ILLINOIS POLLUTION CONTROL BOARD
June
20,
1991
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
AC 90—36
v.
)
(IEPA 192—90—AC)
(Administrative Citation)
)
ESG WATTS,
INC.,
)
a foreign corporation,
Respondent.
MR. WILLIAM
SELTZER APPEARED FOR COMPLAINANT.
MR.
THOMAS
J.
IMMEL
OF
IMMEL,
ZELLE, OGREN, MC
CLAIM
& COSTELLO
APPEARED
FOR
RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by
3.
C. Marlin):
This matter is before the Board upon a four-count
administrative citation filed May 7,
1990 by the Illinois
Environmental Protection Agency
(“Agencytt).
The citation alleges
that ESG Watts,
Inc.,
(“ESG”) violated the provisions of the
Illinois Environmental Protection Act (“Act”) by allowing
uncovered refuse to remain from a previous operating day; by
conducting a sanitary landfill operation in a manner which
results in leachate flow entering waters of the State and which
results in leachate flows exiting the landfill confines; and, by
failing to submit reports required by permits or
Board
regulations.
Ill. Rev.
Stat.
1989,
ch.
111 1/2,
par.
1021(p) (2),
(p) (3),
(p) (5)
and
(p) (11).
The Respondent filed a timely
Petition for Review.
Hearing
was
held
in
this
matter
on
August
22,
1990
at
the
Illinois
Environmental
Protection
Agency,
2200
Churchill
Road,
Springfield,
Illinois.
Mr.
John
Richardson
and
Mr.
Tim
Zook
testified
on
behalf
of
the
Agency.
Mr.
Michael
Rapps
and
Mr.
Leonard
Foulks
testified
on
behalf
of
the
Respondent.
No
members
of
the
public
commented
or
testified.
Closing
arguments
were
made by both parties in lieu of filing briefs.
BACKGROUND
ESG is the present operator of a landfill located in
Sangamon County,
Illinois under permit No.
l980-23-OP, designated
with
Site
Code
No.
1678220037
and
is
commonly
known
as
the
Sangaluon
County
Landfill.
On
March
7,
1990
Agency
inspector
John
P. Richardson
inspected the landfill.
A
copy
of
his
inspection
2
report was filed with the citation.
On the basis of his direct
observation the Agency determined that ESG violated the Act in
the manner set forth in the citation.
Respondent seeks a civil
penalty of $500.00 for each of four violations for a total of
$2,000, plus the imposition of hearing costs incurred by the
Board
and
the
Agency.
APPLICABLE
LAW
Section 21(q)
of the Act states:
No
person
shall
in
violation
of
subdivision
(a)
of
Section 21, 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 ~f the
following conditions:
2.
leachate
flows
entering
waters
of
the
State;
3.
leachate
flows
exiting
the
landfill
confines
(as
determined
by
the
boundaries
established
for
the
landfill
by
permit
issued
by
the
Agency);
5.
uncovered
refuse
remaining
from
any
previous
operating
day
or
at
the
conclusion
of
any
operating
day,
unless
authorized
by
permit;
11.
failure
to
submit
reports
required
by
permits
or
Board
regulations;
Penalties
in
actions
of
this
type
are
$500
for
each
provision
plus
any
hearing
costs
incurred
by
the
Board
and
the
Agency.
Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par.
l042(b)(4).
If
the
Board
finds
the
violation
occurred,
it
must
impose
the
penalty
and
costs.
If,
however,
the
Board
finds
that
the
violation resulted from uncontrollable circumstances, the Board
imposes
no
penalty
and
makes
no
finding
of
violation.
Ill.
Rev.
Stat.
1989,
ch.
111 1/2, par. l0311(d)(2).
DISCUSSION
The Agency alleges that ESG violated the Act in four
3
distinct
manners.
First,
that
the
on—site
inspection revealed
uncovered
refuse
remaining
from a previous operating day.
Second,
the
landfill
operated
in
a
manner
resulting in leachate
flows entering waters of the State.
Third, that such leachate
also
exited
the
landfill
confines.
Fourth,
the
Respondent
failed
to submit reports required by permits or Board regulations.
ESG
stipulated
to
a
violation
of
the
cover
requirement
at
hearing.
(R.l3,l4).
It
contested,
however,
the
remaining
charges.
The first of three remaining charges is that ESG operated
the
landfill
in
such
a
manner
as~to
result
in
the
flow
of
leachate to waters of the State.
Mr. John Richardson testified
on
behalf
of
the
Agency.
He
inspected
the
facility
on
March
7,
1990.
He
testified that there was a large amount of uncovered
refuse
on
the
northeast slope of the landfill.
At the base of
the fill were three ponded areas containing dark liquid.
~Refuse
floated in the water.
The liquid foamed as it was pumped into a
nearby stream.
(R.20)
Mr.
Richardson
took
a
number
of
photographs
showing
the
uncovered
refuse,
the
ponding~1~
the
foaming
discharge
and
the
stream.
(Gr.Exh.A)
(R.22-25)
The
photos
showed
erosion
channels
on
the
hill
and
exposed
refuse
in
the
erosion
channel.
(R.26)
Richardson testified that the site pumps the water from
the ponds at the bottom of the face into an unnamed tributary
that transects the site and flows into the Sangamon River.
(Id.)
Mr.
Richardson
also
obs?rved
that
the
ponded
water
was
dark
and
turbid.
(R.28).
The
ponds,
he
testified,
were
present
on
each
of
his
visits
to
the
site
and,
in
his
opinion,
were
collecting
runoff
from
the
slope
of
the
landfill.
(R.32)
Richardson
testified
that
Tim
Zook
of
the
Agency
collected
samples
of
effluent
from
the
pump
outfall,
a
point
upstream
of
the
outfall
and
a
point
downstream.
(R.37)
Mr.
Richardson
admitted that tests must be performed on the
liquid
to
determine
whether
it
contained
some
constituent
which
had
been
removed
from
the
refuse.
Under
the
present
regulation,
*
The
term
“leachate”
is
defined
in
Board
regulations
as
“liquid containing materials removed from solid waste”
(35
Ill.
Adm.
Code 807
.
104).
The Agency and Respondent concur that this
definition is the one applicable to the charged violation and in
effect on the date of the alleged violation.
The Board regulation
was admitted as Exh.3.
The proposed definition pending at the time
in R88-7 was admitted as Exh.4.
**
The Respondent objected to the admission of
a
number of
photographs of the site on the basis of their relevance.
After
review of these photographs the Board finds they meet the test of
relevant evidence found
in Board procedural
rules.
35
Ill. Adm.
Code
103.204
4
the
liquid
coming in contact with solid waste
in
and of itself
would not render the liquid a leachate.
(R.64-65)
Mr. Richardson
also admitted that both the site and the ponded areas were muddy
and shallow.
(R.69)
Mr. Tim Zook of the field operations section of the Water
Pollution Office of the Agency also testified.
On March 7,
1990
he collected samples from the Sangamon County landfill.
He
sampled the pump outfall effluent and the receiving stream which
runs to the Sangamon River from the site.
(R.94-95)
For the
stream samples he used a point 80 yards upstream at the property
line and three hundred yards downstream,
also at the property
line.
These samples were analyzed by an IEPA lab in Champaign,
he testified.
The results were submitted as Exhibit
D.
(R.96)
The
samples
exhibited
different
readings
for
the
indjvidual
parameters
depending
on
location,
he
stated.
(R.l07)
Total
dissolved
solids
registered
542
parts
per
million
(ppm)
upstream
as compared to 1,970 ppm at the effluent or outfall measurement.
At the outfall, biochemical five-day oxygen demand
(BOD5) was 580
ppm while upstream it was one.
The downstream sample showed 95
ppm.
(R.108)
For iron, the effluent reading was 7,852 micrograms
per liter ug/l and upstream 198 ugh.
For manganese the effluent
level was 2,624 ug/l and upstream 313 ug/1.
In his opinion, the
increases in the receiving stream were caused by the effluent
discharge.
(R. 112)
Mr. Zook admitted that all of the parameters mentioned are
not unique to the constituents of landfills.
(R.1l6)
He also
admitted that water which runs over disturbed earth may exhibit
increased readings of BOD5 and suspended solids.
He also
conceded that the samples he took did not exhibit evident odor.
(R.ll9)
Mr. Michael Rapps of Rapps Engineering and Applied Science
of Springfield, Illinois testified on behalf of the Respondent.
Concerning the question of whether the liquid observed by the
Agency constitutes leachate, he testified that an article on the
statistical composition of landfill leachates observed in
Illinois published by P. Clark and R.
Piskin
(Exh.6)
found that
landfill leachate is typically red to orangish—red, odiferous and
having a sheen on it.
(R.136-l39)
In his opinion, water which
ponds after running down surface slopes having exposed refuse is
not leachate.
(R.138)
Rapps also testified that plasticizers
were present at the site and remained from a gunpowder plant.
Plasticides are a dark,
oily looking substance, he stated.
Rapps further testified that the base material of the
landfill is limestone, coal and shale.
These materials,
if
disturbed he stated, could mineralize water passing through them
and would lead to higher readings of total dissolved solids,
manganese and iron.
(R.143)
Mr. Rapps testified that he looked
5
at the Agency’s analytical reports and could not say if it was
leachate.
He did state that if it was leachate,
it fell outside
the norm.
The average total dissolved solids as reported by
authors Clark and Piskin is 10 times that observed at the site.
(R.145)
Rapps also testified that the COD and
BOD5
measurements
were equal, meaning that the oxygen demand supplied by the
effluent was not biological but chemical, thereby indicating that
the oxygen demand “was not a bacteriological thing.”
Rapps also
looked at the ratio of iron to chloride, sulfates, sodium,
calcium, etc found in the effluent and that reported in the
article exhibit.
He stated there was “no comparison.”
The ratio
of iron to chlorides in the effluent was .012 while in the
leachate literature it was 0.9.
He testified that this was true
of all the ratios he looked at.
(R147)
Finally, Mr. Rapps
testified that he examined the photos submitted by the Agency and
concluded that the liquid they were observing was stormwater, not
leachate.
(R.148)
On examination by the Agency Mr. Rapps admitted that water
running off exposed refuse would have lower levels of
contaminants than that in the Clark and Piskin report.
Mr. Rapps
testified,
though, that this would be “a different definition of
leachate than the Agency historically used.”
(R.l54-155)
Rapps
did, however, admit that the contaminants shown in the effluent
were likely picked up at the base of the mound.
(R.l58)
Rapps
also admitted that the refuse observed in Agency photos in the
ponded water could “produce leachate as defined by Board
regulations.”
(R. 163—164)
Mr. Leonard Foulks, site—manager/operator of the Sangamon
Valley Landfill also testified on behalf of the Respondent
concerning the leachate issue.
Foulks testified that the
facility pumps ponded rainwater to a stream.
A sample of the
discharge is taken to a lab.
The lab is to inform them if the
discharge cannot be made.
Foulks testified that he has never
been told by the lab not to discharge.
(R.l77,185)
Finally, the Agency alleges that ESG failed to file reports
required by permit or Board rules.
Mr. Richardson testified that
ESG
is
required
to
submit
reports
to
the
Agency
concerning
its
composting operations.
The permittee was to first report data
gathered from the effective date of the permit through March 1,
1989 on or before April
1,
1989 and thereafter, annually.
(R.44-
45,
51-52
)
The required information, he testified,
is set forth
in paragraphs l2(a)-(g)
of the facility’s Supplemental
Experimental Permit.
(Exh.B)
Mr. Richardson testified that ESG
cUd not submit this information, rather Capital Area Clean
Community
System,
Inc.
(“CACC”)
did.
CACC
submitted
a
letter
dated January 6,
1989 to the Agency which states that it was “to
keep you informed as to the volume of leaves at the ...site”
attaching a report given to the Springfield City Council and
invited the Agency to contact them should they have any
6
questions.
(Exh.C)
This information, he stated, was incomplete.
(R.5l)
ESG supplied testimony in rebuttal through Mr. Rapps and Mr.
Foulk.
Mr. Foulk testified that the City of Springfield was the
former lessee and operator of the composting program but
abandoned the site.
The lease was admitted as Exh.
2.
Mr.
Foulk
testified that he did not know who was responsible for submitting
reports regarding site operations.
(R.l78-l80)
ANALYSIS
The first issue to be resolved by the Board is whether water
which runs over exposed refuse and is shown to exhibit high
levels of total suspended solids,
BOD5,
iron and manganese, is
leachate as defined by Board regulations.
We find that it is.
Leachate is defined in Board regulations as “a liquid
containing materials removed from solid waste.”
For the Agency
to prove a violation of the statute prohibiting the discharge of
leachate into the waters of the State or to areas outside the
site the Agency must show, by a preponderance of the evidence,
that the liquid it tested contained materials removed from solid
waste.
The Agency has tested
the
liquid’s parameters and found
high levels of BOD5, total suspended solids, iron and manganese.
The Agency has shown that this liquid came from a ponded area
beneath an exposed face of refuse.
The Agency also elicited
testimony that precipitation ran down the face of the exposed
area.
We believe the Agency’s evidence is sufficient to make a
prima fade case that the liquid is therefore leachate.
The Respondent has attempted to rebut the Agency’s case by
two primary means.
The Respondent introduced testimony and
exhibits on the average composition of leachate in Illinois and
demonstrated that the tested parameters. do not match the average
set forth in the literature.
The Respondent also introduced
evidence of the present condition and composition of the site and
testimony that runoff from the site could produce elevated
readings of the tested parameters.
Respondent’s theory is that the liquid tested was
storm
water runoff, not leachate.
While this may explain increased
mineral content, total dissolved solids and turbidity, we believe
that the increase in five-day biochemical oxygen demand is
produced by organic constituents.
The organic constituents
impacting oxygen supply
in
the liquid more probably than not came
from the landfill refuse.
Respondent also argues that as the
BOD5
and COD effluent
test readings are equal, the oxygen demand is chemical not
biological.
The Board finds this a statement to be
7
scientifically incorrect.
Both
BOD5
and COD parameters describe
the results of tests for the oxygen demand placed on the tested
materials by organic matter.
Chemical oxygen demand
(COD)
is a
measure of the oxygen equivalent of the organic matter content of
a sample that is susceptible to oxidation by a strong chemical
oxidant—-an indirect measure of organic material in terms of the
amount of oxygen required to completely oxidize it.
Five-day
biochemical oxygen demand
(BOD5) measures the amount of oxygen
which has been utilized in five days by microorganisms to oxidize
organic materials present in the sample.
Nor do we believe that in order to constitute leachate, the
parameters tested must approximate a demonstration of the norm.
The testimony introduced by Respondent only shows what levels the
average leachate in Illinois exhibits.
It does not prove that
liquids exhibiting different characteristics are not leach~ate.
However, the statistical evidence found in the Clark and Piskin
article set forth the ranges for the tested parameters.
Our
comparison of the tested parameters against those shown in the
literature shows that 17 of the 23 tested fall well within the
ranges set forth in the Clark and Piskin article.
The authors
also confess that the composition of leachate in Illinois “is
highly variable”.
(Exh.6, p.11)
We are reminded that leachate,
as defined in Board regulations,
is a liquid containing materials
removed from solid waste.
We therefore find Respondent’s
evidence does not rebut the Agency’s showing that the liquid
present at the site contains materials removed from solid waste.
The evidence adduced at hearing regarding discharge of the
liquid into the waters of the State and discharge off-site was
unrebutted.
ESG
argues
however
that
since
the
off—site
discharge
was
in
fact
the
discharge
into
the
stream
the
Agency’s
twin
charges
were
“double—dipping.”
(R.195)
The Agency has admitted
that
the
same act led to the two charges
(R.68)
The
statute
establishes
as
separate
violations
the
conduct
of
sanitary
landfill
operations in a manner which results in
(1)
leactiate flows entering waters of
the
State;
and
(2)
leachate
flows exiting the landfill confines.
This recognizes that the
harms caused by the violations are separate and distinct.
The
harm
in discharging to waters of the State is in the harm to a
State resource.
The harm, however, in discharging leachate off-
site is that it contaminates property belonging to another
person.
Both were violated here.
Therefore, the Board finds
that ESG has violated sections 21(p) (2) and
(3) of the Act.
We now turn to whether the Agency has proven a violation of
the reporting requirements.
By the terms of the supplemental
experimental permit the burden was upon the permittee, ESG, to
supply the requisite information.
The “information” was not
supplied by the permittee but by the operator Capital Area Clean
Community System,
Inc.
In closing argument it was argued that
8
CACC’s letter met the permit requirement and that,
if it didn’t,
the Agency had every opportunity to contact the Office of the
Mayor of Springfield regarding it but failed to do so.
Our
4~reviewof the letter and the permit leads us to conclude that the
information did not meet the list of requirements spelled out by
the permit.
In fact,
what is offered by ESG as proof of
compliance is a letter and program summary submitted to another
entity.
Moreover, the initial report was to contain information
regarding site activities through March
1, 1989.
The letter is
dated nearly two months prior to this date.
It does not,
therefore,
appear to be in response to the permit requirement.
Regarding the claim that the Agency had adequate
opportunity to question CACC or ESG about the deficiencies, we do
not find an Agency duty to seek out information as Respondent
argues.
Again,
it was the permittee’s duty to supply the
requisite information.
Therefore, after review of the te~timony
and exhibits we find that ESG has violated Section 21(p) (11)
of
the Act for its failure to submit required reports.
ORDER
1.
Respondent is hereby found to have been in violation on
March
7,
1990 of Ill.
Rev. Stat.
1989,
ch.
111 1/2, par.
l021(p)(2),
(p)(3),
(p)(5)
and
(p)(ll).
2.
Within 45 days of this Order Respondent shall, by certified
check or money order,
pay a civil penalty in the amount of $2,000
payable to the Illinois Environmental Protection Trust Fund.
Such payment shall be sent to:
Illinois Environmental Protection Agency
Fiscal
Service
Division
2200 Churchill Road
Springfield, Illinois 62706
Respondent shall also place its Federal Employee Identification
Number
or Social Security
Number
upon the certified check or
money order.
Any
such penalty not paid within the time prescribed shall
incur interest at the rate set forth in subsection
(a) of Section
1003 of the Illinois Income Tax Act,
(Ill. Rev. Stat.
1989,
ch.
120,
par.
10-1003), from the date payment is due until the date
payment is
received.
Interest shall not accrue during the
pendency of an appeal, during which payment of the penalty is
stayed.
3.
Docket A in this matter is hereby closed.
4.
Within
30
days
of
this
Order,
the
Agency
shall
file
a
statement
of
its
hearing
costs,
supported
by
an
affidavit,
with
9
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 in this matter.
5.
Respondent
is
hereby
given
leave
to
file
a
reply/objection to the filings as ordered in paragraph
4 of this
Order
within
45
days
of
this
Order.
Section
41
of the Environmental Protection Act,
Ill. Rev.
Stat.
1989,
ch.
111
1/2,
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.
IT
IS
SO
ORDERED.
3.
Dumelle
dissented.
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois Pollution Control
Board,
hereby
certif
that
the
above
Opinio
nd
Order
was
adopted
on
the
______________
day
of
___________________________
1991
by
a
vote
of
_______________.
Dorothy
M.
Illinois
P0.
Control
Board