STATE OF ILLINOIS
)
55
COUNTY
OF
WINNEBAGO
)
BEFORE
THE
POLLUTION
CONTROL
BOARD
OF
THE
STATE
OF
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
)
)
NO:
PCB
70—2
V.
)
J. N. COOLING
)
OPINION•OF. THE BOARD
(BY MR. LAWTON):
Complaint
was
filed
by
the
Ethrironmental
Protection
Agency against
J.
M. Cooling, Respondent, alleging that during the month of July, 1970,
Respondent permitted the open burning of refuse on his property, in
violation of the Rules and Regulations governing the control of air
pollution, effective under Section 49c of the Environmental Protection
Act.
Initial Rearing on the foregoing Coztplaint was held in Rock-
ford on Septcrnber 23, 1970 at the City tIall.
At the opening of
the Hearing, the Environmental Protection Agency moved to be allowed
to file an
Amended
Complaint alleging that during thu period from
a:;r??:~’~’~1”
•litne
13. 1970 to July 27, 1970, Respondent “caused,
allowed and perani.ttod the open burnszz~uL
,.-r~,..”
L~t
..tal
~-4nn
af
Section 9(c)
of the Environmental Protoct~onAct and Rules 2-1.1
and 2-1.2 of the Rules and Regulations Governing the Control of
Air Pollution, and Rule 3.05 of the Rules and Regulations for
Refuse Disposal Sites and Facilities, and that during the period from
approximately June 13, 1970 to September 16, 1970, Respondent caused
and allowed the open dumping of refuse in violation of Section 21(b)
of the Act, and Rules 3.04, 5.06 and 5.07 of the Refuse Disposal Regu-
lations, operated a refuse dis~osalsite or facility in violation
of Rules 5.03, 5.05, .5.06 and 5.07 of the Refuse Disposal Regulations,
and caused or allowed the discharge of contaminants so as to cause
water pollution by disposing of refuse in standing water, in violation
of Section 12(a) of the Act, and Rule 5.12(c) of the Refuse Disposal
Regulations.
All of the foregoing regulations
remain
in effect pursuant to
Section 49c of the Act.
The Environmental Prctection Agency asked that
an
Order be entered
directing the Respondent to cease and desist the open burning of
refuse, the open dumping of refuse, the operation of a refuse dis-
posal site and facility in violation of the rules and regulations,
I-fl
and the disposal of refuse in standing water, and that a $10,000.00
fine
be assessed for each violation, plus $1,000.00 for each day such
violation shall be shown
to have continued.
Respondentts objection to the filing of the Amended Complaint was
overrulecYand the
Amended
Complaint
was
filed.
Respondent next made a
series of motions, the first of which prayed that the Amended Complaint
be stricken and the cause dismissed on the grounds that the Environmental
Protection Act and the Regulations were unconstitutional because of
vagueness and did not inform Respondent as to what activities
coristi—
tued a violation, and that Respondent was thereby denied due process of
law as guaranteed by the Fourteenth Amendment to the United States
Constitution.
The motion was denied by the Hearing Officer.
We sustain this
Ruling.
The applicable sections of the statute and regulations leave
no doubt
as to the activities and violations with which Respondent is
charged.
Section
9(c)
of the Act expressly prohibits
the
causing or
allowing of the open burning of refuse and the conduct of a salvage
operation by open burning.
Section
3(g) defines open burning as the
combustion of any matter in the open or in an open dump.
Section
3(k)
defines refuse
as any garbage or other discarded solid materials.
Section 2~1.lof the Rules and Regulations governing the control of
air pollution,which remain in force and effecb pursuant to Section 49(c)
of the I’ct,
expressly provides that no person
shall
conduct
a salvage
~\r~r~rflt~c)fl
by ouon
burning.
Section
2—1.2
provides
that
no
person
shall
cause,
sufler,
permit
ur
~l1o~
~
‘rn~n~~
of
refuse.
Salvage
operation is
defined as any business,
trade or industry engaged,
in
whole or
in
part,
in salvaging or reclaiming any product or material
such as, but not limited to, metals,
chemicals, shipping containers.
or drums.
Open burning is defined as any burning of combustible
materials, wherein
the products of combustion are emitted directly
into the open air without passing through a stack or chimney.
Rule
3.05
of the Rules and Regulations for Refuse Disposal Sites and Faci—
lities expressly prohibits open burning.
From the foregoing,
it
is manifest that the allegations set forth
in paragraph
1
of
the
Amended
Complaint
are
precise
and
detailed
and
not subject to a characterization of vagueness.
The same will be noted
with regard to
the
statutory and regulatory provisions set forth in para-
graphs 2,
3 and
4 of the Complaint.
Section 21(b)
of the Act provides
that no person shall cause or allow the open dumping of any refuse in
violation of regulations adopted by the Board.
Rule 3.04 of the Rules
and Regulations for Refuse Disposal Sites and Facilities prohibit open
dumping.
Open dumping is defined under the Act, Section 3(h)
to mean
the consolidation of refuse from one or more
sources in
a central
disposal site that does not fulfill the requirements of a sanitary
.landfill.
Sections 5.06 and 5.07 of the foregoing Rules go into sub-
stantial detail in providing what is required for spreading and compactifl~
1
—
86
of refuseand how cover shall be applied.
Rule 5.06 requires spreading
and compacting in shallow layers of approximately two
to three feet in
depth to be done on a daily basis.
Rule
5.07 requires cover to pre-
vent fly and rodent breeding, release of odors and the elimination
of
fire’
hazards.
The
depth
and
character
of
cover
on
a daily and final
basis
are
set
forth.
Rule
5.03
requires that the dumping of ref~sebe
confined
to
the
smallest
practical
area.
Rule
5.05
requires
that
suff-
icient
equipment
in
operational
condition
be
available
at
the
site
at all times to permit operation of the landfill according to an
approved
elan.
Rule
5.12(c)
expressly
prohibits
the
deposition
of
refuse in standing water.
Statutory
and
regulatory
orovisions,
far
1~ss
detailed
than
the
foregoing,
were
held
to
withstand
the
challenge
of
vagueness
in
the
case
of
Denartment
of
Health
v.
Owens
Corninci
Fiberglass
Corooration,
242
A.
2~’F2i
~l968)
,
affirmed
250
A.
2d11
(1969)
,
where
the
Defendant
was
found
guilty
of
violatina
a regulation enacted pursuant
to
a
New
Jersey
statute
which
merely
orohibited
the
causing,
suffering,
allow-
ing
or
permitting
the
emission
into
the
outdoor
air
of
substances
in quantities resulting
in “air pollution.
Air pollution was
defined
under
the
statute
as
the
presence
in
the
outdoor
atmosphere
of
sub-
stances
in
quantities
which
are
injurious
to
plant
or
animal
life
or
to
property
or
unreasonably
interfere
with
the
comfort
and
enjoyment
of
life
and
property
within
the
state.
Tne
h~
•T~scv
~t’~
and
requlations,
in
effect,
adopted
a
general
nuisance
approach
without
the
spacz:aueiu.~i~
~
~
Ti Ii—
nois
Act
and
requla~ions,
which
not
only
detail
whet
is
prohibited.,
~ut
likewise
specify
what
must
he
done
affirmatively
in the operation of
facilities
suchas
conducted
by Respondent.
Respondent’s
remaining
motions
were
as
follows:
1.
That
a
continuance
be
granted
on
the
grounds
that
Respondent’s
attorney
had
been
retained
only
two days before
the
Hearing.
This
motion
was denied.
Respondent’s unexplained and unexcused delay
in
lookine
after
his own interests cannot slow down
the
l3oard’ s processes
in
performing
its
statutory
cuties.
Continuances
in
this
matter
would
seriously
inconvenience
the
Board’s
Hearing
program
and
lead
to
further
delay
in
correcting
the
conditions
comolained
of.
2.
That
the
original
Complaint
be
stricken.
This
motion
was
mooted
by
the
allowance
of
the
filing
of
the
?unended
Comolaint.
3.
That
the
Agency’s
Motion
to
file
the
Amended Complaint he deni~
or,
that
in
the
alternative
/
the
Agency
amend
its
Complaint
to
comoiy
with
Section
3i~
Chapter
111—1/2
of
the
Illinois
Revised
Statutes
and
that
a
minimum
of
twenty—one
days
notice
be
iven
Respondent
of
the
Amended
Complaint.
The~~~otionto
deny
the
Agency
leave
to
file
t:he
Amended
Complaint
was
denied,
•
The Hearing Officer
ruled
that
the
Hearing
would
proceed
instanter
on
~unt
1
of
the
Arriencled
Complaint
which
was
substantially
the
same
as
The
sole
count
0±
the
original
Complaint
and
that
Hearing
on
Counts
2,
3
and
4
of
the
Amended
Complaint
would
proceed
on
October
12,
1970,
which
date
was
twenty-one
days
from
the
date
that
the
Amended
Complaint
had
been
served
upon
Respondent
(R6).
This
procedure
was
agreed to by the parties.
At the close of
the Hearing on September 23, the Agency moved
that Counts
2 and
3 be amended by providing that the initial date for
the beginning of the alleged offenses set forth in those counts be
changed in each instance from June 13, 1970 to August 5,
1968.
(R219)
This Amendment was allowed.
At
the
close
of
thesecond
Hearing,
the
Agency moved
to amend Counts
2,
3 and
4 to qilege violations continuing
to October 12,
1970.
This motion was allowed.
We sustain all rulings of the Hearing Officer.
Respondent’s answer denying each allegation of
the Complaint
was filed and permitted to stand as an answer denying each allegation
as amended.
Hearings were held
on
September 23,
1970 and October 12,
1970.
At the close of the October 12 Hearing, the case was taken under ad-
visement with each side given leave to file simultaneous briefs.
During
the course e~the ~.ting
~
and in his brief,
Respondent raises the question of
whether
the
statute
and
the
regulations remaining
in effect as
a consecuence of
the
statute, may
relate to violations and result in orders and penalties
for offenses
occurring prior to the effective date of
the
statute,. being July
1,
1970.
There is no question that
the Environmental
Protection Act,
by
its express terms, gives
jurisdiction to
the
Board to
hear
matters pre-
dating
the effective date
of the
Act and keeps in force and effect all
regulations previously promulgated
by the Air Pollution Control Board,
the State Sanitary water Board and the Department of Public
Health
relative to the control and abatement
of air pollution,
water nollution
and improper disposal of solid waste until repealed or superseded.
Section 49 (b) Cc).
All regulations relating to open
burning and refuse
disposal sites, the violation of
which
Respondent is
charged with,
were in effect on the dates of the alleged offenses and have remained
in effect to date.
Paragraoh 240.1 through 240.17 or Chapter 111-1/2, Illinois
Revised Statutes being the Air Pollution Control Act
now repealed,
but
in effect at all relevant times before July
1,
1970, vested in the
Air Pollution Control Board oower to promulgate rules and regulations
to abate air pollution.
Section 240.15 provided for a penadty
not.
to exceed $5,000.00 for any violation of
the
Act or determination of
the Board and additional penalty not to exceed $200.00
for each day the
violation continued.
1
—
88
Chapter 111—1/2, Paragraph 471,
now
repealed but also in effect
at all relevant times before July
1,
1970, vested in the Department of
Public Health,
the power to supervise the operation and maintenance
of refuse disposal sites and facilities and to promulgate
rules and
regulations to this end.
Section 473.1 provides that whoever violates any
provision of this Act shall be fined not more than $100.00 for each
offense.
Each day’s violation constitutes a separate offense.
The
Department had power to adout such rules
as it “considers necessary
from time to time to carry out this Act.”
A violation of the Rules
would constitute
a violation
of the Act.
From the foregoing statutory provisions and regulations promul-
gated thereunder,
it will he seen that the violations with which
Respondent has been charged were violations
of the
law
prior to the
effective date
of the new Environmental Protection Act and that
the
new Act keeps in force and effect all regulations ~prcviously promul-
gated by the Air Pollution Control Board, relative to air pollution and
rules and regulations promulgated by the Department of Public Health,
relative to refuse disposal sites.
Any
fines
imposed for events
pre-dating the
new
Act but constituting violations
under the
old sta-
tutory provisions cannot be
deemed
retroactive or ex
nost
facto,
~inco the fines inToosed are within the statutory monetary limits as
in
each
case
provided.
Both
the
offenses
and
the
fines
relatin’~
there-
to
were
cognizable
under
prior
law
and
the
regulations
~romulgeted
LhereunoeL
w~-fle
i~.f:rce
~
~i.i
relevant
times
and
are
oresently.
We
have
reviewed
the
entire
testimoby
and
evidence
in
the
case,
together
with
the
briefs
submitted
by both
parties.
b~ehave carefully
considered
all legal arguments raised by
both parties and have reviewed
the relevant constitutional,
statutory and regulatory provisions.
It is the Order of the Pollution Control Board that
an Order be
entered against J.
M. Cooling directing
him
to
cease
and
desist
the
open burning of refuse in violation of Section
9c of
the
Environmental
Protection Act and Rules
2—1.1 and 2—1.2 of the Rules
~nd Regulations
governing the control of air pollution,
and
Rule
3.05 of the
Rules
and
Regulations for refuse disoosal sites
and
facilities
and
that J. M.
Cooling likewise be ordered to cease
and
desist the open
dun’:ping of
re-
fuse and the operation of a refuse disposal site,
in violation of Sec-
tion 2lb of the Act and Rules 3.04,
5.06
and 5.07 of the Rules and
Regulations for refuse disposal sites and facilities,.
The Board finds the evidence is insufficient to establish
that J.
M. Cooling has violated Rules .5.03 and 5.05 of the Rules
and
Regulations for Refuse Disoosal Sites
and.
Facilities relative to the
size of the dumping area and the availability of
equipment1 respectively,
and that the evidence is insufficient to establish that J. M. Cooling
has violated Section l2a of the
Act and
Rule 5.l2c of
the Refuse Disposa
Regulations by causing water pollution
b~’
disposing of refuse in
standing water.
1
—
89
it
is
the
further
order
of
the
Pollution
Control
Board
that
a
fine
of $1,000.00
be assessed against J.
H.
Cooling,
of
which
$500.00
i~assessed for causing, allowing and permitting the open
burning
of
refuse,
in violation of Section
9c of the Act and Rules 2—1.1
and
2—1.2
of
the
Rules
and
Regulations
governing
the control of air
pollution,
and
of
which
$500.00
is assessed for causing and allowing
the
open
dumoing
of
refuse
in
violation
of Section 2lb of the Act and
Rules
3.04,
5.06
and
5.07
of
the
Rules
and
Regulations
for
refuse
dis-
posal sites
and
facilities
and for the operation of a refuse disposal
site or facility in violation of Rules 5.06 and 5.07 of the Rules and
Regulations for Refuse Disposal Sites and Facilities
The facts of the case are not substantially in dispute.
Joseph M. Cooling owns
a fifty-acre tract in the unincorporated area
of
Winnebago
County
near
the
City
of
Rockford.
Located on his property
is
an
abandoned
quarry
of
irregular
shape
covering
approximately
three acres
which
has
a
deoth
of anoroximately forty feet
(R32)
According
to
the
Respondent,
the
pit or quarry had been used as a
dump
site
for
the
last
twenty
years,
hut
operated
by
the
Resoondent
for
only
the
jest
six
or
seven
years
CR34)
.
The
evidence
indicates
that
the
pit
had
been
used
for
the
dus.oinq
or
burning
of
diseased
Dutch
elm
trees,
the
dumping
of
lanciscape
refuse
and
the
deposit
of
demolished
struc—
tures.
While
the
evidence
uoes
not
clearly
indicate
any
calculated
efforL
Lo
roc
v~
~
~r~-~rahle
refuse,
the
evidence
does
indicate
that,
on
occasion,
such
refuse
wa~ ciumpcu
~c
.~it:,
with
er:nty
cans
and
metal
annliances
and
debris
(See
EPA
Exhibits
3
A,
B
and
C,
4,
5
and
6,
8
A
and
B
and
9
A
and
B)
and
left
in
an
uncovered
condition.
The
Respondent
grows
sod
on
the site and
also
had
done
some
landscaping
work
which
has
generated
refuse
of
this
character,
like-
wise
deposited
in
the
pit,
Efforts
made
to
compact
and
cover
the
deposited
refuse
apoear
to
have
been
casual,
at
best,:
although
Respondent
does
possess
ecruipment
suitable
to
achieve
this
result.
On
May
3,
1967,
Resuondent
received
a
letter
from
the
Winnebago
Department
of
Public
Health
authorizing operation of a refuse disposal
site
for
the
burning
of
trees
and
wood
products,
but
not
permitting
the
dumping
of
garbage
and
burning
of
tires.
On
April
13,
1970,
Respondent
paid
the Winnebago Deoartment
of
Public
Health,
a
$25.00
fee
to
enable
operation
of
a
sanitary
landfill.
~o
state
license
to
permit
landfill
operation
was
introduced
in
evidence.
On
or
about
June
20,
1970,
a
fire
of
undetermined
origin
ignited
the
refuse
in
the
pit
which
continued
burning
for
approximately
five
weeks
before
it
was
:omoletely
extinguished.
Respondent
and
his
sons
made
some
initial
efforts
to
extinguish
the
fire
and,
on
1
—
90
June 27 the Fire Department of the Northwest Fire Protection
Dis—
tTict was called.
Prom the testimony of the chief and various members
of
the
department,
it appears that approximate
lv
twenty-eiqbt members
were
present
on
a
single
day
(nlS5)
and
succeeded
in
extinguishing
a
substantial
part
of
the
fire.
No
fire-fighting
activities
by
the
Department took place subsequent to June
27,
although
the
chief
occasionally
visited
the
site
and
inspected the status of the fire.
It appears that after
that
date,
the
fire
again
spread
and
some
limited effort was made by the Cooling family to wdt down the fire
through sprinkling devices
and
irrigation
nozzles
and
through
the
use
of
earth—moving
equipment
to break up
the
ignited
areas
(Testimony
of Phillip Cooling R280-3l1).
Various witnesses testified to the smoke generated by the fire,
the substance of which testimony indicated that adjacent o’..~’ners of
property were subjected
to smoke
and
odors
for
a
substantial
period
of tii~eextending from approximately June
20 to July
27.
Cecil
I3roughton
CR11)
testified that he observed
the
fire
almost
every
day
during
the
period
of
its
burning,
that
flames
were
observed
particularly
at
night,
and
that
smoke
entered
his
home between 40
and
50
of
the
time
that
the
fire
was
in
progress.
(Rl8).
George
F.
Reid
CR25)
testified
that
he
lived approximately
one—half
mile
west
of
the
pit
and
observed
the
fire
and
flames
during
the
entire
period
involved.
He
likewise
was
subjected
to
the
odors
and
smoke.
He
described
the
odor
as
that
of
decomposed.matorial
and
definitely
not
that
of burning trees.
Otto
Klein,
an
employee
of
the
Environmental
Protection Agency,
testified to the character of emissions resulting from the burnina of
landscape refuse
(Rl32—139)
.
Specifically, he testified to the emissions
of carbon monoxide,
formaldehyde, organic acids, hydrocarbons, oxides
of
nitrogen
and
particulate
matter.
Charles
E.
Clark,
Chief
of
the
Bureau
of
Land
Pollution Control,
testified
to
the
nature
of
the
refuse
found
in
the
dump
subsequent
to
the
fire
and
took
pictures
that
were
introduced
as
EPA
Exhibits
4,
5
and
6.
His
testimony
indicated
the
presence
of
uncovered
refuse
over
a
portion
of
the
site
measuring aoiDro~imately200’xSO’
in area
and
that
while
porhans
25
to
30
of
the
dump
site
was
covered,
even
this portion was
not
satisfactory
under
the
law.
(R335).
Refuse
was
noted
in
water
but
the
source
of
the
water
was
not
evident.
Andrew
A.
Voilmer
(R338)
testified that
he
was
a
photographer
for
the
Environmental
Protection
Agency
and
identified
Exhibits
1
—91
3a, b and c, 7a and b and 9a and b, as having been taken by him at
the the dump site.
Reference to these exhibits likewise shows
uncovered dumoing and exposed salvage material.
These pictures were
taken in September of 1970.
Gary C. Brashear
(7t346-358)
testified that he was an inspector
employed by the Environmental Protection Agency in the Bureau of
Land Pollution and that on August
5,
1968, he visited the
dump
site
and noted the open dumping of demolition material which, in his
opinion, was not properly compacted or covered (R348).
Noted also were
paper, pasteboard, roofitt, lumber, tree scraps and wood chips and
that approximately 80t of the dump site was uncovered and 50
to
60
was not prooerly comnacted.
This witness visited the dump site
again an October 22, 1968 and noted the same condition.
The same
condition was noted on his visit of iovexaber 27, 1968 and on February 25,
1969, on which occasion ap’roximately 60t or 65Lof the pit was un-
covered and 75
or
HOt
was
not
properly
compacted.
lie
also
observed
refuse dumned in the
water
on
the
north
edge
of
the
pit.
The
witness
also inspected the site on
June
10,
1969,
at
which
time he observed
some improvement in
the
spreading and compacting and the applying
of proper cover.
However, curing his visit of September 29, 1969,
the
witness
observt!d
that
the
refuse
was
again being dumped without
spread
or
cor!u:~ccicnar~~i
tMS
not
properly
covered.
The
same
condi-
tion
was
o!~.served on
January
30,
1970
by
the
witness,
on
March
26,
i~IU
ass”
ii5j~...
;~-“~nt
to
the
fire
on
Septeuber
15
and
September
16,
1970.
Leonard
Lindstron
(1:375-395)
testifIed
that
he
was
an
employee
of
the
Environnental
Protection
i~cvcncy
and
that.
he
visited
the
land—
fill
on
October
6
and
Octo~er 7
of
1970:
On
October
7,
a
trench
was
dug
through
the
refuse
1tud
pictures
tcken
wore
introduced
as
EPA
Exhibit
10.
The
t’ench
uuq
varied
in
height
fre:n three feet to eleven
feet
and
disclosed
the
c:sL.rt:ctor
of
the
r.etterial
comprising
the
refuse
in
thedunp
(X382).
According
to
the
~vitness,
approximately
25~ was
wood,
trees,
branches
a~:dbeards.
~ppro:cimately
3
was
woodwork
or
concrete.
Approxi;ntely
30t
was
dirt.
The
remainder
was
wire
and
sheet netal
and
a
small
t~orrtncane was
bottles,
cans
and cardboard.
Also
found
were
solid
b~ic-.
and
concrc•te.
odor
emanated
from
the
trench
and
the
water
four:d
then.~in.
.~
leachizce
effect
had
resulted
from
the
decomposition
of
the
material
in
the
pit.
The
source
of
the
water
was
not
clearly
indicated
and
it
is
reasonable
to
assume
that
it
could
en5nate
from
an
uz.darground
spring,
rain
or
the
residue
of
water
used
~n
the
effort
to
extinguish
the
Lire,
or
a
combination
of
these
sources.
EPA witness George X.
flughes did net indicate that a nearby
well had been polluted as a consequence of the dumping operation.
1—92
The Respondent’s testimony
was
primarily
directed
to
his
efforts
to
extinguish
the
fire,
both
before and after the
Fire
Degaitrant
had
made
its
efforts.
Phillip
Cooling,
son
of
the
Rcsposoefli~.,
trstif:ied
that
during
the
early
days
of
the
fire,
be
onerateci
~
CatCr~
.J:Lar
tractor
in
an
effort
to
ext~nouish
it.
On
the
first
uay,
tn~ ‘,~itness,
his
four
brothers
and
his
father
all
participated.
I~ecorcii.n~to
the
witness,
efforts
were
made
to
cover
the
fire,
then
to
flood it,
and
later
to
cut
channels
through
it.
Uowever,
the
wind
causen
further
igniting
and
their
efforts
were
of
little
avail.
In
the
oo:ii.ien
of
the
witness,
the
source
of
the
fire
was
~i~ontarioous
combus i:i~~
Ac;
a result of the fire department’s activity,
appro~inately
9G~ of
Lha
Silo
was
extinguished.
Subsequently,
further
efforts ocre
made
to
e:inpsJ~h
the fire
by
continued
goucing
and
flooding.
These
actlvitioa
con--
tinued
every
day until the middle
of
July
when
the
fire
was
uitirtel:eiv
burned
out.
A
nearby
pond
was
used
as
a
source
of
watar
and
.ccnliilen
by
pumping.
This
was
depleted
and
refilled
aenroxin:~teiv
tocve
or
liE—
teen
times
(R29l).
After
the
F.i re
Department
left,
he
used
the
cater--
pillar
tractor
about
every
dav’~ for
approxiunateiv
three
or
lout
hours
gauging
and
trying
to
put
out
the fire.
Howcvcr,
the
enint
was
reached
where
the
fire
became
too
intense
to
continue
th:~
ectfvftej.
A
good
deal
of
the
fire
was
left
burning
and
portiora~
sot
iuiii:~ci
c~r(~
watered
down
to
lessen
the
chance
of
further
soread of
the
ii co.
Ph11 fin
Cooling also
testified
that
some
degree
of
commacting
and
CUv
iiag
s2as
done
~~hen
refuse
was
brought
irto
the
pit,
but
that
it ~as
nr.
donc
Three
conclusions
emerge
from
the
testimony
of
the
parties
1.
That
Respondent’s
operation
of
the
landfill
was
not
in
keeping
with
the
applicable
statutory
and
:equlatorv
oro-
visions
relating
to
the
operation
of
refuse
olsoosel
sites
and facilities.
(Section 21(b)
of
the
Act
and hubs
3.04,
5.05
and
5.07
of
Rules
and
Regulations
for
Refuse
Dtseosal
Sites
and
Facilities)
2.
That.
the
failure
to
cover
and
cornoact
the
refuse
as
re-
quired
by
Rules
5.06
and
5.07
of
the
re:use
disposal
rules
and
leaving
the
refuse
in
a
generally
unsatisfactory
condi-
tion,
coupled
with
the
negligent
and
siipshod
operation
of
the
dump,
created
a
condition
which
made
fire
more
probable
and
enabled
the
fire
to
spread
in
a
manner
making
it
impossible
to
extinguish.
3.
That
Respondent’s
efforts
to
extinguish
the
fire
were
mini-
mal,
at
best,
and
that
in
consecuence
of
the
foregoing,
it
is
proper
to
find
that
Respondent
caused,
allowed
and
cermitted
the
onen
burning
of
refuse,
in
vio~iati.on
of
Section
9c
of
the
Statute
and
Rules
2—1.1
and
2—1,2
of
the
Rules
ar~d P.cqulatioics
governing
the
control
of
air
pollution,
93
We
believe
that
the
Agency
has
established
its
burden
in
provi
isa
that Resoondent caused and allowed
the
open
dumping
of
refuse
and
onerated
a
refuse
disoosal site
in violation of
the
relevant
provisions
and
regulations
from
August
5,
1968
to the date
of
the
fire,
being
June
20,
1970.
Because
of
his
negligence
in
the
operation
of
the dune
site,
the Respondent caused,
allowed and permitted
the
open
burning
of
refuse
in violation
of
the
relevant
statutor
and
z-ccjul
atory
rirovIS ions.
The
Agency’s
buroen
of
proof
has
likewise
been
establiShed
in
tiii~
resnect.
The
law
does
not
require
that
in
order
to
be
found
quiltv
of
the
open burning provisions,
the
Resac:d.ent
must
actually
be
seen
igniting
the
materials
burned.
Negligence,
indifference
and.
slieshod oeerat~on of
a facility having
a
high
potcntic’n
of
combustion
falls
within
the
purview
of
the
statute
ai~d. ~equlations.
The
$1,000.00 penalty
is well within
the
applicable
provi
ions.
In
arrivi
no
at
this
Order, we have considered
the character
and
degree
of
injury
to
the
health,
general welfare and physical
property
of
tile
pClOule,
the
social
and economi.c value of the pollution
source
and
its
suitability
in
the
area
in
which
it
is located,
together
with
the
technical
racticality
and
economic
reasonableness
of
elirnina—
tirig
the
e~is:;iore;
charged.
Resoondent
‘
s
ooeration
of
his
dump
in
the
mansci
con~oJ
ainerf
of
served
no
valid
economic
or
social
objectives.
On
the
ccmtrstv,
the
health
and
oropcrty
of
adjacent
owners
were
p~~d
~~ardc’.
Proper
operation
and
management
could
have
avoided,
this
result
without
1mpcc~n~j
n~
~acno•n~
hnrc-hr~n
or
hardship
upon
Re~oond~nt
It
is
clear
from
the
total evidence that Respondent permitted
and
created
a condition that enabled the conflagration of
the entire
dump
site
under
circun:;
Lances
precluding
its extinguisnment.
The
avertinq
of
a
major
holocaust
was
not because
of Respondent’ s efforts.
What was
done
by
flesooncent
end
his
family
to
abate
the
fire
was
too
little
and
too
late
to
serve
as
a
defense
for
the violations
charged.
The Pollution Control Board
finds
that:
1.
It
has
jurisdiction
of
the
subject
matter
of this
proceeding
and
the
parties
hereto;
2.
Proper
notice
of
the
comolaint
and
hearing
thereon
was
given
to
Respondent
and
Hearing thereon held
as by statute
in such cases made and provided;
3.
J.
M.
Cooling
caused,
allowed
and
permitted
the
open
burning
of refuse
in violation of the Environmental Pro-
tection Act and
the Rules and Regulations governing the
control of
air pollution and caused and allowed
the
open
dumping of refuse and operated
a refuse disposal site in
violation
of the Environmental Protection Act and the Rules
and Regulations
for refuse disposal sites and facilities.
1
—
94
IT
IS THE ORDER of
the Pollution Control Board that
J.
M.
cooling cease and desist
the open burning of refuse, in violation
of
Section
9c
of
the
Environmental
Protection
Act
and
Rules
2-1.1
and
2;l.2
of
the
Rules
and
Regulations
governing
the
control
of
air
pollution
and
Rule
3.05
of
the
Rules
and
Regulations
for
befuse
Disposal
Sites
and
Facilities,
and
that
3.
lI.
Cooli.nq
cease
and
desist the open dumping of refuse
and
the
ooeration
of
a
refuse
disposal
site,
in
violation
of
Section
21b
of
the
Environmental
i~j:o—
tection
Act
and
Rules
3.04,
5.06
and
5.07
of
the
Rules
and.
Rcciula—
tions
for
Refuse
Disposal
Sites
and
Facilitiec;.
Penalty
in
the
amount
of
$1,000.00
is
hereby assessed against
3.
M.
Cooling
of
which
$500.00
is assessed
for
causing, allowine
and.
nermittina
the
open
burning
of
refuse,
in
violation
of
Section
9c
of
the
Fnvironsiental
Protection Act
and
Rules
2—1.1
and
2—1..2
of
the
Rules
and
Regulations
governing
the
control
of
air
pollution
and
Rule
3
.
05
of
the
Rules
and
Regulations
for
Refuse
Disposal
Sites
and.
Ifaciliti.es,
and.
of
which
$500.00
is
assessed.
for
causing
and
allowing
the
coon
dunning
of
refuse
and
operating
a refuse disposal site,
in
violation
of
Section
2lb
of
the
Bnvironmental
Protection
Act
and.
Rules
3.04,
5.06
and
5.07
of
the
Rules
and
Regulations
of
Refuse
Disposal
Sites
and Facilities.
I
Th-c,,sr,1-:
I,
Regina
E.
Ryan,
certify
that
the
Board
Opinion
this
u’~day
of/
~
L1970,
:
~
~
‘--—Reqiha
B,
Rvan/
Clerk
of
the
Board
I concur:
has
appro*red the above
1
—
95
