ILLINOIS POLLUTION CONTROL BOARD
October 10, 1991
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
V.
)
PCB 90—112
(Enforcement)
CHICAGO HEIGHTS REFUSE DEPOT, Inc.,
)
)
Respondent.
PANELA
S. ZALUTSKY AND ERIC P.
DUNHAN, ASSISTANTS STATE’S ATTORNEY
OF COOK COUNTY, APPEARED ON BEHALF OF COMPLAINANT;
JANET
L.
HERMANN,
OF GREENBURG
& HERMANN, APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by R.C.
Flemal):
This matter comes before the Board upon a complaint and
amended complaint filed by the People of the State of Illinois
(“State”)
against Chicago Heights Refuse Depot,
Inc.
(“the Refuse
Depot”).
The complaint is brought by Jack O’Nalley, the State’s
Attorney of Cook County,
on behalf of the People of the State of
Illinois,
and at the request of the Illinois Environmental
Protection Agency,
pursuant to Sections 31 and 42(e)
of the Act.
The complaint is a three-count complaint filed June 14,
1990.
An
amended five-count complaint was filed September 25,
1990.
As amended, the complaint charges the Refuse Depot with
operating a landfill in violation of various provisions of the
the regulations of the Board found at 35
Ill.
Adm. Code.Subtifle
G,
Part 8071, and the supplemental operating permit held by the
Refuse Depot (Supplement Permit No.
1986-l75-SP;
“supplemental
permit”).
The specific counts are that the Refuse Depot:
(Count
I) operated the landfill in violation of certain
supplemental permit terms pertaining to groundwater
monitoring, thereby also violating Section 21(d)
of the
1
Some Sections of 35 Ill.
Adm. Code Part 807 were amended in
R88-7,
In
the Matter
of:
Development,
Operating,
and Reporting
Requirements for Non—Hazardous Waste Landfills, effective September
18,
1990.
None of the Sections of Part 807 herein cited were so
amended.
126—429
—2—
Act and Board regulations regarding compliance with
supplemental permit conditions;
(Count II) operated the •landfill without providing
financial assurance in violation of
35 Ill.
Adm. Code
807.601 and the supplemental permit at Special
Condition 13;
(Count III)
allowed leachate to exit the landfill in
violation of Section 21(p)
of the Act;
(Count IV)
failed to initiate closure and post closure
care after receipt of the final volume of waste as
required by 35 Ill. Adm. Code 807.505 and 807.506, and
Special Condition 10 and
11 of the supplemental permit;
and
(Count
V)
failed to update the cost estimate and amount
of financial assurance for the closure plan in
violation of 35 Ill. Adm. Code 807.600, Section 21(d)
of the Act, and Special Condition 14 of the
supplemental permit.
Hearings were held on September 11, November 19
& 20,
December 7,
1990, and January 29,
1991,
in Chicago,
Illinois.
No
members of the public attended.
Prior to the second hearing,
State filed a request for admission of fact and a request to
admit genuineness of documents on September 14,
1990.
The Refuse
Depot filed its response to each request on October 15,
1990.
The request for admission of fact and the response contain the
agreed upon facts that were admitted at hearing
(11/19/90 R.
at
9-13).
Also on October 15 the Refuse Depot filed
its answer to
the amended complaint.
State filed its closing argument or brief
on February 14,
1991,
the Refuse Depot filed its reply brief on
March 13,
1991,
and State filed its response on March 15,
19912.
FACTS
Chicago Heights Refuse Depot
is a landfill site that is
approximately 29 acres located in Chicago Heights, Cook County,
2 The complaint will be cited as. “Coinp. at
“,
the amended
complaint as “Amend.
Comp. at
“,
the request for admission of
fact and admission of fact cited jointly as “Request and Admission
at
¶
“,
the State’s Closing Argument as “St. Br. at
“,
Refuse
Depot’s Closing Argument as
“R.D.
Br.
at
“,
and the State’s
Reply to Respondent’s Closing Argument
as
“St.
B.
Br.
at
State’s exhibits
as
“St.
Exh.
at
“,
and Refuse
Depot’s
exhibits as “R.D. Exh.
at
“.
Since the transcripts were not
consecutively paginated, the transcripts will by cited by date and
page number thusly:
1/29/91 B.
at XX.
126—430
—3—
Illinois.
Chicago Heights Refuse Depot,
Inc. has operated the
29-acre site,
and owns
18 of those acres3.
The remaining 11
acres are owned by the City of Chicago Heights.
The president
and,
registered agent of the Refuse Depot is Joseph LaPort
(Request and Admission at
¶
1,2)
The initial operating permit for the site was issued by the
Illinois Environmental Protection Agency
(“Agency”)
oii June 12,
1978, termed “l977~21-DE”. The Refuse Depot was issued a
supplemental permit with conditions by the Agency on January 26,
1987,
labelled “1986—175—SP”
(St. Exh.
1).
Included in that
supplemental permit was the installation of certain monitoring
wells,
and financial assurance requirements
(Request and
Admission at
¶
4,5; St. Exh.
1).
The Board today concludes that the Refuse Depot was
in
noncompliance with certain of the Board’s waste regulations.
The
Board accordingly orders the Refuse Depot to cease and desist
from violations of the Act, Board regulations, and the permit.
The Board further orders the Refuse Depot to consult with the
Agency regarding the installation of additional monitoring wells,
and to install additional monitoring wells,
as outlined in the
Board’s Order.
The Board further orders the Refuse Depot to pay
a civil penalty of $100,000,
and costs,
after examination of the
allegations brought against the Refuse Depot,
based upon the
record and upon consideration of the 33(c)
factors and 42(h)
penalty factors, as discussed below.
NOTICE REQUIREMENT
Before proceeding to a discussion of the violations,
the
Board notes that the Refuse Depot raises a defense that the
Agency failed to comply with the notice requirements
of’ Section
31(d)
of the Act.
Briefly, Section 31(d) mandates the Agency to
serve upon a complainant a written notice informing the person of
the charges alleged, that the Agency intends to file a formal
written complaint, and offering an opportunity to meet with
Agency personnel to resolve conflicts,
all prior to the filing of
the complaint.
State replies that the issue of alleged non-compliance with
Section 31(d)
notice requirements is “jurisdictional” and as such
should have been raised prior to hearing on the merits, pursuant
to the Board’s procedural rules at 35
Ill. Adm. Code 103.140(a).
State therefore asks the Board to strike the portion of the
Refuse Depot’s closing argument which alleges Section 31(d)
notice violations.
~ Whether or not Refuse Depot continues to operate the site
is
in issue
in this matter.
126—431
—4—
State’s argument as to the timeliness of the motion fails.
State did not file the amended complaint until September 25,
1990,
after hearing on the merits had already commenced.
Hence,
it would be impossible for the Refuse Depot to challenge
jurisdiction on the amended complaint prior to hearing on the
merits or through special appearance at hearing.
The amended
complaint added counts VI and V1 and again alleged,counts
I
through iii~. The ability to challenge all aspects of the
amended complaint began once the amended complaint was filed.
Thereforp,
the Refuse Depot timely raised the issue of the
failure to issue a Section 31(d)
notice at hearing on the merits,
since the amended complaint was filed after the hearing began.
The Board finds that the Agency failed to send notice
in
compliance with Section 31(d)
of the Act to the Refuse Depot for
counts II,
III,
IV, and V of the complaint.
The record reveals
no evidence that the violations alleged in counts II through V
were ever even discussed with the Refuse Depot prior to the
filing of the complaint.
The record discloses that the Refuse
Depot did,
in fact,
receive a pre—enforcement notice pursuant to
Section 31(d)
which pertains to count
I, that the Refuse Depot
participated in a pre—enforcement conference subsequent to
•receipt of the notice,
and that only issues pertaining to
violations alleged in count
I were discussed (11/29/90 R.
at 61-
6,
12/7/90 R. at 140—4,
244—8;
St.’ Exh.
8).
The Board finds that specific notice as delineated in
Section 31(d)
is required prior to filing of
a complaint.
Lack
of such notice prior to the filing of a complaint results in
defective or insufficient notice on all counts except count
I.
The defect in the notice does not deprive the Board of
jurisdiction of the subject matter of the case.
Subject matter
jurisdiction is conferred upon the Board to hear enforcement
cases of this type by the Act.
However, the defective notice
results in a lack of jurisdiction over the person of Respondent.
Without personal jurisdiction, the Board,
like
a court,
although
vested with subject matter jurisdiction,
is without power to
impose personal obligations, such as the payment of money,
or
bind a particular person to its judgment, except for count
I
(See, generally,
In re Marriage of Hostetler,
463 N.E.2d 955,
124
Ill. App.
3d 31
(1st Dist.
1984); In re W.D.,
551 N.E.2d 357,
194
Ill.
App.
3d 686
(1st Dist.
1990)).
Since the Board has found
the Refuse Depot’s arguments were timely raised,
arid that the
notice is defective on all counts except for count
I, the Board
will only address those violations alleged in count
I.
Count
I and the prayer for relief were also changed in the
amended complaint.
126—4 32
—5—
DISCUSSION OF VIOLATIONS
The Act authorizes the Board to adopt and amend rules
governing the management of solid waste
(Ill. Rev. Stat.
1989 ch.
111 1/2, par.
1022).
This the’Board has done, and the resulting
body of regulations resides at 35 Ill.
Adm. Code.Subtitle G.
The
Act further provides that:
No person shall:
d.
Conduct any waste—storage, waste—treatment,
or waste disposal operation:
1.
Without a permit granted by the Agency or ~
violation of any conditions imposed by such
permit,
including periodic reports and full
access to adequate records and the inspection
of facilities, as may be necessary to assure
compliance with this Act and with regulations
and standards adopted thereunder...; or,
(emphasis added)
2.
In violation of any regulations or standards
adopted by the Board under this Act.
Ill.
Rev. Stat.
1989,
ch.
111 1/2, par.
1021(d)
(emphasis added)
It
is also provided at 35 Ill.
Adm. Code.Subtitle G that:
Section 807.301
Prohibition
No person shall cause or allow the operation of a
sanitary landfill unless each requirement of this
subpart
is performed.
Section 807.302
Compliance with Permit
All conditions and provisions of each permit shall
be complied with.
Violation of these provisions
is alleged as part of count
I
of the amended complaint
(Amend.
Comp.
at 3—4).
The Refuse Depot
has violated these provisions if it has not complied with its
permit conditions.
Count
I
State alleges the Refuse Depot failed to operate its
landfill in accordance with certain supplemental permit
conditions pertaining to groundwater monitoring.
Specifically,
126—433
—6—
State alleges that the Refuse Depot failed to (Amend Comp.
at 4-
5):
(1)
Maintain groundwater wells so that water samples could
be obtained as required by the supplemental permit
(condition 1(g));
(2)
Submit groundwater analysis reports to the Agency as
required by the supplemental permit (Attachment A; Section
807,. 317) ;
(3)
Establish initial groundwater quality by
determining and reporting values for certain parameters
quarterly during the first year beginning July 15,
1987
for wells G103,
G104, G105,
and Gl06, as required by
the supplemental permit (Attachment A,
condition 2);
(4)
Perform quarterly monitoring at well Gl02 as required
by the supplemental permit
(Attachment A, condition 3);
and
(5)
Perform annual monitoring for well G102 as required by
the supplemental permit
(Attachment A, condition 4).
Condition
1 of Attachment A of the supplemental permit
requires that six points be used in the water monitoring program
for the Refuse Depot’s facility; the six points are referred to
as GlOl,
G102, G103, G104,
G105,
and Gl06.
It is not at issue
that the six monitoring points have been occupied by the Refuse
Depot.
However, the Refuse Depot asserts that on each attempted
sampling occasion the well at each of the six monitoring points
was dry.
The Refuse Depot seemingly contends that this condition
was sufficient to satisfy its groundwater monitoring
requirements.
The Board disagrees.
Groundwater monitoring and reporting is among the most
essential obligations required of operators of facilities such as
the Refuse Depot’s.
This is clear in the law.
This is clear
in
the Refuse Depot’s supplemental permit5.
Yet the bare fact of
the matter
is that the Refuse Depot over the several years at
issue neither produced nor reported one.single groundwater
monitoring result.
Much of the Refuse Depot’s defense
(1/29/91 R. at 30-2,
126;
R.D.
Br.
at
6,
10)
focuses on the allegation regarding Special
Condition 1(g),
and further on the meaning of the word
“maintained” as used in that condition:
The permit
is nine pages
long; groundwater monitoring and
reporting is of
issue on every page,
and is the sole subject on
four of the nine pages.
126—434
—7—
All monitoring points shall be maintained such that a
sample may be obtained.
(St. Exh.
1)
The Refuse ‘Depot contends that ‘by keeping the apparatus of each
of the six monitoring points in suitable condition,
it
“maintained” the monitoring points.
The Board finds little that
is pertinent in this argument.
It is not contended that the
‘Refuse Depot was a poor housekeeper of the monitoring wells.
Moreover, it cannot be accepted,
as the Refuse Depot would
seemingly have it, that physical maintenance of the monitoring
point was sufficient discharge of the Refuse Depot’s groundwater
monitoring obligations.
Even in the narrow context of Special
Condition 1(g)
it is clear that the “sample” referred to is
unambiguously a groundwater sample.
A groundwater sample cannot
be obtained from the “air”.
It must be taken from the
groundwater,
and for this to be possible the well must extend
down to where groundwater occurs
; none of the Refuse Depot’s
wells had this most elementary property.
The Refuse Depot’s
wells are,
in fact,
thereby not even groundwater monitoring
points, but rather nothing more than irrelevant
(however well-
maintained)
holes-in-the-ground.
Even assuming arguendo that there is some merit in the
Refuse Depot’s position that Special Condition 1(g) requires only
physical maintenance of the “monitoring points”, the serious
allegations regarding failure to produce and report the
groundwater sample results required under the supplemental permit
remain.
Here,
the Refuse Depot’s defense is that once its initial
effort at providing monitoring samples failed
(due to the dry
wells),
it was not required by the supplemental permit, nor by
the Agency, to do anything further.
This reasoning,
too, is unacceptable.
There
is nothing
stated or implied in the supplemental permit or the Board’s
regulations that inability
(or failure) to comply with one permit
condition absolves the permittee from compliance with other
conditions.
At the preenforcement conference held April
8,
1988, the
Agency discussed the installation of additional wells
(St. Exh.
38; 12/7/90 R. at 143—4).
The Refuse Depot alleges that the
agency wanted additional wells installed at the Refuse Depot site
to monitor for contaminants the Agency believed to be coming from
an adjacent site,
Fitz—Nar (12/7/90 R. at 140—3; see also St.
Exh.
30).
The Board finds this, too,
is without merit since
~zhateverproblem may or may not be associated with the Fitz-Mar
6
I.e., below the watertable.
126—435
—8—
site, the fact remains that the Refuse Depot’s supplemental
permit contains groundwater monitoring requirements, and the
Refuse Depot has not submitted groundwater s~p1esfor the Refuse
Depot site.
The Board also finds that although some reports were
submitted by the Refuse Depot, the reports did not contain the
water monitoring data and groundwater analysis required by
Attachment A of the permit and Section 807.317 of the Board’s
regulatipns.
Also we note, and reject, the implication that
responsibility for the failure of Refuse Depot’s wells to produce
water is to be laid upon the Agency.
The Agency’s authorization
of the six monitoring points was in expressed understanding that
each of the six wells would be finished and screened below the
watertable7.
The wells were not so finished and screened;
neither is there indication in the record that the Agency was
thereupon notified of this condition8.
The Refuse Depot has further argued that because of the
natural impermeability of the clay and the manner of construction
of the landfill no water is passing through the landfill, and
hence no contamination is occurring (12/7/90 R. at 16—17).
There
are no facts
in the record to support this argument.
The facts
which would show that contamination is occurring or is not
occurring are absent due to the Refuse Depot’s failure to install
monitoring wells which would collect water samples.
Nothing
in
this record tells the Board what
is happening below the landfill,
or below the bedrock as a direct impact of this landfill.
Until
proper monitoring is done,
no one will ever know.
For count I,
the Board finds the Refuse Depot violated five
different supplemental permit requirements, provisions of the
Act, and Board regulations,
as listed above on pages four and
five of this Opinion.
The Board finds that these violations
occurred from July 15,
1987, the first date samples were due
pursuant to Attachment A Condition 2, and continued through the
quarterly reporting cycle needed to establish initial groundwatet
quality.
Violations also occurred from October
15, 1987,
the
first date samples were due pursuant to Attachment A Conditions
3
and 4, and continued through each additional quarterly and annual
~
“Each monitoring well will be screened from the water table
to
5 feet below the groundwater table
.
.
.“
(St.
Exh.
27,
p.2
-
letter from Collin W. Gray to Agency).
8
Pursuant to Condition
2
of the
permit:
“Permittee
shall
notify the Agency of any changes from the information submitted tc
the Agency
in
its application
for
a
Development
and
Operatinc~
permit for this site”
(St.
Exh.
1,
p.
2).
126—436
—9—
reporting cycle, until the present.
Violations of the Act and
Board regulations occurred beginning July 15,
1987,
the date any
requirements were due that were not met.
The Board must next consider the appropriate remedy for
these violatiofls.
REMEDY
In addition to requesting that the Board order the Refuse
Depot to cease and desist from further violations of the Act and
regulations as noted
in the complaint and amended complaint (and
to comply with the provisions of the supplemental permit,
provisions of the Act and Board regulations), State also seeks
the Board order the Refuse Depot to:
install deeper monitoring wells which yield
representative groundwater samples and accurately
assess the impact on the groundwater for the next 15
years.
(St.
Br.
at 16)
State also requests that the Board require Mr.
LaPort,
as owner
and operator of the site,
to attend “a seminar on groundwater
protection”
(St.
Br. at 16).
State further requests that the
Board assess a maximum civil penalty of $50,000 for each
violation and $10,000 per day as a continuing violation from
January 26,
1987, the date of the supplemental permit through
January 1991, as well as costs,
reasonable attorneys fees, and
fees for expert witnesses and consultants for repeated violation
of the Act as provided under Section 42 of the Act
(St. Br.
at
16—17)
Any relief the Board grants in this matter must comport with
the directives contained in the Act.
The Act outlines certain
directives for a Board decision and further authorizes the Board
to issue cease and desist orders,
and impose civil penalties:
a)
.
.
.
the Board shall
issue and enter such
final order, or make such final
determination,
as it shall deem appropriate
under the circumstances
.
b)
Such order may include a direction to cease
and desist from violations of the Act or of
the Board’s rules and regulations or of any
permit or term or condition thereof, and/or
the imposition by the Board of civil
penalties in accord with Section 42 of the
Act.
.
.
.
(Section 33(a)
and
(b))
126—437
—10—
Any person that violates any provision of the Act or
any regulation adopted by the Board or any permit or
term or condition thereof,
.
.
.
shall be liable to a
civil penalty of not to exceed $50,000 for the
violation and an additional civil penalty not to exceed
$10,000 for each day during which the violation
continues (Section 42(a)
of the Act9).
Since the record discloses violations from July 15,
1987 to the
present,, the maximum penalty which could be imposed would be over
$100 million10.
In addition, the Act contains certain factors which the
Board must consider in determining an appropriate remedy:
C)
In making its orders and determinations,
the
Board shall take into consideration all the
facts and circumstances bearing upon the
reasonableness of the emissions,
discharges,
or deposits involved including, but not
limited to:
1.
the character and degree of injury
to,
or interference with the
protection of the health, general
welfare and physical property of
the people;
2.
the social and economic value of
the pollution source;
3.
the suitability or unsuitability of
the pollution source to the area in
which it is located,
including the
question of priority of location
involved;
4.
the technical practibility and
economic reasonableness of reducing
or eliminating the emissions,
discharges or deposits resulting
from such pollution source; and
~ The maximum penalties
in Section 42(a)
were increased to
these amounts by P.A.
86-1014, effective July
1,
1990.
Until then
the maximum penalties are $10,000 per violation with $1,000 per day
of violation.
10
Based
on
a
calculation
of
$50,000
per
each
of
eight
violations, and $10,000 per day for each day each of the violations
continued tothe present
(a period of over 4 years).
126—438
—11—
5.
any subsequent compliance.
(Section 33(c)
of the Act)11
For Section 33(c)(1), the Board finds that the failure to
adequately monitor groundwater for releases from the Refuse Depot
facility in excess of four years is a substantial interference
with the protection of the health,
general welfare and physical
property, of the people.
Any opportunity afforded through the
permitting process to prevent or adequately and timely address
any releases continues to be lost the longer no monitoring takes
place at the site.
For Section 33(c)(2), the Board accepts that the Refuse
Depot has social and economic value as a landfill.
However,
any
value is diminished by the fact that continuing violations exist.
For Section 33(c)(3), there is no evidence in the record
that the site is not suitably located.
A permit was issued for
the site at its present location.
Priority of location
is not an
issue.
As regards Section 33(c)(4), the record indicates that in
order to monitor the groundwater it would be necessary to place
new wells
in the aquifer and to collect actual groundwater
samples.
There is no indication that this would
be. technically
impracticable or economically unreasonable.
As regards Section 33(c)(5), there has been no subsequent
compliance with the groundwater monitoring requirements.
Upon review of all the facts and circumstances of this case,
and the Section 33(c)
factors, the Board finds that a penalty
should be imposed upon the Refuse Depot.
The Board now turns to
Section 42 for the determination of an appropriate civil penalty.
Section 42(h), effective September 7,
1990
(P.A.
86—1363)
2
11
Although
Section
33(c)
applies
by
its
terms
to
the
“reasonableness
of
the
emissions,
discharges,
or
deposits
involved”,
and
various
other
provisions
more
appropriate
to
pollution sources,
it still provides some guidance in such a case
as this one.
This
is
a case involving violations of
a body
of
regulations and permitting system intended to entirely prevent the
release of pollutants into the environment.
12
The Board considered applying the Section 42(h)
factors in
those cases where hearing was held following the effective date of
Section
42(h).
The
Board
chose
to
apply
Section
42(h),
a
procedural statute, retroactively in People v. Sure-Tan, Inc.,
PCB
90-62, April
11,
1991.
Hearing in this matter was held after the
126—439
—12—
authorizes the Board to consider matters of record in mitigation
of penalty, including the following factors:
1.
the duration and gravity of the violation;
2.
the presence or absence of due diligence on
the part of the violator in attempting to
comply with the requirements of this Act and
regulations thereunder or to secure relief
therefrom as provided by this Act;
3.
any economic benefits accrued by the violator
because of delay in compliance with
requirements;
4.
the amount of monetary penalty which will
serve to deter further violations by the
violator and to otherwise aid in enhancing
voluntary compliance with this Act by the
violator and other persons similarly subject
to the Act; and
5.
the number, proximity in time,
and gravity of
previously adjudicated violations of this Act
by the violator.
The permit,
Act, and regulation violations by the Refuse
Depot have continued since July 15,
1987, the due date for the
first set of groundwater samples, which is a time period of over
four years.
As stated above regarding Section 33(c)(l),
any
releases that may be occurring at the site would be continuing
without abatement.
Therefore,
the violation is grave.
(Section
42(h) (1))
The Refuse Depot has not exhibited due diligence in
attempting to comply with the requirements of the Act, Board
regulations, and its supplemental permit.
The Refuse Depot has
steadfastly refused to submit groundwater samples as required by
the supplemental permit and its monitoring requirements for
closure.
(Section 42(h)(2)).
The Refuse Depot has saved time and money
in not submitting
groundwater samples as required.
The Refuse Depot may have also
saved significant time and funds should a release have occurred
and clean up been required during the time that results were not
reported.
The Refuse Depot further saved time and funds by delay
in the filing of documents required by the regulations and
supplemental permit.
(Section 42(h) (3)).
effective date of Section 42(h).
126—440
—13—
The Board finds that imposition of a penalty will serve to
deter further violation by the violator and to otherwise aid in
enhancing voluntary compliance with the Act by the violator and
others similarly subject to the Act.
(Section 42(h)(4)).
The
record does not show any previously adjudicated violations by the
Refuse Depot.
(Section 42(h)(5)).
Considering the facts and circumstances of this case,
and
after weighing both the Section 33(c)
and 42(h)
factors, the
Board finds that a penalty of $100,000 for violation of the Act,
Board regulations and supplemental permit requirements outlined
above, should be imposed against the Refuse Depot.
The Board
notes that this is much less than the maximum penalty allowable
under the Act.
In imposing this penalty, the Board especially
notes that its discussion ~andapplication of the statutory
factors reveals few mitigating factors,
and that the facts weigh
in favor of imposition of a higher penalty (See especially
discussion of 33(c)
(1),
(2),
(4),
(‘5),
and 42(h)
(1),
(2),
(3),
and
(4).
The Board declines to order Mr. LaPort to take a
“groundwater seminar”.
There is no evidence that this would aid
the enforcement of the Act and Board regulations, nor was
information presented on which particular seminar would be
required and why.
The Board will order the Refuse Depot to cease and desist
from further violations of the Act, Board regulations, and permit
requirements.
In addition, the Board will order the Refuse Depot
to install additional monitoring wells which yield representative
groundwater samples in consultation with the Agency.
This
groundwater monitoring shall continue for the period of time
consistent with the Act, all permits, applicable Board
regulations, and also in consultation with the Agency.
According to Section 42(f), the Board may award:
costs and reasonable attorney’s fees,
including the
reasonable costs of expert witnesses and consultants,
to the State’s Attorney or the Attorney General in a
case where he has prevailed against a person who has
committed a wilful, knowing or repeated violation of
the Act.
State requests fees and costs be awarded under Section 42(f)
based on allegations that the Refuse Depot committed repeated
violations of the Act
(St. Br. at 17).
The Board finds that the
Refuse Depot has not committed repeated violations of the Act.
As noted above regarding Section 42(h) (5), the record does not
disclose any prior, similar findings of violation against the
Refuse Depot.
As discussed above, the record does show a
continuing violation.
However,
a repeated violation is not
126—44 1
—14—
synonymous with a continuing violation.
Therefore,
the Board
will not assess costs against the Respondent in this matter.
This Opinion constitutes, the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
The, Respondent,
Chicago Heights Refuse Depot,
Inc., has
violated Section 21(d)
of the Illinois Environmental
Protection Act;
35
Ill. Adm. Code 807.317,
807.301 and
807.302 of the Board’s regulations; and condition 1(g)
of the supplemental permit; and conditions
2,
3, and 4
of Attachment A of the supplemental permit.
2.
Within 30 days of the date of this Order the Respondent
shall, by certified check or money order payable to the
State of Illinois, designated to the Environmental
Trust Fund,, pay the penalty of $100,000, which is to
be sent by First Class Mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
P.O. Box 19276
Springfield, IL 62794—9276
The Respondent shall also place its Federal Employer
Identification 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.
1990 Supp.,
ch.
120,
par. 10-
1003),
as now or hereafter amended, 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 has been
stayed.
3.
Chicago Heights Refuse Depot,
Inc.,
is hereby ordered
to cease and desist from all violations of the Illinois
Environmental Protection Act, Board regulations, and
the terms and conditions of its supplemental permit
issued January 26,
1987.
4.
Chicago Heights Refuse Depot,
Inc.,
is hereby ordered
to improve the existing wells or install additional
monitoring wells such that the wells will yield
representative groundwater samples.
Respondent shall
126—442
—15—
continue groundwater monitoring and reporting of
results of such monitoring to the Agency for a period
of time and in a form consistent with the requirements
of the Environmental Protection Act, all applicable
permits, and all applicable Board regulations.
Such
improvement or installation of wells, monitoring,
and
reporting shall be performed in consultation with the
Illinois Environmental Protection Agency.
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
l9~89ch.
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.
Board Member B.
Forcade concurred.
Board Member J.
D. Dumelle
dissented.
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above O~niQn.andOrder was
adopted on the
•/~~
day of
~‘1~z~
)
,
1991,
by
avoteof
__________
Control Board
126—44 3
