ILLINOIS POLLUTION CONTROL BOARD
    September
    30, 1976
    ENVIRONMENTAL PROTECTION AGENCY,
    )
    Complainant,
    v.
    )
    PCB 76-21
    JOHN P. WYATT,
    )
    Respondent.
    Mr. Robert Reiland and Mr. Russell
    R. Eggert, Assistant
    Attorneys General, appeared on behalf of the Complainant.
    Mr.
    W. Loren Thomson appeared on behalf of the Respondent.
    OPINION
    AND
    ORDER OF THE BOARD
    (by Dr. Satchell):
    This matter comes before the Pollution Control Board upon
    a complaint filed by the Environmental Protection Agency
    (Agency)
    on January 21, 1976.
    An amended complaint was filed on April 20,
    1976.
    The amended complaint alleges that John P. Wyatt owns
    and has operated a solid waste disposal site in Section 32,
    Township 24 North, Range
    2 East of the Third Principal Meri-
    dian, in McLean County,
    Illinois.
    The amended complaint further
    alleged that Respondent failed to place a compacted layer of
    not less than two feet of cover over the entire surface of the
    final lifts of the solid waste disposal site within sixty days
    following the placement of refuse in said final lifts and that
    as of the date of the complaint refuse and debris remains ex-
    posed at the site in violation of Rule 305(c)
    of the Solid Waste
    Regulations and Section 21(b) of the Environmental Protection
    Act
    (Act).
    A hearing was held on June 10, 1976 at Bloomington,
    Illinois.
    The Agency presented testimony concerning eleven inspec-
    tions of the site from January 26,
    1974 through May 19,
    1976.
    At the first inspection Mr. Wyatt stated that the operation
    was nearing completion,
    that he would probably finish it by
    filling it with soil and that he had sold it to the City of
    Bloomington and was operating it for the City of Bloomington
    (R.
    14,
    15).
    On August 12, 1974 exposed refuse consisting of
    demolition-type material, for example: wood, brick, steel and
    reinforcing rods was observed
    (R.
    77).
    On this date Mr. Wyatt
    told Agency inspector, Dave
    Lambert,
    the site was closed and
    23—619

    —2—
    was not accepting any more refuse
    (R.
    78).
    On the Agency
    visit of September 1, 1974 it was observed that the north
    face was open with refuse exposed; the west end of the
    property was exposed and central portions of the site
    lacked final cover
    (R.
    23).
    On September
    11, 1974 Mr. Wyatt
    discussed conditions with Agency inspector, John Diefenback
    (R.
    24, 25).
    At this time there was some cover material
    piled on the site
    (R.
    25).
    On October
    2,
    1974 refuse was
    protruding the cover material on the central portion of the
    site,
    the north face was open and the west end had open
    refuse
    (R.
    30).
    In December of 1974 refuse was observed
    along the north portion of the boundary of the site adja-
    cent to the fence line and approximately 60 to 80 feet
    parallel south of the fence line
    (R.
    83).
    On November 19,
    1975 conditions similar to the previous inspections were
    found.
    The north face was open;
    the west end was exposed
    and refuse was protruding through the cover material on
    centralized portions of the site
    (R.
    32).
    This was also
    the general condition of the site on February 23, 1976
    (R.
    33).
    During the February 23,
    1976 inspection Mr.
    Diefenback spoke with a man from the City of Bloomington
    who indicated the City of Bloomington had responsibility
    for the property in some respect, ownership or agreement
    to purchase
    (R. 34).
    On April 13,
    1976 the north face was
    open as was the west end and refuse was protruding through
    the cover on central portions
    of
    the site
    (R. 38).
    The Agency also presented pictures of the area as
    exhibits.
    Although work on the face of the fill was con-
    tinuing the north face of the fill consistently remained
    exposed
    (Comp. Exs.
    7,
    8,
    10, 12 and 13).
    Respondent’s case
    is concerned with the question of
    Respondent’s property lines.
    The City of Bloomington does
    own property next to Mr. Wyatt’s on the south
    (R. 145).
    The
    City also owns
    a lot south and east of Mr. Wyatt’s property
    (R.
    151, Comp.
    Ex.
    1).
    Although the evidence of ownership
    presented is somewhat confusing and difficult to follow, the
    Board finds sufficient evidence was presented to show failure
    to place final cover within sixty days on the site, particu-
    larly along the north face of the fill and on the central
    areas.
    Respondent also raised as a defense that the Solid
    Waste Regulations were enforced selectively and therefore
    unconstitutionally.
    Proof of this allegation consisted of
    pictures of other sites with uncovered refuse
    (Resp.
    Ex. 18—26).
    23
    620

    —3--
    This defense is without merit.
    Conscious exercise of some
    selectivity is not a constitutional violation, Oyler v. Boles
    368 U.S.
    448, 456
    (1962).
    Respondent made no showing that
    prosecution was based on an unjustifiable standard such as
    race,
    religion or other arbitrary classification as
    is
    necessary to prove selective enforcement, Id.
    The Board finds that Respondent has failed to place
    final cover within sixty days in violation of Rule 305(c)
    of
    the Solid Waste Regulation and Section 21(b)
    of the Act.
    Be-
    fore the Board can fashion a remedy Section 33(c)
    of the Act
    must be considered.
    The possibility of the presence of
    leachate
    in this situation is not great
    (R. 63).
    The primary
    hazards at the site according to the Agency are fire hazard
    or vector harborage
    (R.
    48).
    There is another refuse dis-
    posal site
    to the north of the Wyatt site
    (R.
    48).
    There is
    also a residential neighborhood in the area
    (R.
    48).
    The site
    located as it is next to a similar site may be located suitably;
    however,
    a solid waste site not covered properly can be a
    hazard to the residents of the area and perhaps an attractive
    but dangerous play area for children.
    Respondent’s exhibits
    1 through 13 are pictures taken
    two days before the hearing indicating that most of the fill
    area has received enough cover to at least a depth where
    there is no protruding refuse
    (R. 156).
    The Agency estimate
    for covering all the area to attain compliance was that it
    could cost from approximately $7,000 to $13,000 or $14,000.
    According to Respondent’s Exhibits
    1 through 13 at least part
    of this has been already accomplished.
    Respondent’s income
    for 1973 was approximately $23,000,
    in 1974 it was $18,000
    and in 1975 $14,600
    (Comp.
    Ex.
    23,
    24,
    25).
    There was some
    cover material piled at the site
    (R.
    24).
    Respondent’s pri-
    mary business was demolition and he employed an operator,
    truck driver, and laborer
    (R.
    188).
    It would appear that
    the necessary equipment to complete the fill was readily
    available.
    Considering what Respondent has already done
    to comply with the regulations and what money and material
    was available at the time, there is no reason that Respondent
    could not have placed final cover in the proper period of
    time.
    Because no environmental harm was alleged and improve-
    ments were continuing, the Board finds
    that a penalty of $500
    is adequate to aid in the enforcement of the Act.
    Respondent
    shall also be required to complete adequate placement of final
    cover within 90 days of this Order.
    This constitutes the Board’s findings of fact and con-
    clusions of law.
    23
    621

    —4—
    ORDER
    It is
    the order of the Pollution Control
    Board
    that:
    1.
    Respondent is found to be in violation of Rule 305(c)
    of the Solid Waste Regulations and Section 21(b)
    of the Act.
    2.
    Respondent shall complete placement of final cover
    within 90 days of this Order.
    3.
    Respondent shall cease and desist further violations
    of the Act.
    4.
    Respondent shall pay a penalty of $500 within 35 days
    of this Order.
    Payment shall be by certified check
    or money order payable to:
    State of Illinois
    Environmental Protection Agency
    Fiscal Services Division
    2200 Churchill Road
    Springfield, Illinois 62706
    I, Christan L. Moffett, Clerk of the Illinois Pollution
    Control Board, hereby certify the ab ye Opinion and Order were
    adopted on the
    ~
    day of
    ____________
    1976 by a vote
    of
    ~
    Illinois Pollution
    Board
    23
    622

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