ILLINOIS POLLUTION CONTROL BOARD

September

22,

1988

IN THE MATTER OF:

)

CHICAGO HEIGHTS REFUSE DEPOT,

)

AC 87—47

)

(IEPA No. 8383—Ac)

Respondent.

)

Docket A

)

MR. WILLIAM SELTZER,

ESQ.,

APPEARED ON BEHALF OF THE PETITIONER,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

MS. CHERI NOVAK, ESQ., APPEARED ON BEHALF OF THE RESPONDENT,

CHICAGO HEIGHTS REFUSE DEPOT,

INC.

OPINION AND ORDER OF THE BOARD (by M. Nardulli):

This matter

comes before the Board upon

a May 15,

1987

filing

of an Administrative Citation by the Illinois

Environmental Protection Agency (hereinafter

“Agency”)

and a June

15,

1987 filing of

a Petition for Review filed by the

Respondent.

Both filings are pursuant

to Ill.

Rev.

Stat.

1986

Supp.

ch. 111 1/2

,

par.

1031.1,

the Illinois Environmental

Protection Act (hereinafter

“Act”).

Hearing was held on January

25,

1988

in Chicago.

No members

of the public were present.

Gino Bruni,

an inspector

for the

Agency,

testified

for the Agency and Joseph LaPort,

the owner

and

operator

of Chicago Heights Depot,

testified on behalf of the

Respondent.

On April

22,

1988,

the Agency filed

a Brief

in Place

of Closing Argument.

No Response Brief has been filed by the

Respondent.

The Board

finds

that the Agency has shown that the

Respondent was

in violation of Ill.

Rev.

Stat.

1986 Supp.;

ch.

111 1,i~ par.,

lO2l(p)(5)

on both March

24,

1987 and April

13,

1987.

The Respondent was unpersuasive

in attempting

to prove

that

the Agency incorrectly identified

the photographed materials

as uncovered refuse

from

a previous day’s operation.

Further,

the Respondent failed

to make any argument

of uncontrolled

circumstances that resulted

in the violations.

Therefore,

the

Board finds

that the Agency’s determination of violations of the

requirement

to supply daily cover was correct

and hereby upholds

the determination of

violations

and the penalty

imposed.

02—503

---

—2—

BACKGROUND

Chicago Heights Depot,

Inc.

operates

a sanitary landfill

under Agency Permit no.

1977—21--OP.

On March 24,

1987 and on

April

13,

1987,

Mr. Bruni inspected

the landfill site.

On the

basis of the inspections,

the Agency determined

that on both days

the Respondent had operated the site

in violation of paragraph

lO2l(p)(5)

of the Act

to wit:

(p)

No person shall conduct

a sanitary

landfill operation which

is required

to

have

a permit under subsection

(d)

of

this Section,

in manner which results

in

any of the following conditions:

(5)

uncovered refuse remaining from

any previous operating

day,

unless authorized by permit

Ill.

Rev.

Stat.

1986 Supp.,

Ch.

ill

‘12

par.

1021 (~) (5).

Accordingly,

the Agency on March

25,

1987,

issued an

Administrative Citation

to Respondent

in which

a civil penalty

of

$500 was assessed for each of the two violations,

pursuant

to

Section 42(b)(4)

of the Act.

Respondent now contests before this Board

the Agency’s

determination

of the two violations.

Alternatively,

if the

Agency’s determinations

of violation are upheld,

the violations

could be found

to have resulted from uncontrollable

circumstances,

thus invoking

the “uncontrollable circumstances”

provision of the Act:

If

the Board finds

that the person

appealing

the citation has shown that the

violation resulted from uncontrollable

circumstances,

the Board shall adopt

a final

order which makes

no finding of violation and

which imposes

no penalty.

Ill.

Rev.

Stat.

1986 Supp.,

ch.

111 1/2,

par.

lO3l.l(d)(2).

DETERMINATION OF VIOLATION

In support of

its determination that Chicago Heights Depot,

Inc.

failed

to provide daily cover,

the Agency submitted

photographs

(Ex.

2,

3,

5 and

6)

taken by Mr. Bruni during his

site inspection on March

24 and April

13 of

1987.

Mr. Bruni

92—504

---

—3—

testified that both inspections were held early

in the morning

(R.

at

8,

21) and that the refuse in the photographs was refuse

from the prior day’s

activities.

Mr. Bruni

testified as

to how

he determined

that the exposed refuse was not refuse which had

been deposited on the day of

the inspection

(R.

at 42).

Further,

Mr. Bruni testified that on the occasion of both visits,

the on—

site operator told him that the exposed

refuse was from

a

previous operating day

(R.

at

10,

28).

The case presented by the Agency was countered by the

testimony of Mr. LaPort testifying on behalf of the Chicago

Heights Depot,

Inc.

Mr. LaPort testified

that the materials that

Mr. Bruni had identified

as uncovered refuse from previous days

were actually part of

a sidewall that had collapsed

(R.

at

69).

Mr. LaPort admitted that the collapsed sidewall contained refuse

that was not covered

at the end of

the previous day

(R.

at

73).

Mr. LaPort also testified that

it

is the practice at Chicago

Heights Depot,

Inc.

to supply cover

to all refuse at

the end

of

the day and that he routinely inspects the site

to ensure that

proper cover

is maintained

(B.

at

57

to

60).

Mr. LaPort further

testified that he was present on March

24,

1987

and that he did

not see any exposed

refuse at

the time

of Mr. Bruni’s

inspection.

Based on the evidence and testimony presented by the Agency,

the Board finds

that the Agency has met its burden of proving

that the violations did occur.

The photograhic evidence shows

what appears to be uncovered refuse

in the yard and Mr. Bruni’s

testimony indicates that

it was from

a previous day’s activity.

Even

if the refuse was the result of

the collapse of the

sidewall,

as Mr. LaPort testified,

it would

still

be subject

to

the daily cover requirements.

Further,

the Respondent has failed

to show that the collapse

of the sidewall represented

an uncontrollable circumstance that

would excuse this failure to apply daily cover.

Once

it has been

concluded

that daily cover was not correctly accomplished,

it

is

clearly the Respondent’s burden to prove that~theywere nQt able

to cover because of

a circumstance beyond their control.

The

Respondents failed

to meet this burden and the Board

is not

convinced

that the collapse

of the sidewall was beyond the

Respondent’s

control

or that

it made it impossible to apply daily

cover.

PENALTIES

Penalties

in Administrative Citation actions

of the type

here brought

are prescribed by Section 42(b)(4)

of the Act,

to

wit:

In an

administrative citation action under

Section 31.1

of this Act,

any person found

to

have violated any orovisions of

subsection

(p)

92—505

---

—4—

of

Section

21

of

this Act shall pay civil

penalty of $500

for each violation

of each

such provision,

plus any hearing costs

incurred by the Board and the Environmental

Protection Agency.

Such penalities

shall

be

made payable

to the Environmental Protection

Trust

Fund

to be used

in accordance with the

provisions of “an act creating the

Environmental Protection Trust Fund”,

approved

September

22,

1979.

Respondent will therefore be ordered

to pay a civil penalty

of

$1,000, based on the two violations

as herein found.

For

purposes of review,

today’s action

(Docket A)

constitutes the

Board’s

final action on the matter

of

the civil penalty.

Respondent

is also required

to pay hearing costs

incurred by

the Board

and the Agency.

The Clerk of

the Board and the Agency

will

therefore be ordered

to each file

a statement

of costs,

supported

by affidavit, with the Board

and with service upon

Respondent.

Upon receipt and subsequent

to appropriate

review,

the Board will

issue

a separate final

order

in which

the

issue of

costs

is addressed.

Additionally, Docket B will be opened

to

treat

all matters pertinent

to the issue of costs.

This Opinion constitutes the Board’s findings of fact and

conclusions of

law in this matter.

ORDER

1)

Respondent

is hereby found

in violation,

as alleged

of

Ill.

Rev.

Stat.

1986 Supp., Ch. 1111/2,

par.

1021(p) (5).

2)

Within

45 days of this Order

of September

22, 1988,

Respondent shall, by certified

check

or money order,

pay

a civil penalty

in the amount of

$1,000 payable

to the Environmental Protection Trust

Fund.

Such

payment

shall

be sent

to:

Illinois Environmental Protection Agency

Fiscal Service Division

2200 Churchill Road

Springfield,

IL

62706

3)

Docket A

in this matter

is hereby closed.

4)

Within

30 days

of this Order

of September

22,

1988,

the Illinois Environmental Protection Agency shall

file

a

statement of

its hearings costs, supported

by

92—506

---

—5-.

affidavit, with

the Board and with service upon

Respondent.

Within the same 30 days,

the Clerk

of

the Pollution Control Board shall

file a statement

of the Board’s

costs, supported by affidavit and

with service upon Respondent.

Such filings shall

be

entered

in Docket B of this matter.

5)

Respondent

is hereby given leave

to file a

reply/objection

to the filings as ordered

in

4)

within

45 days

of this Order of September

22,

1988.

Section 41 of the Environmental Protection Act,

Ill.

Rev.

Stat.

1985 ch.

111 1/2 par.

1041,

provides for appeal

of Final

Orders of the Board within

35 days of the issuance of Final

Orders.

The Rules

of

the Supreme Court of Illinois establish

filing requirements.

IT

IS SO ORDERED.

I,

Dorothy M.

Gunn, Clerk

of the Illinois Pollution Control

Board,

hereby certi~ythat the above Opinio

and Order was

adopted

on the

_____________

day of

______________________

1988 by

a vote

of

________________.

Dorothy

M.

G~1rJn,

C1erk’~

Illinois Polrution Control Board

92—507