ILLINOIS POLLUTION CONTROL BOARD
December
4, 1980
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
)
v.
)
PCB 79—20
THE WIGGINS FERRY COMPANY,
an
)
Illinois Corporation,
ROBERT
)
STORMAN, C.B,C.,
INC.,
a Missouri
)
Corporation, COLONIAL BRICK COMPANY,)
INC.,
an Illinois Corporation,
and
)
FRED LEHMKUHL
d/b/a
L. AND L.
)
HAULING,
Respondents.
MR. PATRICK J. CHESLEY, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF THE COMPLAINANT.
GUNDLACH, LEE, EGGMANN, BOYLE
& ROESSLER, ATTORNEYS
AT
LAW
(MR. TERRY
N, BROWN, OF COUNSEL), APPEARED ON BEHALF OF RESPONDENT WIGGINS
FERRY COMPANY.
RICE, DURSO
& RICE, ATTORNEYS AT LAW
(MR. CARMEN S. DURSO, OF
COUNSEL), APPEARED ON BEHALF OF RESPONDENTS FRED LEHMKUHL
d/b/a
L, AND
L.
HAULING; COLONIAL BRICK, INC.; AND C.B.C.,
INC.
MR. ROBERT STORMAN APPEARED PRO SE.
OPINION AND ORDER OF THE BOARD
(by N.E.Werner):
This matter comes before the Board on the January
30,
1979
Complaint brought by the Illinois Environmental Protection Agency
(“Agency”).
Count
I
of the Complaint alleged that the Respondents,
the Wiggins Ferry Company
(“Wiggins”); Mr.
Robert Storman (“Storman”);
Colonial Brick Company,
Inc.
(“Colonial”), and Mr. Fred Lehmkuhl d/b/a
L.
and
L.
Hauling
(“Lehmkuhl”), from October of 1977 to August 23,
1978,
caused or allowed the operation of a solid
waste management
site (“site”)
on a tract of
land in an unincorporated area of
St. Clair County,
Illinois, west of National City,
Illinois along
Illinois Route
#3
without an Operating Permit from the Agency in
violation of Rule
202(a)
of Chapter
7:
Solid Waste Regulations
(“Chapter
7”),
40—35
Count
I also alleged that:
(1) Wiggins owned the tract of
land;
(2) Wiggins leased the site to Storman;
(3) Wiggins and
Storman permitted Colonial and Lehmkuhl to deposit refuse upon the
site;
(4) Colonial deposited refuse upon the site and agreed to
cover such refuse; and
(5) Lehmkuhl deposited refuse upon the site.
Count II alleged that,
from May
12,
1978 until June 15,
1978,
Respondents Wiggins,
Storman, and Colonial failed to place the
appropriate daily cover on the site in violation of Rules 301 and
305(a) of Chapter
7 and Section 21(b)
of the Illinois Environmental
Protection Act
(“Act”).
Count III alleged that the Respondents failed to place final
cover on the site in violation of Rules 301 and 305(c)
of Chapter
7
and Section 21(b)
of the Act,
Count IV alleged that Colonial and Lehmkuhl disposed of refuse
at an unpermitted site in violation of Section 21(f) of the Act.
On February 13,
1979, Respondent Lehmkuhl filed a Motion to
Dismiss or in the Alternative to Make the Complaint More Definite
and Certain.
On February 23,
1979,
the Agency filed
its Response
to Lehmkuhl’s motion.
On March
1,
1979, the Board entered an Order
denying Lehmkuhl’s motion.
After numerous discovery motions were
filed,
a hearing was held on May 23,
1979.
Additional hearings
were held on January 24, 1980 and July 2,
1980.
On July 14,
1980,
the Agency filed a Motion to Amend the Complaint,
Amended Complaint,
and Certificate of Service.
The Amended Complaint substituted
C.B.C., Inc.,
a Missouri corporation,
in place of Colonial Brick
Compan~i,Inc., an Illinois corporation, as a Respondent (because,
according
to testimony at the hearings, C.B,C.,
Inc. was the legal
entity which conducted the actual operation of the site during the
relevant time period),
After the hearing of May
23, 1979,
a Statement of Stipulated
Settlement dated May
11,
1979
(i.e., Joint Exhibit 1) between the
Agency and the Wiggins Ferry Company was filed with the Board.
On
July
25,
1980,
a Statement of Stipulated Settlement between the
Agency and Robert Storman was filed with the Board,
On September 17,
1980,
a Statement of Stipulated Settlement between the Agency and
Respondents Colonial Brick Company,
Inc., C.B.C., Inc.
and Fred
Lehmkuhl d/b/a
L.
and L. Hauling was filed with the Board.
The proposed settlement agreement between the Agency and the
Wiggins Ferry Company provides that:
(1) Wiggins owns the tract
of land in St. Clair County which is the site in question;
(2) Wiggins leased this site to Mr. Robert Storman (from approxi-
mately October of
1977 until August
23,
1978);
(3)
Storrnan
allowed others to deposit refuse on the site
(unknown to Wiggins);
(4)
~When Wiggins learned of the dumping on the site,
it ordered
Robert Storman to have the dumping stopped and to have the refuse
covered”; and
(5) Wiggins agrees to allow access by any party
designated by the Agency; at the sole risk of said party, to bring
40—36
—3—
the site into compliance with the Board~sSolid Waste Regulations
and the Act.
The parties have stipulated that, because of Wiggins’
lack of involvement in the operation of the site as a landfill,
they believe that no penalty ought to be assessed against Wiggins.
The Statement of Stipulated Settlement between the Agency and
Mr.
Robert Storman provides that:
(1) During the relevant time
period between October of 1977 and August
23, 1978,
Storman allowed
Mr.
Phil
Mumford,
d/b/a Colonial Brick,
Inc.,
and Mr.
Fred Lehmkuhl
“to deposit
off—site refuse” on the property owned by Wiggins
and
leased to Storman;
(2) Neither Storman,
Colonial Brick,
Inc.,
nor
Fred Lehmkuhl had an Operating Permit for the site;
(3) Daily cover
was not placed on refuse from May 12,
1978 through June 15,
1978;
(4) Appropriate final cover was not placed on the site;
(5)
Storman
was not paid any money by Colonial or Lehmkuhl to allow them to
deposit refuse on the property
(although Storman “did derive a
slight benefit because a low area on the site was filled”);
(6) Storman had no knowledge of the requirements of the Board’s
Solid Waste Regulations or the Act;
(7) Storman agrees not to
allow any further refuse disposal on the site unless the require-
ments of Chapter
7 and the Act are complied with;
(8) Storman shall
cease and desist from further violations of Rule 202(a),
301,
305(a),
and 305(c)
of Chapter
7 and Section 21(b) of the Act;
and
(9)
no
penalty against Storman is necessary to aid in the enforcement of
the Act.
The proposed settlement agreement between the Agency and
Lehmkuhl provides that Lehmkuhl:
(1)
admits the allegations against
him
in Count IV of the Amended Complaint
(i.e., that he disposed of
refuse at an unpermitted site from November of 1977 through March
6,
1978 in violation of Section
21(f)
of the Act)
and
(2) agrees
to
pay a stipulated penalty of $500.00
.
Additionally, the Agency has
agreed that the allegations in Count
I of the Amended Complaint
against Lehmkuhl should be dismissed.
The proposed settlement agreement between the Agency and
Respondent Colonial Brick Company,
Inc.
and Respondent C.B.C.,
Inc.
indicates that:
(1) Mr. Phil Mumford (who is President of both
Colonial Brick Company,
Inc. and C.B.C.,
Inc.)
“has testified
under
oath that C.B.C., Inc. was the entity which operated the solid
waste management site alleged in the Complaint”;
(2) C,B.C.,
Inc.
admits the violations alleged in Counts
I,
II,
III and IV of the
Complaint in that it
(a) operated the site without an Operating
Permit from the Agency;
(b) failed to apply the requisite daily
and final cover; and
(c) disposed of refuse at an unpermitted site
in violation of Section 21(f) of the Act;
(3)
“C.B.C., Inc.
agrees
not to conduct any more refuse disposal operations at the site
in
the future~unless an Operating Permit from the Agency is first
obtained;
(4)
C.B,CO,
Inc. agrees to promptly place the necessary
final cover on a specified area of the property which is about
60’
X
75’
(most of the site has already been covered with the
required final cover); and
(5) C.B.C., Inc. agrees to pay a
stipulated penalty of $3,000.00 within 30 days of the date
of the
Board Order in this case
(Mr. Phil Mumford has agreed to personally
guarantee this payment).
40—37
In evaluating this enforcement action and the proposed settle-
ment agreements between the Agency and the various Respondents
involved
in this case, the Board has taken into consideration all
the facts and circumstances in light of the specific criteria
delineated in Section 33(c)
of
the
Act,
The Board finds
all of
the
settlement agreements acceptable under Procedural Rule 331 and
Section 33(c)
of the Act,
The Board hereby:
(1) grants the Agency~sMotion
to
Amend
the
Complaint (thereby substituting C,B,C~, Inc.
for Colonial Brick
Company,
Inc.
as
a Respondent in this case);
(2) dismisses
Colonial Brick Company,
Inc. as a Respondent in this case;
(3)
finds
that C,B.C.,
Inc. has violated Rules 202(a),
301,
305(a)
and 305(c)
of Chapter
7 and Section 21(f) of the Act;
(4) orders C.B.C.,
Inc.
to
expeditiously place the appropriate
final cover
on the specified
uncovered area of the site (which is approximately
60 feet X 75 feet),
subject to the requirements detailed
in the proposed settlement
agreement between C.B.C.,
Inc. and the Agency;
(5) orders
C.B.C.,
Inc.
not to conduct any more refuse disposal operations at the site
in the
Euture unless a permit
is issued by the Agency
for
such
operation;
(6) assesses a $3,000.00 stipulated penalty against
C.13,C.,
Inc.;
(7)
dismisses the allegations
in Count
I of the
Amended Complaint against Fred Lehmkuhl d/b/a L. and L.
Hauling;
(8)
finds that Lehmkuhl has violated Section 21(f) of the Act;
(9)
assesses a $500.00 stipulated penalty against Lehmkuhl;
(10)
orders Mr.
Robert Storman to cease and desist from further
violations of Rules 202(a),
301,
305(a), and 305(c) of Chapter
7
and Section 21(b)
of the Act;
(11) assesses
no
penalty against
Storman;
(12) orders the Wiggins Ferry Company to allow access by
any party designated by the Agency,
at the sole risk of said
party;
to bring the site into compliance with Chapter
7
and the Act;
and
(13) assesses no penalty against Wiggins.
This Opinion constitutes
the Board~s
findings of fact and
conclusions of law
in
this matter.
ORDER
It is the Order
of the
Illinois Pollution Control Board that:
1,
The
Complainant~sMotion to Amend the Complaint (thereby
substituting C.B,C,,
Inc.
for Colonial
Brick Company,
Inc. as a
Respondent in this case)
is hereby granted.
2.
Colonial Brick Company,
Inc.
is hereby dismissed as a
Respondent in this case.
3.
The Respondent, C.B.C., Inc., has violated Rules
202(a),
301,
305(a) and 305(c)
of Chapter
7:
Solid Waste Regulations and
Section 21(f)
of the Illinois Environmental Protection Act.
4..
C.B.C.,
Inc. shall expeditiously place the appropriate
final cover on the specified uncovered area of the site (which
is
40~38
approximately 60’
X 75~)subject to the requirements detailed in
the Statement
of Stipulated Settlement between C.B.C,,
Inc.
and
the
Illinois Environmental Protection Agency which
was filed on
September 17,
1980.
5.
C,B.C.,
Inc.
shall not conduct any more refuse disposal
operations at
the site in the future unless a permit
is issued by
the Agency for such
operation.
6.
Within
30 days of the date of this Order,
C.B.C.,
Inc.
shall,
by certified check or money order payable to the State of
Illinois, pay the stipulated penalty of $3,000.00 which
is to be
sent to:
Illinois Environmental Protection
Agency
Fiscal
Services Division
2200 Churchill Road
Springfield,
Illinois
62706
7.
The allegations
in Count
I of the Amended Complaint
against
Fred Lehmkuhl d/h/a
L.
and
L,
Hauling are hereby dismissed.
8.
The Respondent,
Fred Lehmkuhl d/b/a
L. and L.
Hauling, has
violated Section 21(f) of the Illinois Environmental Protection Act
by
disposing of refuse at the unpermitted site alleged in the
Amended Complaint from approximately November,
1977
through
March
6,
1978.
9.
Within 30 days of the date of this Order, Fred Lehmkuhl
d/b/a
L.
and L.
Hauling shall, by certified check or money order
payable to the State of Illinois, pay the stipulated penalty
of
$500.00 which is to be sent to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
Illinois
62706
10.
The
Respondent,
Robert Storman,
shall cease
and desist from
further violations of Rules
202(a),
301,
305(c) of Chapter
7:
Solid
Waste Regulations
and
Section 21(b) of the Illinois Environmental
Protection Act.
11.
No penalty shall
he assessed against Robert Storman.
12,
The Wiggins Ferry Company shall allow access by
any party
designated by the Illinois Environmental Protection Agency
at the
sole risk of said party; to bring the site into compliance with the
Board’s Solid Waste Regulations and the Illinois Environmental
Protection Act.
13.
No penalty shall be assessed against the Wiggins Ferry
Company.
40~39
—6—
14.
The Respondents shall individually comply with all the
terms and conditions of each of their executed Statements of
Stipulated Settlement, which are all incorporated by reference as
if fully set forth herein.
I, Christan
L, Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify
t. at the above Opinion and Order were adopted
on the
~
day of
_____
,
1980 by a vote of
‘1-o.
Christan
L.
Moff~~,
Clerk
Illinois Poliuti~f~
Control Board
40—40