ILLINOIS POLLUTION CONTROL BOARD
January 19,
1995
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
)
V.
)
AC 94—8
(Administrative Citation)
ATKINSON LANDFILL COMPANY,
)
(IEPA 9—94-AC)
)
Respondents.
JAMES
F.
RICHARDSON,
ASSISTANT
COUNSEL,
APPEARED
ON
BEHALF
OF
COMPLAINANT;
BRANKO
VARDIJAN,
PRESIDENT,
APPEARED
PRO SE.
INTERIM OPINION
AND
ORDER OF THE
BOARD
(by
G.
T.
Girard):
On February 10,
1994, the Illinois Environmental Protection
Agency (Agency) filed an administrative citation pursuant to
Section 31.1 of the Environmental Protection Act
(Act).
(415
ILCS 5/31.1 (1992).)
The citation alleges that Atkinson Landfill
Company
(Atkinson) violated Sections 21(o)(5),
(o)(9) and
(o)(12)
of the Act.
On March 18,
1994, the Board received a request for
review filed by Atkinson.
Hearing was held before Hearing Officer Steven Gunning on
October 4,
1994 at Cambridge, Rock Island County,
Illinois.
No
members of the general public made a statement at the hearing.
For the reasons enunciated below, the Board finds that
Atkinson was in violation of Sections 21(o) (5),
(0)
(9) and
(0)
(12) of the Act.
BACKGROUND
Atkinson is the present operator of a facility located in
Henry County,
Illinois.
The facility is operated as a sanitary
landfill under an Agency operating permit No.
1980-33-OP and
designated as site code NO. 0730200003.
The facility is commonly
known to the Agency as Henry County Landfill #2.
(AC at
1.)1
On December 15,
1993,
Robert Wagner, an Agency inspector
accompanied by James Jones,
an Agency employee, inspected the
facility.
Based on the December 15,
1993 inspection, the Agency
‘
The administrative citation will be cited as “AC at
_“;
the request for review will be cited as “Pet.
at
_“;
and the
transcript will be cited as “Tr. at
....“.
2
issued the administrative citation alleging violation of Sections
21(o)(5),
(o)(9) and
(o)(12) of the Act.
APPLICABLE
LAW
The administrative citation issued against respondents
alleges violations of subsections
(5),
(9) and
(12) of Section
21(o)
of the Act.
Section 21(o) provides that no person shall
conduct a sanitary landfill operation in a manner which results
in:
5.
uncovered refuse remaining from any previous operating
day or at the conclusion of any operating day, unless
authorized by permit;
9.
deposition of refuse in any unpermitted portion of the
landfill;
***
12.
failure to collect and contain litter from the site by
the end of each operating day.
(415 ILCS 5/21(o)(5),(9) and (12).)
The Board has adopted the definition of litter used in the
Litter Control Act.
(See St.
Clair County v. Louis Mund,
(August
22,
1991), AC 90-64).
“Litter” means any discarded, used or
unconsumed substance or waste and may include:
...any garbage, trash,
refuse, debris...or anything else of
an unsightly or unsanitary nature which has been discarded,
abandoned or otherwise disposed of improperly.
(415 ILCS 105/3)
Pursuant to Section 31.1(d) (2)
of the Act, the Agency bears
the burden of proof in this case.
(415 ILCS 5/31.)
Also,
pursuant to Section 31.1(d) (2) of the Act,
if the Board finds
that the alleged violation occurred, then the final order issued
shall include a finding of violation, and shall impose the
penalty of $500 per violation as specified in subsection
(b) (4)
of Section 42 of the Act.
FACTS
AND
ARGUMENTS
The
request
for
review
of
the
citation
filed
by
Atkinson
states:
3
On December 15,
1993 IEPA personnel inspected the landfill.
No mention of citations was brought to the operator’s
attention.
With regard to the citations, uncovered refuse,
deposition of refuse in an unpermitted area,
failure to
collect and contain litter, the Atkinson Landfill Company
cites that one load of waste had already been accepted for
disposal and that the items cited are wrongfully so.
Additionally, the refuse in an unpermitted area is that of
construction debris used for road construction during
inclement weather.
(Pet. at 1.)
Mr. Branko Vardijan, President of Atkinson, testified on
behalf of the respondent.
Mr. Vardijan testified that the
weather and the poor condition of the equipment, as well as not
having the proper equipment at the time of the inspection, made
it difficult to operate the landfill.
(Tr. at 23—25.)
Mr.
Vardijan also testified that “the material we are using for roads
was
-
-
in the way I’m thinking was legal.
It was not really the
way he said,
it was garbage.
It was road material.”
(Tr. at
25.)
Mr. Vardijan also testified that the area had been cleaned
up and that they were cooperating with the Agency.
(Tr. at 31.)
Finally,
in response to cross—examination, Mr. Vardijan testified
that he was not at the site on December 15,
1993.
(Tr. at 27.)
Mr. Robert Wagner testified that the site had not received
waste prior to his arrival on December 15 and waste was not
accepted while he was present.
(Tr. at 15 and 17.)
Mr. Wagner
did testify that the weather was bad and in fact stated that “it
was a muddy mess”.
(Tr. at 9.)
Mr. Wagner did not cite any
violations in the active phase of the landfill because of the
weather conditions.
(Id.)
The photos taken and marked as
exhibits were taken in the area around phase 5 and the north
fence line.
(Tr. at 12,
14,
18,
19 and 21.)
Mr. Wagner
testified that he reviewed the permits issued to Atkinson and
even talked to the permit section regarding permits.
(Tr. at 14
and 37.)
Phase
5 is not permitted to receive waste and the
permits do not allow for road construction using fill material.
(Id.)
Further, the hours of operation based on the permits are
7:30 a.m. to 6:00 p.m. and Mr. Wagner arrived at 6:52 a.m.
(Tr.
at
7 and 15.)
DISCUSSION
The Agency must prove that the violations occurred as
alleged.
The Agency presented exhibits which clearly show litter
in areas around the landfill.
Additionally, the Board finds that
Mr. Wagner’s uncontroverted testimony supports the pictorial
evidence (Exhibit 1) that litter had accumulated along the fence
line in violation of Section 21(o) (12) of the Act.
Further, the
Board is persuaded that Mr. Wagner was aware as to which areas at
the site were permitted and therefore, the Board finds that the
Agency demonstrated that waste was deposited in unpermitted areas
4
of the landfill in violation of Section 21(0) (9) of the Act.
Finally, the evidence clearly supports a finding that debris was
left uncovered from a previous operating day in violation of
Section 21(0) (5)
of the Act.
In addition, the Board notes that
the exhibits and testimony clearly establish that the material
being used for “roads” was not proper fill material and,
therefore, also constitutes litter.
Having found that the violations occurred the Board also
finds that the violations were not a result of uncontrollable
circumstances.
Although the weather at the site was inclement at
the time of the inspection,
the litter along the fence line
appears to have been accumulating for a period of time.
Further,
the other violations also appear to have been ongoing.
Therefore, the Board does not believe that the weather
contributed to the violations occurring.
Finally, the Board notes that Atkinson maintains that the
violations have been corrected.
However, the Act, by its terms,
does not envision a properly issued administrative citation being
dismissed or mitigated because a person is cooperative or
voluntarily cleans up the site.
(IEPA v. Jack Wright
(August 30,
1990), AC 89—227,
114 PCB 863.)
Clean—up of the site is not a
mitigating factor under the administrative citation program.
(IEPA v. Dennis Grubaugh (October 16,
1992), AC 92-3, _PCB_.)
CONCLUSION
The Board finds that the Agency has established that the
Atkinson Landfill Company violated Sections 21(o) (5),
(0)
(9) and
(0)
(12) of the Act.
The Board further finds that the violation
were not a result of uncontrollable circumstances.
Therefore,
Atkinson Landfill Company is found in violation and must pay a
civil penalty of $500 per violation for a total penalty of
$1,500.
Respondent is also required to pay hearing costs
incurred by the Board and the Agency.
The Clerk of the Board and
the Agency will therefore be ordered to each file a statement of
costs, supported by affidavit, with the Board and with service
upon Respondent.
Upon receipt and subsequent to appropriate
review, the Board will issue a final order in which the issue of
costs is addressed.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
Respondent is hereby found to have been in violation on
December 15,
1993, of 415 ILCS 5/21(o)(5),
(9)
and
(12)
(1992).
5
2.
Within 30 days of this order, the Agency shall file a
statement of its hearing costs, supported by affidavit,
with the Board and with service upon respondent.
Within the same 30 days, the Clerk of the Pollution
Control Board shall file a statement of the Board’s
costs, supported by affidavit and with service upon
respondent.
3.
Respondent
is hereby given leave to file a
reply/objection to the filings as ordered in paragraph
2 of this order within 45 days of this order.
4.
After the deadline for filing such information and
reply thereto has expired, the Board will issue a final
order assessing the statutory penalty, and making the
appropriate award of costs.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/40.1) provides for the appeal of final Board orders within 35
days of service of this decision.
The Rules of the Supreme Court
of Illinois establish filing requirements.
(But see also,
35
Ill. Adm. Code 101.246, Motions for Reconsideration.)
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above ,interim opinion and order
was adopted on the
/9~
day of
___________________,
1995,
by
a vote of
~//
~
-~DorothyM. ,&inn, Clerk
Illinois P6illution Control Board