ILLINOIS POLLUTION CONTROL BOARD
June
6,
1975
ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
)
PCB 74—476
CLARENCE 0.
NELSON,
Respondent.
Mr. Michael A. Benedetto, Jr.
and Mr. Stephen
Z. Weiss,
Assistant Attorneys General appeared for Complainant.
Mr.
Kenneth J. Gumbiner and Mr. Robert F.
Casey appeared for
Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr. Goodman):
This matter comes before the Pollution Control Board
(Board)
upon the Environmental Protection Agency’s
(Agency)
December 17, 1974 Complaint and March
31, 1975 Amended
Complaint.
Clarence 0.
Nelson (Nelson)
is charged,
therein,
with operating
a solid waste management site without
a
permit in violation of Rule 202(b) (1)
of Chapter
7:
Solid
Waste Regulations and therefore in violation of 21(b)
and
21(e)
of the Act.
As the Amended Complaint merely conforms
to the proof, we grant the Agency’s motion to file it.
Nelson
is located in Kendall County and takes care of
80
of Aurora’s household refuse
(R40).
Nelson also ser-
vices Piano, Illinois.
Several interested citizens test-
ified to the hardship they and/or their cities would exper-
ience if Nelson is shut down.
The principal hardship would
be increase of costs based upon the greater distance to the
next closest landfill
(13
to
25 miles)
and the higher cost
of dumping
($0.20 more per ton or $0.35 more per yard).
Nelson is open
5 1/2 days per week and takes in 800 cubic
yards per day at an average charge of
$0.80 a yard
(R233)
Mr.
C.
0.
Nelson admits that the landfill has no develop-
mental or operating permit issued by the Agency
(R226).
Nelson has applied several times for a permit,
the
first
time
in 1971 and the latest,
in 1974.
Respondent contends that a permit issued by default.
Its basis for this contention is that it filed an applic-
ation on June 28, 1974 and a more information letter was not
sent by the Agency until August 22,
1974.
Rule 205 per-
taining to permit applications does provide for default
operating permits in subsection
(g)
in the event the Agency
fails td take
final action within 45 days from the filing
thereof.
An app-lication is deemed filed when receiied by
the
Agency
(205(f)).
No evidence is contained in the record
17
—
261
—2—
as to the date the Agency received the application.
In
addition the record does not state the date on which the
application was sent.
Rule 205(e) provides that applica-
tions be sent via registered or certified mail, return
receipt requested.
Nelson has failed to carry its burden in
proving the elements of
a default permit.
The Board must
find that no default permit issued.
As a violation of 202(b) (1)
is not a violation of 21(b)
of the Act,
see EPA V.
E.
&
E. Hauling, PCB 74—473
(1975),
that portion of the Amended Complaint alleging a violation
of Section 21(b) must be dismissed.
The Agency’s witness, Mr.
Beechley, upon cross examina-
tion,
stated that he had no knowledge of leachate or pollu-
tion from the site
(201—202).
However, from borings taken,
Mr. Beechley concluded that
“the natural soils at the site
were somewhat less than desirable for natural attenuation of
leachate.”
(R207)
In mitigation, the Respondent has attempted to comply
with all of the Agency’s requests.
Nelson has placed drain
tiles under the landfill to collect leachate.
A plastic
liner was installed
over
the
clay
and
more
clay
placed
on
top
to
collect
leachate
a~d drain
it
into
a
retention
tank.
(R266)
The Board finds that Nelson has operated, since July 27,
1974, without a permit and assesses a penalty of $500.00
against Nelson for said violation of Rule 202 (b) (I)
and
§21(e)
of the Act.
Mr. Dumeile will file a Concurring Opinion.
This Opinion constitutes the findings of fact and
conclusions
of
law
of
the
Board
in
this
matter.
ORDER
It is the Order of the Board that:
(a)
C,0. Nelson cease and desist from operating its
solid waste management site unless
it applies for and
obtains an appropriate operations permit within 120 days of
the date of this order.
(b)
C.O. Nelson is ordered to pay, within 45 days,
a
penalty of $500.00 for the violations of Rule 202(b) (1)
of
the So1~tIWaste Regulations and Section 21(e)
of the Envi-
ronmental Protection Act found herein.
Penalty payment by
certified check or money order payable to the State of
Illinoi.
shall be made to:
—3—
Fiscal Services Division
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois
~220b
(c)
That portion of the Amended Complaint alleging a
violation of Section 21(b)
of the Ac:. is hcreby dismissed,
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pojiution
Control Board, hereby certify the above Opinion and Order
were adopted on thea
~t’~-
day
of
_______
1975 by a vote of
~
—.
Christan L. Moffe?t,
Clerk
Illinois Pollution Control Board
17
—263