ILLINOIS POLLUTIO
C3NTROL
BOARD
June 13, 1975
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
vs.
)
PCB
74~39O
D
& N
TRUCKING,
INC.,,
an Illinois
corporation and HERB PHILLIPS,
)
individually,
Respondents.
Jeffrey Herden, Assistant Attorney General for the EPA
Scott Courtin, Attorney for Respondents
OPINION AND ORDER OF THE BOARD
(by Mr. Henss):
The Environmental Protection Agency filed its Complaint on
October 25,
1974 charging that Herb Phillips,
as owner of a
solid waste management site in Kane County,
Illinois and D
& N
Trucking,
Inc. as operator of the solid waste management site,
had violated Rule 202(b) (1) of the Solid Waste Regulations
~
Section 21(b)
of the Environmental Protection Act.
The
violatic~s
are alleged to have occurred from July 27, 1974 to the date of
filing of the Complaint.
A Stipulation of Facts submitted by the parties she
IS
that
legal title to the solid waste management site
is held by R~s~
K, Phillips.
David
H.
Thom,
d/b/a D & N Trucking,
Inc.,
:~ases
the
site from Rose Phillips to operate a solid waste management
site.
In January 1974 Thom was informed by a representative of
Rose Phillips that a permit application for operation of the
site would be completed and submitted by April l9~
4.
On six
occasions between January 1974 and October 25, 1975 Thorn cneckec~
with the representative and was assured that the representative
was in the process of applying for a permit.
Thom began waste disposal operations at the site on
September 19,
1974.
He first learned that no per1di~ ~ad been
applied for when he
received
the Agency~sComplaint.
He imme-
diately hired
a consulting engineer to surv~ythe site and
17 —317
—2—
determine whether or not a permit could be obtained.
David
Beck,
an employee of the engineering
firm,
completed an appli-
cation for permit to develop and opera~tethe site on January
16,
1975.
Beck,
formerly employed by the Agency, informed Thom that
he and a member of the Agency’s Land Pollution Control Permit
Division had discussed the preliminary data and that the Agency
representative indicated that there would be no problems in
granting the permit.
The permit was issued in March 1975.
At the outset of the public hearing, the Agency moved to
dismiss Respondent Herb Phillips because he~hadbeen improperly
joined as
a
party in this matter.
The Agency motion for dismissal
of Herb Phillips as Respondent
is allowed.
No Agency witnesses testified during the public hearing.
Instead,
the Agency bases its entire case on information contained
in the Stipulation
of Facts
CR.
6).
Subsequent to
the hearing,
the Agency filed
its Motion
to Amend
Complaint
in
order
to
have
the pleadings conform with evidence
and testimony presented at
the
public hearing.
The Ame~dedComplaint,
in addition
to
the
previously alleged violations,
includes an alleged violation
of
Section 21(e)
of the Act.
The Motion to Amend Complaint is
hereby allowed.
David Thom,
Pres:Ldent
of
D
& N Trucking,
Inc.,
admitted
that
Respondent
operated
the
waste
management
site
without
a
proper
permit
(R.
9).
Thom
testified
that
he
was
aware
of
the
permit requirement
in
January
1974
(R.
12).
He relied on the
owner~s
agent
to
get
a
permit.
Thom
began
operating
the
waste
management
site
on
September
19,
:L974
without
first
checking
to
see
ii
a
permit
had
in
fact,
been
obtained.
Respondent
failed
to
act.
on
this
obligation
until
the
Agency filed its
Complaint
Thereafter,
Respondent
acted
with
reasonable
speed
to
comply
with
the
permit
requirements.
Expenditures by Thom for engineering services to secure
the
permit have been about $1,000 through December 1974,
He indicated
that
this
figure
could
increase
since
he
had
not
yet
received
a
bill
for
engineering
services
rendered
through
January
1975
(R.
11).
From the Stipulation of Facts
and testimony by Thom we
find
that violations of Section 21(e)
of the Act
and Rule 202(h) of
the Solid Waste Regulations did occur from September 19, 1974
to October
25,
1974.
Respondent D
& N Trucking,
Inc. did operate
the site without
a permit,
However,
there is no testimony or
evidence
showing
that
Respondent engaged in the practice of open
dumping
as
charged
~tion
21
(b)
of the
Act.
The fact that
Respondent
teceived
development
permit
on
March
18,
1975
17
—
318
—3—
indicates that open dumping is not a
problem
at this
site.
The Board cannot find a violation of Section 21(b)
of the
Act in the total absence of any proof hearing on the practir
of open dumping.
Also missing in this matter is
ar
idence in
aggrava~.
whatsoever.
There is no evidence or
~tes~irroeywhich
can be
construed as showing that any person
was Ljured or that Re
spondent’s operation interfered with
the protection of healed,
general welfare or physical property
of the people of Illinod
The social and economic value of the
operation is not
dis-
cussed nor is the suitability or
unsuitability of the site
location,
Evidence and testimony does
establish that it was
technically practicable and economically
fea~ibl
oi
Respond
et
to comply with the Statute and
Regulations.
In mitigation,
it
is stipulated that Respondent was told
on six occasions that a representative of the leasor would
apply for the required permit.
While this fact does not
totally relieve Respondent of his responsibility,
it does
provide
a showing of Respondent~sintentions in this matter.
On the record presented the Board believes that Responde~e~s
actions tend to show that the admitted violations
are attributable
to negligence and not bad faith.
Having considered all aspects
of the case,
the Board finds that
a penalty in the amount of ~iUO
is appropriate.
In imposing this penalty, the Board reaffirms the position
that the permit process is a necessary and important element in
the Solid Waste Regulations.
Failure to apply for a permit
deprives the State of that information needed to protect the
health, general welfare and physical property of the people;
determine the social and economic value of the operation and
the suitability of its location.
On balance, the Board believes
that the penalty imposed
is required and will serve to deter
future violations of the type found in this proceeding.
This Opinion constitutes the findings of fact and conclusions
of law of the Pollution Control Board.
ORDER
It is the Order of the Pollution Control Board that:
1.
Respondent D & N Trucking,
Inc.,
shall pay to the
State of Illinois by June 27, 1975 the sum of $500 as
a
penalty for its violations
of Rule 202(b)
Solid Waste
Regulations, and Section 21(e), Environmenlal Protection
Act found in this proceeding.
Penalty payment ~y certified
check or money order payable to the State of Illinois
17
—
319
—4—
shall be made to:
Fiscal Services Division,
Illinois
EPA,
2200 Churchill Road,
Springfield,
Illinois 62706.
2.
The allegation that Respondent violated Section
21(b)
of the Environmental Protection Act is dismissed.
3.
Herb Phillips is dismissed as Respondent in
this case.
I,
Christan
L.
Moffett,
Clerk
of the Illinois Pollution Control
Board,
hereb
certi:Ev
the
above
Opinion
and
Order
were
adopted
on
the
/3
‘~
dayof,,~.~
,
1975
by
a
vote
of
~-o
Christan L. Moff
Clerk
Illinois Pollutio
ontrol Board
17
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320