ILLINOIS
POLLUTION CONTROL BOARD
September
16,
1971
ENVIRONMENTAL PROTECTION AGENCY
V.
)
PCB 71-52
BATH,
INC.
AND JOHN
L. WALKER
BATH,
INC,,
JOHN L. WALKER AND
JOHN H.
WALKER
V.
)
PCB 71—244
ENVIRONMENTAL PROTECTION AGENCY
)
CONSOLIDATED
Larry
R. Eaton, attorney
for the Environmental Protection Agency
Lloyd F.
Latendresse,
attorney for Bath,
Inc., John L.
Walker and
John
H. Walker
Opinion and Order
of the Board
(By Samuel
R. Aldrich):
On March
16,
1971,
the Environmental Protection Agency
(“Agency”)
filed
a complaint against Bath,
Inc.
and John
L.
Walker.
Respondent Bath,
Inc.
owns
a landfill
for the disposal of nonputrescible solid wastes
at
Decatur,
Illinois.
The landfill
is operated by lessees,
respondent
John
L. Walker and his first cousin,
John
H. Walker.
The complaint
alleges numerous violations
of the Environmental Protection Act and
of the Rules
and Regulations
for Refuse Disposal Sites and Facilities
(“Land Rules”).
At the hearing on July
12,
1971,
the complaint was
amended
so as to reduce the number of alleged violations
to five.
On
August 18,
1971,
Bath,
Inc.,
John L. Walker and John
H. Walker filed
a petition
for variance
(PCB 71-244)
requesting that they be granted
either:
“a)
a variance to permit them to operate without the application
of
rigorous compaction and daily covering rules until the adoption
of
new rules on these matters,
or
b)
in the alternative that petitioners
be granted a variance
for
a period of one year
if such new rules have
not by
that
time
been adopted,”
The enforcement case and
the
variation
petition are herein consolidated.
As
in similar cases involving landfills
(EPA v.
Sauget and Company,
PCB
71-29,
and EPA v.
Clay Products Co,
PCB
71-41)
the evidence
establishes certain charges and
fails to establish others.
We order
that violations cease and
a money penalty be paid.
Before addressing ourselves to the merits of the case,
two matters
require consideration.
The first concerns the applicability of the
Land Rules to the landfill site here in question.
Said rules were
promulgated in accordance with the Illinois Refuse Disposal Law
enacted
in 1965.
Section
475 of that Act specifically excepted
from its provisions any county having
a department of public health.
Macon County,
in which the landfill
site is located, was such
a county.
Respondents argue that,
although Section
475 was repealed in 1967,
the
rules passed under other sections have not been made applicable to
the counties originally
exempted.
We find this argument to be entirely
2
—
433
without merit.
In repealing Section
475,
the Legislature clearly
intended the Illinois Refuse Disposal Law to apply statewide.
The
exemption afforded certain counties by that section disappeared
with its repeal.
Since
that time,
and at all times
in question in
this
case,
the Land Rules have been fully applicable
to Macon County,
and specifically
to
the landfill
site in question.
A second matter concerns respondents’
Request for Oral Argument.
The
Procedural
Rules of the Board provide for opportunity
for oral
argument
at the Board’s discretion,
Respondents suggest
a number of
reasons why permission for oral argument should be granted.
We
find
that the merits of all substantive matters
in the instant case
are
covered in previous decisions of the Board,
or
in the
record and
Briefs of the respondents
and the
Agency.
Respondents’
request for
oral argument is denied.
The proper place to argue the merits of the
land
disposal
rules
and regulations
is in the Legislature
or
in public
hearings held by
the Board
specifically
for that purpose rather than
in an enforcement case.
This
is discussed near
the end of the opinion.
We now turn
to the merits of the
case.
Respondents
are alleged
to
have operated
the landfill
site without providing convenient sanitary
facilities
for their employe~s, in violation of Rule 4.03(c)
of the
Land Rules.
The record shows that provision was made
for sanitary
hand-washing and toilet facilities as required by the regulations
CR.
198,
199).
The “convenience” of these facilities
is somewhat
difficult to judge.
They are in
a house which is situated on
a hill,
approximately thirty-five feet above
the
fill area
(B.
99).
Respondent
Walker stated that the house
is about
a block away from the landfill
(R.
53).
An Agency inspector estimated the distance from the house
to the actual dumping area
to be three-sixteenths
to
a quarter of
a
mile
(R.
100).
Nevertheless,
we judge
the facilities
to be adequate,
As we noted in EPA
v. Clay Products Co.,
PCB
71-41,
we cannot expect
toilets every thirty feet on
a landfill
site.
We
find no violation
of Rule 4.03(c).
The Agency
alleges that respondents have not been spreading and com-
pacting refuse
as required by Rule
5,06 of
the Land
Rules.
The
evidence indicates that refuse
is normally deposited over the edge
of an advancing column.
The latter has varied
in height from
8 to
17 feet above grade
(R.
174).
The sides are apparently somewhat sloping,
but the
face
is almost vertical
(B.
59).
John
L.
Walker testified
that he scatters refuse around,
then compacts
it by running over
it
with
a bulldozer
(R.
59).
He admitted that this was
a difficult
task
(B.
62).
At
the hearings,
A.
W.
Borchers,
registered agent
for
Bath,
Inc., expressed his disagreement with the
rules.
Mr.
Borchers
asserted that daily compaction at
a landfill of
this
type is an
unnecessary hardship,
particularly in wet weather when the use of
a
bulldozer is “impractical”
(R.
236).
He stated further that
“adequate” compaction was being provided
(B.
248),
and
that excessive
compaction does not allow sufficient aeration
for rapid decomposition
(R.
261).
Whatever the merits of these arguments,
the rule
is clear.
Refuse must be spread and compacted in shallow layers as rapidly
as
it is admitted to the
site.
It is evident that the height of the
column and its steepness do not permit the degree of
compaction
required.
We
find that
a violation was proven.
Respondents allegedly
failed to provide daily cover for the refuse
as required by Rule 5.07
of the Land Rules.
There is ample proof of
such violations.
Agency inspectors testified that on several occa-
sions no cover was provided
(R.
116,
120,
121,
140,
158,
177).’
John
L. Walker admitted that cover is not always applied, particu-
larly
in winter months
(R.
65,
66).
Although admitting that refuse
sometimes isn’t covered
(1k.
250),
Mr. Borchers again disagreed with
the regulations.
He stated that daily covering in winter is impos-
sible because the cover material freezes
and cannot be used
(R.
266).
Again, however,
irrespective of the merits of these arguments,
the
rules under which the Board must make
a decision provide
for no
exceptions.
All exposed material is
to be covered at the end of each
working day.
We find that respondents are
in violation of Rule 5.07.
We note further statements by Mr. Borchers that cinders are occasion-
ally used for cover and that such material is compactable
(B.
283, •284).
In ~
and Company,
PCB 71-29,
we held that cinders are not
acceptable
as cover material because they cannot be compacted properly
and
thus allow more than minimal percolation of surface water.
The
use
of cinders for cover must cease.
The Agency also alleges that respondents have permitted improper
salvage operations
in violation of Rule’ 5.10(a)
and
(d)
of the Land’
Rules.
The record indicates that respondents salvage cast iron,
aluminum, copper and some wooden structures
(R.
70,
124,
220).
The
rules specify that all salvaged materials must be removed from the
landfill site daily, or be stored such that they do not create
a
nuisance,
rat harborage,
or unsightly appearance.
Mr.
Borchers stated
that copper is removed daily,
to prevent theft
(R.
220).
Other
metals are removed only when
a certain amount
is collected.
An
Agency inspector testified that salvaged materials were not piled up
in any particular way but were scattered over
a large area
(R.
125).
There
is also pictorial evidence that proper storage was not provided
(EPA Ex.
6).
Such practices clearly create
a potential rat harborage
and give
the landfill
an unsightly appearance.
The latter is of less
significance
than in some other landfills because,
as respondent points
out,
it is visible only from the premises.
Granted that the rules
with regard to proper salvage are in need of clarification, we find
that the Agency clearly proved a violation
in this case.
The
final allegation
is that respondents allowed underground burning
in violation of Rule 5.12(d)
of
the Land Rules.’
The rules prohibit
burning, except in an approved incinerator.
There
is ample evidence
that underground burning has occurred.
Agency inspectors observed
it on several occasions
(R.
108,
144,
145,
167,
168,
182).
Both
Mr.
Walker
and Mr.
Borchers admitted that underground burning has
occurred since NoverrJDer, 1970
CR’.
83,
216).
Respondents contended
that everything possible was done
to stop the burning,
including the
use of both dirt ,and water
to extinguish the
fire
(B.
256).
An
2
—
435
Agency witness indicated the only really effective method was
to dig
out the fire
(R.
313).
Mr. Borchers testified that this had been
tried unsuccessfully
(B.
257), but the record is inadequate
as to
just what effort was expended.
In any event,
respondents’
attempts to
extinguish subsurface fires met with little success for
a period of
several months, ending
a few months before the date of the hearing.
A
number of persons living near
the site testified that the landfill
operation created objectionable
odo’rs from time to time
(B.
315,
318,
323,
328).
While there are other possible sources of odors
(B.
332),
it seems likely that underground burning is partly responsible.
Respondents contended that they did not “allow” underground burning as
is alleged in the complaint.
It is true that respondents did not
start the fires themselves, nor did they give their consent for any
burning.
We hold,
however, that the responsibility for burning must
li~ with respondents.
To rule otherwise would be to permit an
intolerable situation to continue.
Respondents’
poor practices with
respect to compaction have likely contributed to their problems with
burning.
Improved operating procedures should minimize difficulties
in the future.
We find that respondents have allowed underground burning
One additional matter is worthy of comment.
Much testimony was re-
ceived concerning the merits of~theLand Rules,
Mr.
Borchers expressed
serious disagreement with many of the provisions of the rules.
Indeed,
Mr.
Borchers,
a member of
the State Legislature,
has sponsored
a bill
(House Bill 1844)
that would amend the Environmental Protection Act so
as to require the Board to promulgate rules
and regulations which
in
certain respects
are different for landfills handling only nonputrescible
refuse versus those that accept putrescible materials
(Resp.
Ex.
3).
That bill has been passed by
‘Lhe House and now awaits action by
the
Senate.
Clearly,
in this case we may not be guided by pending legis-
lation.
Until such legislation becomes law or the landfill rules
are otherwise modified, we must act to ensure compliance with the
existing rules.
In summary,
we find violations with respect to’spreading,
compacting,
covering, salvaging,
and underground burning.
We shall order that no
further infractions occur and assess
a penalty
for past violations
of
$2000.
From the record it is evident that the registered agent
for
Bath,
Inc.
has been largely responsible for determining the operating
practices carried out at the landfill
(B.
242,
249,
252,
254,
255).
We shall therefore require the money penalty
to be borne entirely by
the corporate respondent.
We now consider the petition
for variance,
The principal contentions
in the petition are:
1)
that daily covering of
a non-garb’age landfill
is unnecessary;
2)
that continuous spreading ~nd regular compacting
operations
of the material
as received are unnecessary;
3)
that
John
L. Walker and John
H, Walker would suffer
a hardship if required
to fully comply with
the rules pending possible adoption of new rules
because they are not now equipped to operate the landfill
in compliance
with Rules 5,06
and 5.07;
4)
that forcing the closure of the landfill
would not be in the best interest of the City of Decatur and surrounding
area.
2
—
436
We
have
held
in
the
enforcament
section
of
this
opinion
that
we
must
require
compliance
with
existing
rules
and
regulations.
We
cannot
exempt
petitioners
from
such
requirements
even
though
the
rules
may
be
changed at
same
future
date.
Granting
of
a
variance
is
dependent
upon
a
showing
o~an
arbitrary
or
unreasonable
hardship..
In
the
instant
case,
petitioners
have
for
several
year.
been
aware
of
the
rules
and
regulations
governing
land-
fills,
and
could
have
made
plans
accordingly.
It
is
not
an unreason-
able
hardship
to
require
the
people
of
Decatur
to
pay
for
disposal
of
their
nonputrescible
wastes
in
a
legal
manner.
This
opinion
constitutes
the
Board’s
findings
of
fact
and
conclusions
of
law.
ORDER
1.
Bath,
Inc.
and
John
L.
Walker
shall
cease
and desist
from
vflations
of
the
Rules
and
Regulations
for
Refuse
Disposal
Sites
and
Facilities
and
of
.the
Environmental
Protection
Act
as
follows:
a)
Refuse
shall
be
spread
and
compacted
as
rapidly
as
•
it
is
admitted
to
the
site.
b)
Refuse
shall
be
covered
daily
as
required
by
the
Rules.
c)
Cinders
shall
not
be
used
as
cover miterial.
d)
Salvaging
shall
be
carried
out
in
a
sanitary
manner,
salvaged
materials
being
removed
from
the
site
daily
or
properly
stored
as
required
by
the
Rules.
e)
Underground burning
shall
not
be
permitted.
2.
Bath,
Inc.
shall
within
35 days after receipt of this order pay
to
the
State
of
Illinois
the
sun,
in
penalty,
of
$2000,
the
penalty
to
be
borne
by
the
corporate
respondent.
2—W
I conc~ir
I dissent
I, Regina
B.
Ryan, Clerk of the Pollution Control Board, certify
that the Board adopted the above Opinion and
der this j~day of
2~b~L, 1971.
2
—
438