ILLINOIS POLLUTION CONTROL BOARD
    June
    7,
    1990
    ILLINOIS ENVIRONNENTAL
    )
    PROTECTION AGENCY,
    )
    Complainant,
    V.
    )
    AC 89-131
    (Dockets A
    &
    B)
    (Administrative Citation)
    )
    (IEPA No.
    9711-AC)
    ESG WATTS,
    INC.,
    )
    Respondent.
    WILLIAN
    SELTZER,
    APPEARED
    ON
    BEHALF
    OF
    COMPLAINANT,
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION
    AGENCY;
    THOMAS
    J.
    IMNEL,
    INNEL,
    ZELLE,
    OGREN,
    NCCLAIN,
    GERMEPAAD
    &
    COSTELLO, APPEARED ON BEHALF OF RESPONDENT.
    OPINION AND ORDER OF THE BOARD
    (by N. Nardulli):
    This matter comes before the Board upon a petition for review
    of an administrative citation filed by ESG Watts,
    Inc.
    (“ESG”)
    on
    July
    19,
    1989.
    The citation alleges
    one violation
    of
    section
    21(p) (5)
    of the Illinois Environmental Protection Act
    (“Act”) and
    was served on ESG on June
    15,
    1989 by the Illinois Environmental
    Protection Agency
    (“Agency”).
    A hearing was held on October
    6,
    1989 at which three members of the public attended.
    ESG
    is
    the
    operator of
    a sanitary
    landfill
    located
    in
    the
    Sangamon
    County,
    Illinois,
    operating
    the
    facility
    pursuant
    to
    Agency permit No.
    1980-23-OP.
    On May
    2,
    1989,
    between 4:32 a.m.
    and 7:30
    a.m.,
    Ricky
    Lanham,
    an
    employee
    of
    the
    Agency’s Land
    Control Division,
    inspected
    ESG’s
    facility
    and viewed uncovered
    refuse from the previous working day in an area 125 yards in length
    and 25 yards in width in violation of section 21(p) (5)
    of the Act.
    (Ill.
    Rev.
    Stat.
    1987,
    ch.
    111
    1/2,
    par.
    1021(p) (5).)
    Section
    21(p) (5)
    of the Act provides that
    (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;
    ESG does
    not
    contest the Agency’s
    allegation
    that
    ESG violated
    section
    21(p) (5)
    of
    the Act.
    Rather,
    ESG asserts
    that
    it was
    112—47

    2
    weather conditions and equipment breakdowns prevented it from being
    able to excavate
    in its “borrow area”
    causing ESG to run out of
    cover material.
    (ESG Brief at 11; Tr. at 22.)
    Pursuant to section
    31.1(d) (2) of the Act, ESG asserts that the violation resulted from
    “uncontrollable circumstances” and that, therefore, the Board must
    adopt an “order which makes no finding of violation and imposes no
    penalty.”
    (Ill.
    Rev. Stat.
    1987,
    ch. 111 1/2,
    par.
    1031.1(d) (2).)
    The
    Agency
    presented
    the
    testimony
    of
    Ricky
    Lanham
    who
    conducted the on-site inspection of ESGts facility.
    The bulk
    of
    Lanham’s testimony concerned establishing that ESG violated section
    21(p) (5)
    of the Act and
    is,
    therefore,
    irrelevant to the Board’s
    determination
    of
    whether
    ESG
    established
    the
    existence
    of
    “uncontrollable circumstances.”
    However,
    Lanham testified that,
    on
    the morning
    of
    his
    inspection,
    the active
    area
    of
    the
    site
    appeared dry,
    although he did not actually test the soil..
    (Tr.
    at 20—21.)
    According to Lanharn, there were two “ponded areas”
    at
    the site; one located between the active area where the uncovered
    refuse was found and the borrow area, and one located smaller pond
    located southwest
    of the active
    area.
    (Tr.
    at 20-21
    ;
    IEPA
    Ex.
    1.)
    Lanhain opined that the ponds resulted from
    a collapsed berm
    in a creek running through the property.
    (Tr.
    at 20—21,
    56-57.)
    Lanham testified that he viewed the borrow area from a distance of
    approximately 100 feet.
    (Tr. at 47.)
    Lanham stated that there was
    no standing water within the borrow area and that the soil in that
    area was not
    in
    a muddy
    condition.
    (Tr.
    at
    86;
    IEPA
    Ex.
    14.)
    Lanhain
    opined that
    he did not know whether excavating equipment
    would have been
    able to get into the borrow area.
    (Tr.
    at
    87.)
    However,
    Lanham testified that the road
    leading
    from the active
    area to the borrow area did not go through the pond.
    (Tr.
    at 88-
    89.)
    Relying
    on
    IEPA
    Ex.
    2,
    Lanham
    stated
    that
    the
    road
    transversed the western most boundary of the site, continued north
    and then back within an area near the borrow area.
    (Tr.
    at
    89.)
    Over ESG’s objection,
    the hearing officer admitted IEPA’s
    Ex.
    16
    consisting of
    a U.S. Department of Commerce “Local Climatological
    Data Monthly Summary” which
    lists negative to
    “trace” amounts
    of
    preôipitation
    on April
    30
    through May
    2,
    l990~
    This
    data was
    collected at the National Weather Service Office located at Capitol
    Airport in Springfield, approximately three miles from ESG’s site.
    (IEPA Ex.
    16; Tr.
    at 175.)
    ESG
    presented
    the
    testimony
    of
    Leonard
    Foulks,
    operations
    manager for ESG.
    (Tr. at 95.)
    Foulks testified that it was ESG’s
    practice to stockpile cover material, taken from Area II
    (i.e., the
    “borrow area”), at the edge of the active area
    (i.e., the area of
    the violation)
    on a daily basis.
    (Tr.
    at
    108.)
    However,
    on May
    1,
    1990, there was not enough cover material stockpiled because the
    two “scrapers”
    (i.e., machinery for moving the cover material from
    Area
    II
    to the active
    area)
    were not functional.
    (Tr.
    at
    109,
    153.)
    One of the scrapers needed a rear differential which was on
    order and the other scraper had blown a tire on the morning of May
    1st.
    (Tr.
    at 97-99.)
    Foulks further testified that, even
    if the
    112—48

    3
    scrapers had been working, additional cover material could not be
    removed from the borrow area to
    the active area because
    “it was
    too wet.”
    (Tr.
    at 104,
    109.)
    According to Foulks,
    it had rained
    heavily on May 1st,
    the day before the inspection.
    (Tr.
    at
    102,
    105.)
    Regarding the ponded area,
    Foulks stated that the area was
    not “ponded”
    until
    it rained,
    causing the berm
    of
    the creek
    to
    collapse.
    (Tr.
    at 113-14.)
    On cross—examination, Foulks testified that he was not present
    at the facility on May 1st or 2nd, having gone home to Rock Island.
    (Tr.
    at 133—34.)
    Cross-examination revealed that any information
    Foulks had as to the weather and soil conditions
    on May
    1st,
    as
    well as information relating to any attempt to provide daily cover
    came from Dennis Hudson,
    ESG’s supervisor, who was present at the
    site on May 1st and
    2nd.
    (Tr.
    at
    136.)
    According
    to
    Foulks,
    Hudson told him that,
    on May 1st,
    there was an attempt to apply
    cover with whatever dirt was stockpiled,
    but there was not enough
    stockpiled dirt to completely cover the refuse.
    (Tr.
    at
    147—48,
    151—52.)
    DISCUSSION
    ESG contends that
    it
    established
    that
    its failure
    to apply
    daily cover was due to uncontrollable circumstances.
    ESG asserts
    that,
    even
    if
    its equipment had been working properly,
    wet soil
    conditions prevented ESG from being able to excavate soil from the
    borrow area and transport it to
    the active area to apply cover.
    Contrary to Lanharn’s testimony that he did not view standing water
    in the borrow area, IEPA Ex.
    14
    (which is also ESG’s Ex.
    2) clearly
    shows puddles of water in that area.
    While IEPA Ex.
    16 shows that
    little to no rainfall occurred in Springfield on the day before the
    inspection, this does not conclusively establish that there was no
    precipitation at ESG’s facility three miles
    away.
    However,
    the
    fact that ESG’s sole witness was not present at the site when the
    rain allegedly occurred, but rather testified from what he was told
    by one of ESG’s employees,
    does not strengthen ESG’s defense.
    Based upon Foulks’ testimony, on the day before the inspection
    ESG was able to apply whatever dirt was stockpiled at the foot of
    the
    active
    area.
    Therefore,
    even
    accepting
    that
    wet
    soil
    conditions prevented ESG from excavating and transporting soil from
    the removal area on Nay 1st, the Board must decide whether ESG’s
    failure to stockpile enough dirt in the event that soil conditions
    barred
    access
    to
    the borrow
    area
    resulted
    from
    “uncontrollable
    circumstances.”
    Here,
    the two
    pieces
    of
    equipment
    (i.e.,
    the
    scrapers)
    that could move
    the dirt
    from the borrow area
    to
    the
    active area were not working; one scraper broke down at least three
    days prior to the inspection and the other had a flat tire on May
    1st, the day before the inspection on May 2nd.
    Consequently, one
    scraper was working
    until two days before the inspection.
    It
    appears that ESG waited too long to stockpile more dirt even though
    its supply of dirt in the active area was running low.
    Here,
    the
    112—!i~

    4
    weather conditions did not prevent the application of daily cover,
    but
    rather
    prevented
    ESG
    from
    carrying
    out
    its
    system
    of
    stockpiling.
    While recognizing that weather conditions can lead
    to
    a valid claim
    of
    uncontrollable circumstances
    in relation
    to
    violations
    of section 2l(p)(5),
    ESG has not adequately persuaded
    the
    Board
    that
    such
    uncontrollabe
    circumstances
    were
    the
    main
    factor preventing ESG from complying with the Act.
    The use of poor
    judgment
    in
    the amount
    of
    dirt needed
    to
    be
    stockpiled
    is not
    tantamount to an “uncontrollable circumstances” as contemplated by
    the Act.
    Based
    upon
    the
    foregoing,
    the
    Board
    finds
    that
    ESG
    has
    violated section 2l(p)(5)
    of the Act on May 2,
    1989 by failing to
    provide daily cover.
    Furthermore, the Board rejects ESG’s claim
    that the violation resulted from uncontrollable circumstances.
    Pursuant to
    section 42(b)(4)
    of
    the Act,
    the
    Board hereby
    imposes a $500 penalty upon ESG for violating section 21(p)
    of the
    Act.
    For
    purposes
    of
    review,
    today’s
    action
    constitutes
    the
    Board’s final action on the matter of the civil penalty.
    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.
    The Clerk of the
    Board and the Agency are therefore ordered to file
    a statement of
    costs, supported by affidavit, with the Board and with service upon
    ESG.
    Upon receipt and subsequent to appropriate review, the Board
    will issue a separate final order addressing the issue of costs.
    This
    opinion
    constitutes
    the
    Board’s
    findings
    of
    fact and
    conclusions of law in this matter.
    ORDER
    1.)
    The
    Board
    finds
    that respondent
    ESG Watts,
    Inc.
    has
    violated section 21(p) (5)
    of the Act
    as alleged
    in the
    complaint and respondent
    is therefore ordered
    to pay
    a
    statutory penalty of $500.
    2.)
    Within 45 days of the date of this order of June
    7,
    1990,
    respondent shall, by certified check or money order, pay
    a
    civil
    penalty
    in the amount
    of
    $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
    112—50

    5
    3.)
    Docket A is hereby closed.
    4.)
    Within 30 days of the date of this order, the Agency and
    the Clerk of the Board shall file a statement of 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 the date of this order of June
    7,
    1990.
    6.)
    Section 41 of the Environmental Protection Act (ill. Rev.
    Stat.
    1987,
    ch. 111 1/2,
    par.
    1041)
    provides for appeal
    of final order of the Board within
    35 days.
    The Rules
    of
    the
    Supreme
    Court
    of
    Illinois
    establish
    filing
    requirements.
    IT IS SO ORDERED.
    J.
    Dumelle dissents.
    I,
    Dorothy
    M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board, here~ycertify t
    t the above Opinion and Order was adopted
    on
    the
    7w—’
    day of
    __________
    ,
    1990,
    by a vote of
    ________
    Dorothy M.,~7Gunn, Clerk
    Illinois ~ôllution
    Control Board
    112—51

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