RECEIVED
COMPLAINANT’S POST-HEARING BRIEF
I. INTRODUCTION
COUNT I
Adm. Code 620.420(a) and Id).
Attachment A to
4. Respondent’s failure to comply with Permit No. 1992-350-SP Attachment A
Special Conditions 5(a), 6(b), 8, 16, 20, 21 and 22
COUNT V
COUNT VI
requirements.
COUNT VII
September 17, 1992. Parties Exhibit 27, first page of the narrative.
at the time of the sampling event. Parties Exhibit 34.
COUNT VIII
R. Respondent’s violation of open burning provisions
‘CONTAMINANT’ is any sold, liquid, or gaseous matter, any odor, or any
III. RELIEF SOUGHT
A. Factors the Board must consider in making its determination, Section 33(h)
such pollution source.
B. Penalty Factors. Section 42(h of the Act. 415 ILCS 5142(h)
Section 42(h) of the Act, 415 ILCS 5/42(h) (2002), provides:
contour requirements, and was not diligent is addressing uncovered
refuse, leachate. gas releases and Section 12(a) violations from
1989 until 1994. RSCI Inc, an entity that appears to be maintaining
the Jersey Sanitation Corporation Landfill free of charge, has been
diligent in maintaining the landfill since 1995.

RECEIVED

CLERK’S

OFFICE

APR

202004

STATE OF ILLINOIS

Pollution

Control Board

OFFICE OF THE AflORNEY

GENERAL

STATE OF

ILLINOIS

Lisa Madigan

XFIORNE’1

GENERAL

April

19,

2004

The Honorable

Dorothy

Gunn

Illinois

Pollution

Control

Board

State of

Illinois Center

100 West Randolph

Chicago,

Illinois 60601

Re:

People

Jersey Sanitation

Corporation

PCB No. 97-2

Dear Clerk Gunn:

Enclosed for

filing please

find

the

original

and

five

copies

NOTICE

FILING,

COMPLAINANT’S

REQUEST

FOR

WAIVER

SECTION

101.302(k)

PAGE

LIMIT

REQUIREMENT and

COMPLAINANT’S POST-HEARING BRIEF in regard to the above-captioned

matter.

Please file the original and return a file-stamped copy of the document to our office in the

enclosed

self-addressed,

stamped envelope.

Thank you

for your cooperation and

consideration.

Very truly yours,

c~f~

Jane

McBride

Environmental Bureau

500 South

Second Street

Spñngfield,

Illinois 62706

(217)

782-9031

JEM/pp

Enclosures

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Second

Street,

Spriiu~Ireld.Ilhiitd~ 62706

•

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•

765—2771

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RECEIVED

CLERKS

OFFICE

BEFORE THE

ILLINOIS POLLUTION

CONTROL BOARD

APR

2004

STATE OF ILLINOIS

PEOPLE

OF THE

STATE OF ILLINOIS,

)

Pollution

Control

Board

Complainant,

)

PCB NO.

97-2

(Enforcement)

JERSEY SANITATION CORPORATION,

an Illinois corporation,

)

Respondent.

NOTICE

OF FILING

To:

Stephen

F. Hedinger

Attorney at Law

2601

South

Fifth Steet

Springfield,

IL 62703

PLEASE TAKE

NOTICE that on this date

mailed for filing with the Clerk of the Pollution

Control

Board of the

State of Illinois,

COMPLAINANT’S REQUEST

FOR WAIVER

OF SECTION

101.302(k) PAGE LIMIT REQUIREMENT and

COMPLAINANT’SPOST-HEARING BRIEF, copies

of which are attached

hereto and

herewith

served

upon

you.

Respectfully submitted,

PEOPLE

OF THE STATE

OF ILLINOIS

LISA MADIGAN,

Attorney General of the

State

of Illinois

MATTHEW

DUNN, Chief

Environmental Enforcement/Asbestos

Litigation

Division

BY:

‘

JANE

McBRIDE

Assistant Attorney General

Environmental Bureau

500 South

Second Street

Springfield,

Illinois 62706

217/782-9031

Dated:

April

19,

2004

CLERK’S

OFFICE

APR

202004

CERTIFICATE OF SERVICE

OFILUNO~

hereby certify that

I did

on April

19,

2004,

send

First Class

Mail,

with

postage thereon

fully

prepaid,

by depositing

United

States

Post Office

Box

a true

and

correct copy

the

following

instruments entitled NOTICE OF

FILING,

COMPLAINANT’S REQUEST

FOR WAIVER

OF SECTION 101.302(k) PAGE LIMIT REQUIREMENT and

COMPLAINANTS POST-HEARING

BRIEF

To:

Mr.

Stephen Hedinger

Hedinger Law Office

2601

South

Fifth Street

Springfield,

Illinois 62703

and the original and

ten copies by

First Class Mail with

postage thereon fully prepaid of the same

foregoing

instrument(s):

To:

Dorothy

Gunn, Clerk

Illinois

Pollution Control Board

State

of Illinois

Center

Suite

11-500

100

West Randolph

Chicago,

Illinois

60601

A copy was also

sent by First Class

Mail with postage thereon fully prepaid

To:

Carol Sudman

Hearing

Officer

Pollution Control Board

1021

N. Grand

Avenue East

Springfield,

Illinois 62794

,—1~he

McBride

Assistant Attorney General

This filing is submitted

on recycied paper.

IVED

CLERK’S OFFICE

APR

2004

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

STATE OF ILLINOIS

Pollution Control Board

PEOPLE

OF THE STATE

OF ILLINOIS,

Complainant,

vs.

)

PCB No, 97-2

)

JERSEY SANITATION

CORPORATION,

an Illinois corporation,

)

Respondent.

COMPLAINANT’S REQUEST

FOR WAIVER OF SECTION

101.302(k)

PAGE

LIMIT REQUIREMENT

NOW

COMES Complainant,

PEOPLE OF THE

STATE OF

ILLINOIS by LISA

MADIGAN,

Attorney General

of the

State

of Illinois,

and requests that the Section

101.302(k)

35 Ill.

Adm.

Code 101.302(k), page

limit requirement of 50 pages

be waived for

Complainant’s

post-hearing brief.

support of this request,

Complainant states the following:

This enforcement proceeding

concerned numerous allegations of violations

spanning thirteen years.

The allegations

concern numerous operating

violations as well as

allegations pertinent to

closure requirements.

The issues include the appropriateness of the

landfill’s groundwater monitoring

plan,

the mandates

of the landfill’s

existing permit,

and

the

necessity

of a proper groundwater assessment and,

potentially, development of a corrective

action

plan to address groundwater exceedences at the

landfill.

The extent of evidence

presented

this matter, which must be

presented

in the context of the various

permit

requirements

applicable to

this facility over the years,

requires and

merits discussion

and

argument in

a format

that exceeds the 50-page

limit.

This proceeding concerns allegations

contained within Complainant’s

second

amended

complaint.

The second

amended

complaint

originally consisted

9 counts.

One

count, Count

was struck

pursuant to the

Illinois

Pollution

Control

Board’s (Board’s”) order

entered

this matter on April 4,

2002.

The eight remaining counts

of the second amended

complaint concern

numerous allegations of violations

that have

occurred over a

period of thirteen

(13) years.

The parties stipulated

to the admission of 50

exhibits.

These exhibits date back

1973,

but

also include

documents

generated as

recently as September 2003.

Another 20

exhibits were introduced

by the Complainant,

and

additional exhibits were

introduced by the

Respondent.

During the duration of this enforcement action, Jersey Sanitation Corporation

filed

appeal

of Permit No.

1 999-209-SP.

That appeal

resulted

a Board

order that struck

certain special

conditions pertinent to the landfill’s groundwater monitoring

plan.

Much

of the hearing

in this matter was devoted

testimony regarding the

existing groundwater monitoring

plan,

specifically in

light of the recent permit

appeal and the

fact that exceedences have

been

detected

in the downgradient monitoring

wells at the

landfill

since as

early as

1991

and

that are continuing

to date.

•The magnitude of the exceedences for

some parameters has

increased.

Testimony regarding groundwater issues was

extensive, as

is the

list of exhibits

pertinent to

groundwater.

Complainant’s

brief is

138

pages long.

The first

70 pages of the

brief are devoted to

the groundwater issues alone.

WHEREFORE,

Complainant respectfully requests that the

Board and

Hearing Officer

waive the requirements of Section

101.302(k) for

Complainant’s post-hearing brief.

Respectfully submitted,

PEOPLE

OF THE STATE OF ILLINOIS,

ex rel. LISA MADIGAN, Attorney

General

of the

State of Illinois

MATTHEW

DUNN, Chief

Environmental

Enforcement

Division

BY:

‘~9c~_—,

JANE

MCBRIDE

Assistant Attorney General

500

South

Second

Street

Springfield,

Illinois

62706

(217)

782-9031

RECEIVED

CLERK’S OFFICE

BEFORE THE ILLINOIS

POLLUTION

CONTROL BOARD

APR

262004

STATE OF ILLiNOIS

PEOPLE OF THE

STATE

OF ILLINOIS,

)

pollution Control

Board

)

Complainant,

)

vs.

)

PCB

No. 97-2

)

JERSEY SANITATION CORPORATION,

an Illinois corporation,

)

Respondent.

COMPLAINANT’S POST-HEARING

BRIEF

NOW

COMES Complainant,

PEOPLE OF THE STATE

OF ILLINOIS (hereinafter, the

“Complainant”) by

LISA MADIGAN,

Attorney General

of the State of Illinois,

and

at the request

of the ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY (“Illinois

EPA”),

and through its

attorneys,

file

its post-hearing brief in this

matter.

TABLE OF CONTENTS

INTRODUCTION

VIOLATIONS

Objections

Objection to Continuance of

Hearing

Objection

to Opinion

Witnesses

Identified

and

Disclosed

Subsequent

to the Commencement

of the Hearing

Objection to

Sur-Rebuttal Testimony of Respondent’s

Witness Brad

Hunsberger

COUNT

The Respondent’s violation of Section

12(a) of the Act,

415

ILCS

5/12(a),

and 35

Ill.

Adm.

Code 620.420(a) and

(d).

The Respondent’s

violation of Section

12(a) and

III.

Adm.

Code 620.115 and 620.405.

The Respondent’s violation of 35

Ill.

Adm.

Code 620.301.

The Respondent’s violation

of Section

12(d) of the Act,

415

ILCS Section 5/12(d).

Since

1989,

Respondent Jersey

has failed to provide a

statistical comparison or any groundwater assessment

of upgradient versus

downgradient groundwater quality

and evaluate geologic information

(i.e. additional

borings,

cross sections etc.)

to determine

the necessity of an

additional background monitoring well

which would

screened

in the same hydrogeological zone as the

downgradient well at

the facility.

There is a continuing need to

assess Respondent Jersey

Sanitation Landfill’s

reliance upon

G103 as

an upgradient

well and conduct

a groundwater assessment

at the

site.

Respondent Jersey Sanitation Landfill has

failed to conduct

field work

necessary to confirm the groundwater zones

at the site so that the wells are

monitoring the proper

permeable zone

Groundwater violations

have been ongoing for over

12 years.

COUNT

The Respondent’s violation of Section 21

(o)(2)

and

(3) of

the Act, 415

ILCS

5/21(o)(2), (3),

and

III.

Adm. Code

807.314

due to its failure

to control

leachate

at the landfill.

The Respondent’s violation of

Section

12(a) and

(d) of the

Act,

415

ILCS 5/12(a),

(d),

and

III. Adm.

Code 807.313,

314 and

315 due to

its

failure to control

leachate

at the landfill.

COUNT

III

The Respondent’s violation of Sections

12(a) and

(d),

415

ILCS 5/12(a),

(d),

and Section 21(o)(1) of the Act,

415

ILCS 5/21(o)(1),

due

to the existence of refuse

flowing water at the landfill.

COUNT IV

The Respondent’s violation of Sections 21(d) and

(e),

415

ILCS 5/21(d),

(e),

and

III.

Adm. Code

807.301

and

302 with

respect to

Supplemental Permit

No.

1989-

1 77-SP.

Respondent’s violation of the final elevation

and

contours

provisions of

its permit.

Respondent’s violation of its permit requirement

maintain

surface water ditches on the north and

south

side of the landfill.

Respondent’s violation of its permit requirement to

conform

its groundwater monitoring wells and

facilities

to the approved

monitoring plan.

Respondent’s

failure to comply with the terms of

its

permit with

regard to flours

of operation.

Respondent’s

failure to provide a

narrative demonstration

that its water monitoring

program is capable

determining groundwater quality flowing onto and

unaffected

by the

landfill,

assess current contribution of the

existing landfill

on groundwater quality and determine if a

release to groundwater is occurring

by April

15,

1991.

Respondent’s failure

to obtain

a supplemental

permit

conduct landscape waste compost operations.

The Respondent’s violation of Sections 21(d)

the Act,

415

ILCS 5/21(d),

and

35 Ill. Mm. Code 807.301

and 302

with

respect to

Supplemental

Permit No.

1992-350-SP.

Respondent’s failure to

comply with

Special

Condition

A.3 and A.4 of Permit No.1992-350-SP

Respondent’s

failure to

comply with

Special

Condition

8.6 of Permit No.1992-350-SP

Respondent’s failure

comply with

Item

contained

in Attachment A to

Permit No.1 992-350-SP

Respondent’s failure

to comply with

Permit No.

1 992-350-SP Attachment A Special

Conditions

5(a), 6(b),

16,

20,

and 22

The Respondent’s violation

of Sections 21(d) and

Section

102

22.17, 415

ILCS

5/21(d) and

22.17, and

Ill.

Adm.

Code

807.524(a)

with

respect to

Supplemental

Permit No.

1999-209-SP.

COUNT V

The

Respondent’s failure to provide adequate cover on

refuse

104

COUNT VI

Respondent’s

failure

to meet its

financial assurance

requirements.

108

Respondent’s failure to

post adequate

financial assurance.

108

Respondent’s failure to

timely file

biennial

revisions

111

of cost estimates.

Respondent realized

inappropriate advantage over

113

time

due to

its failure to

comply with its permit’s

and the

Board’s financial assurance

requirements.

COUNT

VII

Respondent’s failure to timely

complete closure and comply with

114

closure requirements

COUNT VIII

Respondent’s

violation of open burning

provisions

119

RELIEF

REQUESTED

122

Factors the

Board

must consider in making

its determination,

122

Section

33(h)

of the Act, 415

ILCS 5/33(h)

Respondent’s actions and omissions

have resulted

122

potential for pollution of waters

of the State,

both

groundwater and surface waters. Respondent’s failure to

properly operate the

landfill

and timely certify closure

have aggravated injurious circumstances over time.

The Jersey Sanitation

Landfill,

at the time of

its

operation

124

by Respondent, would

only

be of economic and

social

value to

the surrounding community,

its

employees,

and to

its customers,

if it is operated

a fashion that

does not violate

Illinois

environmental laws and

regulations.

Given

ongoing violation

of the Board’s

groundwater quality standards

in the water

underlying

this landfill,

the

landfill, even after certification of closure,

continues to

generate external costs

and to interfere

with the environment.

The suitability of the pollution source,

Respondent’s

124

landfill,

to the

area

in which

it was

located

was the

subject of a siting decision made

many years ago,

at a

time when the citizens of

Jersey and

Calhoun Counties

had an

emergency need for landfill facilities due to flooding.

Proper closure

of a landfill,

including

the establishment

126

of an appropriate groundwater monitoring

plan,

performance of a groundwater assessment, and

development and

implementation

of a corrective action

plan,

as well as ongoing

maintenance of

the landfill so

as to

meet all

post-closure

requirements

(including

submission of

biennial cost estimates), are technically

practicable

and

economically reasonable for

the

Jersey Sanitation

Landfill

Corporation.

Prior to

1995,

Respondent made little progress

129

improving

conditions

and compliance

with applicable

regulations

at the landfill.

Respondent has

taken steps to

correct a

portion of the violations

cited

in the instant

matter,

albeit

not in

a timely manner.

However,

no steps

have been

taken to

bring the

landfill into compliance

with

groundwater requirements and to

correct violation

of Section

12(a) of the Act,

415

ILCS 5/12(a).

Penalty Factors, Section

42(h of the Act, 415

ILCS 5/42(h)

130

The

gravity of the

Respondent’s violations

has

131

been significant, as has

been the duration.

Respondent has not been diligent

in addressing

132

groundwater requirements

financial

assurance

requirements

and

landfill

contour requirements,

and

was not diligent is addressing uncovered

refuse,

leachate, gas releases and

Section

12(a) violations

from

1989 until

1994.

RSC,

Inc, an

entity that appears to

be maintaining

the Jersey Sanitation

Corporation

Landfill free of charge,

has

been diligent

maintaining

the

landfill

since

1995.

With

regard to

economic benefit,

Respondent has

136

benefitted from the inappropriate advantage

gained

avoiding the cost associated with fully funding

its

financial assurance fund,

and

it also benefitted

from avoiding the cost

of a groundwater assessment.

A civil penalty in the amount of $65,000 will serve to deter

137

further violations

by the violator

and to otherwise

aid

enhancing

voluntary compliance with

this Act by

the

violator

and any other persons similarly subject to the Act

Respondent was

issued

an administrative

citation

for

137

two of the violations

documented

by the Illinois

EPA

inspector at the time of the January 23,

1991

inspection.

Respondent paid

the

civil penalty assessed

for the

citation.

There have

been

no other adjudicated

violations.

IV.

CONCLUSION

137

INTRODUCTION

Respondent Jersey Sanitation Corporation (“Respondent” or “Respondent Jersey” or

“Respondent Jersey Sanitation” or “Respondent Jersey Sanitation

Corporation”)

owns and

controls the Jersey Sanitation Corporation

Landfill (“the landfill” or “the site” or “Jersey

Sanitation

Landfill” or Jersey Sanitation Corporation Landfill”

Tr.

at 326-342.

The current

shareholders acquired Jersey Sanitation Corporation and the landfill

November 1989.

Tr.

346.

Respondent accepted waste at the landfill until September

17,

1992.

Parties Exhibit

27.

Certification of closure was

accepted and acknowledged

for the landfill on October 5,

1999, with

the issuance

of Permit No.

1999-209-SP.

Parties Exhibit 42.

The allegations

at issue

this

matter are set forth in

the second amended

complaint filed January 3,

2001,

it was

modified

by the

Illinois

Pollution Control

Board’s (“Board”) order

in this matter entered June 21,

2001.

The original

complaint was filed

in this matter on July

1996.

On August

14,

2000,

first amended

complaint was

filed

this matter.

As stated above,

on January 3, 2001,

the

second amended complaint

was filed

in this

matter.

November

2001,

Respondent Jersey Sanitation filed a

motion for partial summary

judgment.

In an order dated

April 4,

2002,

the Board

granted Respondent Jersey’s

motion for

partial summary judgement, thereby finding that

the Respondent

did

not violate stricken

permit

conditions A.4,

C.2,

C.3 and C,4.

Parties

Exhibit 44.

The second amended complaint

consists of nine counts.

Paragraphs 48 through 56,

paragraph 59 as

it pertains to

permit condition

C.4,

and paragraphs 64

and 65 of Count IV are

the subject of the Board’s order granting

Respondent’s motion

for partial summary judgement

and

pertain to

the stricken permit

conditions and, therefore,

are no

longer at

issue

this

proceeding.

Paragraphs 58 through

62 of Count IV pertain to permit

condition

C.5,

which was

not stricken,

and section

807.524 of the Board’s Waste

Disposal Regulations,

III. Adm.

Code

807.524.

The allegations

contained

within paragraphs 58 through 62,

as they pertain to

permit

condition C.5 and

Ill.

Adm.

Code 807.524,

are

not impacted

by the Board’s previous order

and continue to

be viable allegations in this proceeding, and

therefore, will

be addressed

in this

brief.

The Board’s previous order also concerned

Count

its entirety and,

therefore, Count

is no

longer at issue

this matter and will not be addressed

this brief.

Citation to the transcript shall be

identified

as follows.

For the portion of the hearing

that

was conducted on September 23

and 24, 2003, the transcript is referenced

as “Ti.

at page

number”.

For the continuance of the hearing

conducted on January

13,

2004,

the transcript

identified

follows:

“Tr.

for

January 13,

2004

hearing date at page

number”.

The parties stipulated

to admissibility and entry of 50 exhibits,

identified as

Parties

Exhibits

1-50.

These exhibits include,

but are not limited

to, the reports

of the inspections

conducted

since

the time

of the initial allegation

of violation

this matter and

the landfill’s

permit applications

and

permits.

Exhibits offered

independently by

the Respondent and

Complainant were also

admitted

in this

matter.

These

exhibits are

identified

as “Complainant’s

Exhibits” and

“Respondent’s Exhibits”.

Objections

Objection to Continuance of Hearing

Respondent was granted

a continuance of the hearing

(Tr.

214-220),

based on

its

claim that information contained

Complainant’s

Exhibits

16 was

new information that

Respondent was

unfamiliar with,

and that

it was

a document Respondent had

only first received

copies of the Friday

prior to the hearing.

Respondent claimed

it required

additional

time to

review the information with

its opinion witness,

and

that it desired to

have an opportunity to

recall this witness

at a later date

to testified regarding the exhibit.

A description as to exactly what Complainants

Exhibit

is appears

in the transcript on

pages 270-276

(Tr.

at 270-276),

and

also

numerous other places throughout the hearing

transcript.

The exhibit was compiled

Karen

Nelson, who was employed

the

Illinois

EPA’s

regional geologist for the Springfield Region from

approximately

1986

until the year 2001 when

she

moved

into

another position with the Illinois EPA.

Tr.

at 221-222.

She was identified

Complainant’s groundwater opinion witness

in this

matter, in

December of 2000.

Complainant’s

Exhibit

17.

Ms.

Nelson

described

the data

contained

the exhibit as a

compilation,

tabulation,

containing the available

results of groundwater samples from

the landfill.

She

testified

that much

the data

came

from the

Illinois

EPA’s data base of sample results

submitted by the facility itself.

The tabulation

also included any sample results

obtained by the

Illinois

EPA.

The Illinois

EPA’s sample

results had been previously made available

Respondent.

is obvious from the cover letters that constitute the first

page of Parties

Exhibit

and 50, which are reports of a Illinois

EPA sampling

event at the

landfill

on April

2003,

this

information had been previously transmitted

to the Respondent.

It is Complainant’s

position, stated at hearing,

that none of the data

contained within the

table was

unfamiliar to

the Respondent.

Further,

the exhibit was

provided

to the Respondent

prior to hearing.

Ms.

Nelson

testified, the conclusions contained

the exhibit consisted

solely of her simple review of the available data.

Also,

her conclusion with

regard to the

appropriateness of monitoring well G103

is an issue that

has been

raised with the Respondent

since

1989,

and,

it was a conclusion

clearly set forth

in Ms.

Nelson’s

report regarding the

Illinois

EPA’s May 17,

18,

19,

1994 sampling

event at the subject landfill.

This report was issued

October 24,

1994,

and

included

in the

record of this

proceeding

Parties

Exhibit 34.

This

report was provided

Respondent in

response to a request for

production several

months

prior

to hearing.

Ms.

Nelson was

disclosed as an

opinion witness

in early

December 2000.

There had

been ample time for Respondent to depose

Ms.

Nelson if there was any question as

to the

testimony she would

be providing

at hearing.

Nothing

in Complainant’s Exhibit

could

be considered new information

or a surprise

to the Respondent.

Complainant re-iterates

its

continuing objection

to continuance of the

hearing.

The hearing was continued to October 17, 2004

at 9:00 am.

Notwithstanding

and without waiving

this objection, Complainant

has referenced

and

responded to testimony presented at the continuance in

the context of argument contained

within this brief.

Obiection to Opinion Witnesses Identified and

Disclosed Subsequent

to the Commencement of the Hearing

On October

16,

2004,

toward the

end of the business day, counsel for Complainant was

informed

by counsel for Respondent that he would

calling

two new witnesses,

Ken

Liss and

Brad

Hunsberger,

both

of Andrews Environmental Engineering,

at the continuance the next

day,

and

he faxed to

counsel for the

Complainant a copy of their resumes

that he

intended

enter as exhibits.

response,

that evening,

counsel for the Complainant left a message with

counsel for

Respondent’s

office that she

intended to

object

to the disclosure of new witnesses at this

late

date in

the proceeding, after commencement of the hearing

and

less than

24 hours before

the

commencement of the continuance.

At the initiation

of the proceeding on

October 17,

2004, counsel

for Complainant again

raised her objection to

the continuance itself, and also

objected to

the

late

disclosure of new

witnesses.

In support of Complainant’s

objection, Complainant’s

Exhibits

17,

18 and

19 were

admitted

in the record.

Complainant’s

Exhibit

is the disclosure

of witnesses made

Complainant on or about December

2000.

Complainant’s

Exhibit

the disclosure

witnesses

made by Respondent,

dated

September

11,

2003.

Complainant’s

Exhibit

is the

substitution and

supplemental disclosure

of witnesses made by Complainant on or

about

August

13,

2003.

The discussion

regarding the continuance appears on

page

220 of the

transcript

(Tr. at

219-220):

Hearing Officer

Okay,

this is what

I am

going

to do.

Obviously,

both of you

have worked very long and very hard

to get to this stage at this

hearing.

I’m going

allow him

some

additional time to

review the

document and

put on a witness, if that’s what the Respondents

feel

they need for a fair hearing.

Mr.

Hedinger:

May

have about a

minute

to give him a call

and tell him

—

he’s

route right

now,

and

if we’re not getting

to him

today,

I’d just as

soon

as not have

him

—

Hearing Officer:

Oh,

thought you were going

to do all

your witnesses today,

and

then

call

an additional person.

Mr.

Hedinger:

Well, this

is the

person who would

be testifying

on this,

and

that’s why

he’s

coming

down, to do the best he can.

But I’ve

not had a

chance

—

that’s why

need

to continue it.

And

he may

not be the one who

end up testifying as

to this.

mean, if you

want me to start his,

is that where you’re at?

Just have

him come

and

ahead

and go through whatever else,

and

then reserve

that for a later date?

I guess we

could do

that.

Hearing

Officer

How much

do you

have for him?

Mr.

Hedinger:

Without this,

half hour to an hour.

Hearing Officer:

Well,

if he’s already on his way,

you

might as well just come and

do that much.

Okay?

Mr.

Hedinger:

All right.

Only Mr.

Rathsack,

no one

else from

Andrews

Environmental

Engineering, had

been

disclosed

by Respondent in

its September 11,2003 disclosure.

Based

the discussion at

hearing, counsel for the Complainant was

of the understanding

Mr.

Rathsack

would

called at

the time of the continuance.

response to Complainant’s

objection at the initiation

of the continuance on

October

17,

2004,

the Hearing

Officer postponed

the continuance to

a later date to

allow time for the

Complainant to

depose the

new witnesses.

The newly identified witnesses were deposed

October 29, 2003,

and the

hearing was

continued to January

13,

2004.

Despite the accommodation,

Complainant re-iterates

its objection

that Respondent was

allowed

to call witnesses that had

not been

identified and

disclosed

to the

commencement of the hearing

in this matter.

Consistently throughout the hearing, Respondent asked for accommodation and special

consideration

because it had failed

conduct discovery and

timely disclose witnesses.

The

fact

did

not early-on

retain

appropriate witnesses

and

conduct depositions may

have been yet

another money-saving tactic on

the part of this Respondent.

For whatever reason

Respondent

did not conduct depositions nor disclose two of its witnesses,

it has resulted

prejudice to the

Complainant in

that witnesses were identified

and disclosed

after the commencement of

hearing.

Notwithstanding

and without waiving

this objection,

Complainant has

referenced

and

responded to testimony provided

by these two witnesses

in the context of argument contained

within this brief.

Obiection to Sur-Rebuttal Testimony of Respondent’s Witness Brad

Hunsbergev

Toward

the conclusion of the continuance conducted

on January

13,

2004,

Respondent

was

allowed to

call one

of its witness, Brad

Hunsberger,

to provide sur-rebuttal testimony in

response to

rebuttal

testimony provided

by Ms.

Nelson.

Complainant

raised its objection

at the time that the witness was allowed,

and

Complainant hereby continues

its objection.

Procedurally,

Respondent should

not

be able to

call a witness

in sur-rebuttal.

Respondent argued at hearing

that allowance

of the sur-rebuttal witness was justified

because Ms.

Nelson testimony

consisted of new opinions and conclusions formerly

not

disclosed.

Complainant argued

that Ms.

Nelson’s testimony was offered in

response to

the

testimony offered

by Mr.

Hunsberger,

is the purpose

of calling a witness

rebuttal

—

rebut

testimony presented by

the opposing

party.

Ir.

at 95-96.

Black’s

Law Dictionary, 6~”

Edition,

provides the following

definition of

rebuttal evidence:

Evidence given

to explain,

repel,

counteract,

or disprove

facts

given

in evidence

by the opposing party.

That which tends to

explain or contradict

or disprove evidence offered

by the adverse party.”

Complainant also pointed out that

Respondent has

had

plenty of time

to dispose

Ms.

Nelson

if it was

uncertain as to

her expected testimony.

Aggravating the circumstance,

however, was

the fact that Respondent had

not disclosed

Mr.

Hunsberger as

a witness

until

after the hearing

this matter was commenced.

Therefore, due to

its

own failure

to timely

and

succinctly disclose witnesses and

conduct discovery,

Respondent was

now requesting

that the

Hearing

Officer waive accepted procedure and

allow a sur-rebuttal witness.

As the party with the burden of proof, Complainant is allowed rebuttal testimony.

It’s

not

unlike the fact that

is an

accepted procedure

and

standard

practice that Complainant is

allowed both

an initial post-hearing

brief and

a reply

brief.

Sur-rebuttal

is a matter

the

discretion of the Hearing

Officer.

this matter,

it should not have

been allowed.

Notwithstanding and

without waiving

this objection,

Complainant has

referenced and

responded to

testimony

provided by these two witnesses in the context of argument contained

within this brief.

COUNT

The

Respondent’s violation of Section

12(a)

the Act,

415 ILCS 5/12(a), and

35111.

Adm.

Code 620.420(a)

and

Id).

Section

12(a)

of the Act, 415 ILCS 5/12

(1994),

provides,

pertinent part,

as follows:

No person

shall:

Cause or threaten or allow the discharge of any contaminants into

the environment

in any State

to cause

or tend to

cause

water pollution

Illinois, either alone

or in

combination with

matter from other sources,

or so as

violate regulations or

standards

adopted

by the Pollution

Control

Board under this Act.

The elements of this provision are

(1) cause

or threaten or altow the discharge of any (2)

contaminants (3) into the environment (4) so as to

cause or tend to

cause water pollution or so

to violate regulations or standards.

Operation

and

the current existence of the Jersey Sanitation Landfill

has

resulted

water pollution contamination to the

underlying groundwater.

The

basis for this conclusion is

that results from samples collected

in the upgradient wells do

not show exceedences of the

Class

II groundwater standards.

Results from samples collected

at the downgradient wells

indicate exceedences.

Complainant’s

Exhibits

and 20.

Parties

Exhibit 34, pages

18-28. Tr.

at 300- 302.

Over time, the level of exceedence has increased.

The sample results showing

these exceedences consist of groundwater sampling

results

submitted

to the

Illinois EPA

by the

Respondent for the subject landfill,

and results of groundwater sampling conducted

the

Illinois

EPA at the landfill.

An additional

basis for the conclusion

that the

landfill

is impacting

the groundwater is that results of samples collected

in downgradient wells at the time of a May

1994

Illinois EPA sampling

event indicated

organic contaminants, commonly found

in landfill

(food) waste.

Parties

Exhibit

34, page

28.

at 256 (lines

1-12).

Thus,

at hearing,

Karen

Nelson, Complainant’s

groundwater opinion witness,

concluded that the

landfill

is the

source

contamination causing exceedences of groundwater standards,

Tr at

300 through 306

and

308.

The specific results of

sampling

include the following.

Results of sampling

conducted

from

downgradient monitoring well 0104 include exceedences of the Class

II groundwater

standards for

arsenic,

iron,

total dissolved solids and sulfate.

Complainant’s Exhibit

16 and

20.

Ms.

Nelson testified

that dissolved arsenic has

increased over the

years

in sample results

collected from monitoring

well 0104.

Tr.

at 274-275,

lines

22-24 and

1-3;

Complainant’s

Exhibit

16 and

20.

Arsenic was

not detected,

or detected well

below the Class land

standards in

1994 when the

Illinois

EPA conducted a groundwater study of the site.

Since

1994,

beginning

somewhere before the year 2000, sample results

indicate an

increase

in exceedences of

arsenic over the groundwater standard of 200 parts

per billion at monitoring

well G104.

Also

at well 0104,

dissolved

iron concentrations have increased from

non-detect levels,

below the Class

and Class

standards,

1990 to

1994,

to concentrations of 8000 plus

ug/L

from at least the year 2000 to the most recent

sample results.

Complainant’s

Exhibit

and

20.

The Class

standard for dissolved iron is 5000 ug/L.

Dissolved sulfate

concentrations

0104 continue to

exceed the Class

II groundwater standard of

400 rnglL.

Sulfate

concentrations have

exceeded that standard

at the 0104 well since

1990.

Dissolved

chloride

concentrations at

G104 exceeded the Class

standard for

chloride

at the time of the April2003

Illinois

EPA sampling

event at the

landfill.

Complainant’s

Exhibit

and

20.

At monitoring well G105,

concentrations of dissolved

iron

have greatly increased

since

the sampling

event conducted as

part of the Illinois EPA’s 1994 compliance

review.

By the year

2000,

sampling

results

indicate iron concentrations

at a

level of 39,700 ug/L

and

as high as

51,800 ug/L.

Complainant’s

Exhibit

and

20.

Ms.

Nelson

also testified to

results obtained from sampling

at the time of the

May

1994

Illinois

EPA sampling

event and

prior to that date.

She summarized

the results obtained

the

years 1990 through

1994, as they appeared

in Parties

Exhibit 34.

Yr. at

252.

in G104, concentrations of TDS,

which

is total dissolved

solids, and

levels of

sulfate, chloride

and iron exceeded

the

Class

II groundwater standards.

pH,

believe that exceeded

the

Class

II groundwater standard,

because

is a

range from 6.5 to

it, at

certain

times, the

of the groundwater at

Jersey

Sanitation fell

below that 6.5, so that would

be considered an

exceedence on

the

low side.

0105 exceeded for pH,

total

dissolved

solids,

iron

and chloride.

106 exceeded

for pH, total dissolved

solids,

and

sulfate and

chloride.

Ms.

Nelson was asked

at hearing whether any of the sample

results

she

reviewed

sent

up any particular red

flags of concern.

TR 278

(lines

19-24),

279( (1-5).

Ms.

Nelson

testified

that the results

that first showed

exceedences

1990

and each exceedence since are all red

flags.

However,

she

continued,

the fact that (1) the exceedences are

increasing

in magnitude,

and

(2) that concentrations of arsenic have

suddenly increased

above the groundwater

standard

levels are very significant

red flags

and

should be

investigated.

Ms.

Nelson added

that these exceedences

should have been

investigated

back when they were first detected.

Ms.

Nelson

also testified

that the concentrations of iron

detected at

monitoring well 0105 are at

a very high

level,

in fact,

it is the highest level of iron

concentration

Ms. Nelson

has ever seen

landfill.

Geologists for both

parties testifying

in this matter agree that the results

of samples

collected

at 0103,

one of the wells

identified as

upgradient monitoring well,

have

not shown

exceedences of the Class

II groundwater quality standards.

Ms.

Nelson’s testimony

regarding

the sample results

obtained from 0103 appears in

the transcript at

274

(lines 9-14) and

301.

Brad Hunsberger’s, groundwater opinion witness for the Respondent,

testimony

as to

the

appropriateness

of the

0103 monitoring well appears on

page 99

and

100

of the transcript for

January 13,

2004.

Further evidence that exceedences are

not occurring

upgradient of the site

was

provided by

Ms.

Nelson.

She

testified that the 0102 well, a well located

proximity to

0103 but screened

at a shallower depth,

was sampled

at the

time

of the

May

1994 Illinois EPA

sampling

event and the analytical results did

not show exceedences of the standards,

Tr.

257 (lines

13-20).

Both geologists concluded that the Gi 02 and

G1 03 sample

results,

taken

combination, indicate no exceedences of the Class

standards

and

can

be relied

upon

indicator that

background levels do not exceed the standards for the purposes of the

monitoring

program.

Tr.

301, and Tr.

for the January

13, 2004 hearing

date at

100.

Ms.

Nelson testified

that she

considers 0102 to

the more appropriate upgradient well

because it is screened at a shallower depth.

Id.

She testified that the Illinois EPA sampled

0102 at

the

time of the

May 1994 sampling

event at the

landfill, and

it did

not have

any

exceedences of the groundwater standards.

that she

considers it

to be the more appropriate

upgradient well,

the fact it showed

no exceedences while the downgradient wells did

show

exceedences,

formed the basis of her conclusion that the landfill was the source of the

contamination that resulted

in concentrations that exceeded the groundwater standards.

Ir. at

257.

The

G103 well is screened

at a depth

of 103 feet.

Ms.

Nelson

testified that she

believes

this well

is screened

very deep compared to the levels of the screens of the downgradient

wells.

She believes the groundwater that is being

monitored by the downgradient wells

is in a

shallower zone and

that the upgradient well should

screened at

the same

level as

the

downgradient welts so

monitors the same zone of groundwater.

She

testified the 0103 well,

screened at a depth of

103 feet,

is monitoring groundwater that is in a deep zone that

not the

same

zone

of groundwater as

being

monitored by the downgradient wells.

Tr.

237

248.

Complainant’s witness, Joyce

Munie,

permit section

manager of the

Illinois

EPA Bureau

of Land and

registered professional engineer with

bachelor’s degree in

environmental

engineering and

a master’s degree

in civil engineering (Tr at

(lines

19-22), Complainant’s

Exhibit

1),

explained

at hearing

two forces that result

in contamination

to groundwater at a

landfill.

Tr at

26 (lines 2-9).

When groundwater is contaminated,

it is because there

has been

a contaminant that has been released

into

the environment.

release a contaminant,

something

has to

force that contaminant into

the environment.

At landfills,

there

are two ways

that this occurs, either through the leachate, which

liquid that has

passed through waste, or

gas.

Testimony at hearing

and the inspection reports

admitted as parties exhibits,

clearly

indicate

that both gases

and leachate

have accumulated at the landfill

such

extent as to,

in the case of leachate, seep from the

landfill,

and

in the case of gas, escape from the landfill

such concentrations as

result in

a detectable odorous

release.

With

regard

to the fact that Jersey Sanitation

is producing

leachate that

is releasing to

the environment,

Rich Johnson, an

Illinois EPA

inspector assigned

to the landfill since at least

the mid-1980s

until

1992,

testified

to repeated

observations of leachate seeping

and flowing

from the landfill.

Referencing

Parties Exhibit

10, a

report for his

January 23,

1991 inspection of

the

landfill,

Mr.

Johnson described the

leachate seep depicted

photos

10,

and

leachate seep that was observed flowing from the

landfill

the creek.

Tr.

125 (lines

13-18)

and

126

(lines 5-7).

Mr.

Johnson also testified to

the observations

made at

the time of his

May 21,

1991

inspection, documented

in Parties Exhibit

18.

Photo 30 depicts

a leachate seep

flowing

into the creek.

Mr.

Johnson described

the leachate seeps observed

at the time of the

November

19,

1991

report, depicted in

photo

10 and also

in the site sketch accompanying

the

report.

Trat 131

(lines

17-24), Trat

132

(lines

1-24) and Trat

133

(lines

1-2);

Parties Exhibit

21.

Mr. Johnson also testified

that at the time of his

February 25,

1992 inspection

observed

the leachate seep depicted

by photo

19.

Tr at

134

(lines

11-24) and Tr at

135 (lines

1-2);

Parties Exhibit 25.

Charlie

King,

the Illinois

EPA inspector assigned to the landfill

from 1994 to

the present,

testified that he

made observations

of leachate seeps

at the

landfill

the time of the January

and

February

17,

1994

inspections, as

depicted

in photos

415, 4/6,

4/7 and 4110 contained

the report of those inspections.

Tr. at

162 (lines

1-17),

163

(lines

1-2),

164 (lines 6,

10-13).

Tr.

166

(lines

16-19),

168 (lines

18-23).

Parties

Exhibit 31.

He also observed

leachate streams

at the

time of the May

19,

1994 illinois EPA sampling

inspection.

Tr. at

165 (lines 2-13).

leachate pop-out was

observed on

the westlnorthwest side of the landfill

the time of the June

2000 inspection.

It was

located approximately 40 feet southwest of groundwater monitoring

well G11J6.

Parties

Exhibit 43, page

Ms.

Nelson testified that she observed ieachate seeps

and

flows at the

landfill at the

time of the May 17,

18 and

19,

1994 groundwater sampling inspection.

The site map

included

with

the report indicated

the locations of the seeps.

Tr. 262-265.

Parties

Exhibit 34,

site

sketch.

At hearing,

Ms.

Nelson identified

photos

in the report

that depicted

leachate

seeps and

flows.

Parties

Exhibit 34, photos

Oa,

is,

16,

17,

19,

22,

23, 24.

The photos included

depiction of a leachate flow that nearly reached

Sandy

Creek,

but soaked into

the ground lust

prior to reaching the surface water.

Tr.

at 264-265

Parties

Exhibit 31, on

page 3

of the check-off list (item

32) and on

page

12 of the

narrative,

Mr.

King documented observations of noticeable gaseous odors emanating

from the

landfill

two locations.

As documented

Parties Exhibit 40, at

the time of the November

19,

1998 inspection it was observed

that two gas vents had been

installed at the

landfill.

Parties

Exhibit 40, page 3 and 4 of the narrative.

page 5 of the narrative contained

in Parties

Exhibit

40, it

documented

that the site description contained

within a February 1997

application for supplemental

permit and certification of closure included

gas

control vents and

gas

flares.

The site sketch

contained within

Parties

Exhibit 40 includes the locations of gas

vents and flares.

Photos

7 and

8 of the report depicts

the gas flares.

Both the flares were

functioning

at the time of the inspection,

indicating they were flaring-off gas emitting

from the

landfill,

and the “Solar Shock” device was

also operating at the time of the inspection.

Parties

Exhibit 40, page 4 of the narrative.

At the time of the June

2000 inspection,

documented

a report admitted

Parties

Exhibit 43, the inspector observed

one of the gas vents

and wells

be in

satisfactory condition.

It was not functioning at the time of the inspection, indicating

gas was emitting so as

to trigger the “Solar Shock” device which would create a spark and

thereby light the flare so that the gas

would

burned off.

Parties

Exhibit 43 also documents

the inspector’s observations

of the gas vent and flare northwest of the first vent

and flare.

The

inspector observed

stressed vegetation

and

patches of no vegetation

on the north slope of the

landfill.

also detected a hissing

noise at the location of the gas well,

or vent, that was

emitting

from the

unit

and

noted that the smell

of gas was

prevalent.

No gas flame

was

observed.

Parties

Exhibit 43,

page

3 of the narrative.

page 4 of the narrative,

the

inspector documented descriptions of the photos depicting

the condition of the gas vents

at the

time of the inspection.

Photo 3 shows the gas well on the top of the tandfill,

closest to the site

gate,

the large bare spot on the

north

slope was depicted

photo 4, and

photo 5 depicts the

second of the two gas wells wherein

hissing

noise was emitting

from

the bolt plate

in the

lower center of the structure.

Parties

Exhibit 43.

Ms.

Nelson testified

that physical

conditions such as

uncovered waste and

inadequate

cover that allows

rainwater to

infiltrate the landfill and thus become

contaminated, and the

release of accumulations of leachate are logical circumstantial indications that leachate may

also be

releasing

to the groundwater under the landfill and

causing

contamination of the

groundwater.

Tr at

230 (lines 6-12).

Correlating contaminant concentrations

in the leachate with that of the groundwater is

not something

geologists

readily rely

upon.

This is

because

leachate

is exposed

to air,

and

components may volatilize.

The

only correlation

Ms.

Nelson

made

between the

leachate and

the groundwater

results at the

landfill

was that the leachate

sample

results

indicated

concentrations of iron

and the leachate itself was orange

in color.

The orange color indicates

iron.

The groundwater monitoring

results of downgradient well samples

at the landfill

have

shown exceedences of the

iron standards,

and

in the case of G105, very high exceedences of

the

iron standard.

Tr.

at 267

(lines 9-14),

Tr.

at 268 (lines

1-6),

Tr.

at 308

(lines

17-024) and Tr.

309

(lines

1-24).

Evidence

contained within exhibits admitted

in this proceeding

provides further support

for the conclusion

that the landfill

is impacting the groundwater.

The leachate and groundwater problems

experienced

at the subject

landfill were

anticipated,

if the landfill operators did not take proper precautions.

It was

predicted that,

if the

operator did

not properly control drainage,

cover

refuse and anticipate and

control leachate, the

landfill would

likely experience leachate

and groundwater problems that could

result in

“significant pollution of the environment and

undesirable effects for the

landfill

installation.”

Par-ties

Exhibit

letter of transmittal from

John A.

DeMonte,

P.E.,

STS

Engineers,

Inc.

to Ralph

Johnson, dated April

15,

1973,

transmitting

a report of

a subsurface investigation on the

10-

acre

portion of the approximately 200-acre

site that became Jersey Sanitation

Corporation

Landfill.

The

1973 subsurface investigation report was attached

to and

incorporated

reference

in the July

18,

1989 closure and

post-closure application and

certification of depth

cover for the Jersey Sanitation Corporation landfill.

Parties

Exhibit

referenced at

Item

14 on

the third

page of the attachment to the permit application.

The

July

18,

1989 application,

with

subsequent additional

submittals,

constitute the approved plans incorporated

in the landfill’s

Supplemental

Permit No.

1989-177-SP,

issued

November 15,

1989.

Parties

Exhibit

Ms.

Shourd testified

that

Respondent Jersey

Sanitation Corporation purchased the landfill

November

1989.

Tr. at

346 (lines

9-10).

Originally,

the subsurface

investigation

report was

part of the initial

development and

operation

permit

application, submitted

by the former

owner,

Ralph Johnson,

early

in May

1973.

is obvious from

the references to Cell

found

in the first two pages of the attachment to

the

permit

application, the

landfill

was opened

under conditions

of an

emergency need for landfill

facilities

in Jersey and

Calhoun Counties,

due to flooding.

What follows are excerpts from the subsurface investigation,

completed

1973 (Parties

Exhibit

emphasis

added):

Site Conditions

About one-third

of the

10-acre site is occupied

by a

ravine.

It is located

in an area of

heavy tree growth

and

underbrush on

the northwest

side.

The ravine bottom

is about 30

feet

below the adjacent higher ground.

rock outcrops

were observed

in the

ravine,

but isolated

glacial

boulders may be present.

The higher central

ground extending

the southeast is relatively level,

and

under cultivation.

Surface drainage flows

to the

ravine,

and

is directed

to the southwest

into Sandy Creek.

The borings were drilled

along

a dirt road which is situated

between the ravine and

the cultivated field.

Soil

Conditions

The boring shows

upper

10 to

feet of very stiff,

brown silty clay of loessial

origin.

This

is underlain by glacial till

consisting

of very stiff,

silty or sandy clay containing small

rock fragments.

The very stiff brown upper till

is underlain

by a very stiff to

hard

gray till.

The till contains apparent lenses and

pockets of sands

and small gravel.

It is not

known whether these lenses of pervious materials are interconnected or are

continuous.

Subsurface Water

Water was observed to

enter borings 2

and 3 at

depths of

and

17.5 feet,

respectively.

One-half

three-quarters of an hour after drilling the water levels

borings, 1,2 and

3 were measured

depths of

10.5,6, and

feet,

respectively.

A 33-

foot

length of PVC pipe was installed in

bore

hole #2

for use as

observation

well.

Indications are that ground water flow occurs mostly near the surface of the

upper brown till, and follows

a southwesterly direction.

Deeper continuous

aquifers may be present.

Conclusions and

Recommendations

our opinion, this site is satisfactory for use as

a sanitary landfill, provided

necessary

precautions

are taken, and

preparatory measures are carried out.

Sufficient relief

exists or

can

be created

on the site to ensure prompt surface

drainage of a

soil cover

over the waste.

believe

the soils

to possess favorable ion

exchange attenuation

characteristics.

Indications are that

filtration of suspended matter can

be accomplished

and that long travel

times

will assist decomposition of organic dissolved

matter

associated with

bacterial activity.

Favorable

chemical reactions

can also be expected

the clay.

We have estimated that passage

of leachate through

feet of silty clay

having

a permeability of approximately

io~~

centimeters

per second will render the

leachate essentially innocuous.

This rate of flow is too slow to recondition the

expected quantity of leachate and

a collection

system for leachate treatment or

for recycling through the fill is considered necessary.

Excavation of clay for cover

should ensure that no less than

10 feet of underlayment of natural silty

clay exists.

recommend that significant ground water accumulation within the waste not be

permitted to occur.

Preparation of the site involving earthwork operations

will be

necessary prior to

commencement of the landfill.

During site preparation,

consideration should be

given to handling the leachate which will develop from infiltration of surface

water through the soil cover on the refuse.

Additional infiltration of water may

also occur from seepage, possible formation of springs below the landfill, or from

the general rise

in the water table through the base

of the refuse.

Provisions

should

be made for handling or collecting

natural groundwater flow emanating

from small streams,

It will

be necessary to

either contain all

leachate within the

sanitary landfill

site, or to collect alt of this leachate and treat the liquid to make

acceptable for disposal

in public areas.

The quantity of leachate should

minimized

by diverting surface water flow around the area of operation during the

filling process.

This can

be accomplished by suitable grading, construction of

dykes, and or excavating ditches.

It is recommended that all existing topsoil

progressively removed

the proposed

landfill areas

is being

prepared.

The topsoil should

be stockpiled for

reuse upon

completion of the landfill

operation.

The stripped surface

should be

inspected in order

locate the possible presence of exposed

peMous materials.

These

exposed

sand and

gravel surfaces should

be covered

with a

properly compacted clay layer having

minimum thickness of 2 feet.

This layer should

placed

in lifts

not exceeding

9 inches

in loose thickness, and

compacted

to at least 95

percent of Standard

Proctor density

accordance with

ASTM specification

D698-70.

The above site preparation is applicable

to areas where removal

of topsoil and

placement of a

clay liner can

be accomplished

above the groundwater table.

In areas where this procedure cannot be followed due

to a

relatively thick topsoil

immediately underlain by

pervious granular materials and

a shallow water table,

it may

be necessary to place the clay liner after local dewatering and removal of upper

pervious materials.

This will

be required to prevent the passage of leachate

into

the natural groundwater system.

It is the

intent of

this recommendation that the

compacted clay liner should have a minimum thickness

of 2 feet and a low permeability

to act as

a barrier below all refuse to

be placed

in the ravine or over pervious soils

exposed

by excavation

in the higher ground.

The continuity of the underliner will be

important

in all areas where pervious

soils would

permit groundwater flow to

move in

downward direction.

After placement of each day’s refuse, the surface should

be covered by a minimum of

to 8

inches of compacted inorganic clay.

This covering material should be well

compacted to

minimize the downward infiltration of surface water into the refuse.

After the landfill operation

has been completed

in a particular

area, we

recommend a

minimum of 3 feet

of compacted,

inorganic silty clay be

placed over the completed

area

minimize

the downward percolation

of surface water and the resulting

increase in the

volume of leachate.

Surface grading of the landfill should be sloped to allow rapid

run-off of water to avoid ponding.

Since the area

immediately adjacent to the

landfill

is being

used and

may be

further

developed

for residential purposes after or during

the landfilling

operations,

and

since

the refuse will

be contained within the landfill for decomposition, it will

necessary to

install vents through the

landfill

cover to allow the developed

gases to

escape.

Such

vents may consist

of non-corroding

vertical pipes composed

of plastic.

Provision

will be

required

to prevent the escape of methane gas (CI-14)

into the nearby residence.

It is further recommended that monitoring wells

be installed

in shallow

and deep

aquifers along the southwestern boundaries of the landfill.

The use

of a tight clay

cover and

the maintenance of air-tightness will tend

promote general

anaerobic

conditions

in the waste,

and thus

tend

to preclude

internal fires.

understand that during

initial

operations waste

materials will be

placed

in the

ravine and

lower portions of the site.

It would be

more desirable to start the placement

of waste materials on the higher ground.

If fill

operations are

started in the lower

ground, surface runoff could,

if unimpeded, flow towards the deposited

refuse,

increasing the

possibility of washouts and the quantity of

leachate that is developed and

the amount that has to be treated.

Provision for handling runoff from the higher

ground should

an integral part of the daily operation of the landfill.

This will

require proper grading of the area and ditching.

Since the leachate will

be concentrated in the low

area, minimization of the

seepage loss will be important.

Perimeter dikes should

be constructed of

compacted silty clay to retain the teachate and prevent lateral

outward movement.

Provisions should

be made for the maintenance of the leachate

collection

and treatment

facilities at the site after the completion

of the landfill

operations since

leachate will

continue to

developed for a significant amount of time following

completion of

operations.

Analysis of the quality of the groundwater and

the well water at the nearby residence

should

performed regularly during the operation

of the site.

It is recommended that

the initial groundwater and well water quality analysis

performed prior to

commencement of operations

at the site to

provide a

basis

for comparison

subsequent test results.

Regarding construction and

operation

of the sanitary

landfill, it should

be expected

that some problems may occur due to infiltration of seepage

or runoff water at the

base

of the excavation to

receive the refuse.

All seepage water which

has

not come

contact with

the refuse should

be promptly removed.

It should

possible to

remove

this water by common

sump pit and

pump procedures.

The cohesive

material on

the

site may be

difficult to work during wet or cold seasons.

Proper equipment should be

available at the site

all times so that cover material can

be installed

promptly.

Seepage water should

removed

prior to the placement of fill, where it enters areas

that are over

excavated for the removal of seams

or layers of granular soils.

The

1973 subsurface investigation,

which was perpetuated when

it was

included with

the supplemental

permit application

submitted

in 1989,

indicated

that a failure to

cover refuse,

control

run-off and

run-on,

control

leachate,

and

line the wastelsurface

interface, would

result

“significant pollution of the environment”.

The report

indicated

shallow, surface groundwater

that could readily be

impacted

by the

landfill

if preventive

measures were not maintained.

Documents admitted

as evidence

and

uncontroverted testimony at hearing,

clearly

indicate

preventive

measures either were never put in

place

at the landfill

or were not maintained so as

provide adequate protection.

The report references

indications that

ground water flow occurs

mostly near the surface

of the upper brown till,

and follows

a southwesterly direction.

indicates deeper continuous aquifers

may be

present.

The wells

utilized

for the subsurface

investigation were

screened at a depth

(10 feet to

17.5 feet) comparable to

the downgradient

groundwater monitoring wells

at the landfill (G104:

50.5 feet,

0105:

9.7 feet,

G106: 21.6 feet.

Parties

Exhibit

34, page 7), which are screened at a shallow depth

relative to the depth of the

deeper well,

identified

as 0103 (103.5 feet) by

the documentation admitted as

evidence

in this

matter,

and the testimony.

The well referred

to as a shallow

upgradient well is identified as

MW5 or 0102,

and

is screened

at 26.5 feet.

Parties

Exhibit

34, page

photo of the

surface markers for

the

two

wells

exists in the

record of this proceeding

in Parties

Exhibit 40,

Photo 6

of Roll 276.

There is nothing

the record of this proceeding

that would

indicate

that an underlining

of clay was

placed on the land prior to the application

of waste

and

refuse.

Certainly there is no

indication that areas were dewatered

should

high water tables

be encountered nor is there any

evidence

that any investigation was

conducted

regarding potential pervious materials existing

the surface where waste was

to be applied

and

appropriately addressed.

Ms.

Shourd testified

that when Jersey Sanitation

Landfill

Corporation purchased the

landfill,

November 1989,

had

no equipment with

which to operate the landfill.

Tr. at

346

(lines

19-21).

She further

testified that at

the time of purchase the corporation had

one

part-time

employee operating the

landfill.

Tr at 347

(lines 9-15).

She further testified that throughout the first year that the

corporation

operated the

landfill,

it was

difficult for

the corporation to

find

people to operate the

landfill

and to

buy equipment.

She

indicated

during the first year, the corporation

“changed

employees a

lot”.

Tr.

at 347

(lines

19-23).

When

asked why she

purchased equipment,

Ms.

Shourd

indicated:

“In order

compact trash,

haul

dirt over there,

and cover

it up,

and

compact

the dirt.”

No where

did

she

indicate

removal of topsoil

and application of a clay underlining prior

to the application of waste or refuse.

She

testified that she tried

scrape dirt off the

sides of

the ravine for daily cover, but that wasn’t effective.

Tr.

at 348

(lines

16-19).

Based

the

testimony, it wasn’t until shortly before

the landfill was closed in

September of 1992,

that the

corporation

had obtained

enough

equipment

begin to

cover the trash.

At the time of the

1994 inspections,

there were

still

large areas

of uncove~edrefuse

at the landfill and significant

leachate flows.

Parties

Exhibits

and

34.

As predicted

by the 1973 report, because proper controls and

maintenance for drainage

and

leachate were not

place at the landfill, when groundwater springs emerged at

the landfill,

the water came

in contact with

the waste,

and the contaminated groundwater/leachate flowed

into Sandy Creek:

“A

liquid was observed flowing

south of the leachate collection

pond

(see photos

11,

12 and

16).

The

liquid appeared to

be groundwater originating from a

bank

composed of soil,

tree trunks,

bed springs

and

vehicle engines.

The refuse

the bank suggested that the bank was

partly filled with

waste.

The

liquid

leaving

the bank left a rusty colored deposit on the bottom of the drainage

ditch

(see

photo 26).

There was

also a

slight sulfur odor emanating

from around

the flow.

followed the flow west to the point where it entered Sandy Creek.

Photos

9 and

10 show the point

where the leachate flow enters

the creek.

Before

leaving the

landfill,

a sample of leachate was

collected.”

Parties Exhibit

10,

page

2 of the narrative.

Evidence

of Respondent’s failure to install and

maintain proper controls

the landfill

are

included in

numerous

exhibits that were admitted

at hearing.

Parties

Exhibit

18 (May 21,

1991

inspection), on

the third page of the narrative, the

inspector documented his observation that the drainage channel required

along the north edge

of the fill is no

longer present.

The channel was to

keep

run-off water from the

north

out of the

filled

areas.

Special Condition

of Permit

1973-44-DE indicated

that the landfill operation and

the filled areas

are to be

protected from

runoff.

There was

no drainage channel constructed

along

the northern boundary of the ravine

at the time of the inspection.

In Parties

Exhibit

(November

19,

1991 inspection),

on the third page of the narrative,

the inspector documented

his observation that Special

Condition 22 of the Supplemental

Permit

1989-1 77-SP

(dated

11-15-89)

indicated that surface water ditches

on the north and

south

side

of Cells

and

2 for conducting

run-off or run-on are

to be maintained on a

regular schedule.

No ditch

had

been

developed at

the time of the inspection on

the south side

of Cells

and

In all the inspection reports

through

1994,

Parties Exhibits

10,

18,

21, 25, 27,

31,

34,

inspectors documented

uncovered

refuse.

Pursuant to the landfill’s

1989 supplement permit,

Supplemental

Permit No.

1989-177-

SP,

issued November

15,

1989,

a leachate

collection system

plan was

supposed

submitted

to the

Illinois EPA permit section

by January

15,

1990.

Parties

Exhibit

16,

page

The

Illinois

EPA

did not issue

approval

of leachate

collection system

plans submitted

by the

Respondent until approximately December

13,

1990.

Parties Exhibit

11.

At the time of an

Illinois

EPA

inspection conducted

on January 23,

1991, the inspector made the observation

that

is the subject of the quotation

appearing

above, which indicated

that leachate was

flowing

considerable distances along

the surface of the landfill

and

flowing into

the collection

system

from the surface,

not via the

pipe

extruding from the

landfill

itself.

Parties

Exhibit 10,

page

2 of

the narrative.

At the time of

the May21,

1991

inspection,

the inspector observed

leachate

seeps as

described

in Parties

Exhibit

18,

page

of the narrative.

On that date,

leachate

was

observed flowing

into

Sandy Creek

—

an off-site creek to

the west of the landfill.

Leachate flows

and seeps were

also observed

at the time of the November 19,

1991

inspection (Parties

Exhibit

21), the February 25,

1992 inspection

(Exhibit 25),

the January 21/February

17,

1994 inspection

(Parties Exhibit 31), and

that May 1994

Illinois EPA

groundwater sampling event

(Parties

Exhibit 34).

Even though the landfill operators were advised

in the 1973 report to

install a gas vent

system

at the

landfill,

it wasn’t until the time of the November 19,

1998 inspection,

documented

Parties

Exhibit 40, that inspectors observed that two gas vents

had

been

installed at the landfill.

In Parties

Exhibit 31, the

Illinois EPA

report regarding its January

21/February

17,

1994 inspection,

page 3 of the check-off list (item 32),

and

page

the narrative, again

referencing

item

32,

Mr. King

documented

noticeable gaseous odors

emanating from

the landfill

in two locations.

Evidence admitted

hearing

and contained within the record

of this proceeding that

Respondent Jersey Sanitation

Landfill (1)

had

information that indicated it was imperative that

controls and

practices

be put

in place

and maintained

at the landfill

to address

leachate,

drainage and

gas

order

to avoid “significant pollution of the environment

and undesirable

effects for the landfill

installation”, (2) failed to install

and

maintain

controls,

and

(3) allowed

leachate

accumulations, gas

releases and drainage problems to

actually occur at the

landfill,

supports

Complainants allegation

that Respondent has

and continues

cause, threaten or

allow the discharge

of contaminants into the environment

as to

cause or tend

to cause water

pollution or so as

to violate regulations or standards.

Information contained within a submittal entitled “groundwater monitoring

narrative

—

supplemental

permit”,

by Henneghan and Associates for

the Jersey

Sanitation Corporation

Landfill on October

10,

1991,

did

not contradict

the

1973 subsurface investigation

report.

Parties

Exhibit 20.

Toward

the end

of the narrative on page

10 of the exhibit,

the October

10,

1991

submittal reads:

“...As

stated earlier, the groundwater follows the topography of the

area.

This

would

mean

that the groundwater flows from the higher elevations at

the east

end

of the

landfill

to the lower elevations at the west end

of the landfill.”

On page

8 of the exhibit, the

report reads:

“The results of the

monitoring indicates

that

the direction of the groundwater flow follows the topography of the area and

most likely spring

feeds

surface drainage

at or near bedrock.

Regional sources

of recharge ordepletion of

groundwater are only minor water infiltration

recharge and

depletion

by Sandy Creek and

tributaries.”

The October 1991

submittal also described the area as

one of bess deposits,

ranging in

depth from 7

100 feet,

underlain by bedrock,

consisting

of alternating

limestone, claystone,

siltstone and

shale members,

at an

elevation varying from

504 to

536.

The report also

states

that because of active melting

that took place while

morainic ridges were being formed, there

are inclusions

of water-worked

material in

the morainic ridge that

has a principal constitute of

glacial

till.

Because of the way the ridges were formed, they generally contain pockets, lenses

and

even tubes

of water-sorted gravels,

sands and

silts.

Exhibit 20, page 8.

The instant case presents

issues much like the groundwater issues

decided

in the case

People

ESG

Watts

Inc.,

PCB 96-107 (February

1998).

This case concerned Watts’

Taylor Ridge facility, which continued

to operate at the time of the decision.

ESO

Watts,

PCB 96-107, monitoring

results indicated

exceedences of Class

standards and the

Respondent had failed

to perform

a groundwater assessment.

The factual evidence

that

matter showed

exceedences of sulfate,

iron

and

manganese standards,

and the

Illinois

EPA’s

test results indicated concentrations of organics, but there were

no groundwater standards for

the organics

detected.

PCB

96-1 07 (February

1998),

slip op.

and

22.

The Illinois

EPA’s groundwater expert testified that the organic contamination detected

in the wells was a

result of releases from the landfill.

Id.

at 22.

He also testified that landfill gas can contribute to

contamination of groundwater by

putting additional pressure within the landfill

itself.

Id.

testified

that, in

that this landfill

was

producing gas, this pressure increased the chances of the

gas contributing

to the groundwater contamination.

Id.

ESO Watts’ argued

that the

Complainant had to

prove that concentrations

of contaminants of concern are

not present due

natural causes.

Id.

at 34

ESG Watts argued that alt three contaminants identified

complainant were

naturally occurring

and that concentrations of iron

upgradient exceeded

regulatory limits.

Id.

In its decision,

the Board stated:

However,

in order to

show that the exceedences were caused

background,

ESG

Watts has to characterize the groundwater quality upgradient of the landfill

for all the

three contaminants of concern.

In this

regard,

ESG Watts has

not provided any

analysis of

its

groundwater sampling

results of the upgradient wells to

establish the

upgradient groundwater quality for

the three

contaminants to

show that the

exceedences were

not caused

by the

landfill.

The monitoring data

from the Agency’s

and

ESG Watts’ groundwater monitoring

reports show that the contaminants identified

the complaint were detected

in the upgradient wells

and

in some

cases the

levels for

iron were above the groundwater quality standard.

However,

both the Agency’s and

ESG Watts’

groundwater monitoring

reports show that the concentrations of sulfate,

iron

and

manganese were

significantly higher in the downgradient

wells.

Thus,

it is clear

from the groundwater monitoring data

that the landfill was impacting the underlying

groundwater.

In light

of this,

the

Board finds

that the exceedences of the Board’s

groundwater quality standards were caused

by the

landfill.

Id.

at 34.

Based

on this finding, the Board held that ESO Watts had violated

Section

12(a) of the Act, and

35111.

Adm.

Code 620.115, 620.301(a)

and 620.405.

Id.

35-37.

In this case,

the

complainant had alleged violations of the groundwater standards,

and

specifically alleged

violation

of the Class

standards.

The Board

held

that the complainant had failed

prove that

the groundwater was Class

and

thus

could not making

a finding

of violation

of the Class

standards.

Since violation of the Class

standards

had

not been

alleged,

finding was

made

with regarding

to a violation of specific standards.

Id.

at 35

36.

the matter of People

ESG

Watts,

PCB

96-233 (February

1998), again, similar

groundwater issues were

examined

by the

Board.

This case concerned Watts’

MercerNiola

facility, which ceased accepting

waste in

September 1992

and was thereby governed

by the

Part 807 regulations.

Watts’ PCB 96-233,

the evidence

showed that Watts’ didn’t even

perform

sufficient monitoring, much

less

attempt a groundwater assessment.

The fact that

Watts failed to install monitoring equipment,

monitor groundwater

beneath the

landfill and

submit monitoring

reports served as

the

basis for the Board’s finding

that Watts violated

Section

12(a)

of the Act, 415

ILCS

5/1 2(a), because

it operated

its

landfill

in a manner, via

these

omissions,

that constituted

a threat to waters of the State.

PCB 96-233 (February

1998), slip op.

13.

The Board found

the

landfill

the

logical

source of organic

contaminants detected

in monitoring

samples, and

noted

testimony by experts that

the cause of

the exceedences

in the groundwater were gas

migration and

leachate.

14.

Watts’

PCB

96-233, unlike

the instant

matter, evidence showed concentrations

of inorganics

in upgradient

wells,

and due to

this the

Board was unwilling

to find that the landfill

was the cause of the

exceedences of the inorganic standards.

Id.

Respondent Jersey Sanitation has

caused

or threatened

or allowed the discharge

contaminants.

Respondent Jersey Sanitation

Landfill,

admitted via

the testimony of Pam

Shourd,

that it owned and

operated Jersey

Sanitation Landfill at

all

times

pertinent to the

allegations of violation of Section

12(a) and

35111.

Adm.

Code 620.420(a) and

(d).

Respondent

operated

the landfill from

November 1989

until

the landfill

ceased accepting waste in

September

1992.

Since

September

1992,

Respondent Jersey Sanitation

Corporation has

continued

to own the landfill

and

thereby

responsible for compliance with

all closure

and post-

closure requirements, which includes compliance with the Act,

the

Illinois Groundwater

Protection Act,

and

the

Part 807 waste

disposal regulations.

Respondent Jersey Sanitation has

caused or threatened

or allowed the discharge of

contaminants

into

the environment so as

cause or tend to

cause water pollution or so

as to

violate regulations or standards.

Evidence contained within exhibits admitted

this

proceeding,

and

presented at

hearing, shows that there are no

exceedences

of the Class

groundwater standards in

the groundwater monitoring wells considered

to be

upgradient of the

landfill.

There are

exceedences

in the downgradient monitoring

wells, and

sample results for

the contaminants of concern that are exceeding have

shown increasing concentrations over

time.

Arsenic,

which was

not detected

above the Class

II groundwater standards at the time of

1994

Illinois

EPA sampling event,

has

been detected

at concentrations above the

Class

standards since the year 2000.

Arsenic concentrations above the Class

standards

have

not

been

detected

in the upgradient wells.

Respondent Jersey Sanitation has

not contested

their

own sample results,

nor the results of sampling obtained

by the Illinois

EPA.

These

results,

and

thus the exceedences

alleged

Count

I of the Complainant, are contained

Parties

Exhibits

34, Parties

Exhibit 50

as well as

Complainant’s

Exhibits

16 and

20 and

are compared

therein

to the applicable

Class

II groundwater standards.

Further,

at the time of the

1994 Illinois

EPA sampling

event,

the sample results

indicated

concentrations of organic landfill

wastes,

including

components of food waste that is commonly

found

associated with

landfills.

Evidence contained

within the

record

of this proceeding that (1) Respondent Jersey

Sanitation possessed

information that indicated

it was

imperative that controls

and practices

put

place and

maintained

at the landfill

to address

leachate, drainage and

gas

in order

avoid “significant

pollution of the environment and

undesirable effects for the

landfill

installation”,

and

that (2) Respondent

in many instances either failed

install controls

or failed

adequately and

properly maintain

controls,

and, thereby allowed

leachate accumulations,

gas

releases and

drainage problems to

actually occur at the

landfill,

supports Complainant

allegation that Respondent has and continues

cause,

threaten

or allow the discharge

contaminants

into the environment so

to cause

or tend

cause water pollution or so

violate regulations or standards.

Further,

Sections

and 0 below, incorporated

herein by

reference, set forth testimony

and exhibits contained

within the record of this proceeding that Respondent Jersey Sanitation

Landfill has

failed,

despite

permit requirements and demands to do so,

to evaluate

its

groundwater monitoring

program and

conduct a groundwater assessment so

to confirm the

source

of exceedences

at the landfill and

develop a plan

of corrective action.

Similar to the

factual

basis of decision

issued by the Board

People

ESG

Watts,

PCB 96-233 (February

1998), wherein the fact that

Respondent Watts failed to

install monitoring

equipment,

monitor

groundwater beneath the

landfill

and submit

monitoring

reports served

the

basis for the

Board’s finding

that Watts violated

Section

12(a) of the Act, 415

ILCS 5/12(a),

because it

operated

its

landfill

a manner, via

these omissions,

that constituted

a threat to waters

of the

State

(PCB 96-233 at

13), Respondent Jersey Sanitation’s failure to

evaluate its groundwater

program and

conduct a groundwater assessment supports

the allegation

of a violation

Section

12(a)

in the instant matter.

that it is uncontested that concentrations of contaminants

have

been detected

monitoring

well samples that exceed Class

standards,

the fourth element of Section

12(a)

has

been met

that discharges from the Jersey Sanitation

Corporation landfill

have

resulted

violation of the Board’s groundwater standards.

Respondent has violated

section

12(a) of the Act,

415

LCS 5/12(a),

and 35

III.

Adm.

Code 620.420(a) and

(d).

The Respondent’s violation of Section

12(a) and

35111. Adm.

Code 620.115 and

620.405.

Section

620.115 of the Board’s groundwater regulations,

III.

Adm.

Code 620.115,

provides

as follows:

Prohibition

person shall cause,

threaten or allow a violation of the Act, the

IGPA or regulations adopted

by the

Board thereunder,

including

but not limited to

this Part.

The

Board

held as follows in

the case of

People

ESG

Watts Inc.,

PCB 96-107

(February

1998),

slip

op at

37:

“Section 620.115 of the Board’s groundwater protection

standards prohibits

any

person from violating the Act or the Board’s groundwater quality standards.

Violations of the Board’s groundwater quality standards may constitute

violation

of Section

12(a) of the Act.

See

International Union

et a!.

Caterpillar,

Inc.

(August

1996),

PCB 94-240, aff’d,

Ill. App.

Ct.

No.

3-96-0931 (3~

Dist.)

(September 10,

1997)

(unpublished order

under Supreme Court

Rule 23).

noted

previously,

the concentrations

of sulfate

and

iron

groundwater

underlying the landfill have exceeded the class

II groundwater quality standard

set forth

at 35

Ill. Adm.

Code 620.420 from

November

12,

1991

August 25,

1994.

The Board

finds

that Watts

has allowed the discharge of contaminants

into the environment

violation of Board

regulations and

standards and has

caused water pollution.

Accordingly,

the

Board finds

ESG Watts

in violation

Section

12(a) of the Act and 620.115.

The results of samp~ngconducted

at the Jersey Sanitation Landfill’s downgradient well

have shown exceedences

of Class

II groundwater standards.

In that the upgradient wells have

not shown

exceedences,

is apparent that the source of the contamination

is the landfill.

Consistent with

the decision

in PCB 96-107, the fact of the exceedences

constitutes a

violation

of Section

12(a) of the Act, 415 ILCS

5/12(a), and thus Respondent is in

violation of

Section

12(a) of the Act

and

III.

Adm.

Code 620.115.

Section 620.405 of the Board’s groundwater regulations, 35

III. Adm.

Code 620.405

provides as

follows:

General Prohibitions Against Violations of Groundwater Quality

Standards

person shall cause,

threaten or allow the release of any

contaminant to

groundwater so as

to cause

a groundwater quality

standard

set forth

in this Subpart

to be exceeded.

In the matter of

People

ESG

Watts inc.,

PCB 96-107 (February

1998),

slip op at

36,

the

Board found

that, in that the Agency’s groundwater monitoring

reports indicated that the

sampling

results exceeded

the Class

II groundwater quality standards for sulfate

and iron,

the

Board

accordingly found that Respondent ESG Watts violated

Section 620.405, by

causing the

release of contaminants into groundwater so

that the concentrations of sulfate and

iron

groundwater underlying

the landfill

have exceeded

the Class

II groundwater standards set forth

Ill.

Adm. Code 620.420 since

the dates

of the Agency sampling events.

Results of sampling

conducted at the Jersey Sanitation landfifl’s

downgradient

monitoring wells,

obtained by both

the Respondent and

the

Illinois

EPA,

indicate

exceedences

of the groundwater standards as set forth

Parties

Exhibits 34 and

50, as well as

Complainant’s Exhibits

(including

the chart setting forth

allegations of exceedences in

Count

of the Second Amended

Complaint,

which constitutes

that last several

pages of this

exhibit)

and

20.

set forth

above,

results of

sampling of the upgradient wells at

the

landfill do

not

indicate an exceedence of the Class

II standards,

but the downgradient

wells do.

These results

are

uncontested.

stated above,

Ms.

Nelson

has

concluded the landfill

the

source of the

contamination.

Respondent has violated

Section

12(a) of the Act, 415

ILCS 5/12(a),

and 35

Ill.

Adm.

Code 620.115 and 405,

by causing or allowing

the release of a contaminants to

groundwater

as to

cause groundwater standards to be

exceeded.

The Respondent’s violation of 35 Ill. Adm.

Code 620.301.

Section 620.301

of the

Board’s groundwater

quality

regulations,

Ill. Adm.

Code

620.301,

provides,

pertinent

part,

as follows:

General Prohibition Against

Use Impairment

Resource Groundwater

No person shall cause,

threaten or allow the release of any

contaminant to a

resource groundwater such

that:

Treatment or additional treatment is necessary to continue

existing

use or to assure

potential use of such

groundwater;

An existing or potential

use of such

groundwater is

precluded.

Contaminant concentrations

that constitute exceedences of the Board’s Class

groundwater quality standards that are increasing

in magnitude,

and

results of sampling

collected since or before

the year 2000

indicating concentrations of arsenic above the Board’s

Class

II groundwater quality standards,

are significant releases

to the environment for which

treatment would

be necessary to

continue an

existing use or to

assure a

potential

use of the

impacted groundwater, or that

may result in an

existing or potential us of such

groundwater to

precluded.

The specific results

of sampling

at the Jersey

Sanitation

Landfill

include

the following.

Results

of sampling conducted from

downgradient monitoring well

G104

include exceedences

of the Class

groundwater standards for

arsenic, iron, total dissolved solids

and

sulfate.

Complainant’s Exhibit

16 and

20.

Ms.

Nelson testified that dissolved arsenic has increased

over the years

in sample results

collected from

monitoring

well G104.

Tr.

274-275, lines 22-

24 and

1-3; Complainant’s Exhibit

16 and

20.

Arsenic was not detected,

or detected

well below

the Class

and

standards

1994 when the

Illinois

EPA

did

a groundwater study of the site.

Since

1994,

beginning

somewhere before the year 2000, sample results indicate an

increase

exceedences of

arsenic over the groundwater standard of 200 parts

per billion at monitoring

well G104.

Also

at well G104, dissolved iron

concentrations

have

increased from

non-detect levels,

below the Class

land Class

standards,

1990

1994,

concentrations of 8000

plus

ug/L

from the year 2000 to

the most recent

sample results.

Complainant’s Exhibit

16 and 20.

The

Class

II standard for dissolved

iron

5000 ug/L.

Dissolved sulfate

concentrations at

0104

continue

to exceed

the Class

II groundwater standard of 400 mg/L.

Sulfate concentration

have

exceeded

that standard

at the

G104

well since

1990.

Dissolved

chloride concentrations

G104

exceeded the Class

II standard for chloride at

the time of the April

2003

Illinois

EPA

sampling

event at the landfill.

Complainant’s

Exhibit

16 and

20.

At monitoring well 0105,

concentrations of dissolved iron

have greatly increased

since

the sampling

event conducted as part of the

Illinois EPA’s

1994 compliance

review.

the year

2000,

sampling

results indicate iron

concentrations

at a level of

39,700 ugIL and as

high as

51,800

ug/L.

Complainant’s

Exhibit

and

20.

Ms.

Nelson was

asked at hearing

whether any

of the sample results she reviewed

sent

up any

particular red

flags of concern.

TR 276

(lines

19-24),

279(

(1-5).

Ms. Nelson

testified

that the results that first showed exceedences

1990 and

each exceedence since

are

all red

flags.

However,

she continued,

the fact that (1) the exceedences are increasing in

magnitude,

and

(2) that concentrations

of arsenic

have suddenly increased

above the groundwater

standard levels are very significant red

flags and

should

investigated.

Ms. Nelson

added

that these exceedences should

have

been investigated

back when they were first detected.

Ms.

Nelson

also testified

that the concentrations of iron

detected

at monitoring

well G105 are

a very high level,

in fact,

it is the highest level of iron

concentration Ms.

Nelson

has

ever seen

a landfill.

Further,

samples collected

in downgradient wells at the time of a

May

1994

Illinois

EPA

sampling

event indicated organic contaminants, commonly found

landfill

(food) waste.

Parties

Exhibit

34,

page

28.

Tr at 256

(lines

1-12).

Concentrations of arsenic and

sulfates over the

Class

standards

very likely may

impact the water to the

point

of requiring treatment or preclude

an existing or potential use

groundwater.

Also,

iron

concentrations at the very high levels detected

downgradient

monitoring wells at

the Jersey Sanitation

Landfill likely may impact the water to

the

point of

requiring treatment or preclude an existing or potential

use of groundwater.

Also, the detection

of organics in

the downgradient

wells is significant to any existing or potential

use of the

groundwater.

In the case

People

McHeriry

Shore,

259

lll.App.3d

628,

637 (2d

Dist.

1998), 693

N.E.2d 393, the court held that the Board’s public water supply requirements that owners and

official

custodians provide water that

is safe

in quality,

clean,

adequate

quantity,

and

satisfactory mineral characteristics for ordinary domestic

consumption go

beyond

the

requirement

that water be bacteriologically safe for consumption.

The water supply must also

be clean

and

not offensive.

The court cited

Farmer

Stahl,

PCB

84-1 09 (March

14,

1986),

wherein

the

Board

held that water provided

by a public water company that had

a strong

chlorine odor and

a rusty color,

and was

“fizzy” and “cloudy”,

despite the fact no chemical

analysis had been done of the water, violated the Board’s requirements that a water supply

provide water that is clean

and

satisfactory for ordinary domestic consumption.

This is relevant to the instant matter

because the

high iron,

sulfate and

chloride content

in the groundwater may require treatment or prohibit use

due to

aesthetic characteristics and

considerations

as well as due to

the chemical

alteration

of the groundwater.

Contaminant concentrations that constitute exceedences of the Board’s Class

groundwater quality standards

that are

increasing

magnitude

the downgradient

monitoring

wells at the Jersey Sanitation Landfill,

and

results of sampling

a downgradient well

at the

landfill

indicating concentrations of arsenic above the Board’s Class

II groundwater quality

standards are significant releases to the environment for which treatment would

necessary

to continue an

existing

use or

to assure a potential

use of the impacted groundwater,

or that

may result in an

existing or potential

use of such groundwater to

precluded.

Thus,

Respondent Jersey Sanitation

Landfill

has violated

Section 620.301

of the Board’s groundwater

quality regulations,

III.

Adm.

Code 620.301.

The Respondent’s violation of Section

12(d) of the Act,

415

ILCS Section 5112(d).

Section

12(d) of the Act,

415

ILCS 5/ 12(d),

provides,

as follows:

person

shall:

Deposit any contaminants

upon the land

such place and

manner so as

to create a water pollution hazard.

Respondent Jersey Sanitation created

a water pollution hazard at the Jersey

Sanitation

Landfill.

Respondent Jersey Sanitation

Landfill admitted,

in testimony

presented

by Pam

Shourd

at hearing, that it owned

and operated Jersey

Sanitation

Landfill

at all

times

pertinent to

the allegations

of violation

of Section

12(d).

Respondent operated the

landfill from

November

1989 until the landfill ceased

accepting waste

September

1992.

Since September

1992,

Respondent Jersey Sanitation

Corporation

has continued

to own

the landfill and is thereby

responsible for compliance with

all

closure and

post-closure requirements,

which includes

compliance with

the Act, the Illinois Groundwater Protection Act,

and

the

Part 807 waste

disposal

regulations.

Respondent Jersey Sanitation

Corporation had sole

control of the property at

all

times

following

the purchase

of the property in

November

1989, and continues

have

sole

control of

the property today.

such,

it controlled

the management and

maintenance of

all

past, current

and

future depositions

of waste on the property.

It continued

operate the

landfill from

November 1989 until

September 1992,

during which time it accepted waste at the

landfill

and

deposited

upon the

land.

As set forth

under Section 6 above,

evidence

contained within the

record of this

proceeding

that Respondent Jersey

Sanitation

possessed

information that indicated

it was

imperative that controls and

practices be put in

place

and maintained

at the landfill

to address

leachate, drainage

and gas

order to avoid

“significant pollution of the environment and

undesirable effects for the landfill installation”, that the Respondent in

many instances either

failed

to install controls

or failed to adequately and properly maintain

controls,

and the

Respondent allowed the formation of leachate accumulations,

seeps and flows,

and

gas

releases

and drainage

problems to actually occur at the landfill.

The proceeding

includes

evidence in

the form

of testimony of,

as well as exhibits documenting,

observations

of leachate

seeps and

flows, gas releases

and drainage problems at

the landfill

Illinois

EPA inspectors.

Respondent Jersey Sanitation

has

not contested

their own sample results, nor the results of

samples obtained

by the Illinois

EPA.

These results indicate ongoing

exceedences of

groundwater standards at the

landfill.

The results are contained

Parties Exhibits

34,

Parties

Exhibit 50 as well

Complainant’s Exhibits

16 and

and are

compared therein to the

applicable

Class

II groundwater standard.

By causing and

allowing the deposition

of wastes

upon

landfill property,

that

is,

landfill

property that was predicted

by a professional engineer to likely experience leachate

and

groundwater problems that could result in “significant

pollution of the environment and

undesirable effects for the landfill installation”

if the operator did

not properly control drainage,

cover refuse and anticipate and

control

leachate, and by

then failing

install and

maintain

necessary controls that would adequately address drainage, leachate and

the formation of

gas,

Respondent Jersey has deposited

contaminants

upon

the land

such

place and

manner so as

to create

a water pollution hazard,

and thereby violated

Section

12(d).

Since

1989,

Respondent Jersey has failed to provide

a statistical comparison or

any groundwater assessment of upgradient versus downgradient groundwater

quality and

evaluate geologic information

(i.e.

additional borings, cross sections

etc.) to determine the necessity of an additional background monitoring well

which would

be screened

in the same hydrogeoloqical

zone as the downqradient

well at the facility1

Respondent Jersey Sanitation has failed

to confirm that monitoring well

G103 is an

appropriate upgradient well for the landfill, despite

requirements

contained within its permits

do so dating

back to

November 1989, the month

in which Respondent Jersey Sanitation

acquired ownership and

control of the landfill.

At hearing,

Ms.

Nelson provided

testimony under direct

examination,

cross-examination

and

rebuttal to

Respondent’s witnesses,

that

it continues

her opinion that G103

is likely

monitoring groundwater in

a different zone than the

zone of groundwater being

monitored

the downgradient wells,

and further,

that Respondent Jersey

Sanitation

needs to conduct

additional

field work, statistical

work

and any

necessary additional assessment work so as

provide substantial factual

information

and

well grounded opinion as to the appropriateness of

G103

an upgradient well.

Tr.

237-248. Tr. from

the January

13,

2004 hearing date at 78-

80.

Special Condition

11(b) of Respondent’s Permit No.

1989-177-SP reads as

follows:

The applicant shall provide a narrative demonstration

that the revised

monitoring

program for

Jersey Sanitation

Corporation

Landfill

is capable of

determining groundwater quality flowing onto and

unaffected by the

landfill,

assess current

contribution of the existing landfill on groundwater quality

and

determine if a release to groundwater is occurring.

This information

and

study,

shall be submitted

to this Agency by

by April

15,

1991

with other

required fourth quarter “background” groundwater monitoring information

required in this permit

Attachment “A” Condition

No.

Permit

1989-1 77-SP exists

in the

record

of this proceeding

Parties

Exhibit

On April

1991,

Henneghan and Associates submitted

a document entitled

Groundwater Monitoring

Narrative and was

noted

to be “as required per Paragraph

11 .b of the

November 15,

1989 letter from IEPA granting supplemental permit.”

Parties

Exhibit

15.

On August

14,

1991,

the Illinois EPA

issued

a letter in response to

the April 8,

1991

submittal,

stating

the submittal failed

to demonstrate

that the revised

monitoring

program is

capable of determining groundwater quality flowing onto and

unaffected by the landfill.

The

letter states that the submittal

provides

no evidence that the operator can

control,

minimize or

eliminate

the post-closure

releases

to groundwater,

since the narrative fails to prove that the

operator can

even

detect a release to groundwater if

it occurs.

The letter sets a

new deadline

for the required

re-submittal as 60 days

of the date of the

letter.

Parties

Exhibit

19.

On October

10,

1991,

Heneghan and

Associates submitted

a document entitled

Groundwater

Monitoring Narrative

—

Supplement Permit,

for Jersey Sanitation

Corporation.

Parties

Exhibit 20.

The October 10,

1991 submittal

(identified

log

1991-1 37, and

this proceeding

Parties

Exhibit 20) by no means

provides a thorough

explanation

as to

why G103 was

considered an

appropriate upgradient well.

The document lacks any substantial factual

information,

based on

field work

or other analysis, that conclusively resolves the question as

whether or not G103 is monitoring the same

zone of groundwater.

The Illinois EPA required,

direct response

to the October

10,

1991

submittal,

and since

that time has continued

require,

additional information to support the determination of

G103 as an

upgradient well, and

in turn,

the appropriateness

of the groundwater monitoring program

at the landfill

in total given the

unresolved question

of the appropriateness of 0103.

Rich Johnson, Illinois

field inspector assigned to the

landfill

at the time

log

1991-137

was under

review,

raised the question of the appropriateness of G103

his

review of log

1991-

137.

Mr.

Johnson’s review is contained

the record

as Parties Exhibit 22.

Within that review,

under item

1, Mr.

Johnson wrote:

What permeable layer is being

monitored?

It’s

unclear

looking

at the drilling

logs

whether the upgradient and downgradient wells will be sampling

the

same

groundwater.

How can data between the upgradient and

downgradient be

compared for detecting contamination

if they are not from the

same

groundwater.

In a notice of

permit denial regarding the October 10,

1991 submittal,

dated January

1992,

(Parties

Exhibit 24), one of the reasons given for the denial was

the following,

which

appears on

page 2 of the exhibit:

Special Condition #11 b of

Permit No.

1989-1 77-SP allowed for additional

data to

be gathered to determine

if the program

capable of determining

groundwater quality flowing

onto

and

unaffected

by the landfill,

assess

the current

contribution of the existing

landfill on groundwater quality and

determine

if a

release to groundwater

is occurring.

The application failed to verify that what was

identified as upgradient

groundwater is from

the same

permeable zone

as downgradient

groundwater.

Without this information,

it is impossible to

determine the

current

contribution, if any,

of the existing landfill

on groundwater quality,

and

determine if a

release is occurring.

This information

is necessary to

provide an

adequate detection program.

order for your groundwater

monitoring

program to

demonstrate compliance with

JAC S07~313and

807.315, this information

remains necessary.

Based

the items above,

the application

does not adequately provide the

required

information deferred conditions

and

12 of

Supplemental

Permit

1989-177-SP nor does

it address the concerns in

the August 14,

1991

correspondence from the Groundwater Assistance

Unit of

the Permit Section.

By way of this letter,

the date of the application pursuant

to condition #llb

permit

1989-177-SP was due

is now extended

until April

15,

1992.

Failure to

submit

the information

required by that date will constitute a violation of that

condition.

The next submittal from

Respondent Jersey

Sanitation Corporation was

the November

1992 Biennial

Review of the Closure Plan,

Post-Closure

Plan and

Cost Estimates

for the Jersey

Sanitation

Corporation

Landfill, submitted

by Andrews

Environmental Engineering,

Inc.

Parties

Exhibit 28.

page 28 of Parties

Exhibit 34,

the author of the exhibit,

Ms.

Nelson, quoted from the

November

1992 submittal,

Respondent Jersey’s permit application

(log

1992-350), wherein

Respondent Jersey’s consulting

engineers, Andrews Engineering,

1992,

noted that in

reviewing the last four quarters

of groundwater monitoring results,

it appears certain

parameters tested for

monitoring well G105

may have increased

in the last two quarters.

Sampling

results

will be

monitored closely for

the next two or three quarters.

If an

adverse

trend is confirmed,

assessment will be conducted.”

The next supplemental

permit

to be

issued to

Respondent Jersey Sanitation was

Supplemental

Permit No.

1992-350-SP.

It appears in

the

record

Parties

Exhibit 30.

Included

in the permit is

a statement that the permit conditionally

approves the groundwater

monitoring

plan.

Under Item A of the permit,

it is stated that the water monitoring program

approved

in accordance with

Attachments to the

permit,

and

is subject

to the conditions

contained

therein.

Attachment A to

the permit

is the Groundwater Monitoring Program.

Attachment A includes

requirements that the monitoring

program be

capable of determining

background groundwater quality hydraulically

upgradient and

unaffected

by the units and to

detect any discharge of contaminants from any part of a

potential

source of discharge from the

units.

Parties

Exhibit 30, Attachment A,

Item

Attachment A requires the

landfill

statistically evaluate the groundwater monitoring data

provide statistical

comparisons

between

upgradient and downgradient

groundwater quality data.

Parties

Exhibit

30,

Attachment A,

Item 4.

the event a significant change in

groundwater quality occurs,

Jersey

Sanitation was

submit a groundwater assessment plan for Illinois

EPA

approval, and then

implement the

plan within

30 days

of approval.

An assessment report was

to be submitted,

and

a proposed

corrective action

plan submitted

and

implemented within

30 days of approval.

Parties

Exhibit 30, Attachment A,

Item

Item 22

of Attachment A of Permit No.

1992-350-SP states

as follows:

Annually,

the operator shall prepare

assessment of the monitoring

program

which shall include

an evaluation of the groundwater flow direction

and the

hydraulic gradients

at the facility.

This assessment shall

be submitted with

the

monitoring results due

on July

15.

As documented

Parties

Exhibit 34,

the first

annual assessment that was to

submitted

response to this condition

was

due on July

15,

1994.

At the time that

Ms.

Nelson

issued

her report on

the Illinois EPA’s May

1994 sampling

event at the

landfill, the annual

assessment had

not been

received.

Ms. Nelson’s

report was

issued

in October

1994.

Parties

Exhibit 34, page 33.

Also

included among the

list of

apparent violations contained with

Ms.

Nelson’s

report is

violation of Special Condition

of Attachment A of Permit

No. 1992-350-SP (Parties

Exhibit

34,

page 31):

Special

Condition

1, Attachment A.

The monitoring program

must

be capable of

determining

background

groundwater quality hydraulically upgradient of and

unaffected

by the

units and to

detect any discharge of contaminants from

any

part of

a potential

source of discharge from the units.

This Agency reserves the

right

to require

installation of additional

monitoring wells as may be necessary to

satisfy the requirements of this permit.

JSC “Jersey

Sanitation

Corporation”)

is in

apparent violation of this special

condition because

it appears

that 0103 is not hydraulically upgradient of,

and

unaffected

by the site and

is not monitoring

the same geologic zone

the

downgradient wells.

Parties

Exhibit

39 is a memo

concerning a certification of closure application

prepared

by Andrews Engineering for

Jersey Sanitation

Landfill

Corporation,

that was

received

February

28,

1997 by

the Illinois EPA.

Additional information

was submitted

by Andrews

in support of

this application

in April

1997.

The memo includes a section

entitled

“Agency Comments”.

Parties Exhibit

39,

page

This section consists of a discussion of the appropriateness of groundwater monitoring well

0103 as

upgradient well.

This discussion

is based on

a review of the file.

The section

includes the following:

Review of the boring

logs and well

completion

reports for the Jersey facility.

the screen

interval for upgradient

well

G103

is 25.4

feet deeper than

the

downgradient well 0104 and 21.2 feet deeper than 0105 and

29.3 feet deeper

than 0106.

The most

recent sampling

event discovered

in the groundwater file

was the 3~

quarter of 1996.

This data was

compared to the

4t~iquarter

1995

sampling

event.

Review of this information

revealed

that upgradient concentrations at the

background

well

(R103) are generally lower than downgradient

concentrations.

Specifically,

chloride,

iron

and TDS concentrations

are significantly higher in

downgradient wells than

in the background well at the facility.

This may indicate

that the

upgradient well (Ri 03)

is not

adequate representative of background.

The referenced elevated

concentrations

may

be due to

the fact that the

background

well at the facility is not monitoring the same hydrogeologic horizon

as the downgradient

wells (refer

to Attachment 1).

The groundwater program was

conditionally approved

Log

No.

1992-350

issued February 8,

1993.

Review of permit Log.

No.

1992-350 and

the permit

file

revealed that Special

Condition

No.

3, 4 of the permit and

Condition No.

of Attachment A requiring

annual assessment and

report of groundwater had

not

been addressed (refer to attachment of this memo).

The special

conditions

used

the working

of “should” instead of “shall”

and did

not specifically give

the

applicant due dates for the requested

information.

These

conditions

have been

reworded

and

added

as special conditions to

this closure certification.

Condition

No.

22 will

referred to enforcement.

The next section of the memo is entitled “Conclusions”.

Item

No.

reads as

follows:

This application

should be approved with

the following conditions:

The operator shall provide a statistical

comparison of upgradient

versus downgradient groundwater quality and

evaluate geologic

information

(i.e. additional

borings, cross-sections etc.) to

determine the necessity of

additional

background

monitoring

well which would

be screened

in the

same

hydrogeological

zone

the downgradient wells at

the facility.

As documented

Parties

Exhibit 40, the report for the November

19,

1998 inspection, a

meeting was

held with

Pamela Shourd

and

representatives

of Andrews

Engineering

November 12,

1997.

a follow-up letter to

Ms.

Shourd,

Ms.

Shourd

was

informed that

approvable

groundwater assessment plan was

required pursuant to

Permit No.

1992-350-SP.

At time of the November 12,

1997 meeting,

not

only did

the question of the appropriateness

0103

as an

upgradient well remain

unresolved,

but well before that date

the instant

enforcement action

had

been filed

which included allegations of groundwater quality standards

based upon sampling results obtained by

both the Respondent Jersey Sanitation and the

Illinois

EPA

indicating exceedences of groundwater standards at the

landfill.

Thus,

pursuant to permit

conditions

effect at the time,

a groundwater assessment was long

overdue.

The November

19,

1998 inspection

report further documents that Ms.

Shourd did

not

respond to the follow-up letter,

and that the Illinois EPA

files showed that the only follow-up

response from

Respondent Jersey was a letter dated December

1997,

from Andrews

Engineering withdrawing

a pending

February

1997 application for supplemental

permit closure

certification.

Parties

Exhibit 40, page

2 and 5 of the narrative.

This withdrawal

is also

documented on

Complainant’s Exhibit

Permit Application History for

Site Number

0838040001,

Log

1997-083.

Included among the list of violations documented

at the time of the

November 19,

1998

inspection,

is a violation of Attachment A of Permit 1992-230-SP,

Special

Condition

“Monitoring Well 0103 is not hydraulically upgradient of, and unaffected

by the

site, and

is not

monitoring the same geologic zone

as the down gradient wells.”

Parties

Exhibit 40,

page

6 of

the checklist.

Another

violation noted on

page 6 of

Parties Exhibit

40 was the following:

“Attachment A,

Special

Condition 22.

The Respondent has failed to

provide to the Agency

assessment report of the monitoring program

to include an

elevation of the groundwater flow

direction and the hydraulic

gradients

of the facility.”

The

next permit to

issued

to Jersey Sanitation

Landfill

Corporation was

Supplemental

Permit No.

1999-209-SF.

It approved

the plans

submitted

by Andrews Engineering

for Jersey

Sanitation

Corporation Landfill

dated June

1999,

supported by additional information

submitted

August 31,

1999,

September 8,

1999 and

September 24,

1999.

The water

monitoring

plan

contained

within the permit included Special Condition

This condition

included

language that the “operator

shall

supply the Illinois EPA with

all sampling

and

analysis

procedures

used

providing

reliable indication of groundwater quality in the zone

being

monitored.”

(Emphasis added.)

The condition also

included the following requirements:

Also,

the operator shall provide an evaluation

of the groundwater exceedences

reported

in the February 9,

1999 groundwater monitoring

report, received April

1999.

The concentration

levels for arsenic, iron,

manganese,

sulfate,

TDS,

TOC,

and TOX

in wells 0104,

0105,

and

0106 are above the

620

Class

Standards.

The evaluation shall include the comparison of the established

background

confidence

limits to concentration

levels of these

parameters, a

historical

trend analysis

of the data, groundwater flow maps over the last four

consecutive monitoring

quarters and, if necessary,

an assessment monitoring

plan

in accordance

with special

condition

no.

8(b)

of Attachment A to

Permit

No.

i992-350-SP.

This information shall

submitted

to the

Illinois EPA

the form

of a supplemental permit

application

later than

December 31,

1999.

The report for an

inspection

conducted

by the

Illinois

EPA on June

6, 2000

contained

within the record of this proceeding as Parties Exhibit 43.

As indicated

page 6 and

7 of the

inspection checklist, as of the date of the inspection,

June

2000, Jersey Sanitation

Corporation

had failed

submit the information

required by condition

C.3 of the permit.

The Illinois

EPA next inspected the facility on June

14, 2001.

In his

inspection

report,

the inspector noted the Board’s permit appeal order,

and that the

Board

had granted summary

judgment wherein

it struck Condition C.3 of Supplemental

Permit No.

1 999-209-SP.

The

Board’s order exists

in the record

of this proceeding as

Parties Exhibit 44.

The decision

of the

4th

District Appellate

Court regarding that order exists in

the

record

of this proceeding as

Parties

Exhibit 48.

Despite the

long

history

of continuing

requirements to

substantiate and

confirm the

appropriateness of 0103

as an

upgradient well,

and

thus

the appropriateness of the overall

monitoring

program,

and despite sample results indicating exceedences dating back to the

early 1990s,

Respondent Jersey

Landfill has failed to formally notify

the

Illinois

EPA of

exceedences

at the landfill,

it has failed to

confirm either the existence or nonexistence of

adverse trend

at the landfill, it has failed to

prove the appropriateness of 0103

an upgradient

well and it has

failed

to submit a groundwater assessment plan or conduct any form

groundwater assessment at the

site.

Tr at 278

(lines 9-14),

169

(lines

19-24),

170

(lines

1-15)

and Tr at

169-148

(more

specifically Tr at

181

(1-24),

182

(lines 1-24),

183

(lines

1-24),

184

(lines

1-18)).

Respondent Jersey has

failed to

conduct

annual

monitoring assessment,

which has

been part of its basic quarterly and

annual monitoring.

Tr at

172 -175.

The evidence

that Respondent Jersey failed

to perform annual assessment

monitoring, a significant change

assessment, statistical

background work or draft and

implement a

corrective action

plan has

not

been controverted in

this proceeding.

As is clear from the permits that have

been entered

in this matter as

parties

exhibits,

pursuant to permit conditions

in effect

prior to the Board’s order of

June 21, 2001,

Respondent

Jersey was

under an

obligation to

conduct a

site assessment,

statistically evaluate the

monitoring

data

by conducting a statistical comparison

between the upgradient and

downgradient groundwater quality data,

and develop a corrective action

plan should sampling

results indicate exceedences of applicable

groundwater quality standards.

Parties Exhibits 30,

Attachment A,

Groundwater Monitoring

Program,

42,

Section C Monitoring.

June 21,

2001,

the Board

granted Jersey Sanitation’s appeal

Supplemental

Permit No.

1999-209-SF.

Pursuant to

the June

21,

2001

Board order,

Parties

Exhibit 44 at

15, the

Board

held that the

groundwater monitoring

plan included in the

1999 post-closure care

permit application

condition

to the permit

pursuant to

Ill. Adm.

Code 807.523 and

submitted

be sufficient

meet the requirements of the Act and

Board

regulations.

Parties

Exhibit

at Attachment 5,

page 4.

Thus, the groundwater monitoring

plan

contained within the application

became

applicable

upon the

Illinois

EPA’s acknowledgment of receipt

of certification

completion of

closure,

approval of final contours,

and approval of the

biennial

revision of the closure and

post-

closure plan

and

cost

estimates.

This acknowledgment and these approvals were issued by

the Illinois EPA on

October 5,

1999.

The groundwater monitoring

plan

contained within the 1999 post-closure

care plan

application consists

two

paragraphs that read as follows:

Assuming groundwater monitoring of the site is conducted

in accordance with

the anticipated permit requirements at

the time of closure, four (4) monitoring

wells will require sampling, analysis, and

reporting

on a quarterly

basis.

Each

sample will require quarterly laboratory analysis for the parameters

List 2 and

annual analysis

for the parameters on

List 3A.

Field

measurements of water

sample temperature,

water elevation, well depth

elevation,

depth to water,

pH,

and specific conductance will also

be performed.

All results will

be reported to

the IEPA in the manner prescribed at the time of reporting.

No changes

in the

groundwater monitoring program

are anticipated

during

closure

or the post-

closure care period.

Groundwater monitoring

results will be evaluated

each quarter against

background data,

General

Use Water

Quality Standards,

and other historic water

analysis information,

If a trend

is believed to

be developing,

more frequent

sampling (e.g.

monthly)

may be performed to

substantiate or dismiss the

likelihood of site impact.

A professional engineering firm should

retained to

develop future actions andlor

plans for sUbsequent IEPA approval.

Parties Exhibit

at Attachment

page 4.

Under direct examination

at hearing,

Andrew Rathsack,

president of Andrews

Environmental Engineering who

serve

as consulting engineers for the

Respondent,

testified

that

he was

involved

in the drafting of the 1999 application for certification

of closure.

He indicated

he was

the principal,

at Andrews

Engineering,

in charge of the work

on the application and

that

he was familiar with the groundwater monitoring plan

contained within the application.

IR 391

(lines 8-24),

Parties Exhibit.

At hearing,

Mr. Rathsack

testified

as to the

intent of the

two

paragraphs quoted directly above.

TR at

392

399.

cross-examination,

Mr.

Rathsack

testified as to

the intent of the second

paragraph of

the groundwater

monitoring

plan,

which

the plan

the Board’s June 21,

2001

permit appeal

order held

be a condition to the permit pursuant to

III.

Adm.

Code 807.523 and

submitted

be sufficient to

meet the requirements of the Act and Board

regulations.

The

transcript of this cross examination,

TR at

398 (lines 4-24) and

399 (lines

1-5),

proceeded as

follows:

“...

the second

paragraph indicates

that if a

trend is

believed

developing,

more frequent sampling

may be

performed to

substantiate or dismissed the

likelihood

site impact?

Um-hmm.

Okay.

What is the intent of that?

The intent was to

do more simplistic,

maybe, evaluation

part

of this process

where

you collect

the data and

so forth,

to take a cursory

look

at the results.

All

right.

And

then what if the results indicated

impact?

Well,

indicated

there,

may require or justify more

frequent sampling and

the

like.

Okay.

But what if the more frequent sampling

indicated

impact?

Then

you’d have

to probably evaluate the significance

of that impact,

it one

exists at all.

Okay.

And

what if one exists?

How to address

it.

Okay.

Or,

you

know,

logical progression.

Okay.

it would

require an assessment.

It could.

Okay.

we’ve reached

this

point from the language of the second

paragraph,

is that

correct?

Yeah,

think

so.

Ms.

Munie testified that the

Part 807

regulations and the Act both

require that facilities

not cause or allow contamination of the environment.

Tr.

at 27

(lines

1-2).

She

continued,

‘In

this case, we were looking

at the groundwater itself.

both the Act and

the regulations, during

post-closure

care

at 807 facilities,

you cannot

cause a violation

of the standards.”

Ms.

Munie,

cross-examination, specified

that she was

relying on

Ill.

Adm.

Code 807.313 and

Section

12(a) of the Act, 415

ILCS 5/12(a).

Tr. at46

(lines 16-24) and 47 (lines

1-11).

Ms.

Munie

testified that the requirements contained

in the Part

807 regulations and the Act prohibiting

facilities from causing or allowing

contamination of the environment

served

the basis

of her

opinion

to what is required

at a

Part 807 landfill

if groundwater monitoring results

indicate

exceedences of the groundwater standards and

if the exceedences were continuing and even

increasing

magnitude over time.

Tr.

at 26 (lines 22-24) and

27 (lines

1-5).

Ms.

Munie’s opinion

is included

in the transcript on

pages 25 and

26,

and

is further

clarified

on cross-examination.

Tr.

and 42.

Ms.

Munie testified that the groundwater

assessment

consists of an

evaluation as to whether or not an

increasing trend

exists,

and if it

does exist,

a determination of the source

of the contamination is to be included

in the

assessment.

Tr.

at 42

(lines 7-9).

Therefore, confirmation as to whether a trend is occurring or

not is considered

part of the groundwater assessment itself,

a determination of the

source of the contamination should the existence of an

increasing trend

be confirmed.

Further,

Ms.

Munie testified that work described

in the second

paragraph of the

groundwater monitoring plan that appears on page 4 of Attachment 5 of Respondent’s

1999

permit application that

reads: “If a trend

believed to be

developing,

more frequent sampling

(e.g.

monthly) may be

performed to

substantiate or dismiss the likelihood of site impact.”, would

considered pan of a groundwater assessment that might be

required of this site,

or any site

that is exhibiting exceedences.

Tr.

at 49 (lines 6-18).

At hearing,

Ken

Liss,

Springfield

Office

Director for Andrews

Engineering, identified

one of Respondent’s groundwater opinion witnesses,

testified that

given all of the groundwater

sampling

data available for the Jersey Sanitation

Landfill site, and

given that these results

indicate exceedences

of the groundwater standards,

and given what the current permit

requires,

the current permit

requires that a trend analysis be performed.

Tr. for January

13,

2004

hearing date at 40 (lines

18-24) and

(lines

1-2).

Testimony provided

Karen

Nelson, Andrew Rathsack,

Joyce Munie and

Ken Liss

support the conclusion that Jersey’s

present permit

requires, given the history of exceedences

in the downgradient wells

at the

site,

a trend analysis and development of a groundwater

assessment plan,

to include field work

and further analysis that will evaluate the

appropriateness of G103

as an

upgradient well,

for submission

to the

llhnois

EPA for approval.

Upon approval,

the assessment plan should

implemented and a

course of corrective action

to address exceedences should

be developed and implemented.

As described

by Joyce

Munie

and

Karen

Nelson at

hearing,

based on

the prohibitions set forth

in Section

12(a) and

the Part

807

regulations, specifically 807.313, wherein

owners of a

landfill are prohibited from

causing

violations

of the Board’s standards,

an expected course of action to

bring the

landfill

into

compliance would

development and implementation

of an

assessment plan,

and

development and

implementation of a

plan of correctiveaction.

There is a continuing need to assess Respondent Jersey Sanitation Landfill’s

reliance

upon 6103 as an upgradient well and conduct a groundwater assessment

at the site.

Respondent

Jersey

Sanitation Landfill

has failed to conduct field

work

necessary to confirm the groundwater zones

at the site so that the wells are

monitoring the proper permeable zone

Ms.

Nelson

testified that

it appears

that the 0103 well, the well identified as

the

upgradient well in

Respondent Jersey Sanitation’s current monitoring

plan,

is not upgradient

not positioned such that

it can

be proven that it

is upgradient.

The well is screened

very deep

compared to the downgradient wells, and

Ms.

Nelson

testified she

believes

it could

monitoring a deeper zone.

Tr.

at 237.

Ms.

Nelson testified that the

G102 well,

a well that

most

likely was

part of a

previous monitoring

effort and which

remains

on the property

and

available

for use, appears to

more appropriate upgradient

well because it is screened

at a shallower

depth.

Tr.

at 238

239.

She further explained that the upgradient well

in a

monitoring plan

the well at

which the Respondent determines background groundwater quality that is supposed

be unaffected

by the

landfill.

Using Attachments

8 and 9 to

Parties Exhibit

34,

Ms.

Nelson explained

the basis of her

conclusion.

She

pointed

out that Attachment

8 shows

the elevation of the groundwater,

based

readings acquired

the time of the May

1994

Illinois

EPA sampling event, and also

the flow

direction of what she termed the shallow groundwater at the

site.

Ms. Nelson

testified that the

Illinois EPA used

the 0102 well

in its determination of groundwater elevation.

Ms.

Nelson

testified

that the flow of the groundwater mimics the topography

—

the elevation of the surface

topography decreases

from east to

west, toward

Sandy Creek,

and

the elevation of the

groundwater decreases from east to west, toward

Sandy Creek.

the east

side of the

property, both the surface topography and the groundwater elevation are higher than

in the

west.

Ms.

Nelson

next testified

as to the content of Attachment 9 of Parties Exhibit

34.

She

testified

that the information was

taken from the files for the

RCS,

Inc.

landfill which is

located

directly

south of Jersey Sanitation Landfill.

Respondent’s groundwater opinion witness,

Brad

Hunsberger,

later testified

that he personally participated in

the groundwater investigation

conducted at the

RCS,

Inc.

landfill.

The

RCS,

Inc.

Landfill

is 500 feet south

of the Jersey Sanitation

Landfill.

Tr.

for the

January

13,

2004 hearing date at

50.

In that the RCS,

Inc. landfill was constructed only

500

feet south of Jersey Sanitation Landfill,

it exists on the south

portion of the

200 acres

purchased

Jersey Sanitation Corporation

1989 from Ralph

Johnson, pursuant to testimony

provided

by Pam Shourd.

Tr.

at 350.

This property was still owned

by shareholders of Jersey Sanitation

Corporation

during the time of operations of Jersey Sanitation

Corporation.

Ms.

Shourd

testified

that the incidences of open

burning and

composting

alleged as

violations

were

activities that Jersey Sanitation conducted on the farm

property south of the landfill and

not

within the boundaries of the Jersey Sanitation

property itself.

Ir. at

351

and

352.

In a letter

dated December

13,

1990,

Ms.

Shourd informed the

Illinois

EPA that the farmland to the

south

of the landfill was under the control of a partnership called

CR3 Partnership.

She

then claimed

control of that land

via this partnership when she states,

“It has been

our understanding

that as

long as we

met the criteria

listed,

no permit was

required.”

Parties Exhibit

11,

page

Obviously,

Ms.

Shourd,

this letter,

is identifying herself with

CR3

Partnership, owners of the

southern portion of the original

site, by

use of the term

“we”.

Mr.

Hunsberger testified that

1992, Andrews

Engineering

was contracted

put together a permit

application for a facility

known as

RCS,

Inc.

Landfill,

which

is approximately 500 feet south

of the boundary for Jersey

Sanitation.

part of that permitting process,

designed

a boring

program for the

RCS,

Inc.

Landfill site.

The

RCS,

Inc.

Landfill was permitted

under the

Part

811

regulations.

Tr.

for the

January

13,

2004

hearing

date at 87.

Itis safe to conclude

that shareholders of Jersey

Sanitation

Corporation,

owners of the

land

upon which the landfill was

to be developed, either

contracted with

Andrews Engineering directly

to develop a permit application and

conduct

the

groundwater investigation at

RCS,

Inc.

Landfill, or had

some other less direct interest

in the

development of the

RCS,

Inc.

Landfill.

Whether the interest was

direct or not, obviously there

were sufficient resources

available connected with the

200

acre property

1992 to fund and

support development of a

Part 811

landfill.

There

is ample evidence

the inspection reports that RSC is currently maintaining the

Jersey Sanitation

Landfill.

Parties Exhibit 40,

page

3 of

the

narrative.

Parties Exhibit

35, pages

and 2 of the narrative.

Parties

Exhibit 35, documenting

1995 CERCLA inspection at

Jersey Sanitation

Landfill,

there is a description

of a conversation that took

place at

the time.

was

explained that RSC

Inc. Landfill

has

been retained

by Ms.

Shourd

maintain adequate

cover and erosion control

at the Jersey Sanitation

Landfill.

At the

time of the inspection,

Pam

Shourd explained

to the

inspectors that the site owners were Thomas and

Susan

Roach,

John

and

Jennifer Cronin,

and

herself,

Pam

Shourd.

The initials of these three owners

are “R”, “C”,

“5”.

The inspection report also indicates that the inspectors were

greeted by the party of Mike

Duvall,

site operation

for the adjoining

new RSC,

Inc. landfill,

his

assistant

Rick Laird

and

Pam

Shourd.

Pam Shourd testified

at hearing

that,

currently,

the only assets Jersey Sanitation

Corporation

has

are the

10 acres of the Jersey

Sanitation

Landfill

and the “60 odd thousand

dollars” in

the landfill’s trust fund.

Ti.

327.

Ms.

Shourd testified that the corporation

does not

own

anything

else

and

has

cash

reserves.

Tr. at 327.

Asked

if any personal

money was

going

into

the landfill,

Ms.

Shourd testified that personal money was being

used

to pay

attorney

fees and

real estate

tax.

Tr.

at 365.

Asked

if any personal money from

the shareholders was

going

into

maintenance of the landfill,

Ms. Shourd

stated “no”,

no personal

money was

being

used for

maintenance of the

landfill.

Tr.

367.

All evidence indicates, none of which

has been

controverted by the Respondent,

that RSC is maintaining Jersey Sanitation

Landfill free of

charge.

Generally a corporation will only provide services free of charge if it has

some interest

the subject of those services.

Returning

the content of Attachment

9 of Parties

Exhibit

34,

Ms. Nelson explained

that this attachment was

a diagram she drafted

based

information contained

within the

RSC

permit file.

Tr. 242-243.

Referring

to Attachment 9, she

testified that it showed the

groundwater being

monitored

at RSC, which is

directly above the

bedrock and

correlates to the

groundwater

monitored at G103.

is screened and thus

monitoring groundwater significantly

deeper than

the groundwater monitored

by the downgradient wells

at Jersey Sanitation.

Ms.

Nelson explained the correlation between Attachment 8 and Attachment

9 (Tr.

243-

246):

correlated those two sites.

And

it appears that the groundwater, the deeper

groundwater,

is flowing

to the south

as opposed

to the

west.

The shallow

groundwater flows to

the west,

as in Attachment 8 shows,

but the deeper

groundwater flows

—

actually there is a

bedrock valley in that area,

and

it’s

following

the bedrock valley to the south.

my concern would be

—

and

my conclusion would

be that G103 is not an

appropriate background or upgradient monitoring

well

to use,

because an

upgradient background well is supposed

to be unaffected

by the facility.

This

well

not upgradient.

It looks

to be downgradient.

Asked

why she

came to this conclusion,

Ms.

Nelson

responded:

Based

the geology

and

the depth of the well and

correlating it with the

groundwater and

the geology data

at the nearby RSC

Landfill.

And

the reason

looked to

the RSC permit application was

because

it had

an extensive geologic

investigation done with it,

and

it was

close by,

I wanted to

correlate the

geology.

Ms.

Nelson

next explained Attachment

5 of Parties

Exhibit

(Tr.

245-246):

This is

—

Attachment 5 is a cross-section that

drew based on

the information

that was

the file for Jersey Sanitation.

It includes the depth

to the bedrock,

the

depth of the monitoring wells, the depth to groundwater,

and the groundwater

elevation,

and

—

superimposed thumb print of where the ravine was

that was

filled with

garbage.

The bedrock elevation

is higher on

the west side and

it decreases to

the east

toward

G103.

The geology is definitely a factor that

is considered

in groundwater flow, and

the bedrock would

impede groundwater flow such that the groundwater,

if it was

—

if the deep groundwater was going

to flow to the west,

would have to

through the bedrock or go up

over the bedrock,

which

it’s not doing, because you

can tell

if there

an upward

gradient versus a downward gradient because

the wells on the east side.

What’s called

a cluster.

There’s a

shallow well

and a deep well,

and you

can measure

the water levels.

And water flows from

the higher elevation to

the lower elevation.

So there

a downward gradient.

So that made me conclude

that

not flowing

and over the bedrock.

It’s not

going

to flow through the bedrock because it’s shale,

clay, stone

and limestone,

which are

relatively impermeable,

and

we refer to those as aquetard.

And

there’s also the bedrock valley, which

is linear

and going

north-south, so

the

deeper groundwater is flowing along

the valley toward

RSC Landfill.

So my concern is that

it’s not a truly upgradient well.

It’s

not appropriate to

use

for the shallow groundwater.

Another piece of information in evidence

in this proceeding

would support the conclusion

that 0103

is downgradient.

Ms.

Nelson testified

that when they sampled 0102, the shallow

upgradient well,

results

indicated no

exceedences of groundwater standards.

Tr.

at 257.

She

also testified that even though 0103 has shown

no exceedences of Class

standards,

sampling

results from 0103

do show exceedences of

Class

standards.

Tr.

at 258.

Asked if she had formed

any opinions or conclusions at to

what measures the landfill

should take, given

this information, Ms.

Nelson responded

(Tr.

246-247):

regards to

that specific concern,

they need to re-evaluate

the geology

determine what an appropriate upgradient well would

be.

And

they need to

look

at the water table versus the depth of 0102

and

G103.

And

regards to

G102.

They need

to look

at that to see

if possibly that’s an

appropriate upgradient weD.

cross-examination,

Ms.

Nelson

responded as

follows when asked whether she would

be satisfied

if the operator would just begin

sampling Gi 02 as the

upgradient well.

Ms.

Nelson

responded that

she would

to see some investigatior~done as,

for example, how deep below

the top of the water table it is screened,

and does

it correlate to the downgradient.

“I

would

not

order them to start sampling

it,

no.

I would

want someone to

look at

it and

look

the geology

and

make sure

it’s appropriate.”

Tr.

at 299.

Ms.

Nelson further testified that if 0102 proved unsatisfactory,

the Respondent would

need to

look

other locations

for an

upgradient well, and their evaluation may require

additional boring

to obtain additional information

on the geology.

Tr.

at 247.

She further

explained

(Tr. at

248):

Well,

there

is some geologic data

in the file

now,

and whether that’s enough

for a

geologist to feel

comfortable

or not is questionable.

They might

—

the geologist

might want to

have

more detailed

information concerning the geology

the

area.

cross-examination,

Ms.

Nelson testified that she would

additional information

developed as to

the depth

to the top of the water table (Tr.

at 302-303):

•

The one thing that

don’t really have is the depth to the top of the water

table.

That is something

that they might want to

investigate

a little bit.

Asked why

that might

make a

difference, she

responded (Tr.

303):

Because you

need to

screen the wells approximately the

—

the same

zone,

the upgradient versus the downgradient.

And that’s

one of my concerns is that

the upgradient well’s

screen so much farther down below the water table,

the top

the water table,

and

the shallower downgradient wells are not

—

they’re

screened

closer to

the

—

to the top of the water table.

Ms. Nelson

was then

asked, “But you’ve already concluded that those three

downgradient wells

are being impacted

by the landfill,

so why

do we need to

get that other

information?”

She

responded

(Tr.

303-304):

Well, need to find

out exactly where the contamination might flow to,

and

the

properties of

the contaminants versus the properties of the sediments, where do

you

think that the contaminants might flow to

and how far.

And also, the

properties of the contaminants.

It would

in the

land

—

or the landfill

owner’s

best interest to

do an assessment to figure out if some of the contaminants are

naturally occurring.

So,

would say.

some of the levels are

pretty high,

which

I would

say are

not

naturally occurring.

The

iron,

the arsenic is very suspicious,

the sulfate.

You

need to

pin down which ones are the exact contaminants

that are coming from

the landfill, which usually takes some more

investigation

and maybe

even more

wells to track

it.

That is typical of a groundwater assessment.

Any maybe additional monitoring.

have seen some

sites do

monthly monitoring

or expanded

monitoring

to see

if there is other contaminants.

Because what the

landfill monitors

for doesn’t mean

there isn’t other contaminants out there.

But

that’s getting

into

the future.

Asked

if she could

rule out, without

qualification,

natural

causes for the exceedences or some

other

cause,

that being, some other source

than the landfill,

Ms. Nelson

testified that

she did

not know of any other

cause than

the landfill.

Tr.

at 304.

Ms.

Nelson

also

testified

that other

potential

sources would

one thing that would

be determined during

a groundwater

assessment.

Tr.

at 307.

Ms.

Nelson testified

that a

groundwater assessment would

include

definition of the geology of the site so as to

determine how far a contaminant

might travel, that

is,

whether it

bound

to travel

off-site,

and whether or not it will

diluted.

Tr.

at 282.

Brad

Hunsberger, director of hydrogeological services for Andrews

Engineering,

identified

as Respondent’s

groundwater opinion witness,

testified that

he believed 0103

was an

appropriate upgradient well because he

believed there was

a continuous permeable zone

running from the location of the screen at the 0103 well, above the bedrock,

uphill along

the

bedrock all the way to

Sandy Creek.

rebuttal,

Ms.

Nelson testified

that she did

not believe the geology of the site supported

Mr.

Hunsberger’s theory at

the Jersey Sanitation

Landfill.

Tr.

for the June

13, 2004

hearing

date at 69,

74,

75.

Based

on what was

submitted

in the boring

logs of the

1991

Heneghan

report,

Parties

Exhibit 20,

it appears 0103 was

screened

at a deep depth

because the

screen

was

placed

in a discontinuous

foot layer of sand

(described as

gravel on the boring

logs).

Tr•

for the January

13,

2004

hearing

date at

69.

Ms.

Nelson

said,

reviewing the boring

logs,

appears

that this sand/gravel

layer, as

its

described

in the

boring logs,

is present only at 0103.

It does

not match the description of the material in which the other wells,

the downgradient

wells,

are screened.

In that

the sand/gravel

layer described

as the

material in which 0103

screened

is not described

any of the other boring logs,

it appears to

be a discontinuous lens

of material,

that

is,

0103

isolated.

Tr.

for the January

13, 2004 hearing

date

at 75.

Ms.

Nelson

noted

that there is also,

in the boring

log

for 0103,

mention

of weathered

material.

Tr.

for the January 13,

2004 hearing

date at 75.

Ms.

Nelson described the bedrock

and the area

immediately above the bedrock as

follows.

She

testified that the bedrock

different at the different wells.

She said

the bedrock varies from

shale

on the east side

to clay

stone

in the middle

of the

site,

and then

shale and

limestone on

the west.

She testified

that

what is directly above the bedrock varies slightly but

it is

blue, gray and

brown silty clays.

Sometimes there is a mention of trace sand

or trace gravel

in with

the clay.

As stated

by Mr.

Hunsberger,

clay typically does not transmit water.

Tr. for the January

13, 2004 hearing

date at

(lines 2-3).

Ms.

Nelson also testified

that there is,

in a couple of the borings,

a mention of a

thin

weathered zone.

She said she

believed that it was

the boring for 0104 that showed six

inches of weathered

clay

stone.

She testified

that just because it was weathered

does not

necessarily mean

the material

is permeable or

is going

to transmit much water.

conclusion,

she

said,

the material above the relatively impermeable bedrock

is relatively impermeable silty

clay,

and

above that is glacial

till.

She said this progression is consistent throughout the site.

She said

some

of the till is brown,

which

may mean

it is oxidized

and

it can

transmit water.

However, these characteristics do

not make

it an aquifer or anything

close to

an aquifer,

but

such soils may transmit water and rainwater will seep into it

and

through it.

Ms.

Nelson

provided

the following further conclusion (Tr.

for

the January

13,

2004

hearing

date at 74):

believe

the downgradient

wells,

especially 0105

and 0106,

are in

unconfined zone that

perched above the bedrock and

recharged

rainwater and

by some

groundwater and by any

eachate coming out of the

landfill.

I don’t think that there

is a continuous

confined

permeable zone

overlying

the entire

bedrock that connects

all these wells

and discharges into

Sandy Creek.

don’t

know if the groundwater on

the west side discharges

into Sandy

Creek or

just under it,

but the shallow water, ground water

is flowing to the west.

I would

agree with that.

if you

are going

to have

the ground water flowing

hill

along

the bedrock,

which is a very common phenomenon, there is nothing unusual about that, but

you

have

to have something

to connect

it.

If you

have

a permeable

zone

connecting

all the wells,

yeah, and

if it is confined, yes,

I would

agree.

But

don’t see that the data

supports

that in this

case, based on the boring

logs.

there

is no

—

there

no continuous

permeable zone.

Ms.

Nelson testified

she could

find no

evidence in the boring

logs, or in

any other

documentation of the geology of the

site,

that the zone

monitored

by 0103 and the zone

monitored

by G104,

105

and

106,

is hydrogeologically connected.

Mr.

Hunsberger attempted

to support his conclusion

by making

the following

points.

Under close examination,

each one of his

conclusions is without

sufficient factual support.

page 53

of the transcript for the January

13,

2004 hearing

date,

Mr.

Hunsberger

discusses the basis for his opinion that G103 is an

upgradient well.

A close examination

of the

reasoning set forth

in lines 5 through 21, which

is the

basis for

his opinion,

reveals that Mr.

Hunsberger is purporting that the well is appropriate because

it is simply located on the east

side of the landfill,

a location of higher potentiometic surface.

completely fails to

address,

this discussion,

the proposition

that there

is a shallow

zone of groundwater at the landfill and a

deeper zone of groundwater.

Later

his testimony,

Mr. Hunsberger agrees with

Ms.

Nelson

that 0103 could

part of the southern

system

—

that the 0103 well might be

upgradient to the

groundwater zone

monitored at the RSC

Landfill,

directly south,

a zone above the bedrock.

Tr. for the January 13,

2004

hearing

date at 64.

Ms.

Nelson

identified this zone

a deeper

zone,

flowing

south

consistent with a bedrock valley that underlies

the RSC

Landfill.

The

description

of a bedrock valley suggested

by Ms.

Nelson

is consistent with

Mr.

Hunsberger’s

testimony that the groundwater at the RSC Landfill flows south, with slight easterly bearings

and westerly bearings.

Ir.

for

the January 13,

2004

hearing date at

(lines

2-7).

Throughout Mr.

Hunsberger’s testimony, he supports

his conclusions with the fact he

personally witnessed borings

in the

field at the

RSC, Inc.

landfill and,

therefore,

he testified,

is intimately familiar with the geology.

However,

admitted

cross examination,

all

of his

field experience

concerned

his work at the

RSC Landfill.

He has

never worked in

the field

the Jersey Sanitation

Landfill.

Tr.

for the January

13,

2004

hearing

101

(lines

15-24) and

102 (lines

1-3).

As discussed

by Ms.

Nelson, the boring logs from the RSC Landfill

described

the material

in which

its wells are

screened as

“bedrock

rubble sand and

gravel” at

the bedrock

interface.

The boring

logs for the Jersey Sanitation

Landfill describe the material

in which the

wells are screened at the bedrock

interface as silty clay.

Mr.

Hunsberger,

his

reading

of the

Jersey Sanitation

boring

logs,

also describes the material as silty clay.

Ms.

Nelson points out,

the only boring

log that includes a description of a zone of

sand and gravel,

a zone that exists in

the area in which the well is screened,

is 0103 at a

depth

of 96 feet.

Ms.

Nelson raises very significant points in rebuttal to

Mr.

Hunsberger’s

opinions.

First,

the bedrock interface

layer that Mr.

Hunsberger claims

is a continuous permeable zone,

actually made

up of silty clay.

It does not at

all

resemble the bedrock interface

of rubble

sand

and

gravel being monitored

at RSC

Landfill.

Rather,

it is clay.

Clay,

generally, is relatively

impermeable.

Mr.

Hunsberger testified in agreement to this point himself.

Secondly,

there

truly

is nothing

in the boring

logs that would

indicate

there is a permeable

continuous zone

above the

bedrock at the Jersey Sanitation

Landfill.

Instead, the boring

logs, which appear in

the records

of this proceeding

as part of Parties Exhibits

20 and 34,

show

that, the sand/gravel and

weathered

shale

identified

in the boring

log for G103,

not present in

the boring log for boring

B2,

the next boring

west of the boring for 0103,

which is identified

as Attachment 9 of Parties

Exhibit

noted

by Ms.

Nelson,

the bedrock described

in the borings

varies

from east to

west at the

landfill,

and the description of the material above the bedrock consists of varying

descriptions

of silty clay

materials.

Tr.

for the January

13,

2004 hearing

date

at 72.

Mr.

Hunsberger presented

no substantive,

factual evidence

that

would support his

premise that the

clay above the bedrock

is permeable,

or continuous.

Mr.

Hunsberger states,

in an attempt to defend

his opinions,

that it is the contact point

between the glacial sediments and the bedrock that would

be the most likely zone for there

moving water.

However,

he does not substantiate the statement with

any specific

information

that such

is the actual

case at Jersey Sanitation.

Mr.

Hunsberger goes

to great

lengths

extrapolate

his

observations at

RSC,

Inc.

Landfill,

the Jersey Sanitation

Landfill.

However,

his

own

reading

of the boring

logs

from the Jersey site defies the credibility of

any

such extrapolation.

RSC

Landfill,

the bedrock interface

is bedrock rubble

sand and

gravel.

At Jersey Sanitation, the boring

logs say clay.

It is obvious from the record of this proceeding, that the shareholders of Jersey

Sanitation Corporation (Pam Shourd, her son-in-law and daughter, Tom Roach and Sue Ayers.

Tr.

327;

the owners of

the Jersey Sanitation

Corporation Landfill

were identified as Thomas

and

Susan

Roach,

John and

Jennifer Cronin,

and Pam

Shourd at the time of a

1995 CERCLA

inspection.

Parties

Exhibit 35.) and

RSC,

Inc. were

willing to spend significant resources on

the

dev&opment of RSC,

Inc.

Landfill.

An extensive groundwater investigation was performed

under the direction of

Mr.

Hunsberger in

1992,

pursuant to the requirements

of Part 811, at the

RSC,

Inc.

Landfill

at the same time Jersey Sanitation

Landfill was

being

closed and

Jersey

Sanitation Corporation was displaying a great

unwillingness

to devote

resources to the

performance of

a groundwater investigation at Jersey Sanitation Corporation

Landfill that would

resolve questions

raised about the groundwater monitoring

plan

and also

address compliance

problems.

To this day, rather than

conduct necessary field work at the Jersey Sanitation

Landfill

to resolve

outstanding questions,

Respondent’s opinion witness is unjustifiably relying

upon

and

extrapolating geological

information gathered at

the RSC

Landfill as

basis for his

unfounded conclusions regarding the Jersey Sanitation

Landfill.

Respondent’s opinion witness

relying on

information already

gathered,

paid for,

and

perhaps even

profited from,

from the

RSC,

Inc.

Landfill

instead of actual field

information

that as

yet needs to

be acquired

at the

Jersey Sanitation Landfill

adequately resolve long-standing

questions.

One thing that is also

obvious from the record of this proceeding,

is that Jersey

Sanitation Corporation

and RSC,

Inc.

have been

longstanding

clients of Andrews

Engineering.

The span

of submittals and

participation by Andrews

in issues

concerning Jersey Sanitation

Corporation spans a

period

12 years.

this proceeding

alone,

the president of Andrews,

the

director of the Springfield office for Andrews,

and the director of hydrogeologic services for

Andrews,

testified

for Jersey Sanitation Corporation.

Yet

Pam Shourd

testified

that Jersey

Sanitation

has

no liquid

assets.

Obviously,

somewhere

or somehow, there are

sufficient

resources,

or a sufficiently valued

client relationship,

to justify the participation

of Andrews

principals

in this proceeding.

Mr. Hunsberger provided

a further

basis for his

conclusions with

explanation based

on potentiometric surface

pressures.

The

bottom

line of this explanation

also

in the nature of

a simple conclusory

remark

—

Based

having firsthand

knowledge of the soil

RSC and

reviewing the

logs

at Jersey Sanitation,

the wells are

all placed in the same monitoring

zone

the bedrock

surface.

So the data

is good

data.”

The following

is Mr.

Hunsberger’s explanation

it appears

the hearing

transcript(Tr.

for the January

13,

2004

hearing date,

at 62-63):

The potentiometric surface

is the surface of the ground water that it would

rise to

the event that there were unconfined conditions,

meaning there was nothing

compressing

the groundwater at the bedrock interface.

If you

take all that

information

and you draw contours to

where the groundwater would

rise

in these

monitor wells you will

see essentially a topographic profile of the high topography

between

the two landfills.

And

at the RSC facility

then would

decrease,

and

the Jersey Sanitation facility

it would decrease to the

west.

It would decrease at

the south

at RSC and would

decrease to the west at Jersey Sanitation.

It is forced

potential for the groundwater.

It is the weight of the groundwater and

the gravimetric

forces that create

the pressures,

and that is just the way

the

groundwater is going

to move.

Based on

having firsthand

knowledge of the soil

RSC and

reviewing

the

logs

at Jersey Sanitation,

the wells are all

placed

in the

same

monitoring

zone at

the bedrock surface.

So the data is good data.

You

can

combine

the two and

use it to

create the one map

that shows

the contours

the groundwater.

And then

that,

thus,

would indicate

which way the ground

water is flowing.

Mr.

Hunsberger’s explanation works

as well

to explain

the groundwater elevations that

might

be observed

if there was

shallow zone of groundwater flowing west at the Jersey

Sanitation

Landfill

and a

deep zone of groundwater flowing

south, as it does

to seemingly serve

his

purpose.

Nothing

in this explanation provides

any factual,

substantive data

to why

concluded there is a continuous groundwater zone

at the bedrock flowing uphill,

and to the

west.

He certainly can’t

be relying

on the

RSC,

Inc.

landfill

information

as the

basis of his

opinion when

it is

so strikingly factually dissimilar to the information

available for

Jersey.

The fact that there are

high

elevations of groundwater on

the east

side of the

landfill

no means

precludes the concept that the shallow

groundwater is flowing

west and deeper

groundwater is flowing

south.

The deeper groundwater at the Jersey

Sanitation landfill would

be an upgradient portion of the deep

zone of groundwater flowing

at the bedrock interface

south, continuing under what

was developed

as the RSC,

Inc. landfill

and

monitored

pursuant to

the RSC

Inc.

groundwater monitoring

plan for that

landfill.

The fact that G103 is screened

deeply

is what causes

the Illinois

EPA

question whether it is monitoring

a deeper zone of

groundwater than

the shallow zone of groundwater that has

been identified

to exist at the

Jersey Sanitation

Landfill

flowing west, which is

being

monitored by the G104,

105 and

106

wells.

Mr.

Hunsberger goes on to

attempt to justify his

conclusions based on

the groundwater

elevations detected

a well

at the Jersey

Sanitation

Landfill and

another at the

RSC,

Inc.

landfill.

The elevation

the

RSC,

Inc.

Landfill was detected

at a higher point than a well north

of it on the Jersey Sanitation

Landfill.

Mr.

Hunsberger’~point that the elevations detected

support the fact

that groundwater at the Jersey Landfill

flowing west

and groundwater at the

RSC,

Inc.

landfill

is flowing south, by no

means contradicts the fact that a shallow zone

groundwater at the Jersey

Sanitation Landfill flows west,

and a deeper zone originating

at the

east side

of the landfill flows

south.

fact,

the bedrock profile at Jersey

Sanitary Landfill

supports

the opinion

that there may likely be a

deep groundwater zone

coming from

the east

side of Jersey Sanitation

Landfill and

flowing south.

The bedrock

is found at

higher elevations

at the west side of the Jersey

Sanitation

Landfill and

its elevation

slopes down,

or deeper,

moving

east across

the landfill.

at the east end,

it is at a deeper elevation

and is consistent

with

the deeper flow and

deeper wells monitoring

the bedrock interface

RSC,

Inc landfill

the south.

The bedrock

elevations at

the east end of the Jersey Sanitation

Landfill

are at

elevation that would

logically serve

as the upgradient

end of the bedrock valley that forms

under

RSC,

Inc. landfill,

described

by Ms.

Nelson.

Mr.

Hunsberger provided the following response when

asked

if there could

shallower permeable zone

at the

landfill, that

is,

a zone that might be transmitting the shallower

groundwater identified

at the

landfifl,

responded as

follows

(Tr.

for the January

13,

2004

hearing date at 66):

have not seen them

in the boring logs,

and

based on the depositional

environment, you

normally get those

—

where there

is one there

is usually

more.

In this system

it is a very thick clay sequence

with only lenses.

Because the

glacial

depositional environment

is very

—

over a large area, and these aren’t

outwashed

deposits,

which

means they are

due to melt water from a

glacier,

these are

actual sediment deposits.

it is unlikely

that you

are going

to see

any additional extensive

permeable zones that are

going to

transmit water.

has

to do with

the glacial environment or the depositional environment.

Ms.

Nelson’s description of how the shallower groundwater moved through the site

consists of the following

(Tr.

for the January

13,

2004 hearing

date at

74):

believe

the downgradient wells,

especially G105

and

G106, are in

unconfined zone that

is perched above the bedrock and

recharged

rainwater and

some groundwater and

by any leachate

coming

out of the

landfill.

set forth

above, the

1973 subsurface investigation

indicated that ground water flow

occurred mostly near the surface

of the upper brown till

at the Jersey Sanitation

Landfill,

and

followed a southwesterly direction.

As described

by Ms.

Nelson,

the bedrock at

Jersey

Sanitation

covered

a silty clay layer that is covered

by glacial till.

It is the upper brown till

that is discussed in

the

1973

report.

The

report concluded that deeper

continuous aquifers

may

present:

Subsurface Water

Water was observed to

enter borings

2 and 3 at depths of

10 and

17.5

feet,

respectively.

One-half to three-quarters

an hour after drilling

the water levels in

borings,

1,2

and

3 were measured

depths

of 10.5,6,

and

20 feet,

respectively.

A 33-

foot length of

PVC pipe was installed

in bore

hold #2 for

use as

an observation well.

Indications are that ground water flow occurs mostly near the surface

of the upper

brown till,

and follows

a southwesterly direction.

Deeper continuous aquifers may be

present.

Further,

it was recommended

in the report that monitoring wells be

situated so

monitoring

both shallow and deep

groundwater:

Conclusions and Recommendations

It is further recommended that

monitoring wells

be installed

in shallow and deep

aquifers along

the southwestern

boundaries

of the landfill.

The basis of Ms.

Nelson’s opinion that 0103 does

not exist in and

is not screened

continuous

permeable zone

that flows uphill

and

west at the Jersey Sanitation

Landfill

includes

the following two points:

First,

borings

directly west of the 0103 wells do not show the

sand/gravel zone

nor weathered zone

that appear in the 0103 boring

logs and

are the most

likely candidates to be conveying

water at the 0103 well.

Therefore, the boring

log for 0103

and the borings

to the west do

not indicate a continuous, permeable zone.

Secondly,

based on

a comparison of all the boring

logs,

none of the other logs resemble

the profile at the 0103 well,

and therefore

it appears to

be an

isolated well.

The 0103

boring

log

more closely resembles

the boring logs

for the

RSC,

Inc.

Landfill,

given the sand/gravel zone,

than

it does the other

boring

logs obtained

from the Jersey Sanitation

Landfill site.

The downgradient wells are

in a

saturated zone,

that is an

unconfined zone

flowing

to the west.

The

G103

well is more likely

screened in

a deep zone flowing

south, than in

the same perched shallow zone flowing west.

Tr. for the January

13, 2004 hearing

date

at 74-75.

Mr.

Nelson acknowledges that there

saturation

right at the interface between the bedrock and the overlying

relatively impermeable

layer of silty clay, but she

reads

it as

a thin

sheet of saturation.

Her opinion

that

by no

means

does this

thin

line of saturation

that occurs directly

at the bedrock

interface

represent a

continuous permeable

zone that is transmitting westward flowing

groundwater.

Tr.

for the

January

13, 2004

hearing date at 75 and

(lines

1-8).

Asked what kind

field work should be done to confirm the groundwater zones at the

site so that the wells are monitoring the proper permeable zone,

Ms.

Nelson

responded (Tr.

78-79):

Drilling operations and

you could possibly use

a Geoprobe,

which is a less

expensive

method to

do the drilling if you didn’t want to

use a

regular drilling

rig.

But

either way, regardless,

the geology

needs to

be defined better,

if someone

wants

to prove

there is a continuous zone,

that

is.

The samples need

to be

—

the

soil and

the glacial

tills

need

reviewed

by a geologist on

site through some

kind

of drilling

operation.

Also,

I would

recommend

doing field slug

tests to see what the hydraulic

conductivity is for the zone

that is

being monitored.

Because

at RSC they did do

extensive investigation,

but it included slug tests

and they determined

the

hydraulic conductivity of the

zone they are

monitoring.

So if you

did that

might

give

you

some more information

to work on,

if you are

not getting

the same

hydraulic

conductivities,

which is

the measurement of the ability fo the formation

transmit fluid related

permeability.

If you

are not getting

the same kinds of

hydraulic

conductivities that could

give you

an indication that it

not the same

zone.

Of it you

are getting

similar ones,

then it could

be an indication that there

is a similar zone.

Somehow you

need to re-examine the sediments and if

—

to see

if there is a

permeable

zone there.

So that would take visual examination,

because to me

the boring

logs with

the current descriptions are not adequate to

prove that there

is a

permeable zone

throughout the site.

As stated above,

despite

permit conditions requiring assessment and demands

by the

Complainant

and

the Illinois EPA to conduct an assessment,

Respondent Jersey Sanitation

date

has failed

and

refused

to perform a groundwater assessment at the landfill.

is evident from the

record of this proceeding, the

Illinois

EPA has

documented

its

concern for the adequacy

Respondent’s groundwater

monitoring

program for the

landfill

since

1989.

Specifically,

these concerns have

included questions as to whether 0103 is an

appropriate upgradient well, that

is,

whether 0103

monitoring the

same zone

of groundwater

as the downgradient wells.

Further, when exceedences of the groundwater quality standards

were first detected,

and

as detections of exceedences continued

and

even

increased

magnitude,

the Illinois

EPA re-iterated

its concern

regarding the

upgradient well, and

issued

requirements for an evaluation

of the groundwater monitoring plan

and the exceedences

themselves,

to include verification of background levels

and

a groundwater assessment.

As stated above, testimony

provided

by Karen

Nelson, Andrew Rathsack,

Joyce

Munie

and

Ken

Liss support the conclusion

that Jersey’s present

permit

requires, given

the history of

exceedences

in the downgradient wells

at the site, a trend

analysis and development

of a

groundwater assessment plan,

to include field work

and further analysis that will evaluate the

appropriateness

of 0103 as

upgradient well, for

submission to the Illinois EPA for approval.

Upon approval, the assessment plan

should be

implemented and

course of corrective action

address exceedences should

be developed

and implemented.

Groundwater violations

have been ongoing for over 12

years.

Respondent has violated five groundwater provièions

for over

12 years.

Results of

samples from downgradient wells at

the Jersey

Sanitation

Landfill first indicated exceedences

November 26, 1991.

Despite demands and

requirements

upon the

Respondent to evaluate

its groundwater

monitoring

program and conduct

a groundwater assessment at the

landfill,

Respondent has failed

to perform

either the evaluation or assessment and

has failed

to take

any corrective action

for groundwater at the landfill.

Thus,

violations of the five provisions have

continued for over

12 years.

The initial violation occurred on

November 26,

1991.

As of April

30, 2004,

a total of 4,535 days will

have

elapsed since the initial groundwater violations

at the

Jersey Sanitation

Landfill.

COUNT II

The

Respondent’s violation of Section 21

(oX2)

and

(3) of the Act.

415 ILCS

5121(o)(2),

(3),

and

35111. Adm. Code

807.314 due to its failure to control

leachate

the landfill.

Section

of the Act, 415

ILCS 5/21

(1994),

provides,

in pertinent part,

as follows:

person shall:

Conduct a sanitary landfill operation which is required

to have

permit under Section

(d) of this Section,

a manner which results

any of

the following

conditions:

leachate flows entering waters

of the

State;

leachate flows exiting

the landfill

confines;

The definition of “leachate”,

“solid waste” and

“waste”

are defined as

follows in

the

Board’s Solid Waste Disposal Regulations,

Ill.

Adm. Code 807.104:

“LEACHATE” means

liquid containing materials removed

from solid

waste.

“SOLID

WASTE” means waste.

“WASTE”

means any garbage, sludge from

a waste treatment plant,

water supply treatment plant,

or air pollution control facility or other

discarded

material,

including solid,

liquid, semi-solid,

or contained

gaseous material

resulting from

industrial, commercial, mining and

agricultural operations,

or from

community activities,

but does not include

solid or dissolved

materials in domestic sewage, or solid or dissolved

materials

irrigation return flows or industrial

discharges which

are

point

sources

subject

permits under 35

III. Adm.

Code 309.102 or Source,

Special

Nuclear, or by-product materials as defined by the Atomic Energy

Act of

1954,

as amended

(42 USC.

2011 ~ ~q.)

or any

solid or

dissolved

material from any facility subject

to the Federal Surface

Mining

Control and

Reclamation

Act of

1977 (P.L. 95-87) of the rules and

regulations

thereunder

(Ill,

Rev.

Stat.

1983

Ch. 96

1/2,

Par.

7901.01

~g.

and

Ill. Adm,

Code

1700 through

1845) (Section

3(11)

of the Act).

Section

807.314 of the Board’s Solid Waste

Disposal

Regulations,

III.

Adm.

Code

807.314,

provides, in

pertinent part,

follows:

Standard Requirements

Except as otherwise

authorized

in writing by the Agency,

no person shall

cause or allow

the development or operation of a sanitary landfill which

does

not provide:

Adequate

measures to

monitor and control

leachate;

At hearing,

Rich Johnson testified to

repeated

observations of leachate seeping and

flowing

from

the landfill.

Referencing Parties Exhibit

10,

a report for his January 23,

1991

inspection

of the landfill,

Mr.

Johnson described

the leabhate seep depicted

photos 10,

and

12 of the

report, that showed a

leachate seep

that was observed flowing from

the

landfill

Sandy Creek.

Tr.

125

(lines 13-18)

and

126

(lines 5-7).

Mr.

Johnson also testified to the

observations

made at the time of his May21,

1991

inspection,

documented

Parties

Exhibit

18.

described

the leachate seep depicted

photo 30

in the report for the

May 21,

1991

inspection,

which showed

leachate seep

that flowed

into

Sandy

Creek west of the

landfill.

stated on

page 7 of the narrative

contained

Parties Exhibit

18, leachate seeps, flows

and

ponds were found on

the northern and western

region of the landfill

at the time of the May21,

1991

inspection

and were depicted

in the following

photos contained

in the report:

10,

21,

22,

27,

28, 29, 30, 38, 39.

The inspector noted

his report that

measures

control leachate

were not evident at the time of the inspection.

Leachate was emanating from areas adjacent to

uncovered

refuse.

The report for the May 21,

1991 inspection

includes

results from

samples

collected from leachate flows and seeps.

The sample documentation includes a description

the liquid

sampled.

(Documentation for

sample identified as LIOl,

Parties Exhibit

18).

Mr. Johnson described

the leachate seeps observed

at the time of the November

19,

1991

report, depicted in

photo

10 and

also

in the site sketch accompanying the report.

At the

time of the November

19,

1991 inspection,

Mr.

Johnson observed two leachate flows that

entered the leachate

collection

pond.

The leachate collection

pond was designed to receive

leachate drainage via

PVC pipe exiting

from the interior of the landfill

mound.

It was

not

designed to

receive flows that drained

over and along the surface and finally

into the

pond.

Several leachate flows

and

seeps,

and

surface

leachate ponds,

are documented on the

site

sketch

that is part of the November 19,

1991

inspection

report (Parties

Exhibit 21, site sketch).

Tr at

131

(lines

17-24),

Tr at

132

(lines

1-24) and

Tr at

133

(lines

1-2);

Parties Exhibit 21.

Mr.

Johnson

also testified that at the time of his

February 25, 1992 inspection

he observed

leachate seep,

as depicted by

photo

19 in his report

for that inspection.

A copy of the cover

letter transmitting

a copy of the inspection

report to

Respondent is

included

in the

record

of this

proceeding

as Parties Exhibit 23.

The report for the February

25,

1992 inspection indicates that dark stains from leachate

seeps emanated from some

of the areas of uncovered refuse.

The leachate

drained

into the

low area

along the northern

fill face

and

became

a leachate flow.

The leachate flowed

along

the northern fill

boundary toward

the west end of the site.

Before

reaching

Sandy Creek,

the

leachate flow was absorbed

into the ground.

Another leachate flow was found emanating

from

the toe of the westernmost

fill face.

The flow went westward where

it emptied

into the leachate

collection

pond.

There was

a brownish sediment along

the drainage pathway which appeared

be from

contaminants

in the leachate flow.

Several leachate seeps and

flows are

documented

on the site sketch

included in

the

February 25,

1992 inspection

report (Parties

Exhibit

25, site sketch).

Tr.

134

(lines

11-24)

and Tr at

135 (lines

1-2);

Parties Exhibit 25.

copy of the cover letter transmitting

a copy

of the inspection

report to

Respondent is

included

the record

of this proceeding

Parties

Exhibit 26.

At hearing,

Charles

King

testified that he

made observations

of leachate

seeps

at the

landfill at the time of the January21

and

February

17,

1994 inspections, as depicted

photos

4/5,

4/6,

4/7

and 4/10 contained

the report of those inspections.

Mr.

King

observed a

leachate flow joining

a run-off stream and

then flowing

directly into Sandy Creek.

Both the run-

off stream and

the leachate flow were observed to originate

at the filled area of the landfill.

Parties

Exhibit 31, pages

and

12 of the

narrative.

pages 4 and

5 of the narrative,

Parties

Exhibit 31, the inspector provides a detailed description of the leachate.

Mr.

King

described

a leachate stream he sampled

that was

flowing from

the west side of the landfill

mound,

towards Sandy Creek.

The leachate was

chocolate

brown

in color,

and

had

a white

film

on the surface in

places.

Brown

bubbles were also

noted

on the stream surface.

At one

point,

upstream

of the widest point,

an array of colors

similar to

those caused

by motor oil

water, was

observed

in the leachate.

The leachate stream emitted

a slight malodorous

smell

(Parties Exhibit 31, page 5 of the narrative).

Tr. at

162 (lines

1-17),

163 (lines

1-2),

164

(lines 6,

10-13).

Tr. at

166

(lines

16-19),

168

(lines

18-23).

Parties

Exhibit 31.

He also

observed

leachate streams at the time of the

May

19,

1994

Illinois

EPA sampling

inspection.

Tr. at

165

(lines 2-13).

A leachate pop-out was

observed on the west/northwest side

of the landfill

at the

time of the June

2000 inspection.

It was

located approximately 40 feet

southwest of

groundwater

monitoring well C106.

Parties

Exhibit 43, page 4.

A copy of the letter transmitting

the report for the June

2000 inspection is included

the

record

of this proceeding

as the first

page

of Parties

Exhibit 43.

hearing,

Karen

Nelson, regional

geologist

for the Springfield

Illinois

EPA Region

until

2001,

and

identified

as Complainant’s

groundwater opinion witness

this matter, testified that

she

observed leachate seeps

and flows at

the landfill

at the time of the

Illinois EPA’s May

17,

18 and

19,

1994 groundwater sampling inspection.

The site map

included with the report

indicated the locations of the seeps.

Tr.

262-265.

Parties

Exhibit

34,

site sketch.

At hearing,

Ms.

Nelson

identified

photos

the report that depicted leachate

seeps and flows.

Parties

Exhibit 34,

photos

Oa,

Ia,

16,

17,

19,

22,

23,

24.

The photos

included

a depiction of a

leachate flow that nearly reached

Sandy Creek,

but soaked

into the ground just prior to

reaching the surface water.

Tr. at

264-265.

Ms.

Nelson’s

report

included results of leachate

samples collected

at the time of the

May 1994 sampling

event.

Ms.

Nelson’s

testimony

included

a description

of the appearance of the leachate.

Respondent Jersey

Sanitation

Corporation failed to

install

and maintain controls

at the

landfill so as

to prevent and

control

leachate seeps and

flows.

Respondent failed

to contain

seeps, failed to

install proper drainage

channels to control

fresh surface

water from

entering the

landfill and

conveying leachate, and failed to cover refuse

so as

to minimize

contact with

precipitation and

drainage.

Parties

Exhibit

18 (May 21,

1991

inspection),

on the third

page of the

narrative,

the

inspector,

Rich

Johnson, documented

his observation that the drainage channel required

along

the north edge of the fill

is no longer present.

The

channel was

to keep

run-off water from the

north

out of the filled areas.

Special

Condition

of Permit I 973-44-DE indicated

that the landfill

operation

and

the filled areas

are to

be protected from

runoff.

There was

no drainage

channel

constructed along

the northern boundary

of the

ravine at

the time of the inspection.

Parties Exhibit

(November 19,

1991 inspection),

the third

page of the narrative,

the inspector documented

his

observation

that Special Condition

22 of the Supplemental

Permit

1989-1 77-SP

(dated

11-15-89) indicated

that surface water ditches on

the north

and

south

side

of Cells

and 2 for conducting

run-off or run-on are to

be maintained on

a regular schedule.

ditch had

been developed

at the time of the inspection on the

south

side of Cells

and

all the inspection reports through

1994,

Parties

Exhibits

10,

18, 21,

25, 27,

31,

34,

inspectors documented

uncovered

refuse.

Pursuant to

the landfill’s

1989 supplement permit, Supplemental

Permit

No.

1989-1 77-

SP,

issued

November

15,

1989,

an approvable leachate collection system

plan was

supposed

to be

submitted

to the Illinois

EPA permit section

by January

15,

1990.

Parties Exhibit 16,

page

The Illinois EPA did

not issue

approval of leachate

collection

system plans submitted

by the

Respondent until

approximately December 13,

1990.

Parties Exhibit

11.

the time of an

Illinois EPA inspection

conducted on January 23,

1991,

the inspector made the following

observation

(Parties Exhibit

10, page 2 of the narrative):

“A liquid

was observed

flowing south

of the leachate

collection pond

(see photos

11,

12 and

16).

The

liquid

appeared to

be groundwater originating from

a bank

composed

of soil,

tree trunks,

bed

springs and vehicle

engines.

The refuse

the bank

suggested that the

bank was

partly filled with

waste.

The liquid

leaving

the bank left a

rusty colored

deposit on the bottom of the drainage ditch

(see

photo 26).

There was also a

slight sulfur odor emanating from

around

the flow.

followed the flow west to the point where it entered Sandy Creek.

Photos 9 and

show the

point where the leachate flow enters the creek.

Before

leaving the

landfill, a sample of leachate was collected.”

At the time of the May21,

1991 inspection,

the inspectOr observed

leachate seeps as

described

Parties Exhibit

18,

page

of the

narrative.

On that

date1

leachate was observed

flowing into

Sandy Creek,

Uncontrolled leachate flows and seeps were also

observed

at the time of the

November

19,

1991

inspection

(Parties

Exhibit 21),

the February 25, 1992

inspection (Exhibit

25), the January 21/February

17,

1994 inspection (Parties

Exhibit 31),

and

that May

1994

Illinois EPA groundwater sampling event

(Parties

Exhibit 34).

March 21, 1991,

the Illinois EPA filed

administrative citation

against Jersey

Sanitation.

Included

the allegations was

violation of Section

21 (p)(2) of the Act, Ill.

Rev.

Stat.

1989,

ch.

111

1/2

par.

1021 (p)(2).

Violation of what in

1991

was

Section

21 (p)(2), was

cited

the second amended

complaint of the instant action

Section

21(o)(2),

415

ILCS 5/21(o)(2).

The basis of the allegation

cited

in the March 21,

1991 administrative citation was the January

23,1991

inspection

conducted by

Rich

Johnson.

The report for that

inspection is included

the

record of this proceeding as

Parties Exhibit

10.

Respondent Jersey Sanitation Corporation

did

not file a Petition

for Review in

response

to the administrative citation,

and paid

the penalty

demanded

in the citation

on April 29,

1991.

Parties

Exhibits

11,

12,

13,

14,

and

17.

Given

that the January 23,

1991 violation

of Section

21(o)(2) was

satisfied with

payment of

administrative

citation penalty,

Complainant is not seeking

relief for that allegation herein.

However, evidence of the violation

being brought forth here

as support for the Complainant’s

allegation that subsequent violations

of Section

21 (o)(2) were ongoing

and

repeat violations.

Based

the evidence

presented at hearing,

including

exhibits admitted,

Respondent

Jersey Sanitation Landfill

violated

Section

21 (o)(2) of the Act, 415

ILCS 5/21 (o)(2)

and

III.

Adm.

Code 807.314,

by causing

or allowing

leachate

to flow into

Sandy Creek

at the time of the

February

17,

1994

inspection.

Based

on the evidence presented

at hearing,

including

exhibits admitted,

Respondent

Jersey Sanitation

Landfill

violated

Section 21(o)(3) of the Act, 415

ILCS 5/21(o)(3) and 35

Ill.

Adm.

Code 807.314, by causing

or allowing leachate to discharge

from the

landfill beyond

the

existing confines of the landfill

at the time of the January 23,

1991

inspection,

May 21,

1991

inspection,

February

17,

1994 inspection,

and

May

1994

Illinois

EPA sampling event.

Based

the evidence

presented at hearing,

including exhibits admitted,

Respondent

Jersey Sanitation Landfill

violated 35

Ill.

Adm. Code 807.314,

by causing or allowing leachate

pop

out at the

landfill

and thus exist in an

uncontrolled

and

exposed

condition on

the surface

the

land,

at the time of the November 19,

1991

and June

2000

inspections.

The Respondent’s violation of Section

12(a) and

Id) of the Act. 415 ILCS

5/12(a).

(d), and

35111. Adrn. Code 807.313, 314

and 315

due to

its failure to control

leachate at the landfill.

Section

12(a) of the Act, 415

ILCS

5/12

(1994), provides,

pertinent part,

as follows:

person

shall:

Cause or threaten or allow the discharge of any contaminants into

the environment

in any

State so

as to cause

or tend to cause

water pollution

Illinois, either alone or in

combination with

matter from other sources,

or so as

to violate regulations or

standards adopted

by the

Pollution

Control Board

under this Act.

Section

12(d)

of the Act,

415

ILCS 5/12(d),

provides, as follows:

No person shall:

Deposit any contaminants

upon the

land

in such

place and

manner so

to create a water pollution hazard.

Section

807.313 of the Board’s Solid Waste

Disposal regulations,

III. Adm.

Code

807.31 3, provides as follows:

Water Pollution

No person shall cause or allow operation

of a sanitary landfill so as

cause or threaten

or allow the discharge of any

contaminants into the

environment

in any State

so as

to cause

or tend to

cause water pollution

Illinois, either alone

or in combination with

matter from other sources,

or so as to violate regulations or standards adopted

by the Pollution

Control

Board under the Act.

Section

807.315 of the Board’s Solid Waste

Disposal regulations,

35111. Adm.

Code

807.315, provides

follows:

Protection

of Waters of the

State

No person shall cause or allow the development or operation of a sanitary

landfill

unless the applicant proves

to the satisfaction

of the Agency that

no damage

or hazard will result to the waters of the

State

because of the

development and

operation

of the sanitary landfill.

Complainant’s

allegations of violation of Section

12(a) and

(d),

415

ILCS 5/12(a),

(d),

and

III.

Adm.

Code

807.31 3,

314 and

315 are based on

the same

evidence described

Section

above.

It will not

be repeated

here.

Jersey Sanitation Corporation

Landfill was

not certified

closed

until October

1999.

Parties

Exhibit 42, Supplemental

Permit I 999-209-SP acknowledging

receipt of certification of

completion of closure, dated

October 5,

1999.

Respondent has

allowed the release of flows, seeps and

ponds of leachate onto the

surface of the landfill so that it is exposed to any and all

run-off surface waters and

precipitation,

and thereby Respondent Jersey Sanitation

Corporation violated

Section

12(a) of

the Act, 415

ILCS

5/12(a),

and 35

Ill.

Adm.

Code 807.313 and

315,

by causing

or allowing the

discharge of leachate onto the surface of the landfill and

into waters

of the State

so as

to cause

or tend

to cause

water pollution at the time of the January 23,

1991 inspection,

May 21,

1991

inspection, November

19,

1991

inspection,

February

17,

1994 inspection,

the

May 17,

18 and

19,

1994

Illinois EPA sampling event and

June 6,

2000 inspection.

Respondent has

allowed the release of

flows,

seeps

and

ponds of leachate onto the

surface of the

landfill

so that it is exposed to any and all

run-off surface waters and

precipitation,

and

thereby Respondent Jersey Sanitation

Corporation violated

Section

12(d)

the Act, 415

ILCS

5112(d),

and

Ill.

Adm.

Code 807.314, by

releasing,

and thereby depositing,

uncontrolled and

uncontained

leachate upon the

land

in such

a place and

manner as to create

a water

pollution hazard at the time

of the January 23,

1991

inspection,

May21,

1991

inspection,

November

19,

1991

inspection, February

17,

1994 inspection,

the May

17,

18 and

19,

1994

Illinois EPA sampling

event and June

6, 2000 inspection.

COUNT lii

The Respondent’s violation of Sections

12(a) and (d). 415 ILCS 5/12(a).

(d). and

Section 21(o)(1) of the Act, 415

ILCS 5(21(o)(1)

due to the existence of refuse in

flowing water at the landfill.

Section

12(a) of the Act, 415 ILCS 5/12 (1994),

provides,

in pertinent part,

as follows:

person shall:

Cause or threaten or allow the discharge of any

contaminants into

the environment

any State

so as

cause or tend to cause

water pollution in

Illinois, either alone or in

combination with

matter from other sources,

or so as to violate regulations or

standards

adopted by

the Pollution

Control

Board

under this Act.

Section

12(d) of the Act, 415

ILCS 5/12(d),

provides,

follows:

No person shall:

Deposit any contaminants

upon the

land

such place and

manner so as

to create

a water pollution hazard.

Section 21(o)(1) of the Act, 415

ILCS 5/21(o)(1),

provides,

pertinent part,

as follows:

person shall:

Conduct a sanitary landfill

operation which

required

have a

permit under Section

(d) of this Section,

a manner which results

in any of the following

conditions:

refuse

in standing

or flowing waters;

Charles

King,

his

report for the February

17,

1994

inspection, documented

his

observations, at

the time of the inspection,

of refuse in

flowing water in a

ditch

north of the filled

area on

the

site, and

his

observation

refuse

in erosion streams on the

site.

page 4 of the

report,

Mr.

King documented

the following observations (Parties

Exhibit 31, page 4 of the

narrative):

I followed the apparent erosion ditch north of the filled area,

from west to

east.

contained

a steady runoff flow of water, with

possible leachate stream infiltration.

There

were numerous

runoff streams in

the hundreds of crevices

the north

side

of the filled

areas,

that were tributary to the ditch, which was also

tributary to

Sandy Creek west of

the

landfill.

Litter was

noted

in this flowing water at several

locations.

Jersey Sanitation Corporation Landfill

was not certified

closed

until October

1999.

Parties

Exhibit 42, Supplemental

Permit 1999-209-SP acknowledging

receipt of

certification of

completion of closure,

dated

October

1999.

Therefore, the Jersey Sanitation

Landfill was

still

considered an operating

landfill

at the time of the February

17,

1994 inspection and subject

to Section

21 (o)(I) of the Act,

415

ILCS 5121 (o)(I).

As described

Parties

Exhibit 31,

by allowing refuse

to exist in flowing water at the

landfill site,

Respondent Jersey Sanitation

violated Section

12(a) and

(d),

415

ILCS

5/12(a),

(d),

and Section 21(o)(1),

415

ILCS 5/21(o)(1),

the time of the February

17,

1994 inspection.

COUNT IV

The Respondent’s violation of Sections 21(d)

and

Ce),

415 ILCS 5/21(d).

Ce).

and

35 III.

Adm. Code 807.301

and 302 with respect to

Supplemental Permit No. 1989-

177-S P.

Section

of the Act, 415

ILCS

5/21, provides,

in pertinent part,

as follows:

No person

shall:

Conduct

any waste storage, waste treatment,

or waste disposal

operation:

Without a permit

granted by

the Agency or in violation of

any conditions imposed

by such

permit, including

periodic

reports and

full access to adequate

records and the

inspection of facilities,

may be

necessary to

assure

compliance with

this Act and with

regulations and

standards adopted thereunder; provided,

however, that,

except for municipal

solid waste

landfill unites that receive

waste

on or after October 9,

1993,

no permit shall

required for

(i)

any person conducting

a waste-storage,

waste-treatment,

or waste-disposal

operation

for wastes

generated

by such

person’s own

activities which are

stored, treated, or disposed within the site where such

wastes are

generated, or

(ii) for

a corporation organized

under the General

Not-For-Profit Corporation Act

of 1986,

now or hereafter amended,

or a

predecessor Act,

constructing

a land

form

in conformance with

local zoning

provisions, within a municipality having a population of

more than

1,000,000

inhabitants, with clean construction

or demolition debris generated within the municipality,

provided that the corporation

has contracts for economic

development planning with

the municipality;

or;

In violation of any

regulations or standards adopted

by the

Board

under this Act.

***

Dispose,

treat, store or abandon any waste, or transport

any

waste into

this State for disposal, treatment,

storage or

abandonment, except at

a site or facility which meets the

requirements of this Act and of regulations and

standards

thereunder.

Section 807.301

of the Board’s Solid Waste

Disposal

Regulations,

Ill. Adm.

Code

807.301, provides as

follows:

Prohibition

No person

shall cause or allow the operation

of a sanitary landfill

unless

each

requirement of this Subpart

is performed.

Section

807.302 of the

Board’s Solid Waste

Disposal

Regulations,

III.

Adm. Code

807.302,

provides as

follows:

Compliance with

permit

All

conditions

and

provisions of each

permit shall be

complied with.

Respondent’s violation of the final elevation

and contours provisions of its

p~mit.

Pursuant

to Supplemental

Permit No.

1989-1 77-SP, issued November

18,

1989 for the

Jersey Sanitation

Landfill,

the permit was

issued in

accordance with the

final

plans,

specifications, application and supporting

documents as submitted

Heneghan Associates,

Engineers for Jersey Sanitation

Corporation,

dated July

18,

1989 and

October 25,

1989.

Parties Exhibit 6.

The final

contours are set forth within the plans

submitted

on a site

map

entitled

“Proposed

Final

Contours”,

included in

a July 18,

1989 submittal

from Heneghan

Associates.

Parties

Exhibit 3.

Pursuant to Standard Condition 3

of the

permit, there shall

deviations from the approved

plans and

specifications

unless a written

request for modification

of the project,

along with plans

and specifications

required,

shall have

been

submitted

to the

Agency and

a supplemental written

permit issued.

Parties

Exhibit 6.

No supplemental

permit modifying

the final elevations

of the landfill

was issued until

October

1999.

Item

B on page

2 of Supplemental Permit No. 1999-209-SP

indicates

approval of the revision to the

final contours

accordance with the Certification of Siting

Approval from the Jersey County Board

dated

March

1999.

Parties Exhibit 42.

At the time of a January 23,

1991

inspection

the Jersey Sanitation

Landfill,

Rich

Johnson, documented

observations

that the landfill

elevation in

the central region

of the ravine

at the

landfill appeared

to be higher than

indicated

by the site plans

(Parties

Exhibit

10 at page

5 of the narrative):

The latest Agency approved

plans by Heneghan Associates dated 7-18-89 show

the elevation

of the ground west of the equipment

shed

as being

597

MSL.

The

highest filled elevation of the ravine to

the north of the

597

MSL elevation

was

supposed

to be 580

MSL.

It was

noted

when looking

north from west of the

equipment shed that the fill area was

above the ground level where

I was

standing (see

photo

15).

It appears that

the fill

in the

central

region

higher

than the

final elevation

approved by the Agency.

is evident from

Parties

Exhibit

12,

page 2, a copy of the January 23,

1991

inspection

report that contained

these observations and

the allegation

apparent violation of final

elevation

and contours

was sent to the Respondent,

or before

March 21,

1991.

At the time of a

May 21,

1991

inspection

of the Jersey Sanitation Landfill,

Rich Johnson,

Illinois

EPA inspector assigned

to the

landfill,

documented

observations that the landfill

elevation

the central

region of the ravine appeared to

higher than the approved final

contours,

and also

that the filled

lift

in the central

region did

not conform with

approved

final

contours.

Parties

Exhibit

18,

page

3 of the narrative.

The inspector documented

the

observations with

photos

13 and

contained

within the inspection

report.

The same

observations

were made at the time

of the November 19,

1991

inspection.

addition,

the inspector observed

that additional refuse

had

been

deposited

on the eastern

region

of the landfill

Cells

and 2.

Parties

Exhibit 21.

The added

lift

refuse in

the eastern

region

was observed

to apparently also exceed the final elevation

permitted

in this area of the

landfill.

Pursuant to plans

submitted

by Heneghan Associates

on July

18,

1989,

final cover was

applied

Cell

1983.

Parties Exhibit

page

of sheets

attached

the completed

application.

A copy of the cover letter transmitting a

copy of the

inspection

report to

Respondent is included

the

record

of this proceeding as Parties

Exhibit 23.

The same observations

were made

at the time of the February 25,

1992 inspection.

Parties

Exhibit 25.

Photos

documenting these

observations

are contained within the report for

the

February 25, 1992

inspection.

Parties

Exhibit 25, Photos

3 and

10.

A copy of the cover

letter transmitting a

copy of the inspection

report to

Respondent is included

in the

record

of this

proceeding

Parties

Exhibit 26.

At the time of a September21,

1992 inspection

at the landfill, the

Illinois EPA

inspector

again

documented

his

observation

of elevations above permitted

final contours.

Parties

Exhibit

27, page 2 of the narrative.

A copy of the cover letter transmitting

a copy of the inspection

report to

Respondent is included in

the

record of this proceeding as Parties

Exhibit 29.

At the time of the January21,

1994 inspection,

Charles King

made the following

observations

and documented

his

inspection

report (Parties Exhibit

31, page 2

and 3 of the

narrative):

The landfill

appeared

be grossly over height.

The peak elevation

appeared

the center of the mound, and

was approximately ten feet higher than

at the east

of the mound.

Photo #2 depicts

the landfill

mound

the north

of the equipment shed.

Mr.

Johnson is

standing

in the photo to demonstrate the height of the mound.

The mound

at this

location

is supposed

be lower than the

ground

surface at the shed,

according

approved

plans.

This

photo

clearly demonstrates

that the

landfill

is over

its

permitted

height.

The inspector’s

specific documentation

of alleged failure to comply with

the permitted

final

contours

appears on

page Sand

page

of the narrative

in the inspection

report

(Parties

Exhibit 31).

The

1992 submittal

referenced

the final quotation,

‘Biennial

Review of the

Closure Plan, Post-Closure

Care Plan

and

Cost Estimates for the Jersey Sanitation

Corporation

Landfill”, submitted

by Andrews Environmental

Engineering,

Inc.

November 1992,

is included

the record of this proceeding as

Parties Exhibit

28.

The map contained

within the

1992

submittal referenced

the quotation is contained within the exhibit as an oversized

attachment,

entitled

“Existing

Site Conditions at the Jersey Sanitation

Landfill”:

The height elevation

limit at the

landfill

appears to have

been

exceeded above Agency

approved

final elevations.

Agency approved

plans by

Heneghan Associates

(submittals

dated

July 18,

1989),

and

a sketch provided

byAndrews

Engineering, mc,

dated

October 1992

(submitted with

their November 12,

1992

Biennial

Review of the Closure

Plan),

shows height limits at

the equipment shed,

being

approximately 598 feet.

The

1992 sketch is

a contour map that shows existing site contours,

and a height of 617.3

feet at its

highest point,

near the center of the landfill.

The highest filled elevation is

supposed

to be 600’,

per the permit application

that was

approved and

became part of

Supplemental

Permit No.

1989-177-SP,

issued

November 15,

1999.

Directly north of

the equipment shed on-site, the

landfill is supposed

to be at a

lower elevation than

the

ground level

at the

shed.

However,

it is at

least 15’

over height at that location.

The elevation of the filled

lift

in the

central

part of the filled

area

of the landfill,

does not

conform with

Agency approved

final contours.

approved

plans,

the final

elevation

shows a smooth

crown in

elevation, gradually declining from

east to west.

The

inspection

revealed over height mounds to

the east and west,

and

a gully in the

middle

running

north/south,

interrupting

a gradual slope downward from

east to west.

Contained within the June 1999 submittal from Andrews Environmental Engineering

Inc.

for Jersey Sanitation Corporation

Landfill,

entitled “Application for Supplemental

Permit:

Facility

Closure

Certification, Revised Final

Contours,

Biennial

Revision of Closure and

Post-Closure

Care

Plans and

Cost Estimates”,

a drawing

labeled

D1-3

that shows existing

contours

at the

landfill

1995.

Parties

Exhibit 41.

Respondent did

not receive approval of these contours

until

October

1999.

At the time when this drawing was generated,

shows that Respondent was

violation of its existing permitted

final contours.

At the time of a November

19,

1998 inspection,

the inspector documented

his

observation

that the landfill mound continued

to exist at the site

15 feet over height, on

page 3

of the narrative,

and

he cited

it as

a violation

of permit

provisions on

page 5 of the checklist.

Parties

Exhibit 40.

Respondent’s violation

of permitted

final

contours continued

until

Respondent received

certification of

siting approval from the Jersey County Board for the revised

final

contours.

This

approval was

received on

March 8,

1999

and documentation of the approval

is contained

within

Parties

Exhibit 41, Attachment 4.

The

Illinois

EPA

did

not approve

the revised final

contours

until

issued Supplemental

Permit 1999-209-SP on

October 5,

1999.

Parties

Exhibit 42.

The

first violation was January 23,

1991.

These violations,

both the violation of final elevation and

the violation

of final contour,

continued

until October 5,

1999,

or for 8 years and

253 days,

which is a total of 3,173

days

after the first day of violation.

The violation

of these two permit

provisions

constitute two violations of Section 21(d)(1)

and

(2) and Section

21(e), 415

ILCS

5/21(d)(1),

(2) and

(e),

and

III. Adm.

Code

807.301

and

302.

Respondent’s violation of its permit requirement to maintain surface water

ditches on the north

and south side of the landfill.

Special

condition

22 of Respondent’s

Supplemental

Permit

1989-177-SP,

provides

follows:

22.

Surface water ditches on

the north and south

side of cells

and

(shown on the

development permit application) that conduct

run

off or

run

on water away from

the landfill

shall

be maintained

on a regular schedule.

Illinois

EPA inspectors documented

their observations that the drainage ditch that was

be developed for the south

side of the landfill

had

not been developed

at the time of the

following

inspections:

May21,

1991

(Parties Exhibit

18,

page 3 of the

narrative, at the end

the notation regarding final contours.);

November

19,

1991

(Parties

Exhibit 21, page

3 of

the

narrative, at the

end

of the notation

regarding

final

contours and

Item 3 on

that page.);

February

25, 1992

(Parties Exhibit 25, page 4 of the narrative,

at the

end

of the notation

regarding

final

contours

and

Item 3 on

that

page.); January21

and

February

17,

1994 (Parties

Exhibit 31.

pageS of the narrative,

Item C.);

November

19,

1998 (Parties

Exhibit 40, page 5 of the

checklist).

Illinois

EPA inspectors documented their observations that the drainage

ditch that was to

be developed

and

maintained for the north side

of the landfill was

not

being maintained at the

time of the following inspections:

May 21,

1991

(Parties

Exhibit

18,

page 3 of the narrative):

The drainage channel required along

the north edge fo the fill is

no longer

present.

The channel

was to

keep

run-off water from

the

north out of the filled

areas.

Special

Condition

of Permit 1973-44-DE

indicated

that the

landfill

operation

and

the filled areas are

protected from

runoff.

There

was

drainage channel constructed

along the northern boundary of the ravine

at the

time of the inspection.;

January21

and

February

17,

1994 (Parties

Exhibit 31,

page

8 of the narrative,

Item C.):

No ditch has

been developed on the south

side,

and

the ditch

on the

north

side appears to have

been formed

naturally via erosion,

since

not straight

and meanders.

It definitely

has not been

maintained,

since its internal depth and

width fluctuates,

and litter is abundant

in the ditch.;

and

November

19,

1998 (Parties

Exhibit 40, pageS of the checklist).

Respondent’s violation of Special

Condition 22 of Supplemental Permit

No,

1989-77-SP

was

initially

observed on

May 21,

1991,

and

continued

until

at least November

19,

1998.

The

first violation was

May 21,

1991.

This violation continued for 2,736

days after the initial

day of

the violation.

The violation of this permit

provision constitutes a

violation of Section 21(d)(1)

and

(2) and

Section

21(e),

415

ILCS 5/21(d)(1),

(2) and

(e),

and

35111. Adm,

Code 807.301

and

302.

Respondent’s

violation of

its

permit requirement to conform its

groundwater monitoring wells and facilities to the approved

monitoring

plan.

Special condition

13 of Supplemental

Permit

1989-177-SF

provides

as follows (Parties

Exhibit 6):

Construction, Design

and

Maintenance of

groundwater monitoring wells

and

facilities shall conform to

the following attachments which are

included:

Attachment

Groundwater Monitoring

Conditions

Attachment C)

Diagram of Monitoring

Well

Construction

Attachment

Monitor well plugging procedures

Item

No.

3 of Attachment B, Groundwater Monitoring

Conditions, provides

follows

(Parties

Exhibit 6):

All

borings/wells

not used

monitoring

points shall

backfilled

accordance with

the attached

IEPA monitor well plugging

procedures.

Item

No.

Attachment A

of the water

monitoring

program approved

within the permit

identifies

wells 0101

and

0102

monitor

point(s) deleted

from the monitoring

program.

Parties Exhibit 6.

Inspector Rich

Johnson documented the fact that well MW5 remained

the

site,

and

had

not been properly

abandoned and plugged

at the time of the following

inspections:

August

30, 1990

(Parties

Exhibit

page

7-8 of the narrative); January 23,

1991

(Parties

Exhibit

10,

page

5 of the

narrative);

May 21,

1991

(Parties

Exhibit 18,

page

3 of the narrative);

November

19.

1991

(Parties Exhibit 21, page 3 of the

narrative,

Item 5);

February 25, 1992 (Parties

Exhibit

25, page 4 of the narrative,

Item

No.

5).

Parties

Exhibit 31, page 8 of the narrative at

Item

the inspector observed

the

existence of the two wells,

MW1

and

MW5,

and

further documented that MW5 was to

have

been properly abandoned

and

plugged pursuant to

Special

Condition

13 of Permit 1989-177-

SF.

A file

search did

not reveal that the well had

been properly plugged

at the time of the

January 21/February

17,

1994 inspection.

Parties

Exhibit 40,

on page

3 of the narrative,

the inspector documented

the following

observation on

November

19,

1998:

“MW5

...

designated G102 by

the Agency,

should

have

been properly abandoned

and plugged.

As discussed

in previous

reports, that well is

not used

as a

monitoring

point and

should

be backfilled

in accordance with

the

IEPA monitor well

plugging

procedures.

A file

search did

not reveal that this had

been done for

MW5.

the

other

hand,

Karen

Nelson,

staff geologist,

DLPC/FOS

Springfield

Region, feels that

MW5

serves as a shallow well and should

monitored

along with

deep well 0103.

On the date of

the inspection,

both well casings appeared

to be

good condition,

were marked

and were

locked.”

Failure to

plug the well,

or submit

an application for a supplemental permit to modify

the

groundwater monitoring program

so as

to provide for the maintenance of the MW5 well,

violation of Special

Condition

13 of Supplemental

Permit No.

1989-177-SF.

No evidence

exists

within the record

of this proceeding that the MW5 well,

also known

the G102

well, has been

plugged.

supplemental permit application

exists within the record,

that requests inclusion

this well

in the current water monitoring

program.

No evidence

was

presented

at hearing

controverting

Complainant’s

claims that the well

has

not been plugged.

The first violation

of this

permit

provision

was documented

at the time of the August

30,

1990 inspection.

After the

initial

violation,

this violation

has continued

for

13 years and,

as of April 30, 2004, 213 days, or a total

of 4,958

days.

Violation

of Special

Condition

13 of Permit No.

1989-177-SP constitutes

violation of Section

21(d)(1) and

(2) and

Section

21(e),

415

ILCS 5/21(d)(1),

(2)

and

(e),

and

Ill.

Adm.

Code 807.301

and

302.

Respondent’s failure to comply with the terms of its permit with regard to

hours of operation.

Special condition

of the Respondent’s

Permit

No.

1989-1 77-SP

provides as

follows:

24.

The operating hours for

this facility

will be

9:00 am, to

6:00

p.m. on

Monday

and

9:00 a.m.

3:00 p.m.

Tuesday through Saturday.

work

is planned

for

Sunday or holidays.

An observation of a

truck hauling waste onto

the landfill

site prior to

9:00 a.m. was

documented

Illinois

EPA inspector Rich

Johnson

as the time of an August 30,

1990

inspection

(Parties Exhibit 7,

page

6 of the narrative):

A packer truck marked

Bob

Sanders (phone 465-8461

or 372-4315, Alton,

Illinois)

entered the

landfill

prior

9 A.M.

Mr.

Croxford

earlier

identified

as the

certified

operator of the landfillj

was

told

that the site’ operating

hours were

AM.

to 6

P.M.

Mondays and 9A.M.

to 3

P.M.

Tuesdays through

Saturdays.

When

asked

if the Sander’s truck dumped

before the permitted

hours,

Mr.

Croxford

acknowledged that they did.

He said

was only recently

hired to

operate the site

and

he wasn’t

fully aware of the times the

landfill was

accept waste.

Photo 28

shows

the posted

hours at the entrance to

the landfill.

The

hours on the

sign identify certain

hours

and days

that the landfill

accepts

waste.

None of the hours indicate

operations prior to 9 A.M.

told

Mr.

Croxford

that

change of operation would

require

a supplemental

permit.

At the time of the August 30,

1990 inspection,

Respondent violated Special Condition 24

of Permit No.

1989-1 77-SP,

and thereby violated

Section 21 (d)(1) and (2) and

Section 21(e),

415

ILCS

5/21(d)(1),

(2) and

(e),

and 35

III.

Adm.

Code 807.301

and

302.

Respondent’s failure to provide a narrative demonstration that its water

monitoring program is capable of determining groundwater Quality flowing

onto and

unaffected

by the landfill, assess current contribution of the

existing landfill on groundwater quality and

determine if a release to

groundwater is occurring by April

15, 1991.

Special condition

11(b) of Respondent’s

Permit

No. 1989-177-SP provides as follows:

The applicant

shall provide a

narrative demonstration

that the revised

monitoring

program for Jersey Sanitation

Corporation

Landfill

is capable of

determining groundwater quality flowing onto

and

unaffected

the landfill,

assess current contribution of the existing

landfill

groundwater quality

and

determine if a release to groundwater is occurring.

This information

and

study, shall

be submitted

to this Agency by

by April

15,

1991

with

other

required

fourth quarter “background” groundwater monitoring

information

required

this permit Attachment “A” Condition

No.

Illinois

EPA inspector Rich Johnson

documented

Respondent’s failure

to meet the April

15,

1991

deadline,

in his report for his

May 21,

1991

inspection of the landfill

(Parties

Exhibit

18,

page 3 of the narrative,

last item on that page).

On April

1991,

Henneghan and Associates submitted

a document entitled

Groundwater Monitoring

Narrative and was

noted

be “as required per Paragraph

11 .b

of the

November

15,

1989 letterfrom

IEPA granting

supplemental permit.”

Parties

Exhibit

15.

On August

14,

1991,

the

Illinois

EPA issued a

letter in

response

to the April

1991

submittal,

stating the submittal

failed to demonstrate that the revised monitoring

program is

capable of determining groundwater quality flowing onto and

unaffected

by the landfill.

The

letter states that the submittal provides

no evidence

that the operator can control,

minimize or

eliminate the post-closure

releases to groundwater,

since the narrative fails

to prove that the

operator can

even detect

release to groundwater if it

occurs.

The letter sets a new deadline

for

the required re-submittal to

be 60 days of the date of the letter.

Parties

Exhibit

19.

October10,

1991,

1-leneghan

and

Associates submitted

a document entitled

Groundwater

Monitoring Narrative

—

Supplement Permit, for Jersey Sanitation

Corporation.

Parties

Exhibit 20.

January

1992,

the

Illinois

EPA denied

the application for a supplemental

permit in

a letter dated

January 8.

1992.

Parties

Exhibit 24.

It was

denied

because

the application failed

meet the requirements of Special Condition

11(b) and verify that what was

identified

upgradient groundwater was

from the

same

permeable zone as downgradient groundwater.

The denial

extended

the deadline for

submittal of

information that would

meet the requirements

Special

Condition

11(b) of Permit No.

1989-177-SP until

April

15,

1992.

Parties

Exhibit 24,

page

The next submittal from

Respondent Jersey Sanitation

Corporation was the November

1992 Biennial

Review of the Closure

Plan,

Post-Closure

Plan and

Cost Estimates for the Jersey

Sanitation

Corporation

Landfill, submitted

by Andrews

Environmental

Engineering,

Inc.

Parties

Exhibit

28.

subsequent submittal from

Respondent

addressed

the requirements of Special

Condition

11(b) of Permit

No.

1989-177-SP.

page 28 of Parties

Exhibit 34,

the author of the exhibit,

Ms.

Nelson, quoted from

the

November

1992 submittal,

Respondent Jersey’s permit application

(log

1992-350), wherein

Jersey’s

consulting

engineers,

Andrews Engineering,

1992,

noted

that “in

reviewing the last

four quarters of groundwater monitoring

results,

appears certain parameters tested for

monitoring

well

G105 may have increased

in the last two quarters.

Sampling

results will be

monitored closely for the

next two or three quarters.

If an

adverse trend is

confirmed,

assessment will

conducted.”

The next supplemental

permit to be

issued to

Respondent Jersey Sanitation was

Supplemental

Permit No.

1992-350-SF.

It appears in the record as Parties Exhibit

30.

Included

the permit is a statement that the permit conditionally approves the groundwater

monitoring

plan.

Under

Item A of the

permit,

is stated that the water monitoring

program

approved

accordance with

Attachments to the permit,

and is subject

to the conditions

contained

therein.

Attachment A to

the permit

is the Groundwater Monitoring

Program.

Attachment A includes

requirements that the monitoring

program be capable

of determining

background groundwater quality hydraulically upgradient and

unaffected

by the units and to

detect any

discharge of contaminants from any part of a potential

source of discharge

from the

units.

Parties

Exhibit 30, Attachment A,

Item

Attachment A requires the

landfill

statistically evaluate the

groundwater

monitoring

data to

provide statistical

comparisons

between

upgradient and

downgradient groundwater quality data.

Parties Exhibit

30,

Attachment A,

Item

the event a significant change

in groundwater quality occurs, Jersey

Sanitation

was

to submit a groundwater assessment plan

to the

Illinois EPA

for approval,

and

was

implemented within

days of approval.

An assessment report was to

be submitted,

and

a proposed

corrective action

plan submitted and

implemented

within

30 days

of approval.

Parties

Exhibit 30, Attachment A,

Item

22 of Attachment A of Permit No.

1992-350-SF

states as follows:

Annually,

the operator shall prepare an

assessment of the monitoring

program

which shall include an evaluation of the groundwater flow direction

and

the

hydraulic

gradients at the facility.

This assessment shall

be submitted with the

monitoring

results due on July

15.

As documented

in Parties

Exhibit 34,

the first annual assessment that was to

submitted

response

to this condition

was due on July

15,

1994.

the time that

Ms.

Nelson

issued her

report on

the

Illinois

EPA’s

May

1994 sampling event

at the

landfill, the annual

assessment had

not bee

received.

Ms.

Nelson’s

report was

issued in

October 1994.

Parties

Exhibit

34,

page 33.

Included among the list

of violations documented

the time of the November 19,

1998

inspection,

is a

violation noted on

page 6 of Parties

Exhibit 40. which reads as

follows:

“Attachment A,

Special

Condition

22.

The Respondent

has failed

to provide to

the Agency an

assessment report of the monitoring program

to include an

elevation of the groundwater flow

direction and

the hydraulic

gradients of

the facility.”

documented

Charlie

King’s

report regarding

his

May

17,

2002 inspection

of the

Jersey Sanitation Corporation

Landfill,

Respondent had

never complied

with

Item 22 of

Attachment A of Permit No.

1992-350-SF

as of the date of the inspection.

Mr.

King testified

that Respondent Jersey has

since May 17,

2002 not submitted,

nor has

ever submitted,

annual

assessment

in compliance with

item 22 of Attachment A of

Permit No.

1992-350-SF.

Trat

172 -175.

Respondent Jersey Sanitation failed

to comply with

the requirements of Special

Condition

11(b) of Permit No.

1989-1 77-SF,

from the time of the

initial deadline of April 15,

1991

until

new water monitoring program permit requirements went into effect on

February 8,

1993.

Respondent’s failure to

comply with

Special Condition

11(b)

is a violation of Section

21(d)(1) and

(2) and

Section

21(e), 415

ILCS 5/21(d)(1),

(2)

and

(e),

and

III.

Adm.

Code

807.301

and 302.

The initial violation occurred on April

15,

1991.

The continuing violation of

the permit provision

existed

for 664 days.

Respondent’s failure to obtain

a supplemental

permit to conduct

landscape

waste compost operations.

At the time of the August 30,

1990,

January 21,

1991

and

May 21,

1991

inspections

(Parties

Exhibits

10 and

18) of the

site,

Illinois

EPA inspector

Rich

Johnson

observed

accumulations of landscape waste at the

site.

At the time of the August 30,

1990 inspection,

made

the following

observations

(Parties

Exhibit

page

3-4 of the narrative):

It was noted

during

the inspection

that bags (biodegradable)

of landscape waste

(mostly leaves) and tree clippings

has

been deposited

south of the on-site

barn.

Mr.

Croxford

the

certified

operator for the site

said

the landfill

has been

receiving weekly loads from the City of Jerseyville with

landscape waste.

They

propose to compost the landscape waste sometime

in the near future.

should

noted that

the

landfill does

not have a supplemental

permit to

compost the

landscape waste.

The permit in

effect for Jersey Sanitation Corporation

at the time of these three

inspections was

Permit No.

1989-177-SF.

Parties

Exhibit

There

is no

provision

the permit

for compost operations,

and Respondent was unable

produce

a permit for composting

operations.

Mr.

Johnson cited

the existence of landscape waste on the property to

be a

violation

of 35

III.

Adm.

Code 807.302 in

his

inspection

report.

Parties

Exhibit

page

11.

A response

to the allegation of

unpermitted

composting

operation

existing

on the site

was

received

from the Respondent,

authored

by Pam Shourd,

by the

Illinois EPA

on January

1990.

Parties

Exhibit

11,

page

Ms.

Shourd claimed

that the composting

was

being

conducted on

farm property belonging

CRS, Partnership.

Mr.

Johnson

again observed landscape waste on

the subject property

at the time of the

January 23,

1991

inspection.

Parties

Exhibit

10,

page 2 and

3 of the narrative.

South

of the equipment shed were

piles of landscape waste.

These

piles

included tree

and shrub

trimmings and

bags

of leaves (see

photos

16,

17,

18,

and

21).

Mr.

Cronin

identified

shareholder in

the landfill

said

that

was

expecting a man with

a wood chipper to arrive at the site sometime during

the

day of the inspection

to chip

up the tree limbs and

shrubbery.

No one

arrived

with

a chipper during

the inspection.

letter from

Mrs.

Shourd

dated

12-13-90,

indicated

that the property on

which

the compost was

setting was not on

the landfill.

The letter identified the

property as

belonging

to CR5,

Partnership.

However,

a review of the landfill’s

past drawings

appear to show

the area where the landscape waste (LW) has

been

placed

part of the landfill.

Mrs.

Shourd was told

during the inspection

that the landfill would

required to

have a supplemental

permit to conduct a

composting

operation.

She mentioned that she did

not think that an Agency

permit

was necessary

if the LW was

applied

to a farm

agronomic

rate.

However,

it was landfill

property on which the

LW was

stored.

While the

adjacent farm field

to the east of the landfill was

reportedly the location where

the

LW was

to be applied,

it was

noted

that some type of crop

(probably winter

wheat)

was being

grown

it.

This would

mean that the LW would

not be

incorporated into

the field

until

after the crop

was harvested.

The following

observations were

made

at the time of

the

May 21,

1991

inspection

(Parties

Exhibit 18,

page

2 of the

narrative):

Landscape waste

was again observed

south

of the equipment shed (see photos

33,

34 and

36).

Most of the leaves and

tree and

shrub trimmings observed

the January 23,

1991

inspection

have been removed.

Mr. Laird

the

on-site

operator at

the timel said

Mr.

John

Cronin

(one

of the officers of Jersey

Sanitation Corporation)

had taken

most

of the leaves off-site.

He was

not sure

where the leaves went.

A small pile of

leaves remained

south of the equipment

shed.

It appeared that earthmoving

equipment was

used to

scrape the

leaves

and trimmings up.

The bed of the dump

truck was full

of tree and shrub

trimmings.

Mr. Laird

indicated these were

to be

removed from the

landfill

in the

near future.

Several bags of grass clippings

and a

pile of tree trimmings were

observed on the ground near the access road southeast of the equipment shed.

Mr.

Laird

said

the landfill

still gets an

occasional load

of landscape waste from

the City of Jerseyville.

According to

Mr.

Laird,

the

landfill

does

not intend

compost landscape waste,

however,

it still

appears to be handling

the City’s

landscape waste.

Wood chips

were

noted east of the equipment shed.

Mr.

Laird

said

they give

the

wood chips

away to anyone

that wants them.

The wood

chips are apparently the

tree and

shrub trimmings that were

previously chipped

at the landfill.

Whether or not the landscape waste was

actually on the property,

is clear from the

evidence that Respondent was

conducting

unpermitted

landscape waste

disposal and

compost operation

the site of

the Jersey Sanitation

Landfill.

If the landscape waste was

within the boundaries of the

landfill,

it was

a waste and

compost operation

that was

not

permitted

by Respondent’s

landfill

permit.

If the waste existed on

property outside the

boundaries of the

landfill,

it was a

landscape waste and

compost operation for which

Respondent should

have acquired

a permit and

did

not.

None of Mr. Johnson’s observations

indicated

that the landscape material was

currently

land

applied

agrononilcirates

atitife

time

of his observation.

Respondent’s

acceptance of landscape waste at the landfill

site was an

unpermitted

activity,

and thereby constituted

a violation of Section

21 (d)(1) of the Act, 415

ILCS 5/21 (d)(1).

The first violation was observed on August 30,

1990.

The violation

was continuing and on-

going

least

until

the time of the May21,

1991

inspection.

The violation continued for 263

days.

The Respondent’s violation of Sections 21(d)

of the Act, 415 ILCS

5/21

(d)C

and

III.

Adm. Code

807.301

and 302 with

respect to

Supplemental Permit No. 1992-

350-SP.

Respondent’s failure to comply

with Special Condition A.3 and A.4 of

Permit No.1992-350-SR

Section A of the special conditions

contained within Permit No.

1992-350-SF

pertain to

the landfill’s water monitoring program.

Parties Exhibit

30.

Special conditions A.3 and

A.4 of

Permit No.

1992-350-SF, provide

as follows (Parties

Exhibit

30, page 2):

The applicant

should provide

the sampling

procedures and detection

monitoring methods

the Agency.

The applicant

should submit

the background

summary of values

used

generate

the potentiometric map surfaces.

Illinois

EPA inspector Charlie

King

documented that

Respondent had

not complied with

Special

Condition A.3 and A.4 at

the time of the January 21/February

17,

1994

inspection

(Parties

Exhibit 31,

page 9 of the narrative,

Items

F and 0),

and the

November 19,

1998

inspection

(Parties Exhibit 40, page

of the checklist).

Respondent failed

to comply with

Special

Conditions A.3 and

A.4 of

its

supplemental

permit

No.

1992-350-SF,

and

thereby violated

Section 21(d),

415

ILCS 5/21,

and

Ill.

Adm.

Code 807.302.

The first violation was documented

at the time of the February

17.

1994

inspection.

The violation was

continuing

and

ongoing

until

at least the time

of the November

19,

1998

inspection.

The violation

continued

for a period

1,734

days.

Respondent’s failure to comply with Special Condition

B.6 of Permit

No.1 992-350-SP

Special

Condition

B.6 of Permit No.

1 992-350-SP

requires

placement of final

cover on

the landfill.

The condition

appears on

page 3 of the permit.

Parties

Exhibit 30,

page

documented

in his

report regarding the January 21/February

17,

1994 inspection of

the Jersey Sanitation Corporation Landfill,

Respondent had failed

meet the requirements of

Special

Condition

B.6

the landfill.

Final

cover was not

in place

at the

landfill

at the time of the

inspection.

Included

in the inspection

report is Attachment A of the Respondent’s Closure

Plan,

which appeared in

the November

1992 supplemental permit application submitted

by Andrews

Engineering

for Jersey

Sanitation

Corporation,

and which constitute a part of Permit No.

1992-

350-SF.

The schedule contained

in the

plans

as Attachment A indicate that the final

protective

layer was to

place,

at most, within

ten

weeks of initiation of closure.

Jersey Sanitation

Corporation

Landfill

ceased accepting waste on

September

17,

1992.

The final

cover should

have

been

place by

November 30,

1992.

Parties

Exhibit 30.

page

of the

narrative.

Special

Condition

B.6

includes the requirement that:

“Compaction test

results, moisture-

density curves

(ASTM D698) and

soil

data

must be

submitted

to the Agency with the

plan

sheets

closure

affidavits required

III.

Adm.

Code

Section 807.508.”

Mr.

King

documented,

his

report

regarding

his

November

19,

1998 inspection,

that

Respondent had

not submitted

the requisite

data and closure affidavits to

the

Illinois

EPA at the time of the

inspection.

Respondent failed

comply with Special

Condition

B.6

its

permit by failing

to secure

final

cover on the

landfill

November 30,

1992,

and by failing to submit

the information

required

35111.

Adm.

Code 807.508 at

least until

the time of the November 19,

1998

inspection.

The first violation of this permit

condition

occurred on

December

1992.

The

continuing violations

occurred

over a

period

of 2,130 days.

By failing

to comply

with

Special

Condition B.6,

Respondent violated

Section 21(d)(1)

and

(2), 415

ILCS 5/21(d)(1),

(2),

and

Ill. Adm.

Code

807.301

and

302.

Respondent’s failure

to comply with

Item

contained in

Attachment A to

Permit No.1992-350-SP

Attachment A to

Respondent’s

Supplement Permit No.

1992-350-SF

is the landfill’s

groundwater monitoring

plan.

Item

10 of Attachment A states as

follows.

10.

A padlocked protective

cover must be

installed over the portion of the

well casing

extending

above the ground

surface to

protect against

damage.

Illinois

EPA inspector Charlie

King documented

his

observation

that the monitoring

well

G104 was

observed

unlocked at the time of the February

17,

1994

inspection.

Parties

Exhibit

31,

page

6 of

the

narrative and

photo

No.

4 from

roll #124,

and page

10 of the narrative,

item

Respondent failed

to comply with

Item

10 of Attachment A of

its

permit at

the time of the

February

17,

1994 inspection,

and thereby violated

Section 21(d)(1)

and

(2), 415 ILCS

5/21(d)(1),

(2), and

III.

Adm.

Code 807.301

and

302.

This observation constituted

single

occurrence of the violation.

Respondent’s failure to

comply with

Permit

No.

1992-350-SP Attachment A

Special

Conditions

5(a), 6(b),

8, 16, 20,

and

Supplemental

Permit

No.

1992-350-SP,

Attachment A,

Special Conditions

5(a), 6(b),

16,

20, 21

and

22 provide as

follows:

For each

sampling

event,

the permittee

must determine

if a

significant change in groundwater quality has occurred

by:

Comparing sample

results from

each

downgradient and

upgradient well to the background data

established during

the first year

of monitoring from the

upgradient well,

order

to determine whether a significant change has

occurred.

This comparison

must separately evaluate

each

parameter for each

wefl.

The permittee shall conclude

that a significant

change

groundwater quality

has occurred

if he results of the evaluation in

Item No.

5 above indicate

that the value for any parameter

exceeds

***

The applicable groundwater quality

standards listed

in Subpart

D of 35

IAC

Fart

620 Standards.

In the event a significant change in groundwater quality has

occurred or has

been confirmed,

the permittee shall:

Notify the

IEFA,

Division of Land Pollution

Control,

Permit

Section,

in writing. within

days of the change

groundwater quality,

identifying each well and each

parameter;

Submit an assessment monitoring

plan within

30 days of

the significant change as determined

in Item

No.

6 or Item

No.

7 above

in the form of

a supplemental

permit

application.

16.

Surveyed elevation of stick-up

is to

be reported when the well is

installed (with as-built diagrams) and every two years, or

whenever the elevation

changes.

20.

The first quarterly statistical

evaluations shall

be performed on

samples taken

during

the months

of April-May

and the

results

submitted

the Agency by July

15,

1993.

21.

Comply with

quarterly schedule for

collection

and submission of

monitoring

results.

22.

Annually, the operator shall prepare an

assessment of the

monitoring

program which shall include

an evaluation of the

groundwater flow direction and the hydraulic gradients

at the

facility.

This assessment shall

be submitted

with

the monitoring

results due

on July

15.

Ms.

Nelson,

in her

report regarding the Illinois EPA’s May

1994 sampling

event

conducted at the landfill,

documented

the fact that the

Illinois EPA had

not received the

evaluation required

by Special Condition

5(a).

Pursuant to

Special

Condition

20,

the evaluation

required

by Special

Condition 5(a)

was to

received

by the

Illinois

EFA by July

15,

1993.

Parties

Exhibit

34, page

31.

At the time

Ms.

Nelson

generated

her

report, October 24,

1994,

the evaluation had

not been

received by the

Illinois

EPA.

As of October 24,

1994,

the

evaluation required

by Special Condition

5(a) was 466 days

overdue.

At hearing,

Mr.

King

testified that

Respondent Jersey

never had submitted the evaluation required

by Permit

No.

1 992-350-SP Attachment A Special

Conditions 5(a)

and

20.

Tr at

172

-175.

Permit No.

1992-

350-SF was

effect until October 5,

1999,

when the

Illinois EPA issued

Permit No.

1999-209-

SF.

Failure

to comply with

these permit

conditions

until the time at which the

new supplemental

permit was

issued represents an additional

1,806

days of continuing violation.

The total

number of days the

Respondent violated this condition

2,272 days.

Respondent failed

comply with

Attachment A,

Special

Conditions

5(a) and

20 of

its

Permit

No.

1992-350-SF,

and thereby violated

Section

21 (d)(1) of the Act,

415

ILCS

5/21 (d)(1).

At the time of the November 19,1998

inspection, the

Illinois EPA inspector documented

that

Respondent had failed to

comply with

Attachment A,

Special

Condition 6(b) and

Parties

Exhibit 40,

page 6 of the checklist.

At hearing,

Mr.

King

testified that Respondent Jersey

Sanitation Corporation

has,

despite documented

exceedences of the groundwater standards

among the results

of sampling

conducted

the Respondent at the

site,

continued

to fail

notify the

Illinois

EPA, in writing,

the change in groundwater

quality at the

site, and

has failed

to submit an

assessment monitoring

plan.

Tr at

172 -175.

Respondent Jersey

Sanitation never

complied

with Attachment A Special Conditions

6(b) and 8 of its permit.

Respondent’s

failure

comply with special

conditions of

its

permit is a violation of violated

Section

21 (d)(1)

and

(2)

the Act,

415

ILCS 5/21 (d)(1),

(2).

As stated in

this

brief previously, the first exceedences of the

Class

II groundwater standards were detected

the results

of sampling

conducted at

the

downgradient wells

at Jersey

Sanitation

Corporation landfill

November 26,

1991.

As of April

30,

2004,

a total of 4,535 days will have

lapsed

since the initial

violation of groundwater

standards

at the

landfill.

In that Permit No.

1992-350-SP was

issued

February

1993,

February 9,

1993

is considered the first day of violation of the Attachment A Special

Conditions

6(b) and

that the next supplemental

permit, Permit No.

1999-209-SF was issued on

October 5,

1999,

the total number days that Respondent continued

violate these special

conditions

is 2,428.

At the time of the November 19,1998 inspection,

the

Illinois EPA inspector documented

that Respondent had

failed

to comply with Attachment A,

Special

Condition

16.

Parties

Exhibit

40,

page

6 of the checklist.

The Respondent had

not provided confirmation

that the stick-up

elevations have

been re-surveyed

since their initial

installation.

The special condition

requires

that a confirmation

submitted

to the

Illinois

EPA every

two years.

By failing

to comply with

Permit

No.

1992-350-SF

Attachment A Special Condition

16,

Respondent violated

Section

21(d)(1)

and (2) of

the Act, 415

ILCS 5/21(d)(1),

(2).

In that

Permit

No.

1992-350-SF was

issued on

February

1993,

February 4,

1993 is considered the

first day

of violation

of the Attachment A Special

Conditions

16.

As of November

19,

1998,

total of

2,113 days

lapsed

since

the

initial violation

of Special

Condition

16.

Included in

the list of apparent violations that

is contained

within

Ms.

Nelson’s October

100

24, 1994

report regarding the

Illinois

EPA’s May

1994 sampling

event (Parties

Exhibit 34, page

33), is documentation of Respondent’s failure to

comply with

Permit

No. 1992-350-SF

Attachment A Special

Condition 21:

Several required parameters were

not analyzed

for during

the first quarterly

sampling even following

the issuance of the supplemental

permit

1992-350-SF,

dated

February

1993.

The parameters that were not analyzed for

(in

any of

the wells)

included: cyanide, cadmium,

iron,

lead,

manganese,

mercury,

ammonia, TOC and

TOX.

Also a detection limit of 50 ug/L was

used for two consecutive quarters

after the

620 groundwater standards were

in effect

and

the

issuance of the supplemental

permit.

The detection limit for

50 ug/L was

too

high

because the Class

standard

was 7.5

ug/L.

As documented

in the October 24,

1994 report. Respondent failed to

comply with

Attachment A Special Condition 21

and

thereby violated

Section

21 (d)(1) and

(2) of the Act, 415

ILCS

5/21(d)(1),

(2).

As documented

in Parties

Exhibit 34, the first annual assessment

that was to

submitted

response to

this condition was

due on July15,

1994.

At the time that Ms.

Nelson

issued

her report on the

Illinois

EPA’s May

1994 sampling

event at the

landfill,

the annual

assessment had

not been

received.

Ms.

Nelson’s

report was

issued

in October

1994.

Parties

Exhibit 34, page

33.

Included among

the list of violations

documented

the time of the November

19,

1998

inspection,

is a

violation

noted on

page 6 of Farties

Exhibit

40, which

reads as

follows:

“Attachment A,

Special

Condition

22.

The Respondent has failed

provide

to the Agency an

assessment report of the monitoring

program

to include an

elevation of the groundwater flow

direction

and the hydraulic gradients

of the facility.”

As documented

Charlie

King’s report regarding

his

May

17,

2002

inspection of the

Jersey

Sanitation Corporation

Landfill,

Respondent had

never complied

with

Item 22

Attachment A of Permit No.

1992-350-SF as of the date of the inspection.

Mr.

King

testified

101

that Respondent Jersey

has since

May

17, 2002

not submitted,

nor has ever submitted,

annual

assessment in

compliance with

item

22 of Attachment A of Permit No.

1992-350-SP.

Tr at

172

-175.

Respondent has failed

to comply with

Attachment A Special

Condition

22,

and

thereby violated

Section 21(d)(1) and

(2) of the

Act,

415 ILCS 5/21(d)(1),

(2).

In that

Permit

No.

1992-350-SF was issued

February 8,

1993,

February

1993

is considered the first day of

violation

of the Attachment A Specjal

Condition

22.

that the next supplemental

permit,

Permit

No.

1 999-209-SP was issued

October 5,

1999,

the total number of days that Respondent

continued

violate this condition is 2,428.

The Respondent’s violation of Sections

21(d)

and Section

22.17, 415 ILCS

5121(d)

and

22.17, and 35111.

Adm.

Code 807.524(a) with respect to Supplemental Permit

No. 1999-209-SR.

Section

22.17 of the Act, 415

ILCS 5/22.17,

provides,

pertinent

part:

Landfill post-closure

care

The owner and operator of a

sanitary landfill

site that is not a

site subject

subsection (aS) or

(a.10) of this

Section

shall monitor gas, water

and

settling at the completed site

for a

period

15 years after the

site

completed orclosed,

or such

longer period as may be

required

Board

or federal

regulation.

The owner and

operator of a

sanitary landfill

that is not a

facility subject

subsection (a.5) or (a.10)

of this Section

shall take whatever remedial

action

necessary to

abate any gas, water or settling

problems which

appear during

such period of time specified

subsection

(a).

Section 807,524(a) of the Board’s Waste Disposal

Regulations,

Ill.

Adm. Code

807.524(a), provides,

in pertinent

part.

Implementation and

Completion of

Post-Closure

Care

Plan

The operator of a waste

disposal site shall implement the post-closure

care plan

commencing with

receipt

of a

certification of

closure pursuant

Section 807.508.

102

Supplemental Permit No.

1999-209-SF

(Parties

Exhibit 42), Paragraph

C.5

provides

follows:

MONITORING

During the post-closure

care period, corrective action shall be

taken

problems,

including

but not limited

the following,

occur:

Ponding

Cracks

in final cover greater than

one inch

wide

Gas

problems

Odor problems

Dead or stressed vegetation

Vegetation with

taproots growing

in areas

not

so designed

Vector problems

Leachate pop-outs or seeps

Paragraph

1(c) of the Respondent’s

Post-Closure

Care

Plan

states that areas

standing water found within the fill

boundary will

be graded

and/or filled.

Parties Exhibit 42,

and

Parties

Exhibit 41, Attachment 5,

page 2.

As documented

in Parties

Exhibit 43, Charlie

King’s report regarding

his

June

6, 2000

inspection

of the Jersey

Sanitation

Corporation Landfill,

approximate 45 foot by 30 foot area

of ponded

water in marsh-like conditions existed

top of the Respondent’s landfill,

near the

south

center of the landfill

mound.

Parties

Exhibit 43, page 4 of the narrative

and

page 6 of the

checklist.

Further,

on June

2000,

the

Illinois

EPA inspector documented experiencing

a gas

odor by the west gas

probe.

Parties

Exhibit 43, page

3 of the narrative

and

page 6 of the

checklist.

the time of the June

2000 inspection,

the Illinois EPA

inspector observed

numerous cracks

in the

final

cover greater than

one inch wide.

Parties Exhibit

43.

the date

of the June

6, 2000

inspection,

RSC,

Inc.

Landfill

personnel were

repairing

large crevice that

was over 25 feet

10 feet and

over a foot deep

in places,

and

two other large rills were

103

observed as well.

Parties

Exhibit 43,

page

of the

narrative.

As stated above,

on June 6,

2000, gas and

odor problems were detected around

the west gas

probe.

Parties

Exhibit 43,

page 3

of the narrative.

A hissing

noise was emitting from

a flanged

bolt-plate,

and

a strong

odor of gas was detectable.

Further,

dead and

stressed vegetation was observed on

the north

sidewall

slope,

one area was

over 8 feet

in diameter.

Parties Exhibit

43, page 3 of the

narrative.

Further, a leachate

pop-out or seep

measuring approximately

10 feet by 5 inches

was observed approximately 40 feet southwest of unmarked groundwater monitoring well

G106.

Parties

Exhibit 43, page

4 of the narrative,

and

photos

10,

11,

12,

16.

At the time of the inspection,

the operator the landfill,

Mike Cassons,

indicated

Mr.

King

that he was doing

his

best to

have

both

landfills

in the

best condition

possible.

Parties

Exhibit 43, page 3 of the narrative.

By both landfills,

was

referring to the

RSC,

Inc.

Landfill

and

Jersey

Sanitation

Corporation Landfill.

At the time

of the inspection, the extent and

quantity of infractions would

indicate that

conditions had been allowed

go uncorrected

for a

period time.

Otherwise

the crevices

and

rills would not be

numerous

or deep.

The ponded

water would have

been corrected,

would have

the leachate

pop-out.

Mr.

King’s observations of ponded and standing

water,

gas

releases and

gas odors,

crevices and

rills,

dead

and

stressed vegetation

and a

leachate pop-out at the time of the June

2000

is documented

evidence

of Respondent’s failure to

comply with

Permit No.

1999-

209—SF

Special Condition

C.5

and

paragraph

1(c) of

its

Post-Closure Care

Plan,

and

thereby

Respondent’s

violation of

Section 21(d)(1)

and

(2) and

Section 22.17 of the Act,

415

ILCS

5121(d)(1),(2)

and

22.17,

and

III.

Adm.

Code 807.524(a).

COUNT V

The

Respondent’s failure to

provide adequate

cover on

refuse

Section

21(o)(5) of the

Act,

415

ILCS

5121(o)(5),

provides in

pertinent part, as follows:

104

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

any of the following

conditions:

uncovered

refuse

remaining from

any previous operating

day or at the conclusion

of any operating

day,

unless

authorized

by permit.

Section

807.305 of the Board’s Solid Waste

Disposal

Regulations,

III.

Adm.

Code

807.305, provides,

pertinent part, as

follows:

Cover

Unless otherwise specifically

provided

by permit, the following cover

requirements shall

be follows:

Daily Cover

a compacted layer of at least

6 inches of suitable

material shall

placed

on all

exposed

refuse at

the end of each

day of operation.

In all

the inspection

reports through

1994,

Parties

Exhibits 7 (August 30,

1990).

(January 23,

1991),

(May 21,1991),

(November 19,

1991),

(February 25,

1992),

and

(September 21,1992),

inspectors documented

uncovered refuse.

The

photos

contained

many of these

reports tell the

story.

the report for the August 30,

1990 inspection,

Illinois EPA inspector Rich Johnson

documented,

page

5 of the narrative, that

it appeared

that there

were several days’

refuse

receipts

left uncovered.

The current operators

said they were trying

to get cover and

apply

it to

the area.

Several piles of soil were

noted

the vicinity of the exposed

refuse

(

see

photos

and 26).

Descriptions

of the inspector’s observations of

uncovered waste are documented

page 4 of the report.

Photos depicting

the uncovered waste

include

photos

and

22.

105

March 21,

1991, the Illinois

EPA filed

administrative

citation

against Jersey

Sanitation

based on the

Illinois

EPA’s inspectors observations at the time of the January 23,

1991

inspection.

An allegation

of uncovered

refuse was included among the violations cited

the administrative citation.

The report for that

inspection

included

in the

record

of this

proceeding

Parties

Exhibit

10.

Respondent Jersey

Sanitation

Corporation

did not file

Petition for Review in

response to the administrative

citation, and

paid

the penalty demanded

the citation

on April 29,

1991.

Parties

Exhibits

11,

12,

13,

14,

and

17.

Given that violation of

uncovered refuse at

the time of the

January 23,

1991

inspection

was satisfied by

payment of

the civil penalty assessed pursuant to

the previous administrative citation,

Complainant is

not

seeking

relief for that allegation

herein.

However,

evidence of the violation

being

brought

forth as

support for the Complainant’s allegation

that subsequent violations of daily cover

provisions were ongoing

and

repeat violations.

At the time of the January 23,

1991

inspection,

Mr.

Johnson

made the following

observations

(Parties

Exhibit

10,

page

and 2 of the narrative):

On walking

toward the active

area where refuse was unloaded,

a large exposed face of

refuse was

observed (see

photos

3, 4,

10,

11,

13,

and

26).

This face of

refuse was located

in the western

portion of the ravine being filled.

The exposed face of

refuse went from

the south

edge

of the

ravine

northward

until

it was

close to the north

bank

of the ravine where

it continued east for another

100 to

150 feet.

Mr. Antrobus

the

operator

said

had

covered the two previous operating

day’s refuse

with

soil.

However,

could

not say how long the uncovered

refuse

the fill face

had

been left exposed.

indicated that stockpiled cover material

had been

used to

cover

the previous

2 day’s

refuse and

some of the older exposed

refuse.

There was only one

small pile of soil left near the active

area to use for cover.

According to

Mr. Antrobus,

landfill employees were obtaining

soil from the north bank of the

ravine.

The

digging

along the

north

bank was discontinued because the activity was

getting

close to the

fence

installed

along the

north

property line.

Cover material

had

previously

been

obtained from

area along

the south

side of the

landfill

(see

site sketch and photo 20).

It was

indicated

Mr.

Antrobus that the scraper was

not currently

being

used in the

south

area

because the frost in the

soil

would

make

difficult for the scraper to

excavate

the

soil.

Mr.

Cronin

shareholder

the Jersey Sanitation

Corporation

was

asked whether

knew

how long

the refuse

on the fill

face had

been

left uncovered.

was unable

106

give a time or date

but did

say the landfill

had

trouble applying cover ever since

the

new officers of Jersey Sanitation

Corporation took

control

of the

landfill.

Before applying cover to the exposed face of refuse, the refuse will

have to

beregraded

and

compacted,

according

Mr. Antrobus.

indicated

the current face or refuse was

too steep and

the waste

not compacted well enough to

effectively run

the equipment

and

apply cover.

The new officers took

control

in November

1989.

The

date of the inspection was

January 23,

1991;

well over a year since

the

landfill

had

changed

hands.

Documentation of observations

of uncovered refuse

at the time of the May 21,

1991

inspection

appears on

page 4 of the narrative

in the report,

Parties

Exhibit 18.

Again, the

photos

contained within the report tell the

story.

Parties

Exhibit

18,

photos 2, 3,4,

10,

11,

12,

13,

14,

15,

16,

17, 20,

18,

19,

21,

23, 24, 25, 26, 27, 28, 35,

37.

Documentation of observations of uncovered

refuse at

the time of the November 19,

1991

inspection appear on

pages 4

and 5 of the narrative

in the report,

Parties

Exhibit 21.

The

following

photos of the inspector’s observations are

contained

in the

report:

photos

8.9,

10,

11,

12,

13,

14,

15,

16,

17,

18,

19, 26.

Documentation of observations of uncovered

refuse

at the time of the February 25,

1992

inspection

appear on pages

6 and

7 of the narrative

in the report,

Parties

Exhibit 25.

The following

photos of the inspector’s observations

are contained

in the report: photosi5,M,J,

8,9,

11,

12,

13,

14,

15,

16,

17,

18,

19, 20, 21,

22,

23, 24,

25, 28.

The Illinois

EPA conducted

inspection of the landfill

confirm that it

had

ceased

accepting

waste

on September21,

1992.

At the time of the inspection,

the inspector

documented

the following

observations

(Parties

Exhibit

27, page

of the narrative).

Although

no extensive uncovered

refuse was

observed as

past inspections,

cover

material

over the majority

of the fill

was

inadequate with

significant amounts

of refuse

sticking

through the dirt

Photos #2-3,

roll 120 depict the west end fo

the fill.

Litter and

uncovered

refuse can

seen

these photos.

107

A tarp

was

noticed folded

on top of the fill.

According to

Mr.

Cassens,

this was

being

used

alternate

daily cover

(ADC) during

rainyconditions.

A second

unused tarp was

located

by the office.

Jersey Sanitation

applied

for apemiit to use ADC,

however, this

permit has not been

issued, and

the decision date was

waived until

October 15,

1992.

The landfill

ceased accepting waste

on September 17,

1992.

At the time

of the August

30,

1990,

May21,

1991,

November

19,

1991, and

February 25,

1992 inspections,

the

Respondent failed to

place a compacted layer of six inches of cover material

exposed refuse

at the end

of each

operating

day

and

thereby violated

Section

21 (o)(5) of the Act, 415

ILCS

5121(o)(5) and

Ill.

Adm.

Code 807.305.

COUNT VI

Respondent’s

failure to

meet its financial assurance

requirements.

Respondent’s failure to

post adequate financial assurance.

Section

21.1(a)

of the

Act,

415

ILCS 5/21.1(a),

provides as

follows:

person other than

the State of Illinois,

its agencies

and

institutions,

or a

unit of local government shall conduct

any waste

disposal

operation on

or after March

1985,

which requires

permit under subsection

(d) of Section

of this Act,

unless such

person

has

posted with

the Agency a performance bond or other

security for the

purpose

of insuring closure

of the site and post-

closure

care in accordance with this Act and

regulations adopted

thereunder.

Section

807.601

of the Board’s Solid Waste

Disposal

Regulations,

III.

Adm. Code

807.601, provides as follows:

Requirement to Obtain

Financial Assurance

No person shall conduct a waste disposal operation

or indefinite storage

operation which requires a permit under Section 21(d) of the Act unless

such

person

has provided financial assurance

accordance with this

Subpart.

Section

807.603

of the Board’s Solid Waste Disposal Regulations.

Ill.

Adm.

Code

807.603,

provides,

pertinent

part, as

follows:

108

Upgrading

Financial Assurance

The operator must increase

the total amount of financial

assurance so as

to equal the current cost estimate

within 90 days

after any of the following:

An increase in the current cost estimate;

Supplemental Permit No.

1992-350-SP,

issued by

the Illinois

EPA on

February 8,

1993,

contained

the following Special

Conditions

(Parties

Exhibit

30):

B.3

Financial

assurance shall

maintained

by the operator in

accordance with

Ill.

Adm.

Code,

Subtitle

Part

807, Subpart

in an amount equal

to the current cost estimates for closure and

post-closure care.

The current cost estimate is $97,690.00;

B.4

To date,

the site operator has

provided financial assurance

totaling $39,886 as of March 4,

1992 through the establishment

trust agreement trust fund

number J9003 at the State

Bank of

Jerseyville.

The total closure and

post-closure care

cost estimate

is $97,690.00,

therefore, within

90 days

of the date of this

permit,

the site operator shall provide the Agency with documentation of

updated

financial assurance

pursuant to

III.

Adm.

Code,

Subtitle

Section 807,

Subpart

At hearing, Complainant called

Blake

Harris,

an accountant with the

Illinois

EPA’s Waste

Reduction and

Compliance

Section,

Bureau

of Land,

testify regarding Jersey Sanitation’s

compliance with financial

assurance

requirements.

Ms.

Harris testified

that

had

served

in his

current position since

February of 1999.

His

primary responsibilities included review of financial

assurance records and

facilities’

compliance with financial

assurance

regulations.

Tr.

at 56-57.

An overview of his

education

and

responsibilities

his

current position

is includedinthe record

of this proceeding

Complainant’s

Exhibit

Mr.

Harris testified

that Respondent Jersey Sanitation

Corporation

failed

to meet the

requirements of Permit No.

1992-350-SP,

Special

Condition 8.4,

by failing

to provide

updated

financial

assurance documentation

May

1993.

Tr.

at 60-61.

109

testified that nothing was

received from Jersey Sanitation

documenting the total

amount

had

in trust as

financial assurance for the

landfill

until

the Illinois EPA received the

annual

evaluation of the trust fund from the Jerseyville

State

Bank,

on October

20,

1993.

Mr.

Harris testified

that the amount

in trust reported by the bank

that date was

$50,382.06.

Tr.

62.

The October 20,

1993 evaluation was entered

in the

record

of this proceeding as

Complainant’s

Exhibit

Mr. Harris testified

that,

pursuant to the permit requirements

in effect

at the time,

Respondent Jersey Sanitation was supposed

to have

$96,690

posted for financial

assurance for the Jersey Sanitation

Corporation Landfill.

Mr.

Harris testified

that the bank’s

evaluation was submitted

to the

Illinois

EPA pursuant to

the bank’s

trust agreement,

and

would

be submitted

to the

Illinois

EPA

as a statement upon which they could

rely as

accurate declaration of the amount available in trust.

Tr.

at 61-62.

Mr.

Harris next identified

and testified to the amounts

reported

the bank’s evaluation

statements for the years

1994 through

1998.

Tr.

at 63-64,

Complainant’s

Exhibit

The

amounts reported are as follows

(Tr.

at 64,

Complainant’s Exhibit 5):

For 1994,

$52,336.95

For

1995, $54,895.74

For

1996, $56,853.51

For

1997, $59,300.63

For 1998,

$61,904.28

Mr.

Harris testified that,

as these

numbers show,

through the date of February

1993

November

1998,

Respondent Jersey Sanitation

had

failed

to secure the amount

financial

assurance

required

by its

permit.

Tr.

at 64

When

Permit

No.

1999-209-SP was

issued, within

that permit, the

Illinois

EPA approved

submitted

cost estimates

in the amount of $62,775.

Parties Exhibit 42,

Tr.

at 68.

Mr.

Harris

testified that,

as of November 2,

1999,

the bank’s evaluation of Respondent Jersey Sanitation’s

Trust fund

indicated

amount

of $64,186,50,

relying on

Complainant’s

Exhibit

Mr.

Harris

110

testified

that at the time Permit No.

1999-209-SP was

issued,

Respondent had

adequate

finance assurance and

was

compliance with financial

assurance requirements.

Tr.

at 69.

Respondent failed

to comply with

Special

Condition

B.3 and

thereby violated

Section

21(d) and

Section

21.1(a) of the Act, 415

ILCS 5/21(d),

21.1(a),

and

807.603.

The first day

violation was

May 8,

1993.

The violation was

ongoing

from

May 9,

1993

until

October 20,

1993,

which totals

164

days.

Respondent failed to

comply with

Special

Condition

B.4

and thereby

violated

Section

21(d) and

Section

21.1(a) of the Act, 415 ILCS 5/21(d),

21.1(a), and

III.

Adm.

Code 807, 601

and

807.603.

The first day of violation was

February

1993.

The violations

were

ongoing

from

February

10,

1993

until

at least

November 5,

1998,

which totals 2,093 days.

Respondent’s failure to timely file biennial revisions of cost estimates

Section

807.623 of the Board’s Solid Waste

Disposal Regulations,

35111.

Adm.

Code

807.623,

provides as follows:

Biennial

Revision

of Cost Estimates

The operator must revise the current cost estimate at least once

every two years.

The

revised current cost estimate must

filed

on or before

the second

anniversary of the filing or last revision

the current

cost estimate.

The operator must review the closure and post-closure care

plans

prior to filing a

revised

cost estimate in order

to determine whether

they are consistent

with current

operations

and

regulations.

The

operator must either certify

that the

plans

are

consistent,

or must

file

an application

reflecting new

plans.

The operator must prepare new closure and

post-closure

cost

estimates

reflecting current

prices for the items included

in the

estimates.

The operator must file

revised estimates even

if the

operator determines

that there

are no changes

the

prices.

Supplemental

Permit

No.

1992-350-SP,

issued

by the

Illinois EPA

February

1993,

111

contained the following

Special

Conditions

(Parties Exhibit

30):

B.5

The operator shall file

revised

cost estimates for

closure

and

post-closure

care at

least every two years

accordance with 35

III. Adm.

Code,

Subtitle

G, Part 807,

Subpart

The next revised

cost estimates

are due

before

March

15,

1993.

Mr.

Harris testified that Respondent Jersey Sanitation

failed to comply with

Special

Condition 8.5 of Permit No. I 992-350-SP,

from the date

that the revised

cost estimates were

originally due,

May

15,

1993,

until

the time at which Permit No.

1 999-209-SP was

issued

October 5,

1999.

Tr.

at 64- 68.

indicated that the requirement is not

met until

the

submitted

revised cost estimate is approved

and

included

in a supplemental permit.

testified that the records

in the permit file, referencing

Complainant’s

Exhibit

indicate

that

after the Permit No.

1992-350-SP was

issued, and

subsequent to

March

15,

1993,

supplemental

permit was not

issued to

Respondent Jersey

Sanitation

Corporation

until

October

1999.

Therefore,

Respondent was out of compliance

with

this permit special condition from

March

15,

1993 until October 5,

1999.

Respondent failed to comply with

Special

Condition

B.5, Permit

1992-350-SP, until

October 5,

1999,

and thereby violated Section 21(d)

and

Section 21.1(a) of the Act, 415 ILCS

5/21(d),

21.1(a).

and 35

III.

Adm.

Code 807, 302

and 807.623.

The first day of violation was

March

15,

1993.

The violations continued from

March

16,

1993

until

October 5,

1999, a total of

2,393 days.

Mr.

Harris testified that Respondent Jersey

Sanitation

currently is not in

compliance with

the Board’s regulations that require submission

of revised

cost estimates at least every

two

years.

Tr.

at 69.

Mr.

Harris testified

that Permit

No.

1999-209-SP requires that a revised

cost

estimated be submitted

on March

15.

2001.

Mr.

Harris testified that Respondent Jersey

Sanitation

Corporation

had

not submitted

a revised

cost estimate

March

15,

2001,

and

as of

112

the date of his testimony,

has

not submitted

a revised

cost estimate.

Mr.

Harris testified that since a cost estimate

revision

had

not been filed

required by

the permit and

the financial

assurance

regulations,

he could not

make

a determination

as to

whether Respondent currently is

compliance with

financial assurance

requirements for the

landfill and

whether the appropriate amount of financial

assurance

is posted.

Tr.

at 70.

Respondent

realized an

inappropriate advantage over time due to

its failure

comply with its

permit’s

and the

Board’s financial assurance

requirements.

Mr.

Harris testified that he calculated

the economic benefit that Respondent Jersey

Sanitation

realized from

not fully meeting

its

financial assurance

requirements from

1993 until

1999.

The full

explanation

of his

calculation appears

in the record

of this proceeding atTr. 71-

79.

Mr.

Harris testified

that, using conservative interest

rates,

Respondent realized

a benefit

of $25,233.53

by not meeting financial

assurance requirements

for the subject landfill.

A table

showing

Mr.

Harris benefit calculations was

entered

hearing

Complainant’s

Exhibit

Complainant’s

Exhibits

10 and

were entered

in support of the interest rate Mr.

Harris

chose to

use for this calculation.

Mr.

Harris pointed

out in

the course of his testimony, the point of the benefit

calculation

to show the advantage

a landfill

facility that does not comply with

the financial

assurance

requirement gains from

its non-compliance,

in comparison

to a facility

that does

comply.

The calculation reveals the inappropriate advantage

the facility has gained

by not

complying

with

the Board’s regulations.

Tr. at

96.

113

COUNT VII

Respondent’s failure to timely complete closure and

comply with closure

requirements

Section 21

of the Act, 415 ILCS

5/21, provides,

pertinent part,

as follows:

No person

shall:

Conduct a sanitary landfill

operation which

required

have a

permit under Section (d) of

this Section,

in a manner which results

in any

of the following

conditions:

failure to

provide final cover within time

limits

established

by Board

regulations;

Section

22.17 of the Act,

415 ILCS 5/22.17

(1994),

provides as follows:

Landfill

Post-Closure

Care

a.10

The owner and

operator of a MSWLF

unit that accepts

household

waste

on or after October

1991,

but stops

receiving waste

before October

1993,

and

installs final

cover more than 6

months after the receipt of the final volume

of waste shall conduct

post-closure care at the site for

a period

30 years

after the site

is completed or closed,

or such other

period as

may

approved

by the Agency pursuant

to Board

or federal

rules.

Section

807.305(c) of the Board’s Solid Waste Disposal

Regulations,

Il.

Adm. Code

807. 305(c),

provides

as follows:

Closure

Plan

Unless otherwise

specifically provided

by permit, the following

cover

requirements

shall

be followed:

Final Cover

compacted layer of

not less

than two feet of

suitable material

shall

be placed

over

the entire surface

of each

114

portion of the final

lift not later than 60 days following

the

placement of refuse

in the final

lift,

unless

a different schedule

has

been authorized

in the Operating

Permit.

Section

807.318 of the

Board’s Solid Waste Disposal

Regulations,

III.

Adm. Code

807.318

provides,

pertinent part,

as follows:

Completion or Closure Requirements

***

The owner or operator shall take whatever

remedial action

necessary to abate any gas, water or settling

problems which

appear during the three year period.

The owner or operator shall,

upon completion

or closure, file

detailed description

of the site,

including a

plat, which the

appropriate county

land

recording authority for the county in

which

the site is

located.

Section

807.502 of the Board’s Solid Waste

Disposal

Regulations,

III.

Adm.

Code

807.502 provides as follows:

Closure Performance Standard

addition

to the specific requirements

of this Part, an

operator of a

waste

management site shall close the site in

a mannerwhich:

Minimizes the

need for further maintenance; and

Controls,

minimizes or eliminates

post-closure

release to waste,

waste constituents, leachate, contaminated rainfall,

or waste

decomposition products

the groundwater or surface waters or

to the atmosphere to the extent necessary to

prevent threats

human health or the environment.

Respondent Jersey Sanitation

Corporation

ceased accepting waste

the landfill

September 17,

1992.

Parties

Exhibit 27,

first page of the

narrative.

The Illinois

EPA conducted an

inspection of the landfill

confirm

that it

had

ceased

accepting waste, on

September 21,

1992 inspection.

At the time of the inspection,

the

inspector documented

the following observations

(Parties

Exhibit

27, page

of the narrative).

Although

no extensive uncovered

refuse was

observed

as at

past inspections,

cover

115

material

over the majority of the fill was

inadequate with significant amounts

refuse

sticking through the dirt

Photos #2-3,

roll

120

depict the west end fo the fill.

Litter and

uncovered refuse

can

seen

in these

photos.

A tarp was

noticed folded on top

of the fill.

According to

Mr. Cassens,

this was

being

used

as alternate daily cover (ADC) during

rainy conditions.

A second

unused

tarp was

located

by the office.

Jersey Sanitation applied for a permit

to use

ADC, however, this

permit has

not been issued,

and

the decision date was waived until

October

15,

1992.

As documented

his

report

regarding the January 21/February 17,1994

inspection

the Jersey

Sanitation

Corporation Landfill,

Charlie King

observed

that Respondent failed to

establish

and

maintain final

cover at the time of the inspection.

Included

in the inspection

report

is Attachment A of the Respondent’s

Closure Plan,

which appeared

in the November 1992

supplemental permit

application submitted

by Andrews

Engineering for Jersey Sanitation

Corporation,

and which constitutes a part of

Permit No.

1992-350-SP.

The schedule

contained

in the plans as Attachment A indicates

that the final

protective

layer was to

be in

place within

ten weeks of initiation

closure.

Jersey Sanitation

Corporation Landfill

ceased accepting

waste on

September

17,

1992.

The final

cover should

have

been

in place

by November 30,

1992.

Parties Exhibit

30,

page

of the narrative.

Special

Condition

B.6

includes the requirement that:

“Compaction test

results, moisture-

density curves

(ASTM

D698)

and

soil

data

must be

submitted

to the Agency

with the

plan sheets

and

closure affidavits

required

by 35

III. Adm.

Code Section

807.508.”

Mr.

King

documented,

his

report regarding

his

November 19,

1998 inspection,

that

Respondent had

not submitted

the requisite data

and

closure affidavits to the Illinois

EPA

the time of

the

inspection.

Respondent failed to

comply with

Special Condition

B.6

its permit by failing

to secure

final

cover on the

landfill

by November 30,

1992,

and

by failing

submit the information

required

35111.

Adm.

Code 807.508

until the time

of the November

19,

1998 inspection.

116

Observations of Respondent’s failure to

establish and

maintain final

cover,

and

failure to

correct and

prevent

leachate seeps, flows

and

ponding,

emissions of gas and gas

odors,

and

accumulations of ponded or standing

water at the

landfill

after September 17,

1992,

are

included

Section

I and

concerning Respondent’s

failure to

control

leachate and Section

concerning

Respondent’s causing

or allowing

refuse to

exist in flowing water,

and will not be

repeated

here.

the time of the February

17,

1994 inspection.

Illinois

EPA

inspector Charlie

King

observed

waste

protruding from the

landfill

cover on the south side

of the filled

area

mound

(Parties

Exhibit

31, page 7 of the narrative and

photo #11,

roll

124),

and hundreds

of erosion

channels

and

crevices.

Parties

Exhibit

31,

including

photos attached therein.

Parties Exhibit 31, the

Illinois

EPA report

regarding

its January 21/February

17,

1994

inspection,

on page

3 of the check-off list (item 32),

and

page

12 of the narrative,

again

referencing

item

32,

Mr.

King

documented

observations of noticeable gaseous odors

emanating

from the landfill

two locations.

A site sketch included within the October 24. 1994 report of the

May

17,

18 and

19,

1994

Illinois EPA sampling event at the

landfill

shows

the location

of numerous leachate seeps

at the time of the

sampling

event.

Parties

Exhibit 34.

As documented

Parties

Exhibit 40, at

the time of the November 19,

1998

inspection

was observed that two gas vents

had been installed

at the landfill.

Parties Exhibit 40. page 3

and 4 of the narrative.

page

5 of the narrative contained

Parties Exhibit 40,

documented

that the site description

contained within a February

1997 application for

supplemental

permit and

certification

of closure

included

gas

control vents and

gas

flares.

The

site sketch

contained

within Parties Exhibit 40 includes

locations of gas vents

and flares.

Photos

7 and

8 of the report depicts

the gas flares.

Both the flares

were functioning

the time

of the inspection,

indicating

that they were flaring off gas

emitting

from the

landfill,

and the

117

“Solar Shock”

device was

also operating

at the time of the

inspection.

Parties

Exhibit 40,

page

4 of the narrative.

As documented

Parties

Exhibit 43, Charlie

King’s report regarding

his June

6. 2000

inspection of the Jersey Sanitation Corporation

Landfill,

approximate 45 foot by

30 foot area

ponded water

marsh-like conditions existed

on top of the Respondent’s landfill,

near the

south

center of the

landfill

mound.

Parties

Exhibit 43, page 4 of the narrative and page 6

of the

checklist.

Further,

on June

6, 2000,

the

Illinois

EPA inspector documented

experiencing

a gas

odor by the west gas

probe.

Parties

Exhibit 43, page 3 of the narrative and

page 6 of the

checklist.

At the time of the

June 6,

2000

inspection,

the

Illinois

EPA inspector observed

numerous cracks in

the final

cover greater than

one inch wide.

Parties Exhibit 43.

On the date

of the June

2000 inspection,

RSC,

Inc.

Landfill

personnel

were repairing a

large crevice that

was

over 25 feet by

feet and

over a foot deep in

places, and

two other large

rills were

observed as well.

Parties

Exhibit 43, page 3 of the

narrative.

As stated above,

June 6,

2000,

gas and odor problems were detected around

the west gas

probe.

Parties

Exhibit 43,

page 3 of the

narrative.

A hissing

noise was

emitting from

a flanged

bolt-plate,

and

a strong

odor of gas was detectable.

Further,

dead and

stressed vegetation

was

observed

on the

north

sidewall

slope,

one area was

over 8 feet

diameter.

Parties Exhibit

43, page 3

of the

narrative.

Further,

a leachate

pop-out or seep

measuring

approximately

10 feet

by 5 inches

was observed

approximately 40 feet southwest of unmarked groundwater monitoring

well

G106.

Parties Exhibit 43, page4of the

narrative,

and photos 4,6,7,8,10,11,12,

16.

It is documented

in the report for the January 21/February

17,

1994 inspection

that the

time

of the inspection,

Respondent Jersey

Sanitation

had

not filed

a plat of

the landfill with

the

Jersey County

Record

of Deeds.

Parties

Exhibit 31,

page

of the

narrative.

Parties

Exhibit

includes,

as Attachment 3,

documentation that a plat

of the

landfill was

filed with the Jersey

118

County Recorder of Deeds,

in compliance with

closure

requirements,

on January

31,

1997.

Respondent failed

to comply with

closure requirements

requiring

to file a

plat with the county

recorder in a timely manner,

and

thereby violated

III.

Adm. Code 807.318(c).

The first

documented violation

of this provision occurred

at the time of the February

17,

1994 inspection.

The violation was ongoing

until

January31,

1997,

or a total of

1.078 days.

Respondent’s

Permit No.

1999-209-SP,

issued October 5,

1999,

acknowledged

receipt

of certification of completion

of closure for the

landfill.

Respondent failed

to establish and

maintain final

cover at the

landfill

60 days after

ceasing

accept waste,

and

in fact did

not establish final

cover until

October 5,

1999,

and

thereby violated Section

21 (d)(1) and

(2) and

21 (o)(6) of the Act, 415 ILCS

2/21 (d)(1),

(2),

and

21 (o)(6), and

Ill.

Adm.

Code 807.305(c).

The first violation

of these provisions occurred on

December

1992.

These violations

continued

until

October 5,

1999,

a total of 2,497 days.

Respondent failed

to take

remedial

action to

abate gas

after it ceased accepting

waste

and as

it sought to close the

landfill,

and

thereby violated

III.

Adm.

Code 807.381(b).

Detections of gas odor and

gas

releases were documented

by inspectors at the time of the

November

18,

1998 and June

2000

inspection.

Respondent failed

to close the

landfill

manner that adequately

controlled

post-

closure releases to groundwater and

surface waters

and

to the atmosphere

and

thereby

violated

III.

Adm.

Code 807.502.

The first violation of this provision

occurred

September

18,

1992.

The violations continued

until

October 5,

1999,

a total of 2,557 days.

COUNT VIII

Respondent’s

violation of open burning provisions

Section

9 of the Act, 415 ILCS

5/9,

provides,

in pertinent part,

as follows:

person

shall:

119

Cause or threaten or allow the discharge

or emission of any

contaminant

into the environment

in any state so as

to cause or

tend to

cause air pollution

Illinois, either alone

or in

combination

with

contaminants from other

sources, or so

as to violate

regulations or standards

adopted

by the

Board

under this Act;

Cause or allow the open burning of refuse,

conduct any salvage

operation

by open burning,

or cause

or allow the burning of any

refuse

in any chamber not specifically designed for the purpose

and

approved

by the Agency pursuant

to regulations adopted by

the

Board

under this Act;

Section

of the Act, 415

ILCS 5/21

(1994),

provides,

pertinent part, as follows:

No person

shall:

Conduct a

sanitary landfill

operation which

required

have a

permit under subsection

(d) of

this Section,

a manner which

results

any of the following

conditions:

open

burning of refuse

in violation of Section 9 of this Act;

Section

3.115

of the Act, 415

ILCS 5/3.115. defines

“air pollution” as

follows:

‘AIR POLLUTION’ is the presence in the atmosphere of one or more

contaminants

in sufficient quantities

and of

such characteristics and

duration

injurious to

human, plant,

or animal

life, to

health,

or to

property,

or to

unreasonably interfere with

the enjoyment of life

property.

Section

3.165 of the Act, 415

ILCS 5/3.165,

defines “contaminant”

as follows:

‘CONTAMINANT’

any sold,

liquid,

or gaseous

matter,

any odor,

or any

form

of entry, from

whatever source.

Section

3.300 of the Act,

415 ILCS

513.3000,

defines “open burning” as follows:

‘OPEN

BURNING’

is the combustion of any matter in the open or

in an

open dump.

Section

3.535

of the Act,

415

ILCS

5/3.535,

defines

“waste” as follows:

‘WASTE’

means any garbage,

sludge from

a waste treatment

plant,

120

water supply treatment plant,

or air pollution control

facility or other

discarded

material,

including solid,

liquid,

semi-solid, or contained

gaseous material

resulting from

industrial,

commercial, mining and

agricultural operations,

and from

community activities,

but does not

include

solid or dissolved

material

in domestic

sewage, or solid or

dissolved

materials

irrigation return

flows or industrial discharges which

are

point sources subject

permits under Section

402 of the

Clean

Water Act or source,

special nuclear, or byproduct

materials

as defined

the Atomic Energy Act of 1954,

as amended (68

Stat. 9210 or any

solid or dissolved

material from

any facility subject

to the Federal Surface

Mining

Control and

Reclamation Act of 1977 (P.L.

96-87) or the rules

and

regulations thereunder or any law

or rule or regulation adopted

by the

State

of Illinois pursuant thereto.

Section

237.101

of the Board’s Air

Pollution

Regulations,

III. Adm.

Code 237.101,

defines “open burning” as

follows:

‘OPEN BURNING:’ the combustion

of any

matter

in such

a way

that the

products

of the combustion

are emitted

to the open

air without originating

or passing through equipment for which

a permit could

issued under

Section

9(b)

of the Act

(Environmental Protection Act,

Ill.

Rev.

Stat.

1981,

Ch.

111

~/2,

par.

1009(b)).

Section

237.102 of the Board’s Water

Pollution

Regulations,

Ill.

Adm.

Code 237.102,

provides,

pertinent part,

as follows:

No person shall cause

or allow open

burning,

except as

provided

this Part.

Parties

Exhibit

page 9 of the narrative,

Illinois

EPA inspector

Rich Johnson

documented his

observation

of smoldering wood debris south

of the

landfill

at the time of the

inspection.

Parties

Exhibit 7,

photos

and

12.

The waste

in the

burn

pile

was composed

boards and

landscape waste.

The site operator could

not provide Mr. Johnson

with

any details

as to

how the waste

caught on fire.

The operator indicated

the waste

had

been

burning for

several

days.

The operator had

attempted to

put soil

on the waste

extinguish the fire.

Smoke was

still

being

emitted.

Respondent caused or allowed open

burning

to occur at

the landfill

at the time of the

121

August 30, 1990 inspection,

and thereby caused, threatened

or allowed the discharge

contaminates

into the environment,

violation of Section

9(a) and

Section

21 (o)(4) of the A ct,

415

ILCS

5/9(a)

and

21 (o)(4).

Respondents caused

or allowed the open burning of waste not

exempt from

regulation,

in violation of Section

9(c) of the Act, 415

ILCS

5/9(c),

and

35111.

Adm.

Code 237.102.

III.

RELIEF SOUGHT

Factors the Board

must consider in making

its determination,

Section 33(h)

of the Act,

415

ILCS 5/33(h)

Section 33(c) of the Act,

415

ILCS 5/33(c),

provides:

making

its

orders and determinations, the

Board shall take

into

consideration all the facts and circumstances bearing upon the

reasonableness

of the emissions, discharges, or deposits involved

including, but not

limited

to:

the character

and degree of injury to,

or interference with

the protection

of the health,

genera! welfare and physical

property of the people;

ii.

the social and economic value of the pollution source;

the suitability or unsuitability of the pollution source

to the

area

in which

it is located,

including

the question of priority

of location

in the area

involved;

iv.

the technical practicability and economic reasonableness

of reducing

or eliminating

the emissions,

discharges or

deposits resulting

from such pollution source;

and

any subsequent compliance.

Respondent’s actions and omissions

have

resulted

in potential for

pollution of waters of the State, both groundwater and

surface

waters.

Respondent’s failure to properly operate the landfill and

timely certify closure have aggravated

iniurious circumstances

over

time.

Respondent’s failure to

evaluate its

groundwater monitoring

plan, conduct

groundwater assessment,

and

perform corrective

actions to

address exceedences of the

122

Board’s Class

groundwater quality standards

at the

landfill

exists

as an

aggravating

factor

that

very likely has and

continues to result

in additional

potential for pollution

waters of the

State,

both

groundwater and surface water,

at the

site,

and,

in turn,

interference with

the

protection of health, general welfare and

physical

property of the people,

and

also

interference

with

the environment.

Illinois

EPA

inspector Rich Johnson testified

that during

the time August

30, 1990 to

February 25,

1992,

conditions at the

landfill

posed

serious threat to

surface water

(Tr. at

139):

During

those five inspections, there was a

serious threat to the surface water.

And

actually,

you

had

two leachate flows going

to the Sandy

Creek

during

that period

time.

You

also

had

considerable

uncovered

refuse

that provided,

you

know, an

access

to vectors,

and

you

had the potential for allowing

the contaminants to get

into the ground

and

into the groundwater.

Respondent’s failure over time,

a total

at least

years from the date Respondent acquired

ownership and

control of the property until

it was

certified

close,

to properly

operate and

maintain

the

landfill,

most

likely caused additional

potential

injury to the health

and

welfare of

the people and

also exasperated

interference with the environment.

It is

clear from the

evidence,

as predicted

would

the

case

the

1973 subsurface

investigation

report,

Respondent’s failure to

install and

maintain drainage,

leachate

and gas

controls as well as

Respondent’s failure to

cover refuse, resulted

a greatly increased

potential

for groundwater

and surface water contamination.

The first factor under Section 33(h)

is the

character

and

degree of injury to, or

interference with

the protection

of the

health,

general

welfare and

physical property

of the

people.

This factor should

be weighed against

Respondent.

123

The Jersey Sanitation Landfill,

at the time of

its

operation

Respondent, would only be of economic

and social value to the

surrounding community, to

its

employees, and to its customers, if it

is operated

in a fashion that does

not violate Illinois environmental

laws and

regulations.

Given ongoing

violation of the Board’s

groundwater quality standards

in the water underlying this landfill,

the

landfill, even

after certification

of closure, continues to generate

external costs

and to

interfere with

the environment.

Respondent’s operation of

the Jersey Sanitation

Landfill

resulted

in leachate

flows into

Sandy Creek, contamination

of the groundwater, the existence of exposed

uncovered refuse

and

releases of odorous gas.

that the

landfill

failed to correct these

problems

during

the

years in which

it was

operating,

it transferred the cost of this environmental expense

to the

physical environment and the immediate surrounding

community.

Respondent is now claiming,

as a

corporation,

it has

no cash

reserves and

no assets

other than

the trust fund

and

real

estate of the landfill

itself.

If the Respondent is

now claiming

it cannot afford

to conduct the evaluation

of the monitoring

plan,

the groundwater assessment

and any

necessary corrective

actions,

the contamination from

this landfill

becomes an external

expense that the neighborhood

and

people of the

State of Illinois will be

forced to

bear,

and

interference with

the environment.

The second

Section

33(h) factor

is the social and

economic value of the pollution

source.

The

landfill

should be deemed

to have

no social or economic value, given the detriment

represents in the form of externalized costs.

The suitability of the pollution source. Respondent’s landfill. to the

area in which

it was located was the subiect

of a siting decision

made

many years

ago, at a time when the citizens of Jersey and

Calhoun

Counties

had an

emergency need for landfill facilities

due

to flooding.

The information

provided within the

1973 subsurface investigation

report certainly

raises

questions as to why this

landfill was

developed directly

east of Sandy

Creek

in a ravine.

124

However, as pointed

out

in testimony provided by Andrew Rathsack,

siting

procedures and

regulations for solid waste facilities to develop and

operate prior to

1990 were not as stringent

they are today.

Also,

stated

among the

documents that

constitute

Parties Exhibit

1,-which

include the

initial

applications for the development and

operation of this landfiH~itwas

developed

response to an

emergency need for landfill

facilities.

Nonetheless,

the challenges this site presented were well documented

early as

1973.

These challenges were

known to

Ms.

Shourd, a woman who testified

she

“all of the officers”

of Respondent corporation.

Tr. at

324.

a letter dated

December 13,

1990,

Ms.

Shourd

acknowledged “our landfill

design

is one that

is difficult to

manage at best.

This

is due to

the

large open areas and

having to transport dirt.”

One thing that is evident from the

record,

both the 1973 subsurface

site investigation

and

testimony from witnesses at

hearing,

is that the

land

located directly south

of the

landfiLl

was deemed

to be

suitable for development as

a landfill,

and

in fact, an

entity known

RSC,

Inc., did

develop

a landfill on

this adjoining property.

It has

been

identified to

exist 500

feet

south of the Jersey Sanitation

Landfill.

As such,

at least

a portion

of the

200 acres originally

acquired

by Jersey Sanitation

Landfill

Corporation from

Ralph Johnson has

proven a very

suitable location for the development of the

RSC,

Inc.

Landfill.

The circumstantial

evidence

introduced

in this matter indicates Jersey Sanitation

Landfill Corporation

appears

have

interconnecting

interests with

RSC,

Inc.

The third

Section

33(h) factor

is the suitability or unsuitability

of the pollution-source to

the area

in which

it is located, including

the question

of priority of location

inihesrea.Jnvohzed.

Based

on the foregoing, this factor

should not weigh

into the Board’s determination

this matter.

125

Proper closure of a landfill,

including the establishment of an

appropriate groundwater monitoring

plan, performance

of a

groundwater assessment,

and

development and Implementation of

a corrective

action plan, as well

as ongoing

maintenance of the

landfill so as to meet

all post-closure

requirements

(including

submission

of biennial

cost estimates),

are technically practicable

and economically reasonable for the Jersey Sanitation Landfill

Corporation.

At hearing,

Mr. Rathsack

testified

that a groundwater assessment would cost $9,000.

Tr,

at 395.

The amount represents an

economically reasonable expense.

Mr.

Rathsack testified

that he generated

this figure

because he

had

been

asked

his

client Jersey Sanitation

Landfill at

the time that the

1999 application

for a supplemental

permit

was drawn

up to

provide a comparison

of the

cost estimates.

Tr.

at 395.

The client wanted to

know the total amount of the cost estimate with

and without the cost of the groundwater

assessment.

So obviously,

the client was

very interested

in avoiding the cost

performing a

groundwater assessment.

Mr.

Rathsack testified that the $9,000

was

not included

in the cost

estimate submitted

the

Illinois

EPA.

Hence,

Mr. Harris’

calculation

of the inappropriate

advantage

realized by

Jersey Sanitation due to

costs avoided

this matter is relevant.

The amount of $9,000 is particularly

reasonable compared

to the amount

of money

that

must have

been

spent by Respondent to finance a

permit appeal

for the subject landfill, and

pay for

the instant proceeding

including

the participation of three of Andrews

Engineering’s

principals.

Funding

for these efforts

has been found

by the Respondent,

while there is a claim

of no money available

to fully fund

the landfill’s financial assurance

trust account nor has the

Respondent funded compliance and

corrective actions.

It is obvious from

the

record

in this case that

1992 there

was a willingness to

spend

money to

develop the

RSC,

Inc.

Landfill,

500

feet south

of the Jersey Sanitation

Landfill,

but not

spend money

to timely close the Jersey Sanitation

Landfill or to

comply with

the existing

permits by conducting

an evaluation of the monitoring

plan as part of a groundwater

126

assessment to

investigate ongoing

exceedences

at the

landfill.

is obvious

that early on Ms.

Shourd

and her fellow shareholders

took advantage

of corporate liability

shields, when they

parceled

the original

200 acres and

created

CRS, Partnership,

Ms.

Shourd

herself described

Parties

Exhibit

11,

page 2 of her December

13,

1990

letter.

Testimony

was elicited

in this matter that the Jersey Sanitation Landfill

only

10 acres

in size,

and thus

is considered

a small landfill.

Tr.

at 390.

Just because it is small does

not

mean

its

inconsequential.

Recent sample

results from

the downgradient wells

indicate a

continuing

presence of arsenic over the Class

II groundwater quality standards.

Ms.

Nelson

testified

that levels of iron

in one of the down gradient wells are very high,

the highest she

has

even seen

in groundwater sample

results from

Illinois landfill.

the matter

People

Gilmer,

PCB 99-27

(August 24, 2000) slip op

at 8,

the

Board

found

that proper closure of a

landfill,

including groundwater monitoring and

leachate collection,

is technically

practicable and economically

reasonable.

Therefore, this factor aggravated

the

violation

in that case.

In the

Gllmer

matter,

the Respondents were property owners

that ended

up with

landfill

when the operators leasing the

property left the site without the Gilmers

knowledge.

Judgment was

obtained against the entity that originally held

the lease and

operated

the

landfill.

However,

the Illinois EPA looked

to the respondents,

owners of the

property,

properly close

the site.

October

1997,

the

Illinois

EPA

commenced closure on

the property and

spent approximately $4.1

million on

the clean-up.

All

but $625,000

was

funded

the Illinois EPA.

Relying

Board

precedent,

the

Board

found

the respondents

operators,

and thus responsible for closing the

landfill.

In this context, the Board found

that the

Respondents were

responsible for closing the

landfill

and

that all

necessary costs of proper

closure of the landfill were reasonable

and

practicable.

In the instant

matter, the Respondent has

brought forward

testimony

that the subject

landfill

is relatively

small.

Respondent has

elicited

testimony that Jersey Sanitation

has

no cash

127

reserves and

its

only assets are the

landfill and

the landfill’s trust fund.

Respondent elicited

testimony that Respondent closed the

landfill three

years after acquiring it,

at a time when many

small landfills

closed

because new regulations coming

into effect would

result in

much greater

expense to

meet the requirements and

maintain compliance.

Tr.

at 388

389

Nonetheless,

unlike the respondents

Gifrner,

who unsuspectingly became owners and

operators of a landfill

when the operators abandoned the property,

the Respondent in the

instant matter knowingly acquired the property as owner with

the

intent to operate the facility

with full

knowledge of the undertaking.

Ms.

Shourd testified

that at

the time she

purchased the

landfill,

she

believed she

and

the other shareholders anticipated the

costs of taking

over the

landfill.

Tr.

at 370.

Ms.

Shourd testified that

she knew

at the time she

purchased

the

landfill

that there were regulations that applied to

it,

and

she

knew

acquiring a landfill

was a

large

undertaking.

Tr.

at 356.

She also testified that she

and the other shareholders

anticipated that

they would

generate

enough

income

to cover the

landfill

and

shut it down.

Tr.

at 358.

the

Gilmer

matter,

it should

found

in the instant matter that the costs

associated

with complying

with

Respondent’s

permit and performance of a groundwater assessment, are

economically reasonable

and technically

practicable.

The fourth Section 33(h)

factor

is the technical practicability

and

economic

reasonableness of

reducing or eliminating

the emissions,

discharges or deposits resulting from

such pollution source.

This factor should

be found to

aggravation of the violations.

128

Prior to 1995,

Respondent made little progress

in improving

conditions and

compliance with

applicable regulations at the

landfill.

Respondent has taken steps

correct a portion of the

violations cited

in the

instant matter,

albeit not in

a timely manner.

However,

no steps

have been

taken to bring

the landfill

into

compliance with

groundwater requirements

and to correct violation

of Section

12(a) of the Act, 415 ILCS

511 2(a).

Illinois

EPA inspector Rich Johnson testified

that during

the time of August

30,

1990 to

February 25,

1992,

in his

professional opinion,

the

landfill

was operated

poorly:

Each

time

I went out there during

these five inspections,

I saw

multiple days

uncovered

refuse.

saw uncompacted

refuse.

saw litter.

saw

the fill

area

not

being

correctly contoured

the way it was

supposed

to be

contoured.

My opinion

was that the landfill was operated

poorly.

What

want to see

is that they voluntarily

try

to come

into compliance

with

the Environmental

Protection Act,

and then the Illinois Administrative Code

regulations for landfills

and solid waste.

really didn’t

see that there was much

progress at

all.

Illinois

EPA inspector Charlie

King

testified as follows regarding conditions

at the

landfill

(Tr.

166-167):

Well,

it’s

pretty poor condition

1994 when

I first

inspected

it.

As is depicted

in the photographs,

there’s a

lot of erosion, there was

leachate steams observed

going

off-site,

there’s

exposed

refuse, very huge channels.

Asked about conditions

at the time of his 1995

inspection (Tr.

166 -167):

Somewhat improved.

Not

—

not as well

it could

be,

but it was

—

it was

—

there

was some

additional cover that was

provided,

there’s

—

some of

the

rills were

covered that were not covered

before.

Somewhere

in that area,

that time,

somewhere between

there and the time of

the inspection

1999,

the operators of the adjacent landfill,

RSC, started taking

care of this landfill

and

provided

much

improved

conditions there.

1994,

it was

—

I mentioned

before,

it was

poor condition.

And

the

more recent

inspections,

it’s

in much

better condition.

There’s

no exposed

refuse anymore,

that kind of thing.

Blake

Harris provided testimony

that Respondent was

out of compliance with

its

129

financial

assurance

requirements from

February 8,

1993 until October 5,

1999.

However,

since

March

15,

2001,

Respondent has failed to

submit

revised

cost estimates and, therefore,

has

been

out of compliance since that date.

Ms.

Nelson and

Mr.

King testified

that Respondeht has

never complied with

the

groundwater requirements

contained

in Permit No.

1 992-350-SP, other than submitting

quarterly

monitoring

results.

Most significantly,

Respondent has

never formally acknowledged

nor taken any

steps to correct the exceedences of the Board’s groundwater quality standards at

the

landfill.

Evidence exists within the

record

that Respondent Jersey

Sanitation

Landfill

not

paying

RSC,

Inc. to

maintain Jersey Sanitation

Landfill.

Thus,

Respondent has incurred

no cost

for any subsequent compliance obtained

at the landfill.

The

fifth

Section

33(h) factor

any subsequent compliance.

This factor

should be weighed against the Respondent.

Penalty Factors. Section

42(h of the Act. 415

ILCS 5142(h)

Section

42(h) of the

Act, 415

ILCS

5/42(h) (2002),

provides:

In determining the appropriate

civil penalty to be imposed

under

subdivisions

(a), (b)(1),

(b)(2), (b)(3) or

(b)(5) of this

Section,

the

Board

authorized

consider any matters of record

mitigation or aggravation

of penalty,

including

but not limited to

the following factors:

the duration

and

gravity of the violation;

the presence or absence of due diligence

on the part of

the violator in

attempting

comply with

the requirements

of this Act and

regulations thereunder or to

secure

relief

therefrom

provided by this Act;

any economic

benefits accrued by the violator

because of

delay

compliance with

requirements;

the amount of monetary

penalty which will serve

to deter

further

violations

by the violator and to otherwise

aid

enhancing

voluntary compliance

with

this Act

by the

130

violator and

any other

persons similarly subject

the Act;

and

the

number,

proximity

in time,

and gravity of previously

adjudicated violations of this Act

by the violator.

The

gravity of the

Respondent’s violations

has

been

significant, as

has

been the duration.

In just about each

section of this

brief, the duration of the violation has

been’calculatecl

Many

of the violations continued for periods of time greater than

5 years.

Some

have

continued

for

years

or more.

The sample

results

indicating exceedences

of the Class

II groundwater

standards were first reported

November 1991.

With regard

to violation

of the groundwater

quality standards,

this case

presents a record of

13 years

of ongoing violations.

The gravity of the violations is significant.

The

landfill violations

in the early

1 990s

posed

a serious threat to

surface and groundwater.

Ms. Shourd

admitted,

at hearing,

that the

description

of landfill conditions

in the August

30, 1990 through February 25,

1992 inspection

reports

was accurate.

Tr.

at 349.

The gravity of the situation as

described

in the inspection

reports

is aggravated

by the fact that these conditions were

predicted,

early engineering

reports, specifically the

1973 subsurface investigation,

that advised

of significant risk of

pollution and

impact

by the

landfill

if proper controls were

not installed

and maintained.

set out in

Section

the

Illinois

EPA’s permit requirements

and demands for_tha

evaluation

of the landfill’s groundwater monitoring plan,

and

particular,

the appropriateness of

the G103 well

as an

upgradient well, were

issued

and

outstanding

at the time Respondent

acquired

the landfill and

have

continued

to this day

—

span of time covering

years.

The

significance of Respondent’s

failure to abide

by these

requirements adds to~the

gravity of the

violation.

For fourteen years, this

landfill

has

utilized

a monitoring

plan

that has

not been

confirmed as truly capable

of determining

the impact of the

landfill.

Respondent’s failure to

confirm the appropriateness

of its

monitoring

plan flies

in the face of this state’s efforts to

131

guarantee controls

at landfills thereby providing for the protection

of the general welfare and

health of the people and protection of the environment,

including

protection

of the state’s

groundwater resource.

With

regard to the financial assurance

violations, it is significant that the trust account

was

insufficiently funded,

particularly in

light of the ongoing

exceedences.

As is evident

from

the record,

Respondent is claiming

it has

no assets,

or cash reserve.

Therefore,

the threat

already exists that Respondent will claim financial inability.

Respondent has not been

diligent in

addressing groundwater

reguirements

financial assurance

requirements

and landfill

contour requirements, and was not diligent is addressing uncovered

refuse,

leachate.

gas

releases and

Section

12(a) violations from

1989 until

1994.

RSCI Inc, an entity that appears to be maintaining

the

Jersey Sanitation Corporation

Landfill free of charge,

has

been

diligent in maintaining the

landfill since

1995.

As stated

above, the

Illinois

EPA inspectors testified that the

landfill was in continuing

poor condition,

in violation

of many

regulations repeatedly,

until

1995.

1995,

is apparent

that RSC,

Inc., the neighboring landfill,

took over

maintenance

of Jersey Sanitation

Corporation

Landfill.

Ms.

Shourd testified that the Respondent corporation

had

cash reserves

and

its

only assets were the

landfill

property and the landfill

trust

fund.

Asked

if any

personal

money

from the shareholders was going

into

maintenance of the

landfill,

Ms.

Shourd stated “no”,

personal money was being

used for maintenance of the landfill.

Tr.

at 367.

So,

obviously,

RSC,

Inc

is maintaining the landfill for

the Respondent free of charge.

It is obvious from

the

record

of this proceeding

that Ms.

Shourd

has been

at odds

personally with

the Illinois EPA

since the time she,

with

other shareholders,

purchased

the

landfill.

In Parties

Exhibit

35, a

report

documenting

a 1995 inspection of the landfill,

Ms.

Shourd’s continuing

conflict with the

Illinois

EPA is evident:

Mrs.

Shourd

stated that,

no offense

to me,

but she and

the other landfill owners

(of Jersey Sanitation

Landfill only) would

not be working

with

the

IEPA anymore

132

as they

have

in the past.

She stress

that they had

tried

to do whatever the

IEPA

wanted

in the

past,

but the Agency just didn’t want to

work with

them.

asked

her if she would

to discuss

a particular problem, or if she would

care to

expand

upon her comments, but she declined

and

stated that she said

all

she

was going

to say on the subject.

told

her that if she

changed

her mind, that

she

could contact

myself or my supervisor, David

Jansen.

At hearing,

Ms. Shourd

testified

that she

met with

Illinois

EPA

inspector in

late

1988

to discuss

her,

and

her fellow investors,

potential

purchase

of the

landfill.

She said

at the time

was

suggested to

her

by the

Illinois

EPA that she not

buy the

landfill,

and that the

Illinois

EPA

would

soon

cracking down

on the current owner of the

landfill.

Ms. Shourd testified

that

shortly after she

purchased the

landfill,

the Illinois EPA was

angry that she

and

the other new

owners bought the landfill.

Ms.

Shourd

stated at

hearing

that because the

Illinois

EPA was

angry,

it was

inspecting the

landfill

“every few weeks.”

Tr.

361.

Pertinent to

Ms.

Shourd’s comment

regarding the frequency of inspections,

at hearing,

Charlie

King

was able to provide perspective

regarding Illinois

EPA’s customary practices.

Mr.

King testified that the Illinois

EPA attempted to inspect an operating

landfill

on a quarterly basis.

Tr.

156.

Jersey Sanitation

Corporation Landfill was

still operating

1991

and was

inspected

three times

1991

—

January 23,

1991,

May21,

1991

and

November 19,

1991.

It was

also

inspected

February 25,

1992.

Ms.

Shourd testified

that “after

18 years of trying

to get somebody down there to

something

without success,

we were suddenly inundated

with

inspectors

Tr.

361.

Asked

if there was a

possibility that an

Illinois

EPA inspector could

have arrived

the

landfill,

prior to

the time she purchased

it, without her knowing

he was

there,

Ms. Shourd

responded that she could agree that an inspector may have

come

there without her seeing

him.

Tr.

at 362.

Even

though Mr.

Johnson was

not

a position

respond to

Mr.

Shourd’s testimony,

133

because it was elicited

on direct examination of

Ms.

Shourd the day after

Mr. Johnson

appeared

in court and

had been excused from the proceeding, the

record of this proceeding

makes

it very

evident why the

Illinois

EPA may have

been trying

to steer Ms.

Shourd,

individual

who

had

no experience operating

landfills,

away from the purchase.

Mr. Johnson,

as the assigned

field

inspector,

was

very likely aware of the contents of the permit file and

the development of the

landfill.

most likely was familiar with the 1973 subsurface investigation

report.

He knew the

challenges

of this

landfill.

Ms.

Shourd

most likely also

knew something

of the development history of this

landfill,

The application for supplemental

permit

1989-177-SP was

submitted

and reviewed at the

time

Ms.

Shourd was

in the process

of purchasing the

landfill.

The 1973

report was

attached and

made a part of that permit application.

It is evident from the record of this proceeding, and

particularly from Ms.

Shourd’s own

words, that

she was

angry with the Illinois

EPA even

before

she purchased

the

landfill

and

attached

meanings

to her conversations with

representatives of the

Illinois

EPA based on

her

own

belief system.

It is apparent that due to

her belief system,

she brought

a demeanor of

conflict

and a stance of resistence into efforts

to bring this

site

into compliance.

With

regard

to groundwater requirements,

it is clear from the record that Respondent

has

not exercised

due diligence

in addressing

permit requirements

and

compliance demands

issued by the

Illinois

EPA,

nor has

Respondent been diligent

in addressing the exceedences.

Respondent was not diligent

complying with financial

assurance

requirements.

never fully funded the trust fund

between

the years

of 1993

and

1999.

At this time it is again

out of compliance with

the landfill’s financial

assurance

requirements.

Respondent was

not diligent

obtaining siting

approval

from the county for the over

height condition.

The over height condition

was first identified

January 23,

1991.

Siting

approval was obtained

1999.

134

The Respondent’s failure to

adhere to the final

contour requirement of

its

permit and

also the final elevations

raised particular red

flags for Illinois

EPA

inspector Rich

Johnson

(Tr.

139-141):

I just

wanted

to get

back

to the

elevation

issue.

During the time you

were inspecting

the site,

there was an

observation that the

landfill

was out of compliance

with

its contours.

Were there any other problems

with

the dimensions of the

landfill?

Well,

also stated

it was above

its

permitted

height.

Okay.

And

how often

did you observe

that?

I think

became aware of that probably

my January

25th

—

23~,

1991

inspection.

Okay.

And

was

that situation addressed

throughout the time

you

inspected

that

facility?

No.

Okay.

And

again,

in your professional experience,

what,

if anything, does that

cause you

to observe about the operation

of this landfill?

was unsure whether the

people that were actually managing the

landfill

know

what their

permitted

heights and

conforming plan,

their permitted

plans,

actually

required them to

do.

Okay.

So it might have

appeared that there was

some

lack of understanding

even

what the permit

requirements

consisted of from

the,

at least what

the

landfill dimensions were

to supposed

be, is that correct?

Correct

Okay.

Would

that cause

you

any concern from

a point of view of the operation

of the landfill?

It did.

And

why is that?

Well,

the question would

be how they were trying

manage

the site to

prevent

standing water, acknowledge

when they filled to the correct height,

and stop

operating

that particular area.

They needed

have enough

knowledge, working

knowledge of the applications that

became part of the permits to

make sure

that

they would

comply with

all the design that went into

the

landfill.

135

With regard to economic benefit.

Respondent has benefitted from

the inappropriate advantage

gained by avoiding the cost associated

with fully funding

its financial assurance fund, and

it also

benefitted

from avoiding the

cost of a groundwater assessment.1

There are

only two dollar figures contained within the

record

of this proceeding

representing avoided costs

and

advantage gained

from

Respondent’s failure

comply.

Mr.

Harris testified that,

using conservative

interest

rates,

Respondent realized

a benefit

of $25,233.53

by not meeting financial

assurance requirements

for the subject landfill.

A table

showing

Mr.

Harris benefit calculations was entered

at hearing

as Complainant’s

Exhibit

Complainant’s Exhibits

and

were entered

in support of

the

interest

rate

Mr.

Harris

chose to

use for this calculation.

Tr.

at 71-79.

At hearing,

Mr.

Rathsack testified that

a groundwater assessment would

cost $9,000.

Tr.

at 395.

Mr.

Rathsack

testified that

generated

this figure because

had

been

asked

his client

Jersey Sanitation

Landfill at the time the

1999 application for a supplemental

permit

was drawn

to provide a

comparison of the cost estimates.

Tr.

at 395.

The client

wanted to

know the total amount of the

cost estimate with and

without the cost of the assessment.

obviously, as

stated above,

the

client was

interested

avoiding the

cost of performing

groundwater assessment.

In that

no groundwater assessment has

been completed,

it is not known

at this time,

what additional work will

need

to be done

to address exceedences of the Board’s groundwater

quality standards

at the

landfill.

The second amended complaint was filed

in this matter on January 2001.

The

hearing

commenced

in September 2003.

Therefore, complainant did

not expect to put on

evidence in

response

to the amendment to Section

42(h) that went

into

effect January

2004.

that the

hearing began in September, complainant had not identified

nor disclosed witnesses nor opinions

relevant to the additional factors

contained within the amendment

The

hearing

in this matter was

unexpectedly continued twice.

The

last day of the hearing was January

13, 2004.

136

A civil

penalty

in the amount of $65,000 will

serve to deter further

violations

by the violator and to

otherwise aid

enhancing

voluntary compliance with

this Act by the violator and

any other

persons similarly subiect to the Act

The

two

amounts that are available,

$9,000 and

$25,233.53,

that represent

cost savings

or the benefit of

costs avoided, total $34,433.00.

stated above,

the gravity and duration

of the violations

is significant.

has been

assigned

an amount of $30,567.00.

Complainant requests

that the sum of the two amounts,

$34,433.00 and

$30,567.00,

that being, $65,000.00,

be assessed

Respondent was issued an administrative citation

for two of the

violations documented by the Illinois

EPA inspector at the time of

the January 23,

1991 inspection.

Respondent paid the civil penalty

assessed for the citation.

There have been no other adiudicated

violations.

On March

21,

1991,

the Illinois EPA filed

administrative

citation against

Jersey

Sanitation.

Respondent Jersey Sanitation

Corporation

did

not file

a Petition for Review in

response to the administrative citation,

and

paid

the penalty demanded

in the citation on

April

29,

1991.

Parties

Exhibits

11,

12,

13,

14,

and

17.

CONCLUSION

Complainant respectfully requests

that the

Board:

Find that the Respondent has

violated

the Act and

the Board’s

regulations as

set forth herein;

Order the Respondent to cease and

desist from

all

violations of the Act

and

the Board’s regulations,

and specifically, consistent

with

the

requirements of Permit No.

1999-209-SP,

order Respondent

perform a

trend

analysis of groundwater sample results,

submit a groundwater

assessment

plan (to

include an

evaluation of its

current monitoring

plan

and

the appropriateness of G103

upgradient well) to

the Illinois

1 37

EPA for approval and

initiate implementation of that plan within 30

days

of approval

by the

Illinois

EPA, and,

if necessary,

submit a corrective

action/remediation

plan

to the

Illinois

EPA for

approval and

commence

implementation

of the corrective

action

plan within

days of approval

the

Illinois

EPA;

Order the Respondent to comply with

its

permit and

all

conditions

contained therein,

including the requirement

submit a

biennial revision

its

cost estimates.

Order the Respondent to submit a biennial

revision to

its

cost estimates within 60 days

of the date of the Board’s

order;

Assess

a civil penalty

of sixty-five

thousand dollars

($65,000.00) against

the Respondent;

Award

Complainant its

costs and

reasonable attorney fees.

A calculation

said

costs

and

fees shall

provided with

Complainant’s reply

brief;

Grant such other

relief as the

Board

may deem

appropriate.

Respectfully submitted,

PEOPLE

OF THE STATE

OF ILLINOIS,

r&.

LISA

MADIGAN, Attorney General

of the

State of Illinois

MATTHEW

DUNN, Chief

Environmental

Enforcement Division

BY:

,-~

JANE

MCBRIDE

Assistant Attorney General

500 South

Second Street

Springfield,

Illinois

62706

(217) 782-9031

138