.

232—3), Campagno 

also

c~t lied that he had prev~o~Jy ~een the invoice submitted by

B es Inc. and had approved pa~ert for the oil 

CR.

212—2I3~.

The Agency 

presented 

testimony regarding the geooiy,

n~co~ogyand soil conditiors in md around the ICG rail yaxT~

~c y C. Mann, an Agency geologi’~’t, utilized soil surveys,

o..caraghieal maps, well—log data, as well as

his general

r.~i.~edgeof the area as the basis for his

testimony (R. 

155’~156).

tness made an on—site revthw of the ICG

yard prior 

t~’ tea

~.“3l 4, 1982, incident (P. F/i;.

The site is typified by a

.~,ni association known as American Bottoms which consists of tine

~..

~tod, silty Cahokia allivium over the coarser

sand and 

gtav~1

~r.

formation (P.

160).

The Cahokia alluvium

varies

ni,.. rass from zero to 20 feet deep and is thin or non—existant

~ th~rmver and in low lying areas CR. 1~9).The ahunda~ mad

~

al groundwater in the ar~a,in combination 

with the

An~r can Bottom soil assocthtion, gives rise to

~1eaky artosi~n

qrIi 

ons~

which 

means that w~ter levels can rise above th..~

~e u~ e’evation (R. 160;, The witness testified that ha had

Lndlly observed this artesian effect elsewhere

in the

~er Bottom region CR. 183).

..e ICC yard 

approxina~e~y 1,200 feet from

the

S ‘S~1~~1

River, 

Surface wator tends to flow

toward 

the

west

~ithw~st(R,

156).

Utilizing well—log

data, the witness

testi~~d that the water Jevel in the aquifer was

at the same

level ~ the Mississippi River (P. 159). Generally,

groundwater

in tIm a 

~ea flows towards the south and

southwest, or towards

the x~ ~ depending on the seasonal

variations of the flow

~E~)

C3~, 

When

the level 

of the ri”er

is high, this general

~Jow ~

can be i~eversed away fron the

river (P. 177—178).

Cont~rrr~.nts in the groundwater generally flow

with

the

g.coen

i

tar (R. 164), Regardless of the seasonal

variations in

the r~r flow there is an abundant and perpetual

source of

gi’. md~ tar in the American Bottom irea (P. 163),

The City of

vejir~ ..Jlinois derives t~ rvniciy~i ia”e:

supply from the

,ppj River (P. 184),

h respondents Covert, Bliss ard Bliss, Inc. presented

test~rn.y at

the

hearing (R~ 234

In tneir

brief, they

characterized the Agency s case as deficient in

key areas, 

an

enfor~ment case, the burden is on the

complainant to prove the

violatiens of

the

Act and Board regulations by

a preponderance of

the

e’id~nce, It is argued that tho driver of

the truck 

~as

not

cut fthiently identified as Jay Covert,

the respondent in 

this

case,

Respondent Covert 

was not present at the

hearing 

and

Agency employee,

Mccarthy, 

testified that he

utilized a 

hearsay

sourc~’

to make his initial identification

(R. 76—78), The 4oard

finds, however, that there is a sufficient basis

in the

re~crd to

conclude that the

driver 

of the truck was Jay

Covert, the

vcspo~dant in this case, and tha’~he was an

employee of Blisi

Inc a 

the time of the incident.

In Ritenour

v, Police 

Board of

tLL C~,tv

of çfl~~ao,

53 Ill ~pp. 3d 877, 369

N.E. 2d 135 

(19/7),

tue

ou”t upheld an administrative

agency s decision to 

discharge

a po~ce officer who was found guilty of

shooting a 

Street 1arp

n

tror of police departrneef rui s The

evidence against

off r ~iithnour was totally ~ir~nns~encial

and

comprised 

~.d~nci ication

of

Ritenour~s Fcense plate number

with the

~‘get~ay~ vehicle and comparison of ballistics

data between 

tne

the street lamp and one of the officer~s handguns

wi~ no occurrence Wi tee

‘c’

to he lr~,ident and

one

tly identified Ritenour as the man who shot

the lamp. 

the

~ii~

held that ~the lack of di

t~Ct 

identification testimony

goes

ilv ~o the weight that the circu,nstan~ial

evidence should 

cy the administrative agency, a determination

of

whic~..

~i1~ the province of the ag~ncy.” ID at 882—883, 369 N.E. 2d

The court also stated that the law makes ~no legal

~trntion

between direct axa crrcumstancial

evidence

as to ~th

~c.aid atfeet thereof ~ L), No criminal—type of in court

¶.‘

cation is required to sati~-fy the preponderance standard

~.n the present case, a man driving a tank truck with the

insignia identified aimself as Jay Covert~ the

ua~ painted on the hood of the vehicle, the driver

ci e worked for Bliss Inc. Bliss, Inc. 

sent an 

irvo~

~ an April 14, 1982, lelivery of ~road oi1,~and a

i~

oyee recognized the driver from

photographs

in .n-~

qeneral files (P. 12—13, ~4—28, 77—78).

S

:o~n.n ~ ath ~ariance proneedin~ roaght before the

Boa.~~ar .r .4

in eEtur~~~.,Ihe burder of proof in a civil

prcr.th~ ow is the preponthranc~ standard.

~Lt2~2ais

Wa~ ~x

thl~erInteinatxora~~p~p.

30 Ill. App. 3d 631, 333

c

1975

; Pr tenon v.P 

oBoard ~~Cit~’of

ci

owjnae

fl~

a_v

yi~i Commission, 398 Ill.

.zi;

‘.,

34 303 (l94/),Boc.rd orders are afforded direct

r ~s

r the Aj~pe11mte Court and the th~ndard of review is that a

Bc~. C ~owr shell be inval: if

it is e~a~nstthe manifest 

weight

‘deu

Ill, R~

3 4

198

nh, 111½, par. 1041. The

prt..p

niece. stardard

ir”- *har th oroposition proved is

iss then fond Co th more orobanly true than not,

Cent

e R:3~ F 14

‘c .43, 39 N ~ .4 198, 79 111. App.

3d 5

:h~ prow t case tie

oe.~‘y preset ted relevant

and reurola eyawitne

testimony, alor

r’~n corroborating

phrt

phic aid docume.i a

‘xhunii

dentified the driver

ott’-t

~kacther”prd~r

Theevidence

i

( also shor ti

0our t’° c dow w

dire’ted and

autho z

I

by us employer, Bliss

Inc

resoondent presented

no ~vrience

or defense at hearing.

Tue oard finds that ;he

Age

....

ba.~met its burde of oroof that thL driver of tl-~ truck

was

ruspondent

Jay Covert and that ie was en employee and

cut

zth agent of Bliss, Inc. on the data of the incident.

“p”ndents, Rassels B ows and Bliss

inc. contend that the

Age~ nver proved the exicte ice of the -orporation and that

this siculd result ir tleiz dismissal,

A review of the reLord

ud v d rtiary exhibits, horever, provide a sound basis fcr

cit 4 

hat Jarry~Russe11 B in

Inc. ~xi~ted

at the time of the

inn

ard that Russell B a’°was tth p esident. complarnent’s

F

N 5 14 a 

o’ ow of at ~‘11inoic

Environmenta~

0

\ge.ncy Special

‘i

owe. 

Haul a

t issued to the

p r .ar- Jerry~Russe1l Bl’ss, Inc. for the period between

27,

1982, and March 31, 1983,

Russe.11 B1~ss signed the

a.

~..

•

03. -s 

precrRer

Tow

document was

c   o s’idence. ag inst Elisu Inc aid Russell Bliss ,R

F

3;~

The aitheuti ity of this thcumnit was not querLione3

u.  mg Test~monywas q.?vei by Josept umpagno, an ICC

•  a so as to the ente c~o tIe B :5 

:nporati.rn and the

ths airangeient betwe..n Bl ss Irc and ICG CR. 232-3)

Ft a

$5

Extibit No 1 / an invoice for the oil delivercd Co

pr~ited o a Jerry—Pencil Blis.

ow. letterhead aid is

ow

avidence of the existerce of tIe c rporation on the data

n r’ ow ton and the contractual reaati orsi i between the

Is P. 232).

The Bnrd finn tia

the respondent

Lion existed on April 14, 198u, a

that Russell Bliss we.s

rr ration presiden~

~ I tfs b’rde- & ~roo~ rer’irs ei

the kgency turougheet

sme4 proceeding

the burden of ;cmnj forward with the

v-

nir shift from the complairart t the respondents attn

a nie case las ben establishth, Amni~g~~~ur

RulerlntownaticraiCoap

~~jj~ya Once the A3ency has

cufficient qua itn of ovilerce to prove a

50 196

pron.

.~,

t:e burden or going forward ~ttn the evidence shifts

t’.-

.‘rc’Atats 

to disprove the propc’bitiors. In the present

case1

7. ~.nc’ presented sufficient evLderce to prove

that 

the

driv

ha “ehicle was the respondent, Jay Covert,

and that

dsc, Inc., was iu

existenc. at 

the time of the

incao  

‘a 

~a•’ ..

14. 1982. 

Thi resporc’trtts

Covert

and Bliss,

Inc.   

tn.

pnment 

evidence on th•30e .a..esues. They

never

2C*~a

‘id nor did they try to 

pnsJt

L ct the driver of the

vehic

‘ri

act Cay Covert, the respondt~at. or that there was 

corpo-

‘

r

is exist~nce on Ax ~ .1 14, 19d2

Tht. 

Board must find,

in

‘.atson, ttat the Z.qtvz.~’i~

;°~-•-

tsors are proved by

the

~zance of

the evadenue.

JaSTE Alli) 

sr;cnc

WASTE 

‘,

~‘s

~ONS

‘i.t

II and III are all based 

a’.  

aleged violations of

the

ard regulations regarding U’ t ansport and

dispr  

;aste or special ‘vaate. Sec-’ior 3 of the Act

c’ont..i   

- .•

followirg relevaic definiti ot.s

WASTE’ means any garbage, sli.dje from a wastt

t..c. -;ert plant, water stppiy

treationt plant. or an

~l aion control facility or other discarded material

~...

tnng solid, liquid, semi—solid, cx containea gaseour

~.alresulting from industria~,coramercial, mining ant

a~,

...:

ilcural operations, and from community activities but

doe.~ not include solid or dissolved material in domestic

a•~ 

‘~,

or solid or dissolved matetaals in irrigation return

&

or industrial discharges whLc~are point sources

to ~ernitsunder Section 402 ot the Clean Wat..r Act

roe spro’al nuclear, or b~psoductmaterials as

JbjtheAtomioEnrgyActofl5 asamended(6a

‘

a’. 921) or any solid or dissolved m-te~ialfrom any

‘tl;ty subject to the Federal Surface Mining Control and

smat on Act of 1977 (P.L. 95-87) or the rules and

n1ons thereu’tdsr or any law or rule or regulati ns

~ed by the State of Illinois pursuant thereto.

(3;

RAiAR)OJS WAS?” means a waste, or combination of

ib. .8,

whict because of its quantity, concentration, or

I, ch’mi~alor infectious characte ‘.stics may ~ausu

..anificantly contribute to an

is criase i’i mortal3ty or

ncr~asein serious irreversible or incapacitating

‘u.nble, illness; or pose a sabctc’atial present or

~‘ttialhazard to 

human

health or 

tfM. 

tavironment when

perly

treated,

stored, tran.port.d, or disposed of, or

t ..n~.a.. 

managed,

and which has been idettifted, by

a

‘“ri:ti~sov listing, as hazathus jt~sua’ttto .Sctv)fl

(

the Resource Conservation and RecoA.ry Act of t976,

J1’øO; ar pursuant to Board Regusattons

“PECIAL WASTE’ Deans any iniuz?traal pricess 

waste,

‘ton control waste or hazardous 

‘45 8

o9-197

(e) ~DISPOSAL~ means the discharge, deposit,

injection,

dumping, spilling, leaking

or placing of any waste 

or

hazardous waste into 

or on any

land or water or into any

well so

that such waste 

hazardous waste or 

any

constituent thereof may

enter the environment or 

emitted

into the air or

discharged into 

any

waters, including ground

waters.

(n) ~OPEN

DUMPING~means 

the

consolidation of refuse from

one or

more sources 

at a disposal site

that does not fulfill

the requirements of a sanitary

landfill.

(s)

~REFUSE~ means 

waster.

ill. Rev. Stat.

1981, ch. 

111½,

paragraph 1003,

In order to

prove 

violations of

S21’(a), Cd) and (e) of the

Act, rule 302(a) and 302(b), it is

necessary to present

sufficient evidence

that 

the material

released at the ICG 

rail

yard 

was indeed

a ~waste,” Hazardous wastes and special 

wastes

are subsets of the larger category of waste. Evidence was

presented by the 

Agency 

that the material released from the tank

truck possessed hazardous characteristics, Lab analysis 

of the

samples showed that it contained over 10,000 ppm of TCE, a 

listed

hazardous substance under RCRA regulations. 40 C,F.R. 

261.31,

TCE is

listed in Board regulations as a hazardous constituent 

35 Ill. Adm,

Code 721, Appendix H. It also had a flashpoint 

less

that

140°Fahrenheit, An examination 

of

the record shows,

however, 

that

there is 

insufficient

evidence for the Board 

make a determination that 

the

substance released at the 

ICG yard

was a waste as defined by the Act. No evidence

was

presented as

to the

material~sorigin 

prior 

use,

In ~

Cor,v. EPA,

PCB 80~l2, 39 PCB 38 

(July

10, 1980), the issue

before 

the Board

was whether flammable

solvents distributed as part of a

rental degreasing system 

were

“wast&~ and

therefore regulated under Chapter 

9.

The

Board found

that the

solvents, while 

flammable and

possibly hazardous 

public safety, were not waste, The

Appellate court affirmed. 

the

Board’~sdecision, without an opinion, in Environmental

Pollution Control Board, 427 N.E. 3d 1053

(1981), To become a waste, a substance must

be discarded,

Through the rental system, Safety~K1een maintained control over

the solvents at all times,

Safety~Kleen recovered the used

solvents and recycled them. The solvents were

never discarded

and never became waste, Once a material has

been discarded,

however,it becomes a waste regardless of how future owners use

the material,

The Agency argues that the material is

hazardous 

and was

Ndiscarded~ when it left the spray~boom of

the truck, 

This

release, it is argued, rendered the

substance a 

waste, 

To Bliss,

Inc., however, the

material was not discarded but was 

being

utilized as part of a valuable service,

The next step of 

the

9

analysis 

to determine whether the 

substance was a waste would be

to determine if the material 

had

been discarded and rendered a

waste 

by the 

previous owners of the material, The relevant area

of inquiry 

is the 

source where Bliss, Inc. obtained the oil prior

the release at the ICG 

yard. The 

record is silent on this

issue 

even 

though this 

evidence 

could have been obtained by the

Agency~s attorney through the various 

discovery tools available

under the Board~sprocedural regulations. To hold that the

release of a substance from a spray-~boomrenders it a waste,

might result in a total ban 

on

the legitimate and useful practice

of road oiling for dust control. The Agency further argues that

the

hazardous nature of the 

substance 

somehow creates the

presumption that it is a 

waste, The 

~

case has

settled the issue of whether 

the

hazardous nature of a substance

thootstraps” it into the catagory of waste, 

The

Board finds that

there is insufficient evidence 

in the 

record to hold that the

substance released from 

the truck 

was a waste, Consequently,

Counts I, II and III must 

be

dismissed as against all

respondents.

WATER POLLUTION AND 

WATER 

POLLUTION HAZARD VIOLATIONS

Count IV charges that 

all

four respondents violated 

§12(a)

and (d) of the Act. Section 

12

of the Act provides inter 

alia

that:

No person shall:

a, Cause or threaten 

or

allow the discharge of any

contaminants into 

the

environement in any State

as

to

cause or tend 

to

cause water pollution in 

Illinois,

either alone or 

in

combination with matter from 

other

sources, or so as to violate regulations or standards

adopted by the Pollution Control Board 

under 

this 

Act;

d. Deposit 

any

contaminants ‘upon 

the land

in

such place and manner so as to create a water

pollution hazard;

ill. Rev.

Stat, 1981, ch, 111½, 

paragraph 

1012. 

Water 

Pollustion

Is defined in 

S3

to be:

nn. “WATER 

POLLUTION~ 

is

such alteration of

the

physical, thermal, chemical~ biological or

radioactive properties of any waters of the State, 

such 

discharge or

any

contaminant into 

any waters

of

the State, as

will 

or

is likely

to

create a nuisance or

render such waters harmful 

or detrimental or injurious

to

public health,

safety 

welfare, 

or to domestic,

commercial, industrial, agricultural, recreational,

or

other 

legitimate

uses, 

or to livestock, wild anima1s~.

birds, 

fish, or other aquatic life,

59499

Contaminant 

is defined as~

d~ ~CONTAM:NANT”is any

solid, 

liquid, or gaseous matter,

any odor, or any form of 

energy, 

from whatever source.

Ill, Rev, St:at. 1981, ch, 111½,

paragraph 1003.

A review

the tecord shows 

that

respondents, Covert and

Bliss, Inc., did cause a 

discharge

of an unknown

quantity

trichioroethylene,

a contaminant as

defined in the Act, onto the

land. The soils and 

hydrology of the

area create “leaky

art,esian”

conditions where 

the

water 

table rises above the soil

surface (R. 160), These 

facts

indicate a high probability that

the TCE 

will

contaminate 

the groundwater.

Evidence was presented

that the groundwater 

generally

flowed toward the Mississippi

River, which 

1,200 

feet away

from 

the Venice ICG yard and that

contaminants generally 

flowed

with 

groundwater (R. 155~156). No

evidence was presented 

as to 

the

existence of wells near 

the

ICG

yard nor 

is

there evidence that

groundwater 

actually did 

come 

in

contact with the contaminants, The Board finds that there 

is

insufficient proof that 

the

respondents actually caused 

water

pollution.

The respondents~ conduct has, 

however, threatened

the surface

and groundwater in a manner 

that 

would tend to cause 

water

pollution in violation of §12(a) 

of the Act. The threat 

to the

ground and surface 

water is highly 

probable given the ICC 

yard~s

proximity to the 

river 

and its

hydrologic conditions, The

contaminants were applied to

the

land in sufficient 

quantities to

saturate the soil and 

puddle on the

surface, The Act defines

water pollution in terms of the potential

harm and 

injury 

public health, safety and welfare. 

TCE is listed as a toxic

hazardous substance under 

Resource

Conservation and Recovery 

Act

regulations. 49 C..F.R. 

261.31. The 

Board ha~adopted this

federal 

listing

in its waste disposal 

regulations at 

35 ill. Acim.

Code

721.130 and 721.133. Contamination of 

groundwater 

with TCE

would adversely impact public health, 

safety and welfare. 

The

Aqency has 

proved the 

high probability 

of a threat 

to the ground

and surface waters of the

State. The Board finds that

respondents, Jay

Covert arid 

Bliss, Inc., have 

violated 

S12(a) of

the Act. The Agency presents no evidence

or

theory

of liability

against 

Russell Bliss, the

corporate 

president,

and the

record

thows no conduct by respondent ICG that would

provide

a basis for

a finding of violation,

Respondents Covert and Bliss, 

Inc. have also violated ~l2(d)

of the Act by depositing a contaminant upon the

land 

so as to

create a

water pollution hazard. 

As in the

case of 

finding a

~,2(a~ 

violation that

“threatens~ water pollution, a 512(d)

violation 

need not include 

evidence 

actual water

pollution,

~ince both sections of the 

Act are

intended to address 

potential

threats 

and hazards,

~

Ilaert 

Renderinc mc,., PCB 

74~80,

35 PCB 281 (September 6, 1979). This 

case was affirmed 

on appeal

n

Ali ~t Render

in Inc 

v flJ~nois

Pollution 

Control 

Board,

~t

ill.

App. 3d 153, 414 N.E. 

2d, 492

(December 12, 1980).

59~200

ii

the present cases 

the respondents 

have discharged TCE in

sufficient quantities to create a 

risk of ground and surface

water pollution. It is more likely than 

not that there will be a

potential 

contamination of 

the

ground and surface water with a

hazardous substance~ The 

Board 

finds that Jay Covert and

Jerry-~Russell

Bliss, Inc. have violated

§12(d) of the Act.

SPECIAL WASTE HAULING PERMIT 

CONDITIONS VIOLATIONS

Count V alleges that

respondent 

Bliss, Inc. violated

certain standard conditions 

of its

special waste hauling permit

and thereby violated §12(d) 

of the 

Act.

The permit issued to 

the

respondents 

contained the standard

conditions for a special 

waste 

hauling permit issued by 

the

Agency. As part of the 

conditions

of this permit, the permitee,

Bliss, Inc. was required by paragraphs 4(c) and (d) to allow any

agent 

duly authorized by the Agency upon 

the presentation of

credentials to inter alia:

“(c) to inspect at reasonable times, including during any

hours of operation of vehicles, tanks or other 

equipment

operated under this permit such vehicles, tanks, or 

other

equipment permitted to 

be

operated under this permit;

(d) to obtain and remove 

at

reasonable times samples of any

discharge or emission of pollutants and samples of 

any

special waste being 

hauled;”

Paragraph 11 of the Standard Conditions of the respondent’s

special waste hauling 

permit 

provided that:

“11. 

The permittee(s) 

shall 

not haul or otherwise 

transport

any special waste generated within

I11inQ~s9Z ~ny 

special

waste to be disposed, stored or 

treated within Illinois

unless that special waste 

accompanied by a properly

completed and signed manifest, in accordance 

with

the

requirements 

Part V 

of Chapter 

9, unless such 

special

waste is exempted from 

the manifest requirements 

pursuant

to Rules 210 or 211 of Chapter 9.”

Paragraph 13 of

the Standard 

Conditions

provided that:

~13. The

permittee(s) 

shall 

not deliver any special 

waste

for disposal, storage or treatment 

except to a site 

facility

which has been designed by the 

deliverer of 

the special

waste and which site

or facility 

has a permit to 

accept such

waste

for disposal, 

storage 

treatment as well 

all

applicable permits 

as required 

by the Environmental

Protection

Act and 

regulations

adopted thereunder by the

I1l:inois 

Pollution 

Control

Board,”

The

record shows 

that on

April 14, 

1982, a tank truck 

owned

by

Bliss,

Inc. and registered 

haul special waste with 

the

59~20

Agency was operating in 

the State of Illinois (R.

l2~13,

113—116), As a special

waste hauling permittee, Bliss, 

Inc.

was

required to comply with all

special 

and standard conditions

attached to such a permit as well as

all

applicable sections

the Act and Board

regulations. 

It is clear

from the evidence

presented

that Bliss, Inc,~s employee, 

Jay Covert, refused to

allow the tank truck to be inspected and a sample 

to

be taken,

The Agency employee identified

himself and presented 

his

official

credentials, 

in accordance 

with the 

standard conditions,

The

Board finds that the 

conduct of Bliss, Inc,~s

authorized agent

violated

standard 

conditions

4 (c) and (d) of 

the

special waste

hauling

permit and 

thereby violated §21 (d) of

the Act, 

The

Board is unable

to make a 

finding of

violation of paragraphs 1.

and 13 because the Agency 

has failed to

provide 

any evidence

that

the substance released 

from the tank truck was a waste or special

waste.

Violating permit conditions 

can be the

basis for suspension

or revocation of a permit,

This remedy is explicitly provided by

the terms of 

the standard 

conditions 

(Comp1ainant~s Exhibit No,

l4A).

The Agency’s 

right to reasonably inspect 

and

sample

permitted vehicles 

critical to the 

success of the

special

waste hauling permit system, 

If

permitted

special waste 

haulers

do not prepare special

waste manifests or display special

waste

placards on their vehicles, 

the only way to determine if

special

wastes are being carried is through inspection 

and sampling. 

this right is denied, the 

intent

and policy of the permit program

will be thwarted, For these compelling reasons, 

the Board

revokes Bliss, 

Inc.’s 

special waste hauling permit No, 0186.

While the permit in existence 

at the

time of the incident 

expired

on March 31, 1983, the Board’s action today is 

not moot, 

The

revocation of a permit has a continuing effect that does not end

with the expiration of that permit. The grounds for the

revocation may 

serve as a 

basis for the future denial of a permit

application, ~                 

20 ill. 

2d 272,

170 N.E. 2d 159 

(1960),

SECTION 

33(c) 

FACTORS AND REMEDIES

Section 33(c) of the 

Act requires the Board to consider all

facts and circumstances

bearing 

upon th~ reasonableness of the

discharges 

deposits before 

the Board may impose the remedial

provisions 

of the Act for

violations alleged and proven in 

the

proceeding. The 

Board 

construes this requirement to apply 

permit violations as well as the §12(a) and (d) violations,

although not technically involving a “discharge.” Section 33(c)

establishes four criteria that must be considered by the Board.

The first criteria is 

the

character and degree of 

injury to

or interference with

the protection of the health, general

welfare and physical property of the people, The Board has found

that the respondents violated §12(a) and (d) of the Act through

conduct that caused 

the

release of a toxic contaminant, TCE, into

the

environment 

of

Illinois, Ground

and surface water has been

59~202

threatened 

with pollution.

Respondent Bliss, Inc. has also

violated the standard 

conditions of its special

waste hauling

permit. 

These

permit violations 

are not

trival, but go to the

very heart 

the special waste 

hauling permit system’s ability

ensure public safety and health. The respondents, by releas~

ing a listed hazardous substance in a hydrologically sensitive

area, have engaged in conduct that could imperil the health 

and

general welfare of the people of Illinois.

The second criteria the Board must consider is the social

and economic value of the pollution source. Bliss, 

Inc. is a

foreign corporation that operates in Illinois. Bliss, Inc.

engages in the business of hauling special waste as well as 

“road

oiling” for dust control. 

These

activities are, as a general

rule, socially and economically valuable, but only when 

conducted

in a responsible and

lawful manner. There is no social or

economic value in contaminating soil and threatening 

water

pollution with toxic

substances nor is there value in flagrantly

violating special waste

hauling permit conditions,

The third criteria is the suitability of the pollution

source to the area in which it is located, Bliss, Inc. operates

as a mobile source of pollution. Bliss, Inc. released toxic

contaminants on soil with

“leaky artesian conditions,” The 1CG

yard is also very close to

the Mississippi River and is

susceptible to

flooding. 

While this site was particularly

unsuitable

for

a toxic

discharge, 

no site is “suitable” for

the

uncontrolled release of TCE,

The last

criteria is the technical 

and economic

reasonableness of reducing or eliminating the emissions, in 

the

present case it is not unreasonable to utilize clean oil for

dust~eontrol, In light of these four factors, the Board finds

that the release of TCE in a manner that violated the 

Act and the

violation of the standard permit conditions were not reasonable,

The Board, therefore, will impose a penalty of $3,000 against

Bliss, Inc. and a penalty of $100 against Jay Covert, In

addition, the Board will revoke Bliss, Inc.’s special waste

hauling permit No, 0186 The Board notes that there is no burden

on the Agency to prove the unreasonableness of respondent’s

conduct in terms of each of the four criteria in §33(c), Once

the Agency establishes a ~ma facie showing of a violation, the

burden shifts to the respondent to introduce evidence relating to

the reasonableness of the respondents’ conduct, Proceas~

&Booksv,Pollution Control Board, 64 Ill. 2d 68, 351 N.E. 2d

865 (1976), No such evidence was introduced by Covert and Bliss,

Inc.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

The Board finds the following:

A. Counts 

I, II and

III are dismissed 

against 

all

respondents.

B. Respondents Jay 

Covert 

and

Jerry-Russell Bliss, Inc.

violated §12 

(a) and (d)

of the Act.

C, Respondent 

Jerry-Russell Bliss, Inc. 

violated

standard conditions (c) 

and

(d) of its special waste

hauling permit No. 

0186,

Ii. The Board imposes a penalty of $3,000 against respondent,

Jerry-Russell Bliss, mc,, 

and

revokes special waste hauling

permit No, 0186 

issued to this respondent.

III. The Board imposes a penalty 

$100 against respondent Jay

Covert.

IV. Within 10 days of the date 

of

this Order, the respondents

shall, by certified check 

or money order payable to

the

State of Illinois, pay the penalties imposed in II. and Iii..

of this Order which is to be sent to:

Illinois Environmental Protection Agency

Fiscal Services 

Division

2200 Churchill 

Road

Springfield, Illinois 62706

IT IS SO ORDERED.

Board Member J, 

Theordore Meyer dissented.

Dorothy M. Gunn, hereby certify that the above 

Opinion

and Order was adopted on the  

~

day of 

_________

1984 by a

vote of 

.$~-/

!;~~L

~

Dorothy H. Gunn, Clerk

Illinois Pollution Control 

Board

59~204