ILLINOIS POLLUTION CONTROL BOARD

August

26,

1993

COUNTY OF OGLE,

)

Complainant,

)

 AC 92—64

Dockets A

& B

(Administrative Citation)

ROCHELLE DISPOSAL SERVICE,

)

 County No.

 91-R-1003

INC., and CITY OF ROCHELLE,

)

ILLINOIS,

)

Respondents.

MS. ROBBIN STUCKERT, ASSISTANT STATE’S ATTORNEYS OF OGLE COUNTY,

APPEARED ON BEHALF OF THE PETITIONER;

MR.

KURT

 KLEIN APPEARED ON BEHALF OF ROCHELLE DISPOSAL SERVICES,

INCORPORATED.

OPINION

AND

 ORDER OF THE

BOARD

(by

C.

 A. Manning):

This action was initiated on September 10,

 1992, by the

filing of an administrative citation by the County of Ogle

(County).

 The administrative citation was filed pursuant to

Section 31.1 of the Illinois Environmental Protection Act

(Act).

The authority to issue administrative citations was delegated to

the County pursuant to Section 4(r)

 of the Act.

 (415 ILCS 5/31.1

and 5/04(r)

 (1992).)

 The administrative citation charges

Rochelle Disposal Services

 (Disposal) and the City of Rochelle

(City) with violation of Section 21(o)(5).

 Disposal filed a

petition for review and motion to strike and dismiss on September

18,

 1992.

 The county filed

 a response on September 22,

 1992.

On

October

1,

 1992 the Board issued an order denying Disposal’s

motion to be dismissed as a party to this action.

A public hearing in this matter was held pursuant to Section

32 of the Act on May

 13, 1993,

 at the Ogle County Courthouse in

Oregon, Illinois.

 On July 1,

 1993,

 Disposal filed a memorandum

and argument

 in support of its position in this case.

 No other

briefs were filed.

BACKGROUND

The Respondents are charged with lack of daily cover in

violation of section 2l(o)(5)

 of the Act.

 The landfill at which

the alleged violation occurred is owned by the City.

 Disposal

operates Rochelle Municipal Landfill under a contract between it

2

and the City.

 The alleged violation took place on July

10,

 1992.

Ogle County alleges that the county inspector,

 Stephen Rypkema,

arrived at the landfill for a regular inspection at 6:39 a.m.

and

found a lack of daily cover.

 In the administrative citation,

the

County charged the Respondents with only one violation and

therefore assessed a penalty of $500 as provided for

 in Section

 42(b)(4)

 of the Act.

ISSUES

A. Proper Party

In its memorandum and argument submitted to the Board on

July

1,

 1993, Disposal claims that it is not a proper party since

it does not “conduct” a sanitary landfill operation as the term

is intended in the Act.

 (Mem.

 at 5-6.)

 Disposal states that the

permit to operate

 a landfill at the site in question was issued

by the Agency to the City of Rochelle

 (City)

 and that Disposal

merely has a contract to work at the site.

 (Mem.

 at 6.)

 Thus,

Disposal argues it is the contractor,

 not the operator.

 (Mem. at

6.)

 Additionally, Disposal argues that it is the City that has

control over the hours of operation,

 what is dumped at the site,

and the type of

 tlcovertt and grading to be done at the site.

(Mem. at 6.)

Although no reply was filed by the County to Disposal’s

memorandum and argument, the response filed by the County on

September 22,

 1992, to Disposal’s motion to strike and dismiss

deals directly with this issue.

 In its response, the County

states that Disposal is the current operator of the landfill

facility.

 (Resp. at 1.)

 Additionally, the County argues that

the AC statute does not limit prosecution solely to the holder of

the permit and that Disposal

 is subject to the enforcement

jurisdiction of the Board.

 (Resp.

 at 2.)

B. Lack of Daily Cover

At hearing,

 Stephen Rypkeina testified for the County.

He

stated that when he arrived at the landfill site at 6:39

 a.in., he

found uncovered refuse at the eastern edge of the daily fill

area.

 Additionally, he testified that two vehicles were

unloading waste at the end of the roadway on the west end of the

daily fill area.

 (Tr.

 at 17—19.)

Stephen Rypkema testified that he estimated the uncovered

area at the eastern edge of the site to be approximately 40 by 20

feet at one end, tapering down to 10 feet

 at the other end.

 (Tr.

at 20.)

 Under cross examination, Stephen Rypkema stated the cell

in question was partially covered.

 (Tr. at 40.)

 Additionally,

he testified the soil around the cell area was moist.

 (Tr. at

50.)

3

At hearing,

 Clyde Gelderloos, President of Disposal

testified on behalf of the Respondents.

 He testified that fifty

percent of the landfill cell

 in question had to be lined.

 (Tr.

at 64.)

 Gelderloos further stated that the purpose of the liner

is to protect the aquifers and that the integrity of the liner is

very important.

 (Tr.

 at 67.)

 He explained that

 in order to

protect the integrity of the liner and to keep it from being

 damaged, the landfill operators were instructed to not come

within three feet of the exposed liner.

 (Tr. at 69-70.)

Additionally, moist soil aggravates the situation and drivers

have to be even more careful under moist-soil conditions.

 (Tr.

at 71.)

Although he was not at the site the night before the

inspection,

 Gelderloos further testified that it was his belief

only approximately three feet of material was left uncovered.

In

order to cover the material, the driver would have had to come

too close to the liner, endangering the liner in light of the

moist soil conditions.

 (Tr.

 at 72.)

Finally,

 Clyde Gelderloos indicated that Disposal currently

has an alternative daily cover permit which allows them to cover

areas such as the one in question with a canvas cover.

 (Tr. at

75.)

 Gerlderloos stated that at the time of the alleged

incident, Disposal did not have any permits which would allow

them to deviate from the daily cover rule.

 (Tr. at 76.)

DISCUSSION

A. Proper Party

The Board will first address Disposal’s jurisdictional

argument that it is not a proper party to this action.

On

October

1,

 1992, the Board issued an order denying Disposal’s

motion to strike and dismiss.

 In the order,

 the Board stated

that “Rochelle Disposal

 is properly a party to this action as a

person conducting a waste operation at a permitted site.”

 (County of Ogle v. Rochelle Disposal Service,

 Inc.,

 and The City

of Rochelle,

 (October

1,

 1992)

 AC 92—64,

 136 PCB 259 at,

 260.)

Pursuant to the Act, Disposal is a person conducting a waste

operation at

 a permitted site.

 The pertinent section of 21(o)

of

the Act states:

 “no person shall conduct a sanitary landfill

operation which is required to have a permit under subsection

(d)

of this Section,

 in a manner which results in any of the

following conditions

“

 (Id.

 at 260.)

Based on the record and the Board’s previous decision on

this issue the Board finds that Disposal is a proper party in

this proceeding.

4

B.

 Lack

 of Daily Cover

The administrative citation issued against the Respondents

charged them with a violation of Section 2l(o)(5).

 (AC at 1.)

Section 21(0) (5) prohibits any person from conducting a sanitary

landfill which is required to have a permit in such a manner as

to leave uncovered waste remaining from a previous operating day

or at the conclusion of an operating day.

 The permit must

contain an express condition allowing waste to remain uncovered

for an extended period of time.

The operating permit issued to the City of Rochelle pursuant

to Section 21(d)

 contains no such condition.

 In fact,

 the permit

specifically requires that “waste must be compacted in layers and

covered daily with six inches of suitable material.”

 (Resp.

attachment.)

It

 is readily apparent from the hearing testimony

that both the County and Disposal believed a section of the

landfill cell was left uncovered at the end of an operating day.

Therefore,

 the Board finds that on July 10,

 1992, the Respondents

violated Section 21(0) (5)

 of the Act.

Disposal argues that in cases where the record demonstrates

a violation occurred, the Board may refrain from imposing a

penalty if

“...

 the person appealing the citation has shown that

the violation resulted from uncontrollable circumstances.”

 (415

ILCS 5/31.1(d) (2)

 (1992).)

 At hearing and in the memorandum and

argument, Disposal suggests that an

 “uncontrollable circumstance”

prevented a three-foot section from being covered at the end of

the operating day.

 The “uncontrollable circumstance” in

question was Disposal’s belief that the integrity of the cell

liner would have been in jeopardy had the landfill cell been

fully covered.

The Board has addressed the issue of “uncontrollable

circumstances”

 in several recent decisions.

 In St. Clair County

v. J

 & R Landfill,

 Inc.,

 111 PCB 143, AC 89—18

 (May

10,

 1990),

the Board found that weather conditions may cause uncontrollable

circumstances which prohibit a landfill from picking up litter1.

Also at issue

 in St. Clair County, was whether the landfill’s

failure to cover refuse was due to an uncontrollable

circumstances.

 In that case the landfill argued that,

 due to

uncontrollable circumstance of wet weather conditions,

 it was

unable to cover the refuse.

 The Board disagreed.

 It found that

since part of the refuse was covered, wet conditions did not

create an uncontrollable circumstance that caused the rest of the

 Section 21(0) (12) of the Act requires landfills to collect

and contain

 litter

 from the site by

the

end

of

 each

 day.

The

landfill successfully argued that weather conditions that kept the

employees from picking up the litter and that at times froze the

litter to the ground created an uncontrollable circumstances.

5

refuse to remain uncovered.

 Similarly in Illinois Environmental

protection Agency

v.

 ESG Watts.Inc.,

 112 PCB 47,

 AC 89—131

 (June

7,

 1990),

 a landfill argued that wet conditions of the cover

materials was an uncontrollable circumstance that kept it from

providing daily cover for the refuse.

 The Board found that since

ESG Watts could have foreseen this circumstance,

 it could have

taken action to provide cover.

 Thus the Board denied the

uncontrollable circumstance defense.

 Finally, the Board has also

held that passive conduct amounts to acquiescence sufficient to

find a violation of the Act.

 EPA v. Dobbeke et al.

 (August

22,

 1972),

 PCB 72—130,

 5 PCB 219 discussing a violation of

Section 21(a) of the Act.)

 Disposal had knowledge of the problem

of uncovered refuse before receiving the citation and in fact had

a policy of not allowing its employees to come near the end of

the refuse where there was exposed liner for fear of causing

damage to the liner.

 Disposal declined to take alternative

action to cover the refuse2.

 Therefore,

 the Board does not find

any uncontrollable circumstances relating to this violation and

the Board finds Respondents in violation of Section 21(o)(5) lack

of daily cover.

PENALTY

Penalties in administrative citation actions are prescribed

by Section 42(b) (4)

 of the Act which states:

In an administrative citation action under Section 31.1 of

this Act, any person found to have violated any provision of

subsection

(p)

 of Section 21 of this Act shall pay a civil

penalty of $500 for each violation of each such provision,

plus any hearing costs incurred by the Board and the Agency.

Such penalties shall be made payable to the Environmental

 Protection Trust Fund to be used in accordance with the

provisions of “An Act creating the Environmental Protection

Trust Fund”,

 approved September 22,

 1979,

 as amended;

 (415

ILCS 5/42(b)(4)

 (1992).)

Disposal argues that it should not be made to pay the $500

fine since it

 is now in compliance with the

 law3.

 Subsequent

 Since the citation, Disposal has obtained a permit to allow

it to use

an alternative cover method,

 canvas cover.

~

 Disposal argues that

mitigating factors should relieve it

from

 the penalties

in

 this

 administrative

 citation

 proceeding.

Disposal

in

 support

of

 this

 argument

 cites

 Harris-Hub

Co.

v.

Pollution Control Board,

 50 Ill. App.3d 608,

 8 Ill.

 Dec.

 685,

365

N.E.2d

1071

 (1977),

 Archer

 Daniels Midland

v.

 Pollution

 Control

Board.

 149 Ill.App.3d 301, 102 Ill.Dec.

 687, 500 N.E.2d 580

 (1986),

and Wasteland,

 Inc. v. Pollution Control Board,

 18 Ill.App.3d 1041,

75 Ill.Dec.

 143,

 456 N.E.2d 964

 (1983).

 The Board recognizes that

6

compliance does not relieve the respondent from

 a finding of a

violation or from payment of the required penalty.

 (See,

 IEPA

v. Jack Wright (August 30,

 1990), AC 89—227,

 114 PCB 863 and

Sangamon County v.

 Dave Phillips and Earle Phillips,

 (July

1,

1993)

 AC 93—12,

—

 PCB.)

Respondents will therefore be ordered to pay a civil penalty

of $500 based on the violation as found.

 Further, pursuant to

Section 42(b) (4) of the Act, respondents are also required to pay

hearing costs incurred by the Board and the County.

 The Clerk of

the Board and the County of Ogle will therefore be ordered to

each file a statement of costs, supported by affidavit,

 with the

Board and with service upon respondents.

 Upon receipt and

subsequent to appropriate review, the Board will issue a separate

final order in which the issue of costs

 is addressed.

Additionally,

 Docket B will be opened to treat all matters

pertinent to the issue of costs.

For the reasons stated in the above opinion, the Board finds

that the respondents, the City of Rochelle and Rochelle Disposal

Inc.,

 have violated Section 21(o)(5)

 of the Act.

 Accordingly,

the respondents are jointly and severally liable for a penalty of

$500.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

1.

 Respondents, the City of Rochelle and Rochelle Disposal

Inc.,

 are hereby found to have violated 415 ILCS

5/21(o) (5)

 (1992)

2.

 Within 30 days of this order,

 the Respondents shall pay

the sum of five hundred dollars

 ($500.00) by check or

money order to the Ogle County Treasurer.

 The payment

shall

 be mailed to:

Ogle County Treasurer

Ogle County Courthouse

P.O.

 Box 40

Oregon,

 Illinois 61061.

Respondents shall also write their Federal Employer

Identification Number or Social Security Number on the

certified check or money order.

in an enforcement proceeding arguments of mitigating factors could

be

 made

to

 reduce

a

 penalty.

The

 Board

 does

not

 look

to

“mitigating factors”

 in an administrative citation proceeding.

7

Any such penalty not paid within the time prescribed

shall

 incur interest at the rate set forth in

subsection

(a)

 of Section 1003 of the Illinois Income

Tax Act,

 (35 ILCS 5/1003

 (1992)),

 as now or hereafter

amended, from the date payment is due until the date

payment is received.

 Interest shall not accrue during

the pendency of an appeal during which payment of the

 penalty has been stayed.

3.

 Docket A in this matter is hereby closed.

4.

 Within 30 days of this order,

 the County shall file a

statement of its hearing costs,

 supported by affidavit,

with the Board and with service on the Respondents.

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 the

Respondents.

 Such filings shall be entered in Docket B

of this matter.

5.

 Respondents are hereby given leave to file a

reply/objection to the filings as ordered in paragraph

4 of this order within 45 days of this order.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act

 (415 ILCS

5/41

 (1992).) provides for appeal of final orders of the Board

within

 35 days.

 The rules of the Supreme Court of Illinois

establish filing requirements.

 See also,

 35 Ill.

 Adm. Code

101.246, Motions for Reconsideration.

I, Dorothy N.

 Günn, Clerk of the Illinois Pollution Control

Board, hereby certify that the ab~,eopinion and order was

adopted on the

 day of

 ~ç~.--~/

 1993, by a

vote of

Dbrothy M.

 c~’nn, Clerk

Illinois Pollution Control Board