ILLINOIS POLLUTION CONTROL BOARD
May 10,
1990
ST. CLAIR COUNTY,
Complainant,
v.
)
AC 89—18
(Dockets A
&
B)
(Administrative Citation)
J
& R LANDFILL,
INC.,
)
County No. 89-1 SC
An Illinois Corporation,
Respondent.
DENNIS
HATCH
APPEARED
ON
BEHALF
OF
THE
OFFICE
OF
THE
STATE’S
ATTORNEY FOR ST. CLAIR COUNTY;
THOMAS
J.
IMMEL,
OF
IMNEL,
ZELLE,
OGREN,
MCCLAIN,
GERMERAAD
&
COSTELLO,
APPEARED
ON
BEHALF
OF
RESPONDENT.
OPINION
AND
ORDER OF THE
BOARD
(by J.
C.
Marlin):
This matter comes before the Board upon
a petition for review
of administrative citation
(“citation”)
filed by J
& R Landfill,
Inc.
(“J&R”) on February
2,
1989.
The citation was served on J&R
on
January
5,
1989,
pursuant
to
the
authority
vested
in
the
Illinois Environmental Protection Agency (“Agency”)
and delegated
to St. Clair County (“Complainant”) pursuant to Section 4(r) of the
Illinois
Environmental
Protection
Act
(“Act”)
(Ill.
Rev.
Stat.
1987,
Ch. 1ll~,par.
1001 et seq.).
The citation is based upon Complainant’s determination of four
violations of Section 21(p)
of the Act,
identified as Counts A,
B,
C,
and D.
Count A is based on the uncovered waste prohibition of
Section
21(p) (5)
as
observed
on
November
28,
1988.
Count
B
is
based
on the litter prohibition of Section
21(p) (12)
as observed
on
December
1,
1988.
Count
C
is
based
on
the uncovered
waste
prohibition of Section
21(p) (5)
as observed on December
2,
1988.
Count
D
is based
on
litter prohibition
of
Section
21(p) (12)
as
observed on December 2,
1988.
J&R contests all four determinations
of violation.
On
May
8,
1989,
J&R filed
a motion to
dismiss
for lack of
jurisdiction due to improper service.
The Board denied that motion
by Order
of May
11,
1989.
Upon motion
for reconsideration filed
May 16, 1989, the Board granted reconsideration, but reaffirmed its
denial of J&R’s motion to dismiss by Order of June
22,
1989.
A hearing was held on September 13,
1989,
in Sauget, St. Clair
County,
Illinois;
no members of the public attended.
Complainant
presented
witness
Donald
R.
Brannon,
supervising
Environmental
Specialist
for the St. Clair County Health Department;
Respondent
present witness Avis
K. Quinn,
President and owner of J&R.
The
111
—
I 4
3
2
parties
elected
to
not
file
briefs,
standing
on
their
closing
arguments’.
BACKGROUND
The citation was issued to J&R as the operator of a sanitary
landfill located in St. Clam
County, operating under Agency Permit
No. 1975—50—OP and designated with Site Code No.
1630100002.
The
facility is commonly known to the Agency as Belleville
3
&
R.
On
the
basis
of
inspections
conducted
by
Mr.
Brannon
on
October
24,
November
28,
December
1,
and
December
2,
1988,
Complainant determined that J&R had operated the site in violation
of
Section
21(p) (5)
of
the Act.
On the
basis
of
Mr.
Brannon’s
inspections
of
November
28,
December
1,
and
December
2,
1988,
Complainant determined that J&R had operated the site in violation
of Section 21(p) (12)
of the Act.
Complainant subsequently issued
a
citation
on
January
5,
1989
for
two
violations
each
of
subsections
(p) (5)
and
(p) (12)
of
Section
21.
Complainant then
noted that J&R is subject to
a civil penalty of $500.00
for each
of the four violations for a total of $2000.00.
Sections 21(p) (5)
and 21(p) (12)
of the Act state:
(p)
No
person
shall
conduct
a
sanitary landfill
operation
which is required to have
a permit under subsection
(d)
of this Section,
in a manner which results in any of the
following conditions:
*
*
*
5.
uncovered
refuse
remaining
from
any
previous
operating day or at the conclusion of any operating
day, unless authorized by permit;
*
*
*
12.
failure to collect and contain litter from the site
by the end of each operating day.
J&R
now
contests
before
this
Board
Complainant’s
determinations
of violation,
claiming that the determinations
of
violation were improper.
In
the alternative, J&R claims that the
violations
were the result of uncontrollable
circumstances,
thus
invoking the “uncontrollable circumstances” provision of the Act:
if
the Board
finds that the person appealing
‘Closng
arguments
are
cited
herein
“Compi.
R
at
“
for
Complainant,
and
:J&R”.
at
“
for J&R.
1 ii
—
I
:.
3
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 imposes
no
penalty.
Ill.
Rev.
Stat.
1987,
ch.
111½,
par.
1031.1(d) (2)
Penalties
in 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 each violation
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.
111½,
par.
1042(b)(4).
COMPLAINANT’S DETERMINATIONS OF VIOLATION
The
Board
next
turns
to
the
four
individual
counts.
For
purposes of economy of discussion, Counts B and D will be treated
together.
Uncovered Refuse
-
Count A
On October 24,
1988,
Mr. Brannon inspected
the J&R facility
between
9:10
and
10:40
A.M.
Mr.
Brannon testified
that
on that
date
he
observed
uncovered
refuse2
on
the eastern
and northern
slopes
of
the
fill
area
(R.
at
15)
.
Complainant
submitted
photographs taken during the October 24 inspection (Exhs.
16-1,
18-
1
and
19—1)
which purport
to show areas
of
uncovered
refuse
in
gullies.
On November 28, 1988, Mr. Brannon conducted another inspection
of the J&R facility.
He testified that he photographed areas of
uncovered refuse on the eastern slope of the fill, which he states
is the same uncovered refuse which he observed on October 24, 1988.
He testified to the contents of the photos under direct examination
as following:
21n
his
testimony,
Mr.
Brannon
used
the
terms
“uncovered
refuse” and “exposed refuse” interchangeably.
The Board notes that
the Act only uses the term “uncovered refuse”.
Ill
—
1
4 5
4
A.
They depict exposed refuse.
Q.
The same sites one month apart?
A.
Correct.
Photograph 19—2 was taken farther back up the slope which
explains
a little bit the difference
in the photographs
but
it is~the same refuse.
Q.
People’s Exhibits
18-1 and 21-2?
A.
This
is exposed
refuse that was
on
the eastern
slopes.
Photograph
21-2 was taken, again,
a little farther away,
and probably with
a different
lens as well,
but you can
see the two by four still laying in the gully, and you can
recognize the refuse in the two pictures.
(R.
at
20)
From this, Complainant argues that since the photographs
and
testimony indicate that the same refuse was exposed on October 24,
1988 and November 28,
1988,
the refuse remained uncovered from
a
previous operating day in violation of Section 21(p) (5)
of the Act.
J&R responds that the citation issued was improper and that
no violation of Section 21(p) (5) has been shown.
J&R states that
photographs
21-2,
20-2,
and
19-2,
which
were
the
basis
for
Complainant’s
determination
of
violation
on
November
28,
1983,
depict
a
section
of the landfill which was
no
longer active and
had received
final
cover
CR.
at
83;
J&R.
at
132).
Ms.
Quinn
testified
that
the
drought
of
1988
caused
vegetation
not
to
establish
in the area,
which
in turn allowed erosion
arid exposure
of the previously buried waste
in the fall season
(R.
at
83)
Ms. Quinn
further noted that correction of the gulleying
is
possible:
Q.
What steps,
if any, have you taken
to correct that?
A.
The only thing you can do
is monitor
it and keep filling
the washouts with dirt.
(R.
at
84)
Ms. Quinn
additionally observed
that
Exh.
19-1
shows new cover
material which had been placed
near the gulleys
for the alleged
purpose of filling the gulleys
(R.
at 84—5).
J&R argues
that Section
21(p)
(5)
does not apply because
the
refuse
had
been
covered
and
the
area
had
received
final
cover.
11
1
—-
I
46
5
Therefore, J&R submits that the refuse had not remained uncovered
from
a
previous
operating
day
within
the
meaning
of
Section
21(p) (5).
The
Board
disagrees
with
J&R’s
interpretation.
J&R would
seemingly
have
Section
21(p) (5)
read
as
a
prci~ibition against
“refuse
remaining
uncovered
from any previous
day”.
Under this
interpretation,
J&R’s
position
is
arguably
correct
in
that
the
refuse at issue had not remained uncovered because
it indeed had
received a previous cover.
Essential to J&R’s construction
is that the word “uncovered”
is employed as a past participle within the phrase “remaining from
any previous operating day”.
However, the grammatical construction
which J&R urges is not that which actually exists
in the statute.
Rather,
the statute reads:
No person
shall
conduct
a sanitary landfill
operation
manner which results
in
...
uncovered refuse remaining
from any previous operating day
In
this
construction,
the
word
“uncovered”
is
an
adjective
modifying
“refuse” and the participial phrase “remaining ‘from any
previous operating day” serves as an adjective modifying the term
“uncovered
refuse”.
The
proper
question
is
thus
whether
the
uncontestibly uncovered refuse is properly described as “remaining
from any previous operating day”.
The answer to this question
is
clearly
“yes”.
The refuse obtained its “uncovered”
character on
some previous
day,
and
it
remained
in
that
form
for many
days
thereafter.
Further
guidance
on
this
matter
may
be
obtained
through
examination of the underlying Board regulation.
As the Board has
previously
noted,
there
is
a
nexus
between
the
Administrative
Citation procedure of the Act and the Board regulations; this nexus
is
that
the
Administrative
Citation
procedure
was
designed
to
expedite the regular enforcement process by
identifying
a subset
of the larger waste disposal regulations which may be prosecuted
through the Administrative Citation procedure
(In the Matter of:
Dan
Heusinkved,
County
Clerk,
County
of
Whiteside,
State
of
Illinois,
AC
87—25,
85
PCB
247;
In
the
Matter
of:
Village
of
Rantoul,
AC 87-100,
92 PCB 539).
Thus,
the underlying regulation
serves as guidance for actions covered
in the citation procedure.
The underlying regulation
at issue
is found
at
35
Ill.
Adm.
Code 607.305(a), which states
in pertinent part that cover “shall
be
placed
on
all
exposed
refuse
at
the
end
of
each
day
of
operation”
(emphasis added)
.
In the matter at hand, exposed refuse
clearly
existed
in
the gulleys,
and
it
was
allowed
to
remain
uncovered at the end of not only one operating day, but through at
least the period from October
24,
1988 to November 28,
1988.
The
Board notes that Section 807.305(a)
states ~
exposed refuse must
I
I
I
—
1
4
7
6
be
covered.
It
makes
no
distinction
as
to
the
cause
of th~
exposure
(e.g.,
whether the refuse
was newly disposed,
or lateL
uncovered due
to
erosion,
operation of vehicles,
digging
of new
trenches,
scavenging, etc.)
In the alternative, J&R argues that the erosion and uncovered
refuse was caused by “uncontrollable rainfall events.”
(J&R R.
at
132)
.
The Board finds this construction strained.
While rainfall
events are clearly “uncontrollable”,
and the gulleying caused by
the rainfall events was arguably “uncontrollable”3, the persistence
of
uncovered
refuse
within
the
gullies
was
clearly
rig~j
uncontrollable.
It
is
the evidence
of persistence of uncovered
refuse upon which Complainant made its determination of violation,
not the uncontrollability of the action which lead to the exposure
of the refuse.
It was well within the control of J&R to take some
rectifying action,
and to thereby meet its responsibility to cover
refuse.
In
fact, J&R’s witness offered one simple solution:
fill
the
washouts
with
dirt
(i.e.,
replace
the
cover
removed
by
erosion)
.
There
is
no
evidence
that
this
was
done
or
even
attempted
in
the
time
between
the
October
24
and
November
28
inspections,
the
presence
of
nearby
piles
of
cover
material
notwithstanding.
Based
on
the
above,
the
Board
upholds
the
Complainant’s
determination
of violation
of Section
21(p)(5)
for November
28,
1988,
and
finds
that
the
violation
was
not
the
result
of
uncontrollable circumstances.
Uncovered Refuse
—
Count C
Mr.
Brannon also
inspected the J&R facility on
December
1,
1988
between
3:50
and
4:25
PM,
and
again
on
December
2,
1988
between
5:20
and
7:15
AN.
During
the
first
of
these
two
inspections Mr.
Brannon observed and photographed
(Exhs.
7-3 and
8—3) what he considered to be uncovered refuse located at the toe
of
the
active
face
(R.
at
29)
.
On
the
second
of
the
two
inspections,
Mr.
Brannon again observed and photographed
(Exhs.
4-
4 and 6-4)
the same area.
Mr. Brannon testified that the December
2
photographs
likewise
show
uncovered
refuse
from
a
previous
operating day
(R.
at 29-30).
On the basis of the photographs and
inspections,
Complainant
issued
the
citation
for violation
of
Section 21(p) (5) occurring December
2,
1988.
J&R responds with several observations and conclusions.
These
are that
J&R’s
extended
working
hours
somehow
cause
an
unusual
3The
Board
notes
that
the
record
does
not
indicate
the
magnitude
of
the offending
rainfall
events.
Neither
does
the
record indicate when the rainfall events occurred, other than that
by inference they preceded October
24,
1988,
a.date on which the
gullies caused by the rainfall events were
in evidence.
I
11
—
I
‘~
S
7
standard of cover application to apply at its facility, that cover
material had been and was being applied in the areas photographed
during
inspection,
and
that
such
failure
of
cover
as may
have
existed was due to the poor ground and weather conditions occurring
at the time of inspection.
The Board addresses these in turn.
The J&R facility
is permitted to maintain gate hours of 7:00
AM to 5:00 PM on weekdays,
and 7:00 AM to noon on Saturdays
(R.
at
57).
That J&R’s operating hours,
in the sense of the hours it
is
open
to
the
public,
are
less
than
24-hours
a
day
is
further
affirmed by Ms. Quinn
under direct examination:
Q.
You asked the Illinois Environmental Protection Agency to
extend the
hours
to which you were open to the public,
correct?
A.
Yes.
Q.
They adjusted your hours at one time,
is that right,
for
you?
A.
I don’t believe they did.
Q.
Okay.
Did they deny your request to go for a twenty-four
hour a day operation?
A.
Yes.
Q.
Was that
request
to
be
open
to
the public twenty-four
hours a day?
A.
Yes.
(R. at 124—125)
Nevertheless, J&R implies that it
is somehow
a 24-hour
a day
operation
(R.
at
58,
98).
The
Board
fails
to
see
how
this
conclusion
is reached,
since although J&R continually alludes
to
this
conclusion,
it
never
coherently
lays
out
a
rationale
in
support.
The
Board
can
only
presume
that
J&R
bases
it
characterization
on
the
fact
that employees
sometimes work
into
the night, even though this
is not necessarily always the case nor
does the night work
necessarily extend throughout the night
(See
R.
at
117—119)
.
The
Board
fails
to
see how this
raises
J&R’s
operation to
a “24—hour a day operation”.
Assuming arguendo that J&R’s
operation
is
somehow
properly
characterized as
a 24—hour
a day operation, the Board still
fails
to see where this characterization reaches.
J&R seemingly implies
that since J&R workers sometimes work late into the night, perhaps
even sometimes around the clock, J&R’s “operating day” has no end,
the phrase
“at the conclusion
of
any operating
day”
of Section
I 11—149
8
21(p) (5) has no meaning as applied to J&R’s operations, and J&R
i~
thereby
exempt
from
the
daily
cover
requirements
of
Section
21(p) (5).
This
pos.ition
is patently untenable
in the context of
Section 21(p) (5).
Section 21(p) (5),
as well
as the general Board
regulation
found
at
35
Ill.
Adxa.
Code
807.305,
is
premised
on
covering refuse as soon as is practicable,
and certainly does not
excuse failure to cover simply because persons may have been on the
property
on
a
continuous
basis.
If
anything,
the presence
of
nighttime
operators would seem
to allow expanded
opportunity
to
meet the cover obligation, rather than stand as basis for excusing
it.
J&R
further
notes
that
cover material
was being applied
in
the areas
photographed
during
the
December
1,
1988
inspection.
This fact was supported by Mr.
Brannon
(P.
at
55)
.
However,
J&R
argues
that
due
to
rainfall
occurring
around
the
dates
of
inspection, the cover material was wet and therefore
difficult
to
apply, thus presumably causing some refuse to remain uncovered into
the next day.
J&R also noted that under those conditions refuse
protrudes through cover material even though six inches
of
cover
is
applied
and that
this
is
unavoidable
(R.
at
93—95)
.
J&R’s
witness
testified
that
there
had
been
“much
rainfall”
between
November 28 and December
1
(R.
at
89),
but no other evidence was
introduced to indicate how much rain had fallen.
J&P argues that
because this wet cover problem
is unavoidable,
the violation was
the result of uncontrollable circumstances
(J&R at 135—136)
Mr.
Brannon conceded
that refuse may
still
protrude and be
visible although
six inches of cover has been applied
(R.
at 66—
69)
A.
You can have something poking out
and still
comply with
the regulations.
The regulation says you should have six
inches
of
compacted
cover.
.
.
.
When
you
inspect
a
landfill you could
tell
whether
or not
it
is adequately
covered.
You
don’t have to count paper,
look
at
pieces
of paper.
You can go on a landfill and there can be paper
sticking out
in
a lot of areas but you would not charge
them
with
inadequate
cover.
(P.
at
68—69)
However,
Mr.
Brannon
did
not
believe
J&R
had
applied
adequate
cover
to the areas he observed on December
2
(P.
at 66—69)
.
Complainant
argues
that J&R
did not
present
sufficient
evidence
that
“the
conditions were so bad that J&R
could not do ar~ythingabout
it~t,
but only stated that
it rained
(Conpl.
P.
at
142)
The
Board
notes that
J&P. appears
to
be
initially
asserting
that
adequate
cover
was
applied,
hence
the
determination
of
violation was improper,
and that the appearance of
a lack of cover
was due
to the wet
conditions,
which were
uncontrollable.
The
Board
first addresses whether the record supports
a
finding
that
111-159
9
uncovered
refuse
remained
from
any
previous
operating
day.
Although photographs 8—3
(taken December 1) and 6—4
(taken December
2)
show that some cover had been applied to portions of the refuse
piles,
other
refuse
appears
untouched.
Photographs
7—3
(taken
December
1) and 4—4
(taken December 2) Show uncovered refuse in an
area where some cover had been applied, yet some’uncovered refuse
is
visible
in
the
same
location
in
both
sets
of
photographs,
indicating
no cover had been
applied
to
some
refuse during
the
intervening
period.
The
Board therefore
finds
that
the
record
supports
the determination
of
violation
of
Section
21(p) (5)
on
December
2,
1988,
in
that
some
refuse
deposited
on
or
before
December
1,
1988 remained uncovered on December
2,
1988.
The Board now turns to the issue of whether the violation was
due to uncontrollable circumstances.
The Board finds that J&R has
shown that it was difficult to cover refuse with wet cover material
and under wet conditions, and that some of the refuse material may
continue to be visible though six inches of cover may be applied.
However,
the record discloses
that some
refuse
remained totally
uncovered from a previous operating day.
J&R has failed to show
that
the
allowing
of
this
refuse
to
remain
uncovered
from
a
previous
operating day was due
to uncontrollable
circumstances.
The record sufficiently shows that daily cover could be placed
in
spite
of conditions,
and
shows that some cover had
in
fact been
applied.
Here, refuse remained uncovered from a previous operating day
and J&R has not shown that the violation
of
21(p) (5)
was due
to
uncontrollable circumstances.
Therefore,
the
Board upholds
the
finding
of
violation
of
Section
21(p)(5)
occurring
December
2,
1988.
Litter
-
Counts B and D
Complainant
registers
two
counts
of
violation
of
Section
21(p) (12),
failure to collect and contain litter from the site by
the end of each operating
day.
These two counts,
B
and
D,
are
based on Mr.
Brannon’s inspections
of November
28 and December
1
and
2,
1988.
Mr.
Brannon testified
that on November
28,
1988
he observed
litter on the top portion
of the site
(R.
at
22)
,
as depicted
in
photographic Exhibit
14-2.
Mr.
Brannon further testified that on
December 1, 1988 and again on December 2,
1988 he observed the same
litter that
he had seen
on
November
28,
1988
(P.
at
24)
.
The
latter
two
occurrences
of
litter
are depicted
in
photographic
Exhibits 10-3
and 7—4,
respectively.
The Board notes that these
photographs show litter on the ground and
in vegetation,
some
of
which
is
the
same litter as
that depicted
in
photographs
taken
November 28 and December
1.
111—151
10
J&R does not dispute the existence of the litter
(P.
at
116-
117).
Rather,
3&R contends
that
the
litter
remained
due
to
uncontrollable
circumstances.
Ms.
Quinn
testified
that
the
persons she employs to pick up litter could not walk through the
area of the landfill photographed by Mr.
Brannori because of mud,
water,
and frozen ground
(P.
at
91,
123),
and that she had also
tried to walk in that area and became stuck in the mud
(P. at 88)
She said that this was due to much
rain that had
fallen between
November
28 and December
1,
1988
(P.
at
89).
She also said that
she
observed
the
litter
pieces
in
the
area
and
that they
were
frozen “to the ground and grass there”
(P. at 87—89).
She further
described the soil conditions as wet,
frozen, and cold
(P.
at 91)
She said litter pickers attempted to pick litter between November
28 and December 1, and again on December 2,
1988, and that they did
not collect litter in the area photographed, only collecting litter
in the active area
(P.
at 91).
Ms. Quinn
further described the
situation:
A.
..
.
Whenever
it
is
really
muddy
and
raining
and
it’s
cold,
they will not go up there.
You cannot go up there
and pick it up when it’s that
cold.
(P.
at
123)
Respondent argues on the basis of Ms. Quinn’s
testimony that
the litter depicted in the December
1 and 2 photographs was stuck
and
frozen
into
the
weeds
and
grass
and
that
the
area
was
impassable
from mud.
Therefore,
J&R submits that the violations
on December
1 and
2, 1988 were due to uncontrollable circumstances
(J&P.
at 133—134)
The
inspection
report
of
December
1,
1988
indicates
that
weather
conditions
were
clear
and
sunny
with
the
approximate
temperature
45
degrees,
and
soil
conditions
were
muddy
in
low
areas.
The inspection
report of December
2,
1988
indicates that
the weather conditions were clear and
sunny
with the approximate
temperature
27 degrees
(See also
P.
at 70)
Upon examination
of the
record,
the Board
finds that J&R’s
facility was operated
in
a manner which
resulted
in
failure
to
collect
and
contain
litter
from
the
site
by
the
end
of
any
operating day, and that such violations occurred December
1 and
2,
1988.
The
Board
next
addresses
the
issue
of
uncontrollable
circumstances.
J&R has shown that
it was generally
not possible
for litter pickers to walk
in the area
in question due to
muddy
conditions.
These
conditions
were
worsened
by
the
area’s
topography which retained water and remained muddy longer than the
rest of the site.
3
&
P has also shown that at other times some or
all of
the litter became
frozen
in place and could
not be picked
up by hand.
These conclusions are amply supported by the pictorial
record.
While adverse weather will not normally excuse an operator
111-152
from
compliance
with
these
provisions
(see
Heusinkved,
supra)
the
particular circumstances
in
this situation warrant
a finding of
uncontrollable circumstances.
In Heusinkved,
the complainant
rebutted the ‘landowners contentions by submitting evidence
that
the ground in question was workable.
(85 PCB 252)
Here,
J
& R’s
testimony has gone largely unrebutted.
Based
on
the
foregoing,
the
Board
finds
that,
while
the
alleged violations
of
Section 2l(p)(l2)
on December
1 and
December
2,
1988 occurred,
respondent has demonstrated the
violations were ~e
resulted
from uncontrollable circumstances;
pursuant
to Section 31.l(d)(2)
of the Act,
the Board makes
no
finding
of
violation
and
imposes
no
penalty
for
Counts
B
and
D.
DOCKET
B
Pursuant
to Section 42(b)(4)
of the Act, any person found
to
have violated Section
21(p)
of
the Act
is required to pay hearing
costs incurred by
the Board and by
the agency which
issued the
administrative citation.
The Clerk of the Board and Complainant
will therefore be ordered to each
file
a statement
of costs
(supported
by affidavit)
with the Board and with service upon
J&R.
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)
By majority vote of
the Board,
Respondent, 3
&
R
Landfill,
Inc.,
is hereby found
to have been
in
violation of
Ill.
Rev.
Stat.
1987,
ch. 111
1/2,
par.
l021(p)(5)
on November
28 and December
2,
1988 as
alleged
in Counts A and B.
The Board
finds
that
the
violations alleged
in Counts
B and D were due
to
uncontrollable circumstances.
Respondent
is,
therefore,
subject
to
a statutory penalty of
$1,000.
2)
;~ithin45 days of
this Order of May
10, 1990 Respondent
shall,
by certified check
or money order,
pay a civ:l
penalty
in the amount of
S500 payable
to
the il1ino~s
Environmental Protection Trust
Fund.
Such payment
shall
be sent
to:
Illinois Environmental Protection A~encv
Fiscal Services Division
2200 Churchill Road
Springfield,
IL 62706
111—153
3)
Within
45 days of
this Order of May
10,
1990 Respondent
shall,
by certified check
or money order,
pay a civil
penalty
in the amount of
$500 payable
to the Landfill
Citation Fund.
Such payment shall be sent
to:
Paul Haas
County Collector
~10 Public Square
Belleville,
IL
62220
4)
Docket A in this matter
is hereby closed.
5)
Within
30 days
of
this Order of May
10,
1990
St.
Clair
County shall
file
a statement
of
its hearing costs,
supported
by 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.
6)
Respondent
is hereby given leave
to
file
a
reply/objection to
the filings
as ordered
in
4) within
45 days of
this Order of May 10,
1990.
7)
Section
41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1987
ch. 1ll~par.
1041,
provides for appeal
of
final Orders of
the Board within
35
days.
The Rules
of the Supreme Court of Illinois establish filing
requirements.
The Board
finds no violation of
Ill.
Rev.
Stat.
ch.
111
1/2,
par.
l021(o)(12).
IT IS
SO ORDERED.
3.
Dumelle,
M.
Narculli and 3. Ancerson d~ssenteoas
to the
findings of violation of Section 2l(p)(5)
of
the Act on November
28,
1988
(Count A).
J.T.
Meyer,
P. F~ema1 and
B.
Forcade
dissented as
to the finding of
no violation of Section
2l(p)(l2)
of
the Act on December
1 and
2,
1988
(Counts
B and D).
I, Dorothy
M. Gum,
Clerk of the :llinois Pollution Control
Board, hereby certify
that
the above Order
was adopted on
the /
day of
-.--..
,
1990,
by
a vote of
-7~3
with
respect
to Count
A,
a
-/ote
of
~
with respect
to Count
B,
a
vote of
7-~
with respect
to Count
C,
and a vote of
-~~J
—
with respect
to Count
D.
~
~_-;
~,
/L~
Dorothy
~.
Gunn,
Clerk
Iliinois~?cllutionControl
Board
I
I 1-iS 4
