BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

KS

PEOPLE

OF THE STATE

OF ILLINOIS,

)

DEC,,

12

2U08

Complainant,

)

pQf/TE

OFILLINO

v.

)

PCB

NO.

06-1 59

)

(Enforcement)

GARY SIMMONS,

individually, and

)

LAWRENCE

COUNTY DISPOSAL

CENTRE,

INC., an Illinois corporation,

)

Respondents.

).

NOTICE

OF FILING

To:

Gary Simmons

2101

South Sievers

Road

Vincennes,

IN

47591

Lawrence County Disposal Centre, Inc.

C/o National Registered Agents,

Inc.

200

West Adams Street

Chicago, IL 60606

PLEASE TAKE NOTICE that on this date I mailed for filing

with

the

Clerk of the

Pollution

Control Board of the State of Illinois, COMPLAINT’S BRIEF, a copy of which

is attached hereto

and

herewith

served upon you.

Respectfully submitted,

PEOPLE

OF

THE

STATE OF ILLINOIS

LISA

MADIGAN

Attorney General

of the

State of Illinois

MATTHEWJ.

DUNN, Chief

Environmental

Enforcement/Asbestos

Lgat’viio

Phillip

McQuillan(

Assistant Attorney

General

Environmental

Bureau

500

South Second

Street

Springfield, Illinois

62706

217/782-9031

Dated:

December 10,

2008

---

CERTIFICATE

OF

SERVICE

I hereby

certify

that I

did on December

10,

2008,

send

by

First

Class

Mail,

with

postae

thereon

fully

prepaid,

by

depositing

in a

United

States

Post Office

Box

a

true

and

correct

copy

of the

following

instrument

entitled

CLAIMANT’S

BRIEF

To:

Gary

Simmons

2101

South

Sievers

Road

Vincennes,

IN 47591

Lawrence

County

Disposal

Centre,

Inc.

C/o

National

Registered

Agents,

Inc.

200

West

Adams

Street

‘Chicago,

IL 60606

and

the original

and

ten copies

by

First Class

Mail

with

postage

thereon

fully

prepaid

of the

same

foregoing

instrument:

To:

John

T.

Therriault,

Assistant

Clerk

Illinois

Pollution

Control

Board

State

of

Illinois

Center

Suite 11-500

100 West

Randolph

Chicago,

IL 60601

A

copy was

also

sent

by First

Class

Mail

with postage

thereon

fully

prepaid

To:

Carol

Webb

Hearing

Officer

Illinois

Pollution

Control

Board

1021

North

Grand

Avenue

East

Springfield,

IL

62794

Phillip

Mc

ulilan

(.

Sr. Assistant

Attorney

General

This filing

is submitted

on

recycled

paper.

---

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

CLksS

ex

PEOPLE

rel. LISA

OF

MADIGAN,

THE

STATE

Attorney

OF

ILLINOIS,

General

))

DEC

2

UO8

of

the State of Illinois,

)

PS

ATE

OF

IL

NO

Complainant,

)

vs.

)

No.

06-159

)

(Enforcement)

GARY SIMMONS,

individually,

and

)

LAWRENCE

COUNTY DISPOSAL

CENTRE,

INC.,)

an Illinois

corporation,

)

Respondents.

)

COMPLAINANT’S

BRIEF

Complainant,

PEOPLE

OF

THE

STATE OF ILLINOIS,

by LISA

MADIGAN,

Attorney

General

of the State of

Illinois,

on her

own

motion

and

at the

request

of the

Illinois

Environmental

Protection Agency

(“Illinois

EPA”

or

“Agency”)

filed

a six count Complaint

on

April 17, 2006, against

Respondents,

GARY SIMMONS,

individually,

and LAWRENCE

COUNTY

DISPOSAL

CENTRE,

INC.,

an Illinois

corporation

(involuntarily

dissolved

within

the

past

two years by the

Secretary

of State).

A Hearing

was conducted

on October

29, 2008.

The

People

respectfully tender

the following

arguments

in

support

of

the violations

alleged

and

the

relief sought:

I. INTRODUCTION

Respondent, Gary

Simmons, is

and

was, at all

times

relevant,

the

owner

and

operator

of

the

general municipal

refuse landfill

(the “facility”

or “landfill”)

which is

located near Sumner,

Lawrence

County,

Illinois.

Respondent,

Lawrence County

Disposal

Centre, Inc., was

an

Illinois

corporation

which was

authorized

to

do business

in the

State

of Illinois. The

facility

consists

of

approximately

27 acres and

has been designated

by the Illinois

EPA

as

site

number

1

---

1018020002.

On

May

17,

1999

the

Illinois

EPA

certified

the

closure

of

the

facility

and

issued

Supplemental

Permit

No.

1997-033-LFM

(People’s

Exhibit

8)

to

the

Respondents,

regarding

the

post-closure

care

of the

facility

The

permit

noted

that

the

thirty

year

post-closure

care

period

began

October 1, 1998.

From

the

time

that the

landfill

was

certified

as

closed,

the

Ambraw

Valley

Solid

Waste

Management

Agency

(‘Ambraw

Valley”)

has

performed

numerous

inspections

pursuant

to

a

delegation

agreement

with

the

Illinois

EPA.

During

a

number

of

inspections

of

the landfill

during

2001,

2002,

2003,

2004,

2005,

and

2006,

Bob

Gher,

who

is

employed

as

an

inspector

by

Ambraw

Valley,

inspected

the facility

to

determine

compliance

with

the permit

obligations

and

post-closure

care

plan.

The

inspector

observed

inadequate

fencing,

gates,

or other

measures

to

control

access

to

site.

The inspector

also

observed erosion

problems

in

different

areas

of

the

landfill

and several

areas

of

failed

vegetation.

Groundwater

monitoring

reports

were

not

being

performed

or

filed.

The

groundwater

monitoring

wells

were

not being

maintained.

Landfill

gas

monitoring

reports

were

not

being

performed

or filed.

Mr.

Gher

observed

that

gas

vapors

with

a strong

methane

odor

were

being

emitted

from

the

gas

monftoring

wells

into

the

atmosphere.

Mr.

Gher

observed

that

the

gas

monitoring wells

were

unlocked

and

not being

maintained.

After

each

inspection

Mr.

Gher

would

mail

and

inspection

report

to

Mr.

Simmons.

Mr.

Gher

was

never

contacted

by Mr.

Simmons

in response

to

the

violations

cited

in

each

inspection

report.

Respondents

did

not take

any

actions

to comply

with

the

post-closure

permit,

to

comply

with

the

applicable

statutes,

or

to

comply

with

the

applicable

rules

and

regulations

of

the

Pollution

Control

Board.

In

2007

the

Illinois

EPA

was

able

to

collect

a

post-closure

performance

bond

and

use

the

bond

proceeds

to

perform

required

work

at

the

facility.

The

Illinois

EPA

hired

Environmental

2

---

Restoration,

LLC

of St. Louis,

Missouri

to perform

remediation

work

at the facility.

As

indicated

in People’s

Exhibit

20

Environmental

Restoration,

LLC

was

paid

$91

927.26

for

work done

from

January

16,

2007 to

February

25,

2007

and

$14,348.70 for work

done

from February

25,

2007

to

March

26,

2007.

Illinois

EPA incurred

additional

costs

of

$5,277.56

in

Fiscal

Year 2006

and

$6868.38

in Fiscal

Year2007.

All

of

these

amounts

add

upto

$118,421.90.

II.

VIOLATIONS

OF

CLOSURE

PERMIT,

STATUTORY

PROVISIONS,

AND POLLUTION

CONTROL

BOARD

RULES

A.

Count

I

of

the

Complaint—Post-closure

Care

Violations

1.

Section

21

of the Act,

415

ILCS

5/21

(2006),

provides,

in pertinent

part,

as

follows:

No

person

shall:

* **

(d)

Conduct

any waste-storage,

waste-treatment,

or

waste-disposal

operation:

(1)

without

a permit

granted

by

the Agency

or

in violation

of

any

conditions

imposed

by

such

permit,

including

periodic

reports

and

full

access

to adequate

records

and

the

inspection

of

facilities

as may

be necessary

to assure

compliance

with

the Act

and

with regulations

and

standards

adopted

thereunder;

or

(2)

In violation

of

any

regulations

or

standards

adopted

by

the

Board

under

this

Act;

* **

2.

Section

22.17

of the Act,

415

ILCS

5/22.17

(2006),

provides,

in the pertinent

part, as

follows:

(a)

The

owner

and

operator

of

a

sanitary

landfill

site. .

.

shall

monitor

gas,

water

and

settling

at the

completed

site

for

a

period

of 15

years

after

the

site

is

completed

or closed.

.

***

(b)

The

owner

and

operator

of a

sanitary

landfill

site. .

. shall

take

whatever

remedial

action

is

necessary

to abate

any

gas, water

or

settling

problems

which

appear

during

such

period

of

time

specified

in subsection

(a). .

.

3.

Section

811.107(e)

of

the Pollution

Control

Board’s

Land

Pollution

Regulations,

35111.

Adm.

Code

811.107(e),

provides

as

follows:

3

---

*

*

*

e)

Maintenance.

The operator

must maintain

and operate

all systems

and

related

appurtenances

and structures

in a manner

that

facilitates

proper operations

in compliance with

this Part.

*

*

*

4.

Section

811.109(a)

and (b)

of the Pollution

Control Board’s

Land

Pollution

Regulations,

35

HI.

Adm.

Code 811.109(a)

and

(b),

provides

as follows:

a)

Access

to the

open face area

of the

unit

and

all

other

areas

within

the

boundaries

of

the

facility shall

be

restricted

to prevent

unauthorized

entry at

all

times.

b)

A permanent sign

shall

be posted

at the entrance

to the facility

stating

that

disposal

of hazardous

waste

is

prohibited

5.

Section

811.111(c)

of the Pollution

Control

Board’s Land Pollution

Regulations,

35

III. Adm. Code

811111(c), provides

as foflows:

c)

Maintenance

and Inspection

of the Final Cover

and

Vegetation:

1)

Frequency

of nspections:

A)

The operator

shall conduct a quarterly

inspection

of all

vegetated surfaces

for a minimum

of five years

after closure, and

after

five

years, the operator may

reduce

the

frequency

of annual

inspections

until settling has

stopped

and

there

are no

eroded

or

scoured areas.

*

*

*

6.

Section

811.112(c),

(e),

(f), and

(g)

of

the

Pollution Control Board’s

Land

Pollution

Regulations,

351I1.

Adm.

Code 811.112(c), (e),

(f),

and

(g),

provides as

follows:

The

owner or operator

of

a

MSWLF

[Municipal Solid

Waste

Land Fill]

unit

shall record and

retain near

the

facility

in an operating

record or in

some

alternative location

specified

by the Agency, the

information submitted

to

the

Agency

pursuant to 35 Ill.

Adm. Code 812

and 813, as it becomes

available.

At

a minimum,

the operating

record shall

contain the following

information,

even

if

such information is not

required

by

35 Ill. Adm. Code 812

or

813;

*

*

*

c)

Gas monitoring results

and

any

remediation

plans

required

by

Sections

811.310

and 811.311;

4

---

**

*

e)

Any

demonstration,

certification,

monitoring

results,

testing,

or

analytical

data

relating

to

the

groundwater

monitoring

program

required

by Sections

811.319,

811.324,

811.325,

and 811.326

and 35111.

Adm.

Code

812.317,

813.501

and

813.502;

f)

Closure

and

post-closure

care

plans

and

any monitoring,

testing,

or

analytical

data

required

by

Sections

811.110

and

811.111,

and 35111.

Adm.

Code

812.114(h),

812.115

and

812.313;

and

g)

Any

cost estimates

and financial

assurance

documentation

required

by

Subpart

G

of this

Part.

7.

Section

811.310(a),(b),

(c),

and (d)

of

the Pollution

Control

Board’s

Land

Pollution

Regulations,

35

Ill.

Adm.

Code 811.310(a),

(b), (c),

and (d)

provides

as follows:

a)

This Section

applies

to all units

that

dispose

putrescible

wastes.

b)

Location

and

Design

of Monitoring

Wells.

1)

Gas

monitoring

devices

must

be

placed

at intervals

and

elevations

within

the

waste

to provide

a

representative

sampling

of

the composition

and buildup

of

gases

within

the unit.

2)

Gas

monitoring

devices

must be

placed

around

the

unit at

locations

and

elevations

capable

of

detecting

migrating

gas

from

the

ground

surface

to the

lowest

elevation

of the

linear

system

or the

top

elevation

of

the groundwater, whichever

is higher.

3)

A

predictive

gas

flow

model

may

be

utilized

to

determine

the

optimum

placement

of

monitoring

points

required

for

making

observations

and

tracing

the

movement

of

gas.

4)

Gas

monitoring

devices

must

be

constructed

from

materials

that

will

not react

with or

be

corroded

by

the

landfill

gas.

5)

Gas

monitoring

devices

must be

designed

and

constructed

to

measure

pressure

and

allow collection

of

a

representative

sample

of

gas.

6)

Gas monitoring

devices

must

be constructed

and

maintained

to

minimize

gas

leakage.

7)

The

gas

monitoring

system

must

not

interfere

with

the

operation

of

the liner,

leach

ate

collection

system,

or

delay the

construction

of the

final

cover

system.

8)

At least

three

ambient

air monitoring

locations

must

be

chosen

5

---

and samples

must be taken no higher

than 0.025 meter

(1

inch)

above

ground and 30.49

m (100

feet)

downward

from

the edge

of

the

unit

or

at

the property boundary,

whichever

is

closer

to the

unit.

c)

Monitoring

Frequency.

1)

All gas

monitoring

devices, including

the

ambient air

monitors

must be

operated

to obtain samples

on a monthly

basis for the entire

operating period

and for a minimum

of five years after

closure.

2)

After

a

minimum

of five years after

closure, monitoring

frequency

may

be

reduced

to

quarterly

sampling

intervals.

3)

The

sampling

frequency

may be reduced

to yearly

sampling

intervals

upon the installation

and operation

of

a gas collection system

equipped

with a mechanical device

such

as a compressor

to withdraw

gas.

4)

Monitoring

must

be continued for a

minimum period of:

thirty

years

after closure at MSWLF

units, except as

otherwise provided by

subsections

(c)(5)

and (c)(6)

of this Section;

five

years

after closure

at

Landfills, other

than

MSWLF units,

which are used

exclusively for

disposing of wastes

generated at the

site;

or

fifteen years after

closure

at

all other landfills regulated

under this

Part. Monitoring,

beyond

the

minimum

period

may be

discontinued

if the following conditions

have

been met

at

least one year:

A)

The

concentration of

methane is less

than five percent

of

the lower

explosive limit in

air for four

consecutive

quarters

at

all

monitoring points

outside the unit;

and

B)

Monitoring

points within the

unit indicate that

methane

is

no

longer being produced

in

quantities

that

would

result

in

migration

from the unit and

exceed

the

standards of

subsection

(a)(1) of this

Section.

5)

The Agency may

reduce the gas

monitoring period

at an MSWLF

unit

upon

a

demonstration

by

the owner or

operator that the reduced

period is sufficient

to

protect

human

health and

environment.

6)

The owner

or operator of an

MSWLF

unit

must

petition the

Board

for an adjusted standard

in accordance

with Section 811.303,

if the

owner

or

operator seeks

a

reduction

of the

postclosure

care monitoring

period

for all

of the following requirements:

A)

Inspection and

maintenance

(Section

811.111);

B)

Leachate

collection

(Section 811.309);

6

---

C)

Gas

monitoring

(Section

811.310);

D)

Groundwater

monitoring

(Section

811.319).

d)

Parameters

to

be

monitored.

1)

All below

ground

monitoring

devices

must

be

monitored

for

the

following

parameters

at

each

sampling

interval:

A)

Methane;

B)

Pressure;

C)

Oxygen;

and

D)

Carbon

dioxide.

2)

Ambient

air monitors

must

be sampled

for methane

only

when

the

average

wind

velocity

is

less than

eight

kilometers

(five

miles)

per hour

at

a minimum

of

three

downwind

locations

30.49

meters (100

feet)

from

the edge

of the

unit or the

property

boundary,

whichever

is closer

to the

unit.

3)

All buildings

within a

facility

must

be monitored

for methane

by

utilizing

continuous

detection

devices

located

at

likely points

where

methane

might

enter the

building.

*

*

*

8.

Section

811.312(c)

of the

Pollution

Control

Board’s

Land

Pollution

Regulations,

35111.

Adm. Code

811.312(c),

provides

as

follows:

*

*

*

c)

No

gas

may be discharged

directly

to the

atmosphere

unless

treated

or

burned

onsite prior

to discharge

in

accordance

with

a

permit

issued

by the

Agency

pursuant

to 35

Ill. Adm.

Code

200

through 245.

*

*

*

9.

Section

811.405

of the

Pollution

Control

Board’s

Land Pollution

Regulations,

35

Ill. Adm.

Code

811.405,

provides:

The

solid

waste

management

facility

operator shall

retain

copies of any

special

waste

profile identification

sheets,

special waste

recertifications,

certifications

of

representative

sample,

special

waste

laboratory

analyses,

special

waste analysis

7

---

plans,

and

any waivers

of

requirements

(prohibitions,

special

waste

management

authorization,

and operating

requirements)

at

the facility

until the

end of

the

postclosure

care period.

10.

Section

811.705

of the Pollution

Control

Board’s

Land Pollution

Regulations,

35

Ill.

Adm. Code

811.705,

provides:

a)

The owner

or operator

shall

revise the

current cost

estimates

for

closure

and

postclosure

care in

each new

application

for

permit

renewal or

where

a

facility

modification

results

in an

increase

of the

cost estimate.

b)

The owner

or operator

shall review

the

closure

and

postclosure

care

plans

prior

to

filing a

revised cost

estimate

in order

to

determine

whether

they

are

consistent

with

current operations,

and

the requirements

of the

Subchapter.

The

owner

or

operator

shall

either certify

that the

plans are

consistent,

or shall

file an

application

incorporating

new

plans pursuant

to

35

III. Adm. Code

813.

c)

The

owner or

operator shall

prepare

new closure

and postclosure

cost

estimates

reflecting

current prices

for the

items included

in the

estimates

when

submitting

any

new

applications

for permit

renewal.

The owner

or operator

shall

file

revised estimates

even

if

the

owner

or operator

determines

that

there

are

not

changes

in the

prices.

d)

The

owner

or operator

of

a

MSWLF

unit shall

adjust

the

cost estimates

of

closure,

postclosure,

and

corrective

action

for inflation

on

an

annual

basis

during

the

following time

period:

1)

The active

life of

the unit for

closure;

2)

The

active life

and

postclosure

care

period,

for postclosure;

or

3)

Until

the

corrective

action,

program

is

completed

in

accordance

with

Section 811.326,

for

corrective

action.

B.

Count

II

of

the Complaint—Site

Security

and

Maintenance

Violations

Section

745.201

of the Pollution

Control

Board’s

Land Pollution

Regulations,

35

ill. Adm.

Code

745.201,

provides,

in

pertinent

part,

as follows:

b)

No

site owner

or other

named

permittee

shall

cause or

allow

operation

of

a waste disposal

site unless

the

site

chief

operator

has prior

conduct

certification.

2.

Section

811.109(a)

and

(b)

of the

Pollution Control

Board’s

Land

Pollution

8

---

Regulations,

35

III. Adm.

Code

811.109(a)

and

(b),

provides

as follows:

a)

Access

to

the open

face area

of

the

unit

and

all

other

areas

within

the

boundaries

of the

facility

shall

be

restricted

to

prevent

unauthorized

entry

at

all

times.

b)

A permanent

sign

shall

be

posted

at

the

entrance

to

the

facility

stating

that

disposal

of

hazardous

waste

is

prohibited

3.

Section

811.111(c)

of the

Pollution

Control

Board’s

Land

Pollution

Regulations,

35111.

Adm.

Code

811.111(c),

provides

as

follows:

*

**

c)

Maintenance

and

Inspection

of

the

Final

Cover

and

Vegetation:

1)

Frequency

of

Inspections:

A)

The

operator

shall

conduct

a

quarterly

inspection

of all

vegetated

surfaces

for a

minimum

of

five

years

after

closure,

and

after

five

years,

the

operator

may

reduce

the frequency

of annual

inspections until

settling

has stopped

and

there

are

no eroded

or

scoured

areas.

C.

Count

Ill

of the

Complaint—Permit

Violations

1.

Supplemental

Permit

No.

1997-033-LFM

expired

on

June

30,

2001.

2.

Condition

I. 1. c.

on page

7

of the

permit

provides:

1.

The

operator

of

this

solid

waste

disposal

facility

shall

not

conduct

the

operations

in

a

manner

which

results

in

any

of

the

following:

c.

failure

to

submit

reports

required

by

permits

or

Board

regulations.

3.

Section

813.501

of the

Pollution

Control

Board’s

Land

Pollution

Regulations,

35

Ill.

Adm.

Code

813.501,

provides

as follows:

All

permitted

landfills

shall

submit

an annual

certification

to

the

Agency

during

operation

and

for

the

entire

postclosure

monitoring period.

Such

certification

shall

be

signed

by

the

operator

or duly

authorized

agent

as

specified

in 35

Ill.

Adm.

Code

815.102,

shall

be

filed

each

year

by the

first

day of

the

month

chosen

and

specified

by the

Agency

in

the

facility

permit,

and

shall

state

as

follows:

a.

All

records

required

to

be

submitted

to

the

Agency

pursuant

to

9

---

35

III.

Adm.

Code

858.207 and

858.308

have

been timely

and accurately

submitted;

and

b.

All applicable

fees required

by the

Act have

been paid

in full.

4.

Condition

I. 5.

on

page

7 of the

permit provides:

5..

Access

to the

facility shall

be

controlled

by

use

of fences,

gates

and

natural

barriers

to

prevent

unauthorized

entry

at all times.

5.

Condition

I.

6. on page

7 of

the

permit provides:

6.

A

sign shall

be

maintained

at

the facility

entrance

containing

the

applicable

information

required

under

35 HI. Adm.

Code 811.109(b).

6.

Condition

Ill. 1.

on page

8

of

the

permit provides:

1.

The

annual certification

shall

be submitted

to

the Illinois

EPA

during the

entire postclosure

monitoring

period.

The

certification

shall

be

signed

by

the

operator

or

duly

authorized

agent

and shall

be filed

each

year

by May

1st

the

following

year.

3.

All

groundwater

monitoring

data shall

be

submitted

to

the

Illinois

EPA

on a quarterly

basis

in

accordance

with

the

schedule

in Special

Condition

XI.

11.

of

the

water

monitoring

program

of this

permit pursuant

to

35

Ill. Adm.

Code

813.502.

7.

Condition

IV. on

pages 9

and

10

of

the

permit

provides:

1.

Information

developed

by the

operator,

but

not

yet

forwarded

to

the Illinois

EPA

in a

quarterly

or

annual

report

shall

be kept

at

or

near the

facility

for

inspection

by

the Illinois

EPA

upon

request.

2.

A

daily summary

report

shall be prepared

by

the

CQA

officer,

or

under

the

direct

supervision

of

the CQA

officer in

accordance

with

35 Ill.

Adm.

Code 811.505(a)(1-8)

during each

day of

activity

requiring

CQA

officer

supervision.

3.

Inspections

of the

closed

landfill

shall be

conducted

in accordance

with

the approved

post-closure

care

plan. Records

of field

investigations,

inspections,

sampling

and corrective

action

taken are

to be

maintained

at

the site

and

made

available to

Illinois EPA

personnel.

During

the post

closure

care period,

those

records are

to be

maintained

at

the

office

of

the site

operator.

4.

The

owner or

operator

shall

record

and

retain near

the facility

in

an

operating

record

or

in some alternative

location

specified

by the

Illinois

10

---

EPA,

the

information

submitted

to

the

Illinois

EPA

pursuant

to

35

III.

Adm.

Code

812

and

813,

as

it becomes

available.

The

operating

record

for

this

facility

shall

be

retained

at

the

site

engineer’s

office

at

Lamac

Engineering

Co.

In Mt.

Carmel,

Illinois.

At

a

minimum,

the

operating

record

shall

contain

the

following

information,

even

if

such

information

is

not

required

by

35l11.

Adm.

Code

812

or

813:

a.

Any

location

restriction

demonstration

required

by

Section

811.302(e)

and

35111.

Adm.

Code

812.109,

812.110,

812.303,

and

812.305.

b.

Gas

monitoring

results

and

any

remediation

plans

required

by

Sections

811.310

and

811.311.

c.

Any

MSWLF

unit

design

documentation

for

placement

of

leachate

or gas

condensate

in

a MSWLF

unit

required

by

Section

811.107(m).

d.

Any

demonstration,

certification,

monitoring

results,

testing,

or

analytical

data

relating

to

the

groundwater

monitoring

program

required

by

Sections

811.319,

811.324,

811.325,

811.326,

812.317,

813.501

and

813.502.

e.

Post-closure

care

plans

and

any

monitoring,

testing

or

analytical

data

required

by

Sections

811.110,

811.111,

812.114(h),

812.115

and

812.313;

and

f.

Any

cost

estimates

and

financial

assurance

documentation

required

by

Subpart

G

of

35

III.

Adm.

Code

Part

811.

8.

Condition

V.

7.

on

page

11

of the

permit provides:

7.

The

results

from

gas monitoring

for

each

year,

ending

December

31,

shall

be

submitted

to

the

Illinois

EPA

in

the

annual

report

required

by

35

Ill.

Adm.

Code

813.501

as

specified

in Special

Condition

111.2

under

Reporting

(above).

9.

Condition

IX.

1.

on

page

13

of

the

permit

provides:

1.

Any

application

for

renewal

of

a

permit

shall

be

filed

with

the

Illinois

EPA

at

least

90

days prior

to

the

expiration

date

of

the

existing

permit.

10.

Condition

IX.

3.

on

page

14

of

the

permit

provides:

3.

The

operator

shall

revise

the

current

cost

estimate

for

post

closure care

in

each

new

application

for

permit

renewal

or

where

a

facility

11

---

modification

results

in

an

increase

of the

cost estimate.

The

operator

shall

either

certify that

the plans

are

consistent

with

current

operations

or

shall

file

an application

incorporating

new plans

pursuant

to 35 III.

Adm.

Code, Part

813.

The owner

or operator

shall

adjust

the

cost

estimate

of

post-closure

care

on an annual

basis

during

the design

period.

The

owner

or operator

shall

provide financial

assurance

to the

Illinois

EPA

utilizing

one

or more

of the mechanisms

listed

in

35 III. Adm.

Code

811.706(a).

The

owner

or

operator

shall provide

continuous

coverage

until the

owner

or operator

is released

from

the financial

assurance

requirements

pursuant

to 35 III.

Adm.

Code

813.403(b)

or

35 Ill. Adm.

Code

811.326.

11.

Condition

Xl.

9. on

page 16 of

the

permit

provides:

9.

Background

groundwater

quality

shall

be

determined

using

upgradient

well

G121. Background

shall

be

established

for pH and

all

chemical

parameters

in

List Gi and

G2.

The

background

values

for all

constituents,

listed

in

Gi and

G2 shall

be

calculated

using

a

minimum

of four (4)

consecutive

quarters

of

groundwater

monitoring

data

and employing

the

statistical

method

described

in

Section 3.6.3

Background

Monitoring.

All

background

values

shall

be

submitted

to the

Illinois EPA

in a

significant

permit

modification

no later

than

November

15,

1998.

To date,

the operator

of

this facility

has

not complied

with

Special

Condition

XI.9

of

Modification

No.

1 to Permit

No.

1997-033-LFM,

dated

August

27,

1998.

Issuance

of this revised

permit

does

not relieve

the

operator

of

violations

incurred

due

to non-compliance

with

previous

permit conditions.

12.

Condition

XI.

11. on

page

22 of the

permit provides:

11.

The approved

monitoring

program,

shall

begin during

the

July-

August

1997

sampling

event and

continue

for at

least

thirty

(30)

years

after

closure

and shall

not

cease

until the

conditions

described

in

35

IAC,

811.31

9(a)(1)(C)

have

been achieved.

The operator

shall collect

samples

from all

of the

monitoring

points

listed

in Special

Condition

Xl.10

and report

the analytical

results

to

the Illinois

EPA in accordance

with

the

following

schedule:

Sampling

Period

Parameter

List

Report

Due

Date

January

or February

List

G1

April

15

April or

May

List G1

and G2

July 15

July

or

August

List Gi

October15

October

or November

List

Gi

January

15

13.

Condition

Xl. 13. on

page 23

of

the permit

provides:

12

---

13.

Pursuant

to

35

IAC 811

.319(a)(4)(A),

any

of

the

following

events

shall

constitute

an

observed

increase

only

if the

concentration

of the

constituents

monitored

can

be measured

at

or above

the

practical

quantitation

limit (PQL):

a.

The

concentration

of any

quarterly

indicator

parameter

given

in

List

Gi

shows

a progressive

increase

over

four

(4)

quarters.

b.

The

concentration

of any constituent

given

in

List Gi

or

G2 exceeds

the

Class

I groundwater

quality

standards

listed

in

35

IAC 620

Subpart

D,

or

the

Groundwater

Standards

as provided

in

35

IAC

814.402(b)(3)

at an established

monitoring

point.

c.

The

concentration

of any

organic

constituent

in List

G2

monitored

in

accordance

with

Condition

11

of

this

Section

exceeds

the

preceding

measured

concentration

at any

established

point.

d.

The

concentration

of any

constituent

in

List

GI

or

G2

exceeds

its background

concentration.

14.

Condition

Xl.

17. on

page

24

of the

permit

provides:

17.

Annually,

the

operator

shall

prepare

an

evaluation

of

the

groundwater

flow

direction

and

the hydraulic

gradients

at the

facility

using

the

groundwater

surface

elevations

(Storet

#71993)

determined

for each

monitoring

event.

This

assessment

shall

be submitted

with the

monitoring

results

due on

July

15.

D.

Count

IV

of

the

Complaint—Groundwater

Monitoring

Violations

Section

21

of the Act,

415

ILCS 5/21

(2006),

provides,

in the

pertinent

part,

as

follows:

No

person

shall:

** *

(d)

Conduct

any waste-storage,

waste-treatment,

or

waste-disposal

operation:

(1)

without

a

permit

granted

by

the

Agency

or in

violation

of

any

conditions

imposed

by

such

permit,

including

periodic

reports

and

full

access

to adequate

records

and

the

inspection

of

facilities

as

may be

necessary

to

assure

compliance

with

the

Act and

with

regulations

and

standards

adopted

thereunder;

or

(2)

In violation

of

any regulations

or standards

adopted

by

the

13

---

Board

under

this

Act;

***

2.

Section

22.17 of

the Act, 415

ILCS 5/22.17

(2006),

provides,

in the

pertinent

part, as follows:

(a)

The owner and

operator

of a sanitary landfill

site. .

. shall

monitor

gas,

water and settling

at the

completed

site for a period

of 15 years

after

the

site is

completed or closed.

.

** *

(b)

The owner and

operator

of

a sanitary

landfill

site.

.

. shall take whatever

remedial

action

is necessary

to abate

any gas,

water

or settling

problems

which

appear during

such

period

of time

specified

in

subsection

(a).

.

3.

Section

811.318(a)

and (e) of the Pollution

Control Board’s

Land Pollution

Regulations,

35111. Adm.

Code

811.318(a)

and

(e), provides:

a)

All

potential

sources of

discharges

to

groundwater within

the facility,

including,

but not

limited

to,

all waste disposal

units and

the leachate

management

system, shall

be identified

and studied through

a network

of

monitoring wells

operated

during the active

life of the

unit

and for

the

time

after

closure

specified in accordance

with

Section

811.319.

Monitoring

wells

designed

and

constructed

as

part of

the monitoring

network

shall be maintained

along

with

records that include,

but are

not limited

to,

exact

well locations,

well size,

type

of

well,

the design

and construction

practice

used in its installation

and well

and

screen

depths.

**

*

e)

Standards

for Sample

Collection and Analysis

1)

The groundwater

monitoring

program shall

include

consistent

sampling and analysis

procedures

to assure that

monitoring

results

can

be relied upon

to provide data

representative

of groundwater

quality

in

the zone

being

monitored.

2)

The

operator shall

utilize

procedures

and

techniques

to insure

that

collected

samples

are

representative

of the zone being

monitored

and

that

prevent

cross

contamination of

samples from other

monitoring

wells

of from other samples.

At least 95

percent of

a

collected

sample

shall

consist

of groundwater

from the

zone

being

monitored.

3)

The

operator

shall establish a quality

assurance

program

that

provides

quantitive detection

limits and

the

degree

of error for

analysis

of

each chemical

constituent.

4)

The

operator

shall establish

a sample preservation

and

shipment

14

---

procedure

that

maintains

the reliability

of

the

sample

collected

for

analysis.

5)

The operator

shall institute

a chain of

custody procedure

to

prevent

tampering

and

contamination

of the

collected

samples prior

to

completion

of

analysis.

6)

At a minimum,

the

operator shall

sample

the

following

parameters

at

all

wells at

the time of

sample collection

and immediately

before

filtering

and

preserving

samples

for

shipment:

A)

The elevation

of the

water

table

B)

The

depth

of the well

below

ground

C)

pH

D)

The

temperature

of

the sample

E)

Specific

Conductance.

7)

In addition

to the

requirements

of subsections

(e)(1) through

(e)(6),

the following

requirements

shall

apply

to

MSWLF units:

A)

Each time

groundwater

is sampled,

and

owner

or

operator

of

a MSWLF

unit

shall:

I)

Measure

the groundwater

elevations

in each well

immediately

prior to

purging;

and

ii)

Determine

the rate

and

direction

of groundwater

flow.

B)

An owner

or operator

shall

measure

groundwater

elevations

in

wells

which

monitor

the

same

waste

management

area

within

a

period

of time

short

enough

to

avoid

temporal

variations

in groundwater

flow

which

could

preclude

accurate

determination

of

groundwater

flow

rate

and

direction.

4.

Section

811.31 9(a)(1)

of the

Pollution

Control

Board’s

Land

Pollution

Regulations,

35111.

Adm.

Code

811.319(a)(1),

provides:

a)

Detection

Monitoring

Program.

Any use

of the term

maximum

allowable

predicted

concentration

in this Section

is a reference

to

Section 811.318(c).

The

operator shall

implement

a detection

monitoring

program

in accordance

with

the

following

requirements:

1)

Monitoring

Schedule

and

Frequency.

A)

The

monitoring

period shall

begin

as

soon as

waste

is

placed into

the unit

of

a

new landfill

or

within

one year

of

the

15

---

effective date of this Part for an existing landfill. Monitoring

shall

continue for

a

minimum period of fifteen years after closure,

or in

the case of MSWLF units,

a

minimum period

of 30 years after

closure, except

as

otherwise provided

by subsection (a)(1)(C) of

this Section. The

operator shall sample all monitoring points

for

all

potential sources on contamination on

a

quarterly

basis except

as

specified in subsection

(a)(3),

for

a

period of five years

from

the date of issuance of the initial permit for significant

modification

under 35 Ill. Adm.

Code

814.104 or

a permit for a new unit

pursuant

to

35 Ill.

Adm. Code

813.104.

After the

initial

five-year

period, the sampling frequency for

each

monitoring

point shall

be

reduced to a semi-annual

basis,

provided

the operator has

submitted the certification described

in 35 Ill. Adm. Code

813.304(b). Alternatively, after the initial five-year

period, the

Agency shall allow sampling

on a

semi-annual basis where

the

operator demonstrates that

monitoring

effectiveness

has not

been

compromised, that sufficient

quarterly data has been collected

to

characterize groundwater,

and that leachate from the monitored

unit does not constitute a threat to groundwater. For the purposes

of

this Section, the source shall be considered a threat to

groundwater if the results of the monitoring indicate either that

the

concentrations of any of the constituents monitored within the

zone

on

attenuation

is above the maximum

allowable

predicted

concentration for

that constituent

or,

for existing landfills, subject

to

35

Ill. Adm.

Code 814, Subpart

D,

that the

concentration

of any

constituent has exceeded the applicable

standard at

the

compliance boundary as defined

in 35

Ill. Adm.

Code

81 4.402(b)(3).

5.

Section 811.320(d)(1)

of the

Pollution

Control

Board’s

Land

Pollution

Regulations, 35 III. Adm. Code 81 1.320(d)(1), provides:

d)

Establishment

of

Background

Concentrations

1)

The initial monitoring to determine background concentrations

shall commence during the hydrogeological assessment required by

Section 811.315. The background concentrations

for

those parameters

identified in Sections 811.315(e)(1)(G) and 811.319(a)(2)

and

(a)(3)

shall

be established based on quarterly sampling of wells for one year,

monitored in accordance with the requirements of subsections (d)(2),

(d)(3)

and (d)(4), which may be adjusted during the operation of a

facility.

Statistical tests and procedures shall be employed, in accordance with

subsection

(e),

depending

on the number, type and frequency of samples

collected

from the

wells,

to establish the background concentrations.

Adjustments

to the

background

concentrations shall be made only if

changes in the concentrations

of

constituents

observed in upgradient

16

---

wells over time

are determined, in

accordance with subsection

(e), to

be

statistically

significant. Background

concentrations determined

in

accordance

with this subsection

shall

be

used

for

the purposes of

establishing

groundwater

quality standards,

in accordance with this

subsection. The operator

shall maintain

such a list at the facility,

shall

submit a copy

of

the

list to the Agency

for establishing

standards in

accordance with

subsection

(a), and shall provide

updates to the list

within

ten days of any change

to the list.

*

*

*

6.

Section 81 3.502(a) of

the

Pollution

Control

Board’s Land Pollution

Regulations,

35 III. Adm. Code 813. 502(a), provides:

a)

All

groundwater monitoring data

shall be submitted

to the

Agency

at the

same frequency

as established

for groundwater detection monitoring

pursuant

to

Section 811.319(a),

in

a

form prescribed

by the Agency,

and in accordance with

a

schedule

approved in the permit.

*

*

*

7.

Condition Ill.

3. on page 9 of the permit provides:

3.

All groundwater monitoring

data

shall

be submitted to the Illinois

EPA on a quarterly basis in accordance with

the schedule

in

Special

Condition Xl. 11. of the water monitoring program

of this

permit

pursuant

to 35 Ill. Adm. Code 813.502.

8.

Condition Xl. 9. on page 16

of the permit provides:

9.

Background groundwater

quality

shall

be determined using

upgradient well GI 21. Background shall

be

established for pH and all

chemical parameters

in List Gi

and

G2.

The background values

for all constituents, listed in G1 and G2 shall

be

calculated using

a

minimum

of four (4) consecutive quarters of

groundwater monitoring

data and employing the statistical method

described in Section

3.6.3 Background Monitoring. All background

values shall

be

submitted

to the Illinois EPA in a significant permit

modification

no later than November 15, 1998.

To date, the operator

of this facility has not complied with Special

Condition Xl.9 of Modification

No. I to

Permit

No. 1997-033-LFM, dated

August 27, 1998. Issuance

of this

revised permit

does not relieve the

17

---

operator

of violations

incurred

due

to non-compliance

with previous

permit

conditions.

9.

Condition

Xl.

11. on

page 22 of

the

permit

provides:

11.

The

approved

monitoring

program,

shall

begin

during

the July-

August

1997 sampling

event

and

continue

for

at least thirty

(30)

years

after

closure and

shall

not

cease until

the conditions

described

in

35 IAC,

811.31

9(a)(1

)(C)

have

been

achieved.

The

operator

shall

collect

samples from

all

of the monitoring

points

listed

in

Special

Condition

XI.10

and report

the

analytical results

to the

Illinois EPA

in accordance

with

the

following

schedule:

Sampling

Period

Parameter

List

Report

Due

Date

January

or February

List

GI

April

15

April

or May

List

G1 and G2

July 15

July

or August

List GI

October15

October or

November

List

Gi

January

15

10.

Condition

Xl.

17. on

page

24

of

the

permit provides:

17.

Annually,

the operator

shall

prepare

an

evaluation

of the

groundwater

flow direction

and the

hydraulic

gradients

at the facility

using

the groundwater

surface

elevations

(Storet

#71993)

determined

for

each

monitoring

event.

This assessment

shall

be

submitted

with

the

monitoring

results

due on

July

15.

E.

Count

V

of the Complaint—Gas

Monitoring

Violations

Section

21 of the

Act,

415 ILCS

5/21

(2006), provides,

in

the pertinent

part,

as

follows:

No

person

shall:

***

(d)

Conduct

any

waste-storage,

waste-treatment,

or

waste-disposal

operation:

(1)

without

a

permit

granted

by

the Agency

or in

violation

of

any

conditions

imposed

by such permit,

including

periodic

reports and

full access

to adequate

records

and the

inspection

of

facilities as

may

be

necessary

to assure

compliance

with the Act

and with

regulations

and

standards

adopted

thereunder;

or

---

(2)

n violation

of any regulations or standards

adopted

by the

Board under

this Act;

***

2.

Section 22.17 of the

Act, 415 ILCS 5/22.17

(2006), provides, in

the pertinent

part, as follows:

(a)

The owner and

operator of a sanitary landfill site .

.

. shall monitor

gas,

water

and settling

at the completed

site

for

a period of 15 years

after the

site

is

completed

or

closed. .

* **

(b)

The

owner

and

operator

of a sanitary landfill site. .

. shall take

whatever

remedial action is

necessary to abate any gas, water

or

settling

problems

which appear during

such period of time specified in

subsection (a). .

*

*

*

3.

Section

811.112(c)

of the Pollution Control Board’s Land Pollution

Regulations,

35

Ill. Adm. Code 811.112(c), provides as follows:

The owner or operator of

a

MSWLF [Municipal Solid Waste Land Fill] unit

shall record and retain near the facility in an operating record or in some

alternative

location specified by the Agency, the information submitted to the

Agency pursuant to 35 III. Adm. Code 812 and 813, as it becomes available.

At

a minimum, the operating record shall contain the following information, even

if

such

information

is not required by

35

Ill. Adm. Code 812 or 813;

***

c)

Gas monitoring results and

any

remediation plans required

by Sections

811.310 and 811,311;

*

*

*

4.

Section

811.310(a),(b),

(c), and (d) of the

Pollution Control Board’s

Land

Pollution

Regulations,

35111.

Adm. Code 811.310(a),

(b),

(c), and (d)

provides

as follows:

a)

This Section applies

to

all units that dispose

putrescible

wastes.

b)

Location and Design of

Monitoring

Wells.

1)

Gas

monitoring devices

must be placed at

intervals

and elevations

19

---

within the

waste to

provide

a representative

sampling of the composition

and buildup

of gases within the unit.

2)

Gas

monitoring devices must

be placed around the unit at

locations

and elevations capable

of detecting migrating gas from

the

ground surface

to the lowest elevation of the linear

system

or the

top

elevation

of the groundwater, whichever is higher.

3)

A predictive gas flow

model may be utilized to determine

the

optimum placement

of

monitoring

points required for making

observations and tracing

the movement of gas.

4)

Gas monitoring devices

must be constructed from materials

that

will not react with

or be corroded by the landfill gas.

5)

Gas

monitoring

devices must be designed and constructed

to

measure pressure

and allow collection of a representative sample of

gas.

6)

Gas monitoring

devices

must be constructed and maintained

to

minimize

gas

leakage.

7)

The

gas

monitoring

system must not interfere

with

the operation

of the liner, leachate collection

system,

or

delay the

construction

of the

final cover

system.

8)

At

least three ambient air monitoring locations must be chosen

and samples must be taken no

higher than 0.025 meter (1 inch) above

ground

and 30.49 m (100 feet)

downward

from the

edge of the unit or

at

the

property

boundary,

whichever

is

closer to the

unit.

c)

Monitoring Frequency.

1)

All

gas

monitoring

devices, including the ambient air monitors

must be operated to obtain samples on a monthly basis for the

entire

operating period and for

a

minimum

of

five years

after

closure.

2)

After a minimum of five years after closure, monitoring frequency

may

be reduced to quarterly sampling

intervals.

3)

The sampling frequency may

be

reduced

to

yearly sampling

intervals upon the installation and operation

of

a gas collection system

equipped

with a mechanical device such

as

a compressor

to

withdraw

gas.

4)

Monitoring must be continued for a

minimum

period

of:

thirty

years after

closure at

MSWLF units,

except as otherwise

provided

by

subsections

(c)(5)

and (c)(6) of this Section; five

years

after closure

at

Landfills, other than MSWLF units, which are used exclusively for

20

---

disposing

of wastes

generated

at

the site; or fifteen

years after closure

at

all other landfills regulated

under

this Part. Monitoring,

beyond the

minimum period

may

be

discontinued

if the following

conditions have

been

met at least

one year:

A)

The concentration of methane is

less than five

percent of

the

lower

explosive limit in air for four

consecutive quarters

at all

monitoring

points outside the

unit; and

B)

Monitoring

points within the unit indicate

that methane

is

no

longer

being produced in quantities

that would result in

migration

from the unit and

exceed

the

standards of

subsection

(a)(1) of this Section.

5)

The Agency

may reduce the gas

monitoring

period at

an

MSWLF

unit upon

a

demonstration

by the owner or operator

that the reduced

period

is

sufficient

to protect human health and environment.

6)

The

owner

or operator of an MSWLF unit

must

petition

the Board

for an adjusted standard in accordance with Section 811.303, if

the owner

or operator seeks

a

reduction of the postclosure care

monitoring period

for all of the following requirements:

A)

Inspection and maintenance (Section 811.111);

B)

Leachate collection (Section 811.309);

C)

Gas

monitoring (Section

811.310);

D)

Groundwater monitoring (Section 811.319).

d)

Parameters

to

be monitored.

1)

All below ground monitoring devices must

be

monitored for

the

following parameters at each sampling interval:

A)

Methane;

B)

Pressure;

C)

Oxygen;

and

D)

Carbon dioxide.

2)

Ambient

air monitors must be sampled for methane

only when

the

average

wind

velocity is less than eight kilometers (five miles)

per hour

at

a

minimum of three downwind locations 30.49 meters

(100 feet)

from

the

edge of

the

unit or the property boundary, whichever is closer

to the

21

---

unit.

3)

All buildings within

a

facility

must be monitored for methane

by

utilizing continuous

detection

devices located

at likely points where

methane might enter

the

building.

*

*

*

5.

Section 811.311(b)

of the

Pollulion

Control

Board’s

Land Pollution

Regulations,

35

Ill.

Adm. Code

811.311(b), provides

as follows:

b)

If methane

gas

levels

exceed the

limits

specified in subsections (a)(1)

or

(a)(2), an operator of a MSWLF shall:

1)

Notify the Agency in writing, within two business days, of

an

observed exceedance; and

2)

Implement the requirements of this Section to ensure the

protection of human health.

6.

Section 811.312(c) of the Pollution Control Board’s Land Pollution Regulations,

35

III. Adm. Code 811.312(c), provides as foflows:

c)

No gas may be discharged

directly

to

the atmosphere unless treated

or

burned onsite prior to discharge in accordance

with

a

permit issued

by the

Agency pursuant to 35 III. Adm. Code

200 through 245.

*

*

*

7.

Condition III. 2. a. on page 8 of

the permit provides:

2.

The operator shall submit an annual report

for

each calendar

year

to the Illinois EPA

by

May

1St

of the

following

year pursuant to 35 III. Adm.

Code 813.504.

The

annual report shall

include:

a.

Information

relating

to

monitoring data from any leachate

collection

system, the groundwater monitoring network, gas

monitoring

system,

and any other monitoring data specified in

this

permit including:

1.

Summary of monitoring data for the calendar

year;

2.

Dates of

submittal of comprehensive monitoring

data to the

Illinois

EPA

during the calendar year;

3.

Statistical summaries and analysis

of

trends;

22

---

4.

Changes

to the monitoring

program;

and

5.

Discussion

of error

analysis,

detection

limits

and

observed

trends.

F. Count

VI

of the

Complaint—Air

Pollution

Violations

1.

Section

9

of the

Act, 415 ILCS

5/9

(2006),

provides,

in

pertinent

part,

as

follows:

No person

shall:

(a)

Cause or

threaten

or

allow

the discharge

or emission

of any

contaminant

into

the

environment

in

any State

so as to

cause

or tend

to cause

air

pollution

in Illinois,

either

alone or in

combination

with

contaminants

from

other sources,

or so

as to violate regulations

or standards

adopted

by

the

Board

under this Act.

*

**

2.

Section

3.115

of

the Act, 415 ILCS

5/3.115

(2006), provides that:

“Air pollution”

is the presence

in

the atmosphere

of one

or more

contaminants

in sufficient

quantities

and

of

such characteristics

and

duration

as

to be injurious

to human,

plant, or

animal life, to health,

or

to

property,

or

to unreasonably

interfere

with

the enjoyment of life

or

property.

3,

Section 811.312(c)

of the

Pollution

Control

Board’s

Land Pollution

Regulations,

35

Ill. Adm. Code

811.312(c), provides

as follows:

*

*

*

c)

No

gas may be discharged

directly

to the atmosphere

unless treated

or

burned onsite

prior

to discharge

in accordance

with

a permit issued

by

the

Agency

pursuant to

35

III.

Adm.

Code

200 through 245.

Ill. PROOF

OF VIOLATIONS

The

facility at issue was

inspected by Ambraw

Valley Solid

Waste Management

(‘Ambraw

Valley”) through a delegation

agreement

with

the Illinois EPA.

Ambraw Valley is

a

local

government created

entity consisting

of Lawrence

County, Crawford

County

and Richland

23

---

County.

(Tr., p7). Bob Gher, who works for Ambraw Valley,

conducted the inspections

to

determine

if the facility was in compliance with

the

permit

which specified the conditions

imposed upon the closed

facility.

People’s Exhibit

8

specified

the

closure

conditions. (Tr.,

p

10

& 11).

Christian Liebman, who manages the Solid

Waste Unit in the Illinois EPA, identified

People’s

Exhibit

8 as

the permit

that

pertains

to the closing of the facility

at issue. Among other

provisions,

the permit requires the operator

to

secure the

boundaries and access

to

the

facility,

maintain the final

cover, monitor the groundwater,

and

monitor gas migration. Failure

to comply

with the

provisions of the

permit

constitutes a violation of the permit,

a

violation

of applicable

statutory

provisions and a

violation

of applicable rules and regulations of

the

Pollution

Control

Board.

(Tr.,

p

49-51).

On

February

19, 2001,

Bob

Gher

of Ambraw

Valley,

inspected the facility

to determine

compliance with the

permit obligations and post-closure

care plan. The inspector observed

that

access to

site was not

controlled

by a

fence

or

gate and that no sign was

posted

as required

by

the

permit. The

inspector also observed failures in the ground cover that caused erosion

problems in

different areas of the landfill and several

areas

of

failed

vegetation. (Tr. p10

& 11).

Groundwater

monitoring was

not being

performed. Groundwater monitoring

reports were not

being

filed.

Landfill gas

monitoring was

not

being performed. Landfill

gas monitoring reports

were

not

being filed.

The inspector

observed that gas vapors with a strong methane odor were

being

emitted

from

the unmarked and unlocked monitoring wells into

the atmosphere. (Tr.

p

12

&

13).

All of this

was noted in Mr. Gher’s inspection report.

See

People’s Exhibit

1.1. (Tr.

p

10—13).

The

worst erosion area was near the access road and consisted

of

an area

10 feet

wide,

10 feet

deep, and

40 feet long. (Tr.

p

14). Another area on the north slope was 1 foot

wide,

1

foot

deep, and

4—5 feet long (Tr.

p

14). Mr. Gher mailed

a copy of the inspection report

24

---

to

Respondent, Mr. Simmons.

Mr.

Gher did

not

receive

a

response

from

Mr. Simmons.

On May

9, 2001, Bob

Gher again

inspected the

facility. The

facility still

had the same

violations

that were

observed in the

earlier inspection.

Mr. Gher

prepared

an

inspection

report

which

noted

the conditions

and violations.

See People’s

Exhibit

1.2.

(Tr.

p

14). Mr.

Gher

later

mailed the inspection

report

to Respondent,

Mr.

Simmons.

Mr. Gher did

not receive

a

response

from

Mr. Simmons.

On July

5,

2001, Bob

Gher

again inspected

the facility. The

facility still

had the

same

violations

that

were observed

in the earlier

inspection. Mr.

Gher prepared

an inspection

report

which

noted the

conditions and violations.

See

People’s Exhibit

1.3. (Tr.

p

17). Mr.

Gher

later

mailed

the inspection report

to Respondent,

Mr.

Simmons.

Mr. Gher did

not receive

a

response

from

Mr.

Simmons.

On

November

12, 2001, Bob Gher again

inspected

the facility. The

facility still

had

the

same

violations

that

were

observed

in

the

earlier

inspection. Mr. Gher

prepared

an

inspection

report which

noted

the

conditions

and violations.

See

People’s

Exhibit 1.4.

(Tr.

p

18).

Mr.

Gher

later mailed

the

inspection

report

to Respondent, Mr.

Simmons. Mr.

Gher

did not

receive

a

response

from

Mr.

Simmons.

On

May 10, 2002, Bob

Gher

again inspected

the facility.

The facility still

had

the same

violations

that

were

observed

in the earlier

inspection.

Mr.

Gher prepared

an inspection

report

which noted the

conditions

and violations.

In addition there

was exposed

refuse

on

the

northeast

slope

of the facility.

The area of the exposed

refuse was

5 feet wide

by 10 feet long.

See

People’s

Exhibit 2.1.

(Tr.

p

19

& 20).

Mr. Gher

later

mailed

the inspection

report

to

Respondent,

Mr. Simmons. Mr.

Gher did not receive

a response

from Mr. Simmons.

On

November

8,

2002,

Bob Gher again

inspected

the facility. The facility

still had

the

same

violations that were

observed

in the earlier inspection.

There were

instances

of exposed

25

---

refuse

and there

were other areas with

failed vegetation. Mr.

Gher prepared an

inspection

report

which noted the conditions

and violations.

See People’s

Exhibit

2.2.

(Tr.

p

22). Mr.

Gher later mailed the

inspection

report to

Respondent, Mr. Simmons.

Mr. Gher

did

not

receive

a response

from Mr. Simmons.

On

February

20, 2003,

Bob

Gher

again

inspected the facility.

The

visibility

during

the

inspection was

hampered by snow

cover. The inspector

observed that access

to

site was

not

controlled

by a

fence

or gate and that

no

sign

was posted

as

required

by the permit.

Groundwater

monitoring was

not being

performed.

Groundwater monitoring

reports

were

not

being

filed. Landfill gas

monitoring was

not being

performed.

Landfill gas monitoring

reports

were not

being

filed. The

inspector

observed that

gas vapors with a

strong

methane

odor

were

being emitted

from the

unmarked and

unlocked monitoring

wells into the

atmosphere. All

of

this was noted

in Mr. Gher’s inspection

report. See

People’s Exhibit

3.1.

(Tr.

p23). Mr. Gher

later

mailed the

inspection report to Respondent,

Mr.

Simmons. Mr.

Gher did

not

receive

a

response from

Mr. Simmons.

On

April

3,

2003, Bob Gher

again

inspected

the facility. There

was no

snow

cover

during this

inspection.

The

facility

still had

the

same violations

that

were

observed in the earlier

inspections

without

snow

cover. There

were

instances

of exposed refuse and

there

were

other

areas

with failed

vegetation. Mr.

Gher prepared an

inspection report

which

noted

the conditions

and

violations.

See

People’s Exhibit 3.2.

(Tr.

p

25).

Mr. Gher later

mailed the inspection

report to

Respondent,

Mr. Simmons. Mr.

Gher did not

receive a response

from Mr.

Simmons.

On

September 9, 2003,

Bob Gher again

inspected the

facility. The

facility still had the

same

violations that

were

observed

in the

earlier

inspections. There

were

instances

of exposed

refuse

and

there

were

other areas with

failed vegetation.

Mr. Gher prepared

an

inspection

report

which

noted the

conditions and violations.

See People’s

Exhibit 3.3. (Tr.

p26). Mr.

26

---

Gher later

mailed the inspeclion report

to Respondent, Mr.

Simmons. Mr. Gher did not receive

a response

from Mr. Simmons.

On

February

6, 2004,

Bob

Gher again

inspected the facility. The facility still had

the

same

violations that were observed in the

earlier inspection. There were instances of exposed

refuse and there were

other

areas with failed vegetation. Mr.

Gher prepared an inspection

report

which noted

the conditions

and

violations.

In addition

a

groundwater review was

performed by Doug Hayward, Kent Johnson, and Sheila Williams,

of

the Illinois EPA, Bureau

of

Land,

Marion Field Office. See People’s Exhibit

4.1. (Tr.

p

27). Mr. Gher later mailed the

inspection report to Respondent, Mr. Simmons. Mr. Gher did not receive

a

response from

Mr.

Simmons.

On May

11, 2004, Bob Gher again inspected

the

facility. The facility

still had the same

violations that

were observed in the earlier inspections. There were

instances of

exposed

refuse

and

there were other areas with failed vegetation. Mr. Gher prepared an inspection

report

which noted

the conditions and violations. See People’s Exhibit 4.2. (Tr.

p

28). Mr.

Gher later

mailed

the

inspection report to Respondent, Mr. Simmons. Mr. Gher did not receive

a

response

from Mr.

Simmons.

On

November 9, 2004, Bob Gher again inspected the facility. (There is a typographical

error on

the date

of the report which says “11/09/2002” which should be 11/09/2004). The

facility

still had

the same violations that were observed in the earlier inspections. There were

instances

of

exposed refuse and there were other areas with failed vegetation. Mr. Gher

prepared

an

inspection report which noted the conditions and violations. See People’s Exhibit

4.3.

(Tr.

p

29).

Mr. Gher later mailed the inspection report to Respondent, Mr. Simmons. Mr.

Gher did

not

receive a response from Mr. Simmons.

People’s

Exhibit 4.4 (Tr. p31) is a copy of the

letter

sent to Mr. Simmons

regarding

the

27

---

November

9,

2004,

inspection. People’s

Exhibit 4.5 (Tr.

p

31)

is a narrative account

of the

November 9,

2004,

inspection.

On January

6, 2005,

Bob

Gher

again inspected

the facility. The facility

still had the

same

violations

that

were

observed

in the

earlier

inspections. There

were instances of

exposed

refuse

and there

were

other areas with

failed vegetation.

Mr. Gher prepared

an inspection

report which

noted

the conditions

and violations.

See

People’s

Exhibit

5.1.

(Tr.

p31).

Mr.

Gher later

mailed the

inspection report

to Respondent,

Mr. Simmons. Mr.

Gher

did not receive

a response

from Mr.

Simmons.

On

May

11,

2005, Bob

Gher again inspected

the facility. The

facility still

had

the

same

violations that

were

observed

in the

earlier

inspections.

There

were

instances

of

exposed

refuse and there

were other areas

with failed vegetation.

Mr. Gher prepared

an

inspection

report which

noted

the

conditions

and violations. See

People’s Exhibit

5.2.

(Tr.

p

33). Mr.

Gher later

mailed the inspection

report

to

Respondent,

Mr. Simmons. Mr. Gher

did not

receive

a

response

from

Mr.

Simmons.

On

September 8,

2005, Bob Gher

again

inspected

the facility. The

facility still

had

the

same

violations

that

were

observed

in

the earlier inspections.

There were instances

of exposed

refuse

and there

were other areas

with failed

vegetation. Mr.

Gher prepared

an

inspection

report

which

noted the

conditions

and

violations. See

People’s Exhibit

5.3. (Tr.

p

34). Mr.

Gher

later

mailed the

inspection report to

Respondent,

Mr.

Simmons.

Mr. Gher

did not receive

a

response

from

Mr.

Simmons.

People’s

Exhibit

9

(Tr.

p

36), People’s

Exhibit 10 (Tr.

p

37),

People’s Exhibit 11

(Tr.

p

38),

and

People’s

Exhibit 12 (Tr. p38)

are

examples

of

violation notice letters

regarding

inspection

reports—all of

which were sent

by

Mr. Gher to Mr.

Simmons.

It

is

important

to

point

out that the conditions

at

the

facility

were deteriorating

as time

28

---

passed. Mr.

Gher makes

this clear

in

the following

exchange

on

direct

examination:

Q.

Mr. Gher,

from the time

that you were inspecting

this landfill,

from

the

time of People’s

Exhibit 1.1,

through

Exhibit

5.3, were

the

conditions

deteriorating over

those years?

A.

Yes, they

were.

(Tr.

p

40, In.

3—7).

There are consequences

to

an operator failing

to conduct

post-closure

care at a

landfill

facility.

As refuse

sits

in a landfill

it forms leachate

which

is

a

variety

of compounds

and

chemicals

that

liquify

and mix with

groundwater. Leachate

can

be

very

detrimental

to

groundwater

which can negatively

affect drinking

water. (Tr.

p

40

& 41).

Failure to maintain

the

cover

or cap of the landfill

creates erosion

which

exposes

the refuse

in the landfill. The

exposed refuse

can

attract

wildlife

and

can

be toxic to wildlife.

(Tr.

p

41). The

failure

to restrict

access to the

landfill

enables

trespassers

to gain access.

Mr. Gher noted

that four wheeler

(all

terrain vehicles)

got in the facility,

at least

on one

occasion.

(Tr.

p

42).

The

Illinois

EPA ultimately

collected on

the financial

assurance

bond

for

post-closure

care.

The Illinois

EPA used the

bond proceeds to perform

remedial post-closure

care

at the

facility. The

Illinois EPA hired

Environmental

Restoration, LLC of

St.

Louis, Missouri

to perform

remediation

work at the

facility. As indicated

in People’s

Exhibit 20 Environmental

Restoration,

LLC was paid

$91,927.26

for work

done from January

16, 2007

to

February

25, 2007

and

$14,348.70

for

work done from February

25, 2007

to March

26, 2007. Illinois EPA

incurred

additional

costs

of

$5,277.56

in

Fiscal Year

2006

and

$6868.38

in Fiscal

Year

2007.

All

of

these amounts add

up to

$118,421.90.

The

bond proceeds

covered these

remediation

costs.

Under

cross-examination

by Mr.

Simmons,

Mr. Gher testified

that there are still

post

closure

violations occurring

at the landfill even

after the

remediation work was

performed

by

Illinois EPA through

use of the bond

proceeds.

(Tr.

p

44). These violations

involve erosion

of

the

cap,

the lack of

mowing,

and the lack of maintenance.

(Tr.

p

47

& 48).

29

---

Mr.

Simmons

was called

to testify, as an

adverse witness

through provisions

of

the Civil

Practice

Act. Mr. Simmons

testified that

he was the owner

and

operator

of the facility. (Tr.

p

54). Mr. Simmons

also testified

that

he

was the sole

stockholder

of Lawrence County

Disposal

Centre, Inc.

(Tr.

p

54). Mr.

Simmons testified

that he did

not disagree with any

of

the inspection

reports

prepared

by Mr. Gher in Exhibits

1.1 through

6.1. (Tr.

p55). Mr. Simmons

testified

that

he

received

the inspection

reports,

but

he did not perform

any remediation

work. (Tr.

p

55).

Mr. Simmons

acknowledged in

his testimony

that the violations noted

in all of

the inspections

beginning with People’s

Exhibit 1.1

through all the subsequent

inspections

constituted violations

of the

closure

permit (People’s

Exhibit 8); violations

of the

applicable

statutes, and

violations of

the

applicable

regulations.

(Tr.

p

55 &

56). The following exchange

took

place:

Q.

Mr. Simmons,

referring to People’s

Exhibit

19, are any of the allegations

in that

complaint false?

A.

No,

sir,

as far as

I can

tell.

Q.

I’m sorry?

A.

I believe

its correct.

(Tr.

p

57, In

10-14).

People’s

Exhibit 19 is

a copy of the complaint

filed in this matter.

In Mr.

Simmons

direct testimony,

he apologized

for the circumstances

at the

facility

and

stated

that he never intended

that these things

would occur. (Tr.

p

62-64).

IV.

ARGUMENT

A.

Ownership of the Source

of

Pollution

Imposes Liability

Courts

have

affirmed

that ownership

of property, when

the owner

passively

allows

pollution

to

enter

the

environment

is sufficient for liability

und the Environmental

Protection

Act

(“Act”).

Perkinson

v. Illinois Pollution

Control

Board,

187 lll.App.3d

689, 543 N.E.2d 901,

135

IlI.Dec.

333 (1989);

Ryan

v. McFalls, 313 Ill.App.3d

223, 728 N.E.2d

1152, 245

IIl.Dec. 795

30

---

(2000). Additionally,

proof

of guilty

knowledge

or intentional

harm

is not

necessary

to

establish

a violation

nor can

lack of

knowledge

or

mens

rea

establish

a

valid

defense

for a violations

of

the

Act.

Bath,

Inc. v. Pollution

Control

Board,

10

lll.App.3d

507,

294

N.E.2d

778

(1973);

Meadowlark

Farms,

Inc.,

v. Illinois Pollution

Control

Board,

17

III.,

App. 3d

851, 308

N.E.2d

829

(1974); Freeman

Coal

Mining Corporation

v. Illinois Pollution

Control

Board,

21111.

App.3d

157,

313

N.E. 2d

616 (1974);

Hindman

v. Environmental

Protection

Agency,

42 IlI.App.3d

766,

356

N,E.2d

669,

1111. Dec.

481

(1976).

Where

a party

owns

the

source

of

the

pollution, it

is liable

for

the

resulting

violations

of

the Act.

Meadowlark

Farms,

Inc., 302

N.E.2d

829

at 835-36

Petitioner

[Meadowlark

Farms]

argues that

it

has

not caused,

threatened

or

allowed

the discharge

of

contaminants

within the

meaning

of

section

12(a)

of

the

Act (Ill. Rev.

Stat. 1971,

ch. 111

%,

§

1012(a)).

Petitioner

contends

that

its mere

ownership

of the

surface estate

from

which

the discharge

originates

is

the only

relationship

to the transaction

responsible

for

the discharge

and that

to expect

the

petitioner

to exercise

control

to

prevent

pollution

would be

unreasonable.

In

conjunction,

the

petitioner

states

that

its lack of

knowledge

that the discharge

of

contaminants

was

occurring

is a

defense

to

the complaint.

We

find

these

arguments

without merit.

To

clarify

this issue,

it

should be

noted

that

the

petitioner

was charged

with

causing or

allowing

the

discharge

of

contaminants

so

as to

cause or

tend

to cause

water

pollution

in

Brushy

Creek

and

tributary

in

violation

of Section

12(a)

of

the

Environmental

Protection

Act and certain

rules

of

SWB-1

4 of the

Sanitary Water

Board’s

rules

and regulations.

Petitioner

was

not

charged

with

creating

the refuse

piles or with

the responsibility

for the

operation

of

the

Peabody

43

mine which

resulted

in the creation

of

the

refuse pile.

The

31

---

Pollution

Control

Board merely found that the petitioner had

ownership of

the

surface

rights

of the property which was the source of the violation, that the

evidence showed that the pollution

had

its source

on that

property

and that fish

were killed, and

that the petitioner had the capability of controlling the pollutional

discharge.

Therefore,

petitioner was found to have violated section 12(a)

of

the

Act, as well as violating the other rules

and

regulations

related

to water

pollution.

The

findings of the Board were

correct.

Mr.

Simmons has owned

and

continues

to own the source of the

pollution and

violations.

Mr. Simmons has

been the

sole

stockholder

of Lawrence

County Disposal Centre and

has been

the

operator in-fact

regarding this

facility. Mr. Simmons’

failure

to properly

perform

post closure

care, site

security and maintenance, follow permit regulations, perform ground

water

and gas

monitoring, and

prevent air pollution make him liable under the

Act. With the ownership of

land

comes the

responsibility to control the pollution on that land.

Since Mr. Simmons owned

the

land

on which the

landfill sits, Mr. Simmons is responsible

for

the

pollution that he failed to

control on that

site.

B. The

Evidence Establishes the Violations Alleged in the

Complaint

The

Respondents’ failure

to

follow the terms and conditions of the

permit; provide

post-

closure care to

the facility; perform site security and

maintenance; follow permit guidelines;

perform

ground water

monitoring; perform

gas

monitoring; and prevent

air

pollution are

violations of the

Act. Mr. Gher’s testimony, the inspection reports, and Mr.

Simmons’

testimony

and

acknowledgments

all demonstrate that the allegations of the

complaint have been

proven.

1.

Count

The

Respondents’ failed to provide post-closure care to the

facility. The Respondents

failed

to

monitor gas,

water,

and

settling

at

the landfill site as required by Section 22.17(a) of

32

---

the Act, 415 ILCS 5/22.17(a) (2006). The

Respondents failed to take remedial action

necessary to abate gas, water,

and settling problems as required

by Section 22.17(b) of the

Act, 415

ILCS 5/22.17(b)

(2006). The Respondents failed

to implement adequate measures

to

monitor and control the emission of landfill

gas in

violation

of Section 811.312(c) of the Pollution

Control

Board’s Land Pollution

Regulations, 35, III. Adm. Code 811.312(c), thereby violating

Section

21 (d)(2) of the Act, 415 ILCS 5/21

(d)(2)

(2006).

2.

Count II

The Respondents failed to provide adequate

fencing, gates, or other measures to

control access

to site

as

required

by

Section

811.109(a) of the Pollution Control Board’s

Land

Pollution Regulations,

35111.

Adm. Code 811.109(a). The Respondents failed

to

post a

permanent

sign at the entrance to the facility stating that disposal of hazardous waste is

prohibited as required by Section 811.109(b) of the Pollution Control Board’s Land Pollution

Regulations, 35

III. Adm. Code 811.109(b). The Respondents failed to conduct quarterly

inspections of

all

vegetated

surfaces

after closure as required by Section

811.111(c)(1)(A)

of

the

Pollution Control

Board’s Land Pollution Regulations, 35111. Adm. Code

811.111(c)(1)(A).

The

Respondents

failed to fill rills, gullies and crevices six inches or

deeper

which

have

been

identified by

Ambraw Valley as required by Section 811.111 (c)(2) of the Pollution

Control

Board’s

Land

Pollution

Regulations, 35111. Adm. Code 811.111(c)(2).

The

Respondents

failed to revegetate those areas with failed

or

eroded vegetation in excess of

100

square

feet

as required

by

Section 811.111(c)(5) of the Pollution Control Board’s Land

Pollution

Regulations, 35 III. Adm. Code 811 .111 (c)(5).

3.

Count III

The Respondents failed

to

submit

reports required

by

Permit No. I 997-033-LF in

violation

of Condition

I. 1.

c. of

Permit No. 1997-033-LF, thereby violating Section 21(d)(1) of

33

---

the Act, 415 ILCS 5121(d)(1) (2006). The Respondents failed to prevent unauthorized entry

to

the landfill by means of a fence or gate

or

a natural barrier in violation

of

Condition

I.

5.

of

Permit

No.

1997-033-LF, thereby violating Section 21(d)(1)

of the Act,

415

ILCS 5121(d)(1)

(2006).

The Respondents failed to post a sign at the

entrance to the landfill that provides

notice

required

by

Permit No. 1997-033-LF and in violation

of Condition I. 6. of Permit No.

1997-033-

LF

and by

35111. Adm. Code 811.109(b) of the Pollution Control Board’s

Land Pollution

Regulations, 35, Ill. Adm. Code 811.109(b), thereby violating

Section 21 (d)(1) of the Act,

415

ILCS 5/21(d)(1) (2006). The Respondents failed

to submit to the Illinois EPA

by

May

1st

of each

year an annual

certification signed

by the

operator

or a duly authorized agent required

by

Permit No. 1997-033-LF

in violation

of Condition 111.1. and Condition III. 2 of Permit

No. 1997-

033-LF and by 35 Ill. Adm. Code 813.504 of the Pollution Control Board’s Land Pollution

Regulations, 35, III. Adm. Code

813.504,

thereby violating Section 21(d)(1)

of the Act, 415

ILCS

5/21(d)(1) (2006). The Respondents failed to submit to the Illinois EPA

on a

quarterly

basis

all

groundwater

monitoring

data

required

by

Permit

No. 1997-033-LF and in violation of

Condition

III. 3. of

Permit No. 1997-033-LF and by 35 III. Adm.

Code 813.502 of the Pollution Control

Board’s Land

Pollution

Regulations, 35, III. Adm.

Code

813.502,

thereby

violating

Section

21(d)(1)

of

the Act, 415 ILCS 5/21(d)(1) (2006). The Respondents failed to keep operating

records required by

Permit No. 1 997-033-LF

and in

violation

of Condition IV. 4. of Permit

No.

1997..033-LF and by 35 Ill. Adm. Code 812 and 813 of the Pollution Control Board’s

Land

Pollution

Regulations, 35,

III.

Adm. Code

812

and 813, thereby

violating

Section 21(d)(1)

of the

Act,

415 ILCS

5/21(d)(1) (2006).

The

Respondents

failed to submit to the Illinois EPA

the

results from gas

monitoring for

each

year,

ending

on December 3las required by Permit

No.

1997-033-LF

and in

violation

of

Condition V. 7.

and in accordance with Special Condition

III. 2.

of

Permit No.

1997-033-LF and by 35 Ill. Adm. Code 813.501

of

the Pollution

Control Board’s

3

---

Land

Pollution Regulations,

35, III. Adm. Code 813.501,

thereby violating Section 21(d)(1)

of the

Act, 415 ILCS 5121(d)(1) (2006). The Respondents failed

to

file an application to renew Permit

No. 1 997-033-LF which expired on June 30, 2001, as required by Permit No. 1 997-033-LF in

violation of Condition IX. 1. c. of Permit No. 1 997-033-LF, thereby violating Section 21(d)(1)

of

the Act,

415 ILCS 5/21(d)(1)

(2006). The Respondents failed to revise the current cost

estimates for post-closure care as required by Permit No. I 997-033-LF in violation of Condition

IX.

3.

of Permit No. 1997-033-LF, thereby violating Section 21(d)(1)

of the

Act, 415 ILCS

5/21(d)(1) (2006). The Respondents

failed

to determine

background groundwater quality as

required

by

Permit No.

1

997-033-LF in violation of

Condition

XI. 9. of

Permit No. I 997-033-LF,

thereby violating Section 21(d)(1) of the Act, 415 ILCS

5/21(d)(1) (2006), The Respondents

failed to

collect groundwater samples on a quarterly basis each

year

as

required

by

Permit

No.

I

997-033-LF in violation of Condition Xl. 11. of Permit No. 1 997-033-LF,

thereby violating

Section

21(d)(1) of the Act, 415 ILCS 5/21(d)(1) (2006). The

Respondents failed to annually

prepare an

evaluation of the groundwater flow direction and the

hydraulic gradients at the

facility using the

groundwater surface elevations and by

failing

to

report this information to the

Illinois

EPA by July

15

th

of each

year

as

required by Permit No. 1997-033-LF in

violation

of

Condition Xl. 17. of

Permit No. 1997-033-LF, thereby violating Section 21(d)(1) of the Act, 415

ILCS

5!21(d)(1)

(2006).

The Respondents failed to properly conduct

post-closure care

at this

waste-storage or

waste-disposal facility in violation of the

permit, the Respondent has violated

Section

21(d)(1) of the Act, 415 ILCS

5/21(d)(1) (2006).

4.

Count IV

The

Respondents

failed

to

determine background concentrations for those constituent

parameters

identified

in Sections 811.315(e)(1)(G) and 811.319(a)(2) and

(a)(3) to

establish

background

groundwater quality in violation of Section 811.320(d)(1) of the

Pollution Control

35

---

Board’s

Land Pollution Regulations,

35, Ill.

Adm.

Code 811 .320(d)(1), thereby violating Section

21(d)(2) of

the Act, 415 ILCS 5121(d)(2) (2006). The

Respondents failed to perform quarterly

groundwater monitoring during any time during

calendar years 1999, 2000,

2001,

2002, 2003,

2004,

and 2005 in

violation of

Section 811 .31 9(a)(1) of

the

Pollution Control Board’s Land

Pollution

Regulations, 35, III. Adm.

Code

811.31

9(a)(1), thereby

violating Section 21 (d)(2)

of the

Act,

415 ILCS

5121(d)(2) (2006).

The Respondents failed

to

submit all groundwater monitoring

data a

violation of Condition III. 3. and in accordance

with the

schedule

in Special

Condition

XI.

11. of

Permit

No.

1997-033-LF and

of

Section 811.319(a)

and 813.502(a) of the

Pollution

Control Board’s

Land Pollution

Regulations,

35, III. Adm. Code 811.319(a) and 813.502(a),

thereby

violating

Section 21(d)(2)

of the Act, 415 ILCS 5/21(d)(2) (2006).

The

Respondents

failed to

monitor groundwater at the facility a violation of Section 22.17(a)

of

the Act, 415 ILCS

5/22.17(a)

(2006). The Respondents

failed

to determine background

groundwater quality

and

to

submit

to

the

Illinois EPA

the

groundwater monitoring

data

required by Permit No. 1997-

033-LF

in violation of Condition

Xl.

9.

of Permit

No.

1997-033-LF, thereby

violating Section

21(d)(1)

of

the

Act, 415

ILCS 5/21(d)(1) (2006). The Respondents

failed to collect groundwater

samples on a

quarterly basis each year and by

failing

to

submit to the Illinois

EPA

the

groundwater

monitoring

data

as

required by Permit

No.

1997-033-LF in violation of Condition

Xl. of

Permit No.

1997-033-LF, thereby violating Section 21(d)(1) of the Act, 415 ILCS

5/21(d)(1) (2006).

The Respondents failed to annually prepare an

evaluation

of the

groundwater flow

direction and the hydraulic gradients at the

facility

using the

groundwater

surface

elevations

and by failing to

report

this information to the Illinois

EPA

by

July

15th

of

each

year

as required by

Permit No. 1997-033-LF in violation of

Condition Xl. 17. of Permit No.

1997-033-LF,

thereby

violating Section 21(d)(1) of

the Act,

415 ILCS 5/21(d)(1) (2006).

36

---

5.

Count

V

The

Respondents caused

or allowed the emission

of landfill

gas

directly

into

the

environment

as

prohibited

by Section 811.312(c)

of

the

Pollution

Control

Board’s Land Pollution

Regulations,

35 Ill. Adm. Code 81 1.312(c)

and

have

violated

Section 21 (d)(2)

of

the

Act,

415

ILCS

5121(d)(2) (2006).

The Respondents

failed to check

gas

monitoring

devices

and by failing

to

obtain ambient

air

samples

on a

monthly basis

as

required

by Section 811.310(c)

of the

Pollution

Control Board’s

Land Pollution

Regulations,

35 Ill. Adm. Code

811.310(c)

and have

violated Section

21(d)(2) of the Act,

415 ILCS 5121(d)(2)

(2006). The Respondents

failed

to

submit

to the

Illinois

EPA

the

results from gas

monitoring for

each

year, ending on December

31, in

the

annual

report as

required

by

Special Condition

III. 2., Respondents

have violated

Condition V.

7. of

Permit No.

1997-033-LF and

Section

813.501

of

the

Pollution

Control

Board’s

Land

Pollution

Regulations, 35111. Adm.

Code 813.501;

have thereby

violated Section 21(d)(1)

of the Act,

415 ILCS

5/21(d)(1)

(2006). The

Respondents

failed

to

monitor gas

at the facility

as

required

by

Section

22.17(a)

of

the Act, 415

ILCS 5/22.17(a) (2006).

6.

Count

VI

The

Respondents

caused

or allowed the emission

of landfill

gas

into the environment

so

as

to

cause or

tend to cause

air pollution

in violation of Section

811.312(c)

of the Pollution

Control

Board’s

Land

Pollution

Regulations, 35

III. Adm. Code

811.312(c), thereby

violating

Section 9(a)

and

21(d)(2) of the Act,

415

ILCS

5/9(a);

21(d)(2)

(2006).

V.

RELIEF

REQUESTED

The evidence

demonstrates

that numerous violations

of the

Act and regulations

have

occurred.

Section

42(a) of the Act permits

the

Board

to

impose penalties

against those who

violate

any

provision of the

Act or

regulation

adopted

by

the

Board, 415 ILCS 5/42(a)

(2006).

37

---

The Board

may

impose

a maximum

penalty

of

$50,000.00

for

each violation

of the Act,

and an

additional

$10,000.00

penalty

for

each day

the violation

continues,

415 ILCS

5/42(a)

(2006).

The Board

has broad

discretionary

powers

to

assess

civil

penalties

under the

statutory

authority

vested by

the

Act,

Southern

Illinois Asphalt

Company

v. Pollution

Control

Board,

60

III.

2d 104,

326 N.E.

2d 406

(1975).

Courts

have traditionally

upheld

the

imposition

of civil

penalties

where

it will

“aid

in the

enforcement

of

the Act,” but

not

where

it is shown

to be merely

“punitive.”

Southern

Illinois

Asphalt

Company,

326

N.E.2d

at

412;

see

also,

City of Monmouth

v.

Pollution

Control

Board,

57

HI. 2d

482,

313

N.E.

2d 161

(1974)

(punitive

considerations

for

civil

penalties

are

secondary).

Amendments

to Section

33

of

the Act, 415

ILCS 5/33

(2006)

and

Section

42 of the

Act,

415

!LCS 5/42

(2006),

all of which

were subsequent

to

the

aforementioned

cases and

all of

which

increased

the penalty

amounts

subsequent

to the

aforementioned

cases,

make

it

clear that

the

Board

has the power

and

authority

to assess

a

penalty

in this matter.

In the

last thirty

years

of

enforcement

under

the Act,

civil penalties

assessed

by

the

Board

or Illinois

courts

have fallen

between

two ends of

a

spectrum.

On

the

one end,

little

or no

civil penalties

have

been

deemed

necessary

because

of

pertinent

facts that

weighed heavily

upon

the

nature of the

violations

or the

extent of

the alleged

pollution.

Technical

or paperwork

violations,

such

as

the

failure

to

obtain permits

or

submit

reports,

have

frequently

been

afforded

this

treatment.

See, Park

Crematory,

Inc. v.

Pollution

Control

Board,

201 Ill.

Dec.

931,

637

N.E.2d

520

(1st

Dist.

1994);

Tn/la Steel

Drum

Corporation

v, Pollution

Control

Board, 180

III.

App.3d

1010,

536

N.E.2d

788 (1st

Dist.

1989). Similarly,

the

inadvertence

of

the defendant,

Southern

Illinois

Asphalt Company,

supra, the

good

faith

efforts

of

a

defendant

to

bring

about

compliance

prior to

the filing

of

a

complaint,

Park

Crematory,

Inc.,

supra; Bress/er

Ice Cream

Company

v.

Pollution

Control Board,

21

Ill.App.3d

560,

315

N.E.2d 619

(1st

Dist.

1974),

and

38

---

lack

of

any

economic

benefit

from

noncompliance, Park Crematoiy,

Inc.,

supra, have

figured

prominently

in

cases

involving

low

or nominal

civil

penalties.

Again,

amendments

to Section

33

of

the

Act, 415 ILCS

5/33

(2006)

and

Section

42

of the Act,

415 ILCS

5/42 (2006),

all of which

were

subsequent

to

the aforementioned

cases

and all

of

which

increased

the penalty

amounts

subsequent

to the

aforementioned

cases,

make

it

clear that the

Board has

the power

and

authority

to

assess a penalty

in this

matter.

On the

other

end of

the

spectrum,

some enforcement

actions

brought

under

the

authority

of the Act

have

resulted

in

substantial

monetary

penalties.

In these

cases,

circumstances

showing

the

unreasonableness

of the

defendant’s

conduct

or

its lack

of

good

faith, ESG

Watts,

Inc.,

v.

Pollution

Control

Board,

282

Ill. App.

3d

43, 668 N.E.2d

1015

(4th

Dist.

1996),

the seriousness

and

lengthy

duration

attributed

to

the

violations,

People

v.

John

Prior

and

Industrial

Salvage,

inc., PCB

No.

97-1 11 (November

20,

1997);

People

v. Panhandle

Eastern

Pipeline

Company,

PCB

No. 99-191

(November

15, 2001),

the need

for deterrence,

People v.

Waste

Hauling

Landfill,

Inc and

Waste Hauling,

Inc.,

PCB

No.

95-91

(May

21, 1998),

or the

accrual

of a

significant

economic

benefit,

Panhandle,

supra,

have

been

important

considerations

in

the

penalty

determination.

Of

course,

most litigated

cases

fall

somewhere

in the

middle of

the aforementioned

spectrum.

The

determination

as the

amount of

the penalty

is

dependent

on

the

unique

facts of

each

case,

as

no

exact

“formula”

for arriving

at

a

penalty

exists,

People

v. Bernice

Kershaw

and

Darwin

Dale

Kershaw,

PCB

No.

92-1 64

(April 20,

1995);

People v.

ESG Watts,

Inc.,

PCB

No.

96-233

(February

5,

1998).

As to

Respondent,

Lawrence

County

Disposal

Centre,

Inc., the

People

contend

that

this case should

be ranked

at the

mid-range

of the

penalty

spectrum.

As

to

the

Respondent,

Gary

Simmons,

the People

contend

that

this

case

should

be

ranked at

the

lower

end

of

the

penalty

spectrum.

39

---

In

making

its orders,

the

Board

is required to

consider

any

matters of record concerning

the

reasonableness

of

the

alleged

pollution,

including those

factors identified

in Section

33(c).

The Board is

also

authorized

by the

Act to consider

any matters of record

concerning

the

mitigation

or

aggravation

of penalty, including those

matters

specified in Section 42(h).

See,

People

v. Bernice

Kershaw and Darwin

Kale

Kershaw

d/b/a Kershaw

Mobil Home Park,

PCB

92-164

(April

20, 1994). The

People will

outline

its penalty

demand in two parts:

first,

a

consideration

of the

Section

33(c)

factors and secondly,

a consideration

of the

Section

42(h)

factors.

A.

Section

33(c)

Factors

Section

33(c)

of

the Act,

415 ILCS

5/33(c)(2006),

provides

as follows: