March

6,

Complainant

v.

)

OPINION AND ORDER of the Board

(by Mr.

Zeitlin)

The Complaint in this matter was filed by the Attorney

General for the Environmental Protection Agency

(Agency)

on

October 25,

1974.

The Complaint alleges violations of

Section 21(e)

of the Environmental Protection Act, and Rule

202(b) (1)

of the Solid Waste Rules and Regulations of the

Board,

in that Village of Karnak

(Karnak) operated a solid

waste management site without the appropriate operating

permits from the Illinois Environmental Protection Agency

(Agency).

The site in question is a plot of approximately

ten acres in the Village of Karnak, Pulaski County, originally

purchased by Karnak on December

7,

1962.

Pursuant to Rule

202(b) (1)

of the Solid Waste Regulations, operating permits

were required for all existing solid ~aste management sites

as of July 27,

1974.

In its answer to the complaint,

and its answer to

a

request for admission, both filed on January

6,

1975, Karnak

denied

the allegation in the complaint that it was in fact

operating a solid waste management site without the required

permit.

Karnak~sanswer admitted that it never possessed an

operating permit, but denied that it ever operated a solid

waste management site. Karnak stated that its activities on

the site in question amounted to merely

filling and covering

an old dump area which has

been

used by the public for more

than thirty years,

Karnak also stated that it had fenced

the site

to

prevent indiscriminate dumping

by

private persons

who were not residents of Karnak.

A hearing was held in the matter on January

6,

1975.

hearing, and each introducc~several exhibits supporting its

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position.

The Agency’s witness, Bob Samuel, stated that he

inspected the site on two occasions since July 27,

1974. Mr.

Samuel’s testimony indicated that the site was still in

operation on July 29,

1974,

and that at least some activity

was taking place at the site on December

5,

1974

(R.

40,52).

In addition, Mr. Samuel offered two photographic exhibits

which tend to support his testimony

(Cornp,

Ex.

A,

B).

Also introduced at the hearing was a series of letters

from the Environmental Protection Agency to the Village of

Karnak.

These letters, dating from September

18, 1973 and

nine subsequent occasions,

included notification

to Karnak

that the Agency considered its site

a landfill,

for which a

permit would be required after July 27,

1974.

The

letters

were specific concerning the permit requirement, and

in-

cluded notice that applications should be submitted to the

Agency before April

28, 1974

(R.

56,57;

Comp.

Ex. C 1-C 10).

Karnak stipulated

at the hearing to receipt of nine such

letters.

Karnak presented as its only witness Robert Spurlock,

the Mayor of the Village of Karnak.

Mayor Spurlock’s test-

imony was largely concerned with

operations

of the site

prior to July 27,

1974.

He testified at some length concerning

the efforts of the Village to cover the old dump site

(R.

122).

But even on direct examination Mayor Spurlock~s

testimony contains admissions of operation after July 27,

1974.

(R.

139).

He testified that during period of July 27,

1974

to October 25,

1974 the site was open for at least four

hours on Wednesdays and Saturdays, during which time new

refuse was accepted at the site

if

brought in by private

individuals. During that time Karnak operated a bulldozer

and road grader to cover old and new material which had been

dumped on the site

CR.

141).

On cross-examination, the following question was put to

Mr. Spurlock:

“Mr. Spurlock, what happened, what went on at

the site after July 27, 1974?”

In answer, Mayor Spurlock

stated:

“July 27

P

Well,

of course, actually nothing went

on any

different

than the regular dumping and filling, you

know,

and keep covering up as usual.

That was our overall

purpose and that is what we intended to do if we could stay

long enough,

just

clean

up our wasteland and get

it

covered.”

(R,

156)

,

Further, when asked what types of materials were

being brought to the site,

Mayor Spurlock stated that dumping

was restricted

to citizens of Karnak, who brought

in

“just

stuff out

of the kitchen”

(R.

157)

.

On redirect examination,

Mayor Spurlock stated that the villagers were bringing in

“about a ton a week” of the “new stuff” (R.

158)

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The

record in this matter is replete with other such

admissions that Karnak accepted refuse or garbage at its site

after July 27,

1974.

It would serve no purpose to catalogue

all such admissions.

Karnak has not denied that individuals

were allowed to dump on the subject site after July 27,

1974.

Its defense, instead,

is that the facts as stipulated

or admitted do not constitute the operation of a solid waste

management site.

Karnak presented no evidence or direct argu~nentthat

its operations could be characterized as anything except the

operation of a solid waste management site,

instead, Karnak

has attempted to show that its operations have historically

been of benefit to the ~environment. While the cleanup of an

old dump site is laudable, such evidence doeb not approach

the question directly,

Section 21(e)

of the Act states that no person shall

“conduct any refuse~col1ectionor refuse~disposaioper~

atibns, except refuse generated by the operato.rs own act~

ivities, without a permit granted by the Agency~

Rule

202

(b)

(1)

states that

“no person shall cause or allow tb.e

use or operation of any exising solid waste management site

without an Operating Permit issued by the Agency not later

than one year after the effective date of these Regula~

tions.”

Although there has been no evidence presented in

this matter tending to show that Karnak itself conducted

dumping on this site,

the Board has previously determined

that one who “allows” dumping m.ay be seen to have engaged in

the operation of the landfill.

EPA

v.

Rafacz Landscaping and

Sod Farms,

Inc.,

PCB 72~196,October

24,

1972,

6 PCB 31.

There is no question that an irdividual can be held liable

for dumping conducted by others, EPA v. Doveke, et

al. PCB

72~l30,August 22,

1972,

5 PCB 219,

220.

~h~eoperations of

Karnak at this site unquestionably conOtituted the operation

of a solid waste management site within the meaning of the

Act and the Regulations.

Karnak’s intentions as

to such

operation are immaterial.

The violation here is clear.

Karnak has admitted in its pleadings and at the •hearing that

no permit was •ever received or ever applied for

(R.

53)

The Board does not in this Opinion and Order reach any

decision as to whether the operation by Karnak after October

25, 1974 constitut~the operation of

a solid waste management

site.

The admission made by Karnak covers the period through

October 25, on which date the complaint in this matter was

filed. The complaint alleges violations only through the

date on which the complaint was filed.

Although the Agency

introduced evidence as to operation of the site on December

5,

1974,

no violation has been alleged for that date,

For

that reason,

it is unnecessary to decide whether operations

constituting the closure of a solid waste management site,

and not including further dumping,

do or do

not constitute

continuing operations of

such

a site.

Proof presented by

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the Agency as to operations on December

5, and statements

made by Karnak regarding its activities on that date,

are

not material to the case before us now.

Karnak’s

intent is material, however,

in determining

the penalty to

be levied for

the violation described above.

Karnak’s intent in cleaning up an old dump site is certainly

laudatory, and could lead to the conclusion that a penalty

might not be warranted in this case,

if no further issues

in this regard were before the Board. The difficulty here

lies in the fact that Karnak was repeatedly warned that the

Agency considered its site a solid waste management site,

and that a permit would be needed after July 27,

1974.

Further,

it can be inferred from the testimony of Karnak at

the hearing that Karnak realized that its site might,

at

least, fall within the definition of

a solid waste manage~

ment site under the Act and the Rule,

(See,

e.g.

R,

134,

149,

145).

Weighing both the intent of Karnak to benefit

t1~eenvironment and the distinct possibility

that Karnak’s

violations were purposefull,

it is the Opinion of the Board

that

a penalty of

$100

will serve

to

insure compliance with

the Act and prevent further unlicensed operation.

This Opinion constitutes the findings of fact and

Opinions of law of the Board.

ORDER

It

is

the Order of the Pollution Control Board that:

1.

Respondent Village of Karnak is found to have op-

erated a solid waste management site

in violation of Section

21(e)

of the Environmental Protection Act, and Rule 202(b) (1)

of the Solid Waste Rule and Regulations, by operating said

site without an appropriate operating permit having been

issued therefore by the Illinois Environmental Protection

Agency, during the period from July 27,

1974, through and

including October

25,

1974.

2.

Respondent Village of Karnak shall cease and desist

all such violations,

and shall take proper steps for the

closure of the subject site in accordance with the Board’s

Solid Waste Regulations.

3.

Respondent Village of Karnak shall pay as

a penalty

for said violations the sum of $100, within

30 days of the

adoption of this Order, payment to be made by certified

check or money order to:

Environmental Protection Agency

2200 Churchill Road

Springfield, Illinois

62706

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I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board hereby certify that thi

Opinion

& Order were

adopted on the

(,‘*‘~

day of

_______________,

1975 by

voteof

~

Christan L, Moffet

lerk

Illinois Pollution