:LLINOIS POLLUTION CONTROL BOARD
December
6,
1989
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
AC 88—93,
Docket A
anO
B
(Administrative Citar:on)
:EPA Case No. 9264—AC
CITY OF HERRIN,
Respondent.
WILLIAM SELTZER APPEARED ON BEHALF OF COMPLAINANT.
KENNETH BLEYER APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by
J. Marlin):
This matter comes before the Board upon
a November
15, 1988
filing of an Administrative Citation by the Illinois
Environmental Protection Agency (Agency)
and a December
20,
:988
filing
of
a Petition for Review filed by the City of Herrin
(Herrin)
A
hearing
was held on April
24,
1989
in Marion.
No
members
of the public were
in attendance.
On October
18,
1989, Herrin was granted an extension for
filing its brief until November
1,
1989.
Herrin’s brief was not
filed.
Herrin requested that the deadline for filing
its
closing
argument
be extended to December
1,
:989.
On November
9,
1989
Herrin requested
that
the deadline
for filing its closing
argument be extended to December
1,
1989.
On November
15, 1989
the Board issued an order denying Herrin’s motion for
extension.The Board will
decide
this case on the hearing
transcript and the briefs currently be±~rethe Board.
BACKGROUND
Herrin
is
the present operator
of a sanitary landfill
facility located
in
the County of Williamson,
State of
Illinois.
The facility
is operated as
a sanitary landfill,
under
Agency Operating
Permit
No.
1975—6200P and designated with Site
Code No. 1998580001.
On Septemoer
16,
1988,
Thomas idmondson,
of
the Agency,
inspected
the above—described landfill.
On the basis of Mr.
Edmondson’s inspection,
the Agency determined
that Herrin,
on
the
day
of
the
inspection,
had operated the site
in violation
of
the
following provisions of the Illinois Environmental Protection Act
(Act):
1fl~ 77
—2—
1)
Uncovered
refuse
remaining
from
a
previous
operating
day,
in
violation
of
Ill.
Rev.
Stat.
1987,
ch.
1114,
par.
lO2l(p)(S).
2)
Failure
to
collect
and
contain
litter
from
the site by the end of each operating day,
in
violation
of
Ill.
Rev.
Stat.
1987,
ch.
1114,
Par.
lO2l(p)(l2).
3)
Acceptance
of
wastes
without
necessary
permits,
in
violation
of
Ill.
Rev.
Stat.
1987,
ch. lll~,par.
lO2l(p)(7).
4)
Deposition
of
refuse
in
any
unpermitted
portion of
the landfill,
in violation of
Ill.
Rev.
Stat.
1987,
ch. lilL
par.
l021(p)(9).
Herrin filed a Petition For Review on December
20,
1988.
In
the petition, Herrin denied the existence of the conditions
complained of at the landfill
facility.
The Act
(Sec.
31.l(d)(2))
sets
forth the findings the Board
may make subsequent
to a hearing or such an appeal:
In
such
hearings,
the burden
of proof
shall
be
on
the
Agency
or
unit
of
local
government.
If,
based
on
the
record,
the
Board
finds
that
the
alleged
violation
occurred,
it
shall
adopt
a
final order which
shall
include
the administrative citation and
findings
of
violation
as
alleaed
in
the
-
:
specified
in
subdivision
(b)(4)
oi
Section
42.
However,
if
the
Board
finds
tnat
the
person appealing
the citation has
shown
that
the
violation
resulted
from
uncontrollable
circumstances,
the Board
shall adop~ a
final
order which makes
no finding of violation and
which imposes no penalty.
ALLEGATIONS
Uncovered Refuse
In
support of
its determination that Herrin failed
to
provide daily cover,
the Agency submitted photographs
(Exh.
2,3,5,6,7)
taken by Mr. Edmondson during
his site
inspection of
September
16,
1988.
Exhibits
2
and.
3,
taken
at 7:22 a.m.
(R.28—
30) depict
a bulldozer
coverirg refuse.
The gate
to
the landfill
was locked when the inspector took
the photographs
in evidence,
and remained locked until
8:00 a.m.
(Exh.
2,3).
(R.lO—l3).
1N~~7’~
—3—
The permit
for this landfill requires that
at the end of
each operating day 12”
of cover be applied
(R.18).
he above—
described photographs and the testimony of Mr. Edmondson (R.10—
14, R.28—30) demonstrate that
the requirement had not been met
for the
refuse disposed
of on at
least
the immediately
rreceeding
workday.
Herrin’s witness,
Mr. Terry McEvers,
stated. on direct
examination
that
some of
the uncovered refuse
in question “had
been previously covered but had been eroded by the
large amount
of
rain that we had
at
that point
in time~.
(R.83)
.
Mr. McEvers
further stated that
it
had been raining.
:R.84).
On cross—
examination,
the witness could
not state the amount
of
rainfall,
nor the dates.
Q.
You
indicated
that
there
were
rainy
conditions
some
time
previous
-
or
did
it rain the day of the inspection?
A.
No,
it
wasn’t
raining
the
day
of
the
inspection.
Q.
Did
it
rain the day before?
A.
It
had rained previously,
whether
it be
two
or
three
days
before
or
what,
I
couldn’t
say,
but
there
was
muddy
conditions.
Q.
Do you have a weather
report?
A.
No.
Q.
How much
did
it
rain,
in
your
opinion,
in the week before the inspection?
A.
I have no idea.
(R.96)
Herrin did not submit any further evidence depicting
conditions which would support
a determinat:on of uncontrollable
circumstances.
(In the Matter c~Dan Heusinkved,
AC 87—25,
Docket
A,
slip op.
at
6,
(January 21,
1988);
In the Matter
of
Village of Rantoul,
AC 87—100,
slip op.
at
B
(September
27,
1988).
The Board finds
this
is
not a
situation where Herrin has
proven the violations’
resulted from uncontrollable
circumstances.
Based on the evidence submitted
by the Agency,
the Board
finds
that Herrin operated the landfill
in violation of
Section 2l(p)(5) of the Act.
—4—
Failure
to Collect and Contain Litter
In support of the allegation that litter from a previous
operating day had not been collected and contained,
the Agency
submitted testimony of Mr. Edmondson and photographs taken during
the inspection.
Additionally, the Inspection Report Form,
completed on September
16, 1988 and attached to the
Administrative Citation contained written observations of Mr.
Edmondson.
(Pet.
Exh.
4—11;
R.
at
29—33,
50—51).
The photographic evidence depicts refuse
in an area
distinctly different
from the working
face of the landfill.
As
the Board held
in an earlier
case:
There
is
a
locational
aspect
to
an
administrative
citation
alleging
a
litter
violation.
The
location
of
the
refuse
in
question,
not
its
appearance
is
dispositive
as
to
whether
it
constitutes
“litter”
within
the context
of Section 2l(p)(l2)
of
the Act”.
County of Dupage
v.
E
& E Hauling,
AC
88—76,
Docket A
&
B
and
AC
88—
77,
Docket
A
&
D,
slip
Op.
at
6
(September
13,
1989).
Herrin’s witness McEvers stated that the city has
constructed litter fences,
both fixed and movable,
in an attempt
to capture blowing litter
(R.87—9l).
Also,
McEvers stated that
the EPA had not offered any guidance as
to solv~ingthe litter
problem other
than the suggestion of hiring litter pickers.
~
:at~dt1~at
only been on one landfill site
in the last five years
that hasn’t
had blowing litter all over
it and that was
in Alabama,
and.
that’s because of
the type
of process
they had down there”.
(R.1l2).
On further questioning,
the engineer stated:
Q.
Well,
structurally,
what
could
be
done
to
completely
eliminate
this
litter
problem?
A.
I
don’t
think
there’s
any
way
you
can
eliminate
the
litter
problem
at
any
landfill.
I
think
you can go
statewide
here
in
the
state
of
Illinois,
and
I
think
you’ll
find
every one of
them has
blowing litter problems.
The only thing
you can
do
is
try
to stay on
top of
the
problem.
Q.
What
better
techniques
could
the
city
employ
to
resolve
this
wind
blown
litter?
—5—
A.
There
really
aren’t
any good techniques
to control blowing litter
of any sort.
(R.1l3)
The Board addressed the issue
of litter containment
in
In
the matter
of
Dan Heusinkved, AC 87-25,
Docket
A,
slip Op.
at
6,
(January 21,
1988).
:See also County of Dupa~e v.
E
&
E Hauling,
Inc.,
AC 88—76,
Docket A and B and AC 88—77,
Docket A
&
B,
(September
31,
1989).
In finding
a violation of Section
2l(p)(l2)
the Board held:
The
Board
is
aware
that
litter
control
may
at
times,
particularly
during
high
winds,
be difficult.
However,
this does
not
mean
that
litter
control
is
impossible
nor
that
the
regulations
regarding
litter
control
are
impractical.
It
is
precisely
because
litter
control
is
at
times
difficult
that
it
is
necessary
for
policing
of
litter
dispersement
when
the ability
to
contain
litter
is
less
than
optimal.
Respondent
has
failed
to
show
that
on
January 23, 1987,
~L had. undertaken
this
necessary policing.
(In
the
matter
of
Dan Heusinkved,
AC 87—25,
Docket
A,
slip Op.
at
6,
(January 21,
1988).
Nowhere does Herrin contend
that the litter shown
in photos
10 and
11 all derived from refuse brought
to the site on the day
of inspection.
Nor does Herrin present any evidence that weather
conditions or other uncontrollable circumstances on the previous
day prohibited
it
from collecting and containing the litter.
Based on the evidence submitted by the Agency,
the Board
finds
that Herrin operated the Herrin landfill
in violation
of
Section 2l(p)(l2)
of the Act.
Deposition of Refuse
in any Unpermitted Portion
of the Landfill
In support
of
its allegation that Herrin deposited refuse
in
an unpermitted portion of the landfill the Agency offers
testimony of Mr. Tom Edmondson and Mr. Gerald Steele and
a photo-
copy of
the landfill plansheet
that appears
on page
4 of the
original
set
of plansheets
(Exh.
1)
which were submitted to the
Agency with the original permit application
(R 9,20).
During Mr. Edmondson’s
inspection of September
16,
1988 he
observed waste
being accepted and deposited
in an area designated
by the plansheets
as Area
“B”.
(R.
at
21).
Mr. Edmondson stated
that the facility
is permitted
to accept refuse
in Area
“A”
1fl6
‘~I
—6—
only.
(R.20).
Gerald Steele,
of the IEPA,
division of Land Pollution
Control, Marion field office,
chronicled
the attempted and failed
permit applications for an operating permit outside of Area
A.
(R.58—68)
Herrints witness, McEvers, who
is responsible for day
to day
operation of the landfill,
on direct examination stated:
Q.
How are you now operating?
A.
We’re operating off the permitted area.
Q.
Have you sought
a permit?
A.
Yes,
we
have.
Q.
Looking
at
specifically
violation
citation Roman
numeral
4,
deposition
of
refuse
in any unpermitted portion of the
landifll.
Can
you
explain
that
violation?
A.
That’s
basically
the
same
thing
as
I
just
explained
earlier.
We’re
depositing
waste
in
an
area
not
permitted.
(R.87)
On cross examination McEvers stated:
Q.
What
are
you
supoosed
to
do
when
a
permitted
area
fills
up
and
you
still
want
to dump?
A.
What am
I supposed
to do?
Q.
Uh-huh.
A.
Consult with the Mayor and the Council.
Q.
Did you do that?
A.
Yes,
I
did.
0.
What did they tell you
to do?
A.
Continue
to operate.
Q.
Are
you
saying
that
they
told
you
to
continue
to
dispose
of
refuse
outside
the permitted area?
mR 82
—7—
A.
That’s correct.
Q.
Did
you find
any
problem with that?
A.
No.
Q.
You agreed with that?
A.
Yes.
Q.
When uas area A filled
to c~oacity?
A.
I
can’t
put
a particular
time,
it
would
be
some time
in
late
‘86,
:
believe.
(R.98)
Based on the evidence submitted by the Agency and the
admissions of Herrin’s own witness,
the Board finds
that Herrin
operated the landfill
in violation
of Section
21(p)(9)
of the
Act.
Acceptance
of Wastes Without Necessary Permits
The Agency alleges
that Herrin accepted waste
t the
landfill without having necessary permits
in violation
of Section
lO2l(p)(7)
of the Act.
The Agency argues
that
in order
for
the facili .y
to accept
refuse
for disposal
in area
B,
Herrin needs an operating permit
for that area.
The Agency asserts
the action
of accepting
refuse
for deposition
in an area not covered by an operating permit
gives
rise
to a violation of Section
~1(p)(7)
in addition
to
2l(p)(9)
of the Act.
(R
20—21).
In direct examination
Inspector
dmondson attempted
to
distinguish the two violations.
Q.
Now,
it
sounds
as
though
you
might
be
saying the same thing with
regard to
the
allegation
that
the
site accepted waste
without
necessary
permits
and
the
allegation
that
the
site
disposed
of
refuse
in
an
unpermitted
area.
Could
you
please
differentiate
one
from
the
other?
A.
In
other
words,
to
receive
refuse
and
deposit
it,
you must
have
the necessary
permits
to
accept
waste,
and
the
other
one
is
that
they
knowingly
kneu’
they
were off their permitted
area,
permitted
A,
and were
still
accepting
refuse and
in.~
°~
—8—
depositing
refuse
in area
B.
(R.
27—28).
The Agency
in its brief alleges that Herrin “did not have an
operating permit for that area but nevertheless accepted refuse
with the specific intent
to dispose of
it
in area B, which gives
rise to the charge of accepting waste without the necessary
permits”.
(Ag.
brief
at
4).
The Board cannot accept
the Agency’s construction of Section
2l(p)(7-)
of
the Act.
Section 2l(p)(7)
of
the Act states:
No Person shall:
d.
conduct
a
sanitary
landfill
operation
which
is required
to have
a permit under
subsection
(p)
of
this
Section,
in
a
manner
which
results
in
any
of
the
following conditions:
7.
acceptance
of
wastes
without
necessary permits;
Ill.
Rev.
Stat.
1987,
ch.
lll~, par.
lO2l(p)(7)
This would include allegations of acceptance
of special
wastes
at
a sanitary landfill which does not have
a permit
to
accept special wastes.
c.-~:,-,-
~~1~-~’’
.-~
-~
--
~_~-)_~‘),
—
~
,..~
——-
-.—-
~
--_
necessary permits
is
a violation.
-The waste Herrin was accepting
was authorized
in
its permit.
Section 2l(p)(7)
does not state
that acceptance must
be combined with
a specific
intent
to
deposit the refuse
in
an area without
a current operating
permit.
The Agency
is attempting
to impose two penalties
for the
same offense.
County of Dupage
v.
E
&
E Hauling,
Inc.,
AC 88—77,
Docket A
&
B,
and AC 88—77,
Docket A
&
B,
slip op.
at
6
(Sept.
13,
1989)
To deposit
refuse
in an unpermitted portion of
the landfill
would naturally imply
“acceptance”
of
the refuse at
the
landfill.
The Agency has not alleged facts distinct from those
used
to support
its allegations
of violation
of
21(p)(9).
Nor
has the Agency alleged
that
the type of waste accepted was
improper under Herrin’s permit.
However,
the Board
notes that
under other circumstances
it
could
be possible
to simultaneously
violate both sections at
the same
facility.
The Board,
therefore,
does not uphold
the Agency’s
determination that Herrin was
in violation of
Section 2l(p)(7)
of
lfl6-.2!~
—9—
the Act.
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
provision
of
subsection
(p)
or
(q)
of
Section
21
of this Act shall pay a civil
penalty
of
$500
for
eacn
vioT~.ation of
each
such
provision,
plus
any
hearing
costs
incurred
by
the
Board
and
the
Agency.
Such
penalties
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
as
amended;
except
that
if
a
unit
of
local
government
issued
the
administrative
citation,
50
-of the civil penalty shall
be
payable
to
the
unit
of
local
government.
Ill.
Rev.
Stat.
1987,
ch.
lll~,
par.
l042(b)(4).
Respondent will therefore be ordered
to pay a civil penalty
of $1,500 based on the three 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.
Repondent
is also required
to pay hearing costs incurred by
the Board and the Acency.
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
Herrin.
ipon 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
to
have
been
in
violation on September
16,
1988,
of
Ill. Rev.
Stat.
1987,
ch.
1114,
par.
1021,
(p)(~., and
in violation
on September
16,
1988 of
Ill. Rev.
Stat.
1987,
ch.
i’1f-
~35
—10—
1114,
par.
lO2l(p)(l2),
and
in
violation
on
September
16,
1988
of
Ill.
Rev.
Stat.
1987,
ch.
1114,
par.
102l(p)(9).
2.
Within
45
days
of
this
Order
of
December
6,
1989
Respondent
shall,
by
certified
check
or
money
order,
pay a civil penalty
in the amount
of $1,500
payable
to
the
Illinois
Environmental
Protection
Trust Fund.
Such payment shall
be sent
to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
IL
62706
3.
Docket A in this matter
is hereby closed.
4.
Within
30
days
of
this
Order
of
December
6,
1989
the Illinois
Environmental Protection
Agency shall
file
a statement of
its hearing costs,
supported by
affidavit,
with
the
Board
and
with
service
upon
Herrin.
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 Herrin.
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 December
6,
1989.
Section
41
of
the
Environmental
Protection
Act,
Ill.
Rev.
19li
ct
.
111
~
p-or.
li41,
croviJer
n~-or~~i
-
Orders
of
the
Board
within
35
days.
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
certify
that
the
above
Order
was
adopted
on
the
~
day
of
~
,
1989,
by
a
vote
of
________________
~~\/
~
/~
--
Dorothy
M.
9&~nn,Clerk
Illinois Po~l!utionControl Board