ILLINOIS POLLUTION CONTROL BOARD
January 21, 1988
IN THE MATTER OF:
)
DAN HEUSINKVED, County Clerk,
)
AC 87—25, Docket A
County of Whiteside, State of
)
(IEPA Docket No. 8302—C)
Illinois,
Respondent.
MR. BILL SELTZER, STAFF ATTORNEY, APPEAR ON BEHALF OF THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.
MR. CARL L. SPENCER, STATE’S ATTORNEY, APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD (by R. C. Flemal):
This matter comes before the Board upon a March 25, 1987,
filing of an Administrative Citation by the Illinois
Environmental Protection Agency (“Agency”) and an April 29, 1987,
filing of a Petition for Review filed by Respondent. Both
filings are pursuant to Ill. Rev. Stat. 1986 Supp., Ch. l1l~/2,
par. 1031.1, the Illinois Environmental Protection Act (“Act”).
Hearing was held on October 27, 1987, in the Whiteside
County Courthouse, Morrison, Illinois. Testimony was presented
by Mr. Jack Hoizer, an Agency Environmental Specialist, on behalf
of the Agency, and by r4r. Douglas Happ, Superintendent of
Highways for Whiteside County and ex—officio Director of the
Whiteside County Landfill, on behalf of Respondent. Members of
the press and public were in attendance.
The Agency on December 1, 1987, filed a Brief in Lieu of
Closing Argument. No Response Brief has been filed by
Respondent.
BACKGROUND
Whiteside County operates a sanitary landfill under Illinois
Environmental Protection Agency Operating Permit No. 1983—4—OP.
On January 23, 1987, Mr. Uolzer inspected the landfill site. On
the basis of Mr. Holzer’s inspection, the Agency determined that
Respondent on the day of inspection had operated the site in
violation of two provisions of the Act, to wit:
~(p) No person shall conduct a sanitary landfill
operation which is required to have a permit
under subsection (d) of this Section, in a manner
which results in any of the following conditions:
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5. uncovered refuse remaining from any previous
operating day, unless authorized by permit;
12. failure to collect and contain litter from
the site by the end of each operating day.
Ill. Rev. Stat. 1986 Supp., ch. ll)?-/2,
par. lO2l(p)(5) and (p)(l2).
Accordingly, the Agency on March 25, 1987, issued an
Administrative Citation to Respondent in which a civil penalty of
$500 was assessed for each of the two violations, pursuant to
Section 42(b)(4) of the Act.
Repondent now contests before this Board the Agency’s
determination of the two violations. Respondent pleads in the
alternative that, if the Agency’s determinations of violation is
upheld, that the violations should be found to have resulted from
uncontrollable circumstances, thus invoking the “uncontrollable
circumstances” provision of the Act:
if the Board finds that the person appealing the
citation has shown that the violation resulted from
uncontrollable circumstances, the Board shall adopt a
final order which makes no finding of violation and
which imposes no penalty.
Ill. Rev. Stat. 1986 Supp., ch. 1l1~/2,
par. lO3l.1(d)(2).
AGENCY’S DETERMINATION OF VIOLATION
Failure to Provide Daily Cover
tn support of its determination that Respondent failed to
provide require~daily cover, the Agency submits photographs (Ex.
1, Photos #l—#6
)
taken by Mr. Holzer during his site inspection
of January 23, 1987. These photographs show various views of the
landfill’s active trench as it existed on the morning of January
23 at times ranging from 7:40 A.M. to 7:55 A.M. The photographs
show that refuse from prior day activities had been graded and
compacted (R. at 15). However, they also show portions of this
‘Exhibit 1 is a composite exhibit (R. at 56) including 25
photographs taken by Mr. Holzer during his January 23, 1987,
inspection. The photographs are consecutively numbered and are
referred to herein as Photo #1, #2, etc. The Board notes that
the Agency refers to the same photographs in its Brief as Exhibit
#1, Exhibit #2, etc.
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refuse protruding through what appears to be a sparse and
discontinuous covering of earth.
The Boards regulations require daily cover be provided to a
depth of at least six inches. The photographs as discussed and
the testimony of Mr. Holzer (R. at 16—22, 28, 45—48) demonstrate
that this requirement had not been met for the refuse disposed on
at least the immediately preceeding work day. Moreover,
Respondent’s own witness, Mr. Happ, admitted that daily cover to
a depth of six inches was not present over the entirety of refuse
disposed prior to January 23, 1987 (R. at 73, 77, 79).
Accordingly, the Board finds that the Agency’s determination of
violation on the count of failure to provide required daily cover
was correct, and hereby upholds that determination of violation.
Failure to Collect and Contain Litter
In support of its determination that Respondent failed to
collect and contain litter, the Agency submits additional
photographs (Ex. 1, Photos #7—#25) also taken by Mr. Holzer
during his site inspection of January 23, 1987. These
photographs are of various views within and extending beyond the
boundaries of Respondent’s landfill site. The photographs were
taken between 8:00 A.M. and 10:15 A.M. on the date in question,
and show litter at various locations within the landfill site.
Mr. Holzer characterized the litter shown in one photograph
(Ex. 1, Photo #7) as follows:
That litter has been there for some time through
all evidence and appearance. And in fact, there was
some of it I had seen on previous inspections.
They’re matted down into the weed area but most of it
had been there
...
for some time. (R. at 29).
Mr. Holzer also characterized the litter shown in Exhibit 1,
Photo #7 through Photo #22 in the following exchange:
Q. ...Can you testify whether or not the litter
depicted in Photographs 21 and 22, was that
litter from that operating day or was it litter
from a previous operating day?
A. That was litter from a previous operating day.
Q. Is that true with all of the photographs we’ve
talked about so far, that showed litter?
A. That is correct.
Q. And how do you know that that is from some
previous operating day?
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A. Once again, by the condition of the litter, the
faded—out appearance, the sagging appearance of
it, and again, the site had not received any
material to speak of and I particularly noticed
at the time that dumping was going on, on the
western slope in the active area side, that no
litter, blown litter was coming over.
Q. So, in other words, on the day, at the time of
that inspection, the wind conditions were such
that there was no litter being blown off the
active area, is that correct?
A. Very early in the morning and up until I left,
there was very little wind to speak of.
R. at 36—7
Respondent does not contest that the photographs show wind-
blown litter within the confines of the landfill site (R. at 52,
86). Rather, Respondent contends that the statute is intended to
address only litter beyond the landfill site (Id.). As a
preliminary matter, the Board finds that neither the photographs
nor testimony demonstrate, nor does the Agency in fact contend,
that on the date in question litter originating from Respondent’s
landfill site existed beyond the boundaries of the landfill site.
Rather, the issue then is whether regulations require that
litter be collected and contained within a landfill site as
opposed to from beyond a site. The Board notes that Section
2l(p)(12) of the Act, on its face, is not particularly
instructive on this issue. This Section identifies as a
violation subject to Administrative Citation “failure to collect
and contain litter from the site by the end of each operating
day” (emphasis added). The phrase “from the site” is clearly
ambiguous. It allows a reading that the requirement to collect
and contain litter pertains to litter which came from within the
site, but is no longer found therein. Equally, it allows a
reading that the requirement pertains to litter from the surface
of the site, and hence to litter which remains within the site
boundaries.
It is therefore necessary to go beyond Section 2l(p)(12) for
guidance. That guidance is properly found in the Board’s rules
governing waste disposal, specifically 35 Ill. Adm. Code Subtitle
G. Contained therein are regulations governing various
requirements for landfill operation, of which litter control is
one. Violations of this substantially larger body of regulations
are prosecuted through enforcement actions brought before this
Board or within the court system. The nexis between these
regulations and the Administrative Citation procedure of the Act
is that the Administrative Citation procedure was designed to
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expedite the regular enforcement process by identifying a subset
of the larger waste disposal regulations which may be prosecuted
through the Administrative Citation procedure.
The litter control section of 35 Ill. Adin. Code Subtitle G
removes the ambiguity found at Section 3l(p)(12) of the Act.
Specifically the former states:
All litter shall be collected from the sanitary
landfill site by the end of each working day and
either placed in the fill and compacted and covered
that day, or stored in a covered container.
35 Ill. Adm. Code 807.306
Here the plain reading is that litter must be collected daily
from the landfill site itself. This rule is silent on the matter
of the collection of litter from beyond the landfill site.
The Board therefore finds that the interpretation placed
upon Section 2l(p)(l2) by the Agency, which is that it is a
violation of that Section of the Act to fail to daily collect and
contain litter within the site boundaries, is the correct
interpretation. Additionally, the Board finds, in light of the
photographic evidence and testimony as presented, that Respondent
was on January 23, 1987, in violation of Section 3l(p)(l2) of the
Act. The Board therefore upholds the determination to that
effect as made by the Agency.
ISSUE OF UNCONTROLLABLE CIRCUMSTANCES
Respondent next contends that such failure to apply daily
cover or to collect and contain litter as may have been manifest
On January 23, 1987, was due to uncontrollable circumstances. As
argument thereto Respondent contends weather—related factors
Prior to and on the day of inspection inhibited it from fully
complying with the cover and litter regulations. Among
inhibiting weather—related factors, Respondent cites cold, frozen
ground, wind, snow cover.
It is uncontested that the temperature on the morning of Mr.
Holzer’s inspection was 8 degrees below zero CR. at 22, 54). It
is also uncontested that some of the ground within the landfill
site, including that material used as cover, contained ground ice
(R. at 55).
The Agency contends, however, that the existence of such
conditions does not alone constitute grounds for holding that
Respondent was unable to comply with regulations due to
uncontrollable circumstances. On the matter of failure to apply
daily cover, Agency points out, citing Mr. Holzer’s testimony (R.
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at 27), that other landfills operations are regularly capable of
complying with all regulations throughout the cold weather
months. This includes times when temperatures are as low as
those encountered on the day of inspection (R. at 27). Mr.
Holzer further testifed that he observed equipment digging and
moving cover material at the time of his inspection, in spite of
the cold and supposed hardness of the ground (R. at 33—34, 38;
Ex. 1, Photo #16.). The Agency thus concludes that failure to
apply daily cover was not beyond Respondent’s control, but rather
that “Respondent simply failed to apply daily cover as required”
(Brief at 4).
The Board finds that Respondent has not borne its burden of
proof of showing that the failure to apply daily cover resulted
from uncontrollable circumstances. The record sufficiently shows
that daily cover could be placed in spite of conditions.
Moreover, it apparently shows that some cover had been placed.
What is not shown, however, is why the requisite covering job was
not, or could not have been, accomplished.
On the matter of failure to daily collect and contain
litter, Respondent argues that it is impossible to completely
contain all of the litter which may be blown about a landfill
site on a windy day. Respondent further attempts to make the
point that some of the litter observed by Mr. Holzer during his
inspection and recorded in Exhibit 1, Photo #7 through Photo #25,
may have been recent litter rather than litter which had been
Uncollected for some time (R. at 52), as asserted by Mr.
Holzer. Nowhere, however, does Respondent contend that the large
amount of litter shown in Photos #7 through #25 all derived from
refuse brought to the site on the day of inspection or the
immediately preceding day(s). Neither does Respondent present
any evidence that weather conditions on the previous day(s)
Prohibited it from the collecting litter.
The Board is aware that litter control may at times,
Particularly during high winds, be difficult. However, this does
not mean that litter control is impossible nor that the
regulations regarding litter control are impractical. It is
precisely because litter control is at times difficult that it is
necessary for policing of litter to be carried out on a regular
basis, so as to preclude major litter dispersement when the
ability to contain litter is less than optimal. Respondent has
failed to show that on January 23, 1987, it had undertaken this
necessary policing.
PENALTI ES
Penalties in Administrative Citation actions of the type
here brought are proscribed by Section 42(b)(4) of the Act, to
Wit.
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In an administrative citation action under Section
31.1 of this Act, any person found to have violated
any provision of subsection (p) of Section 21 of this
Act shall pay a civil penalty of $500 for each
violation of each such provision, plus any hearing
costs incurred by the Board and the Agency. Such
penalties shall be made payable to the Environmental
Protection Trust Fund to be used in accordance with
the provisions of “An Act creating the Environmental
Protection Trust Fund”, approved September 22, 1979
Respondent will therefore be ordered to pay a civil penalty
of $1000, based on the two violations as herein found. For
purposes of review, today’s action (Docket A) constitutes the
Board’s final action on the matter of the civil penalty.
Respondent is also required to pay hearing costs incurred by
the Board and the Agency. The Clerk of the Board and the Agency
will therefore be ordered to each file a statement of costs,
supported by affidavit, with the Board and with service upon
Respondent. Upon receipt and subsequent to appropriate review,
the Board will issue a separate final order in which the issue of
costs is addressed. Additionally, Docket B will be opened to
treat all matters pertinent to the issue of costs
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1) Respondent is hereby found to have been in violation on
January 23, 1987, of Ill. Rev. Stat. 1986 Supp., Ch. lll~-/2, par.
lO2l(p)(5) and lO2l(p)(l2).
2) Within 45 days of this Order of January 21, 1988,
Respondent shall, by certified check or money order, pay a civil
Penalty in the amount of $1000 payable to the Illinois
Environmental Protection Trust Fund. Such payment shall be sent
to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois 62706
3) Docket A in this matter is hereby closed.
4) Within 30 days of this Order of January 21, 1988, the
Illinois Environmental Protection Agency shall file a statement
of its hearing costs, supported by affidavit, with the Board and
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with service upon Repondent. Within the same 30 days, the Clerk
of the Pollution Control Board shall file a statement of the
Board’s costs, supported by affidavit and with service upon
Respondent. Such filings shall be entered in Docket B of this
matter.
5) Respondent is hereby given leave to file a
reply/objection to the filings as ordered in 4) within 45 days of
this Order of January 21, 1988.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985 ch. 1111/2 par. 1041, provides for appeal of Final
Orders of the Board within 35 days of the issuance of Final
Orders. The Rules of the Supreme Court of Illinois establish
filing requirements.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the abo Opinion and Order was
adopted on the ~
day of
_________________,
1988, by a
Dorothy M. unn, Clerk
Illinois Pollution Control Board
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