ILLINOIS POLLUTION CONTROL BOARD
December 14,
1994
COUNTY OF DUPAGE,
)
Complainant,
AC 94—20
V.
)
(Administrative Citation)
WASTE MANAGEMENT OF ILLINOIS
(GREEN VALLEY LANDFILL),
Respondent.
RAYMOND E.
HANSEN, ASSISTANT STATE’S ATTORNEY APPEARED ON BEHALF
OF COMPLAINANT;
PERCY L. ANGELO and JONATHAN E. SINGER OF MAYER, BROWN and PLATT,
APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by E. Dunham):
This matter comes before the Board on an administrative
citation issued by the County of DuPage
(County) to respondent on
April
1,
1994.
On May 4,
1994, Waste Management
(WMI)
filed an
appeal of the administrative citation.
A hearing on this matter was held on August 25,
1994,
in
Wheaton,
Illinois before hearing officer Allen Schoenberger.
Respondent filed its post-hearing brief on October 11,
1994.
Complainant filed its post-hearing brief instanter on October 12,
1994.
The administrative citation alleges that Waste Management
is
the present operator of the Green Valley Landfill in Naperville,
Illinois.
The administrative citation was issued as a result of
an inspection of the facility on February 12,
1994.
The
administrative citation alleges violation of Section 21(o) (5)
of
the Act (415 ILCS 5/21(o) (5) (1992)) which carries a statutory
civil penalty of $500.
MOTIONS
Before reviewing the administrative citation the Board will
consider various pending motions.
Before the Board
is a “Motion
to Strike” filed on October 11,
1994,
by respondent and a “Motion
to Strike Complainant’s Post-Hearing Brief” filed on October 13,
1994.
The County of Du Page filed a “Response to the Motion to
Strike”
on October
18,
1994.
On October 27,
1994, WMI filed a
response to complainant’s response.
The County of Du Page filed
a “Response to Respondent’s Motion to Strike Complainant’s Post
Hearing Brief” on October
26,
1994.
2
In the motion to strike, respondent seeks to strike
“immaterial and prejudicial” allegations from the administrative
citation and from the opening statement presented at hearing.
Respondent also seeks to strike Exhibits
3
&
51
admitted into
evidence at the hearing.
Respondent claims that the allegations
are irrelevant to the violation alleged in the administrative
citation and have been placed in the citation solely to prejudice
WMI.
In its response, complainant claims that the motion to
strike is untimely.
(35 Ill. Adm. Code 103.140.)
Complainant
also asserts that Exhibits
3
&
5 are relevant to show the
conditions observed on the day of the inspection.
The Board finds that the motion to strike is timely filed.
The Board further finds that the exhibits were not prejudicial to
WMI.
The respondent’s motion to strike materials entered into
the record by the County is therefore denied.
In its motion to strike complainant’s brief,
respondent
claims that pursuant to the hearing officer’s order, simultaneous
post-hearing briefs were to be filed with the Board on October
11,
1994, with the parties serving each other via facsimile or
messenger on the same day.
Respondent states that it served its
brief on the County via facsimile starting transmission at
approximately 4:15 on October 11,
1994.
Respondent claims that
the County,
in violation of the hearing officer’s order did not
serve its brief on
WMI
until after the close of business on
October 11,
1994,
by sending a facsimile at approximately 7:40
p.m.
WNI
claims that it is prejudiced by this late filing since
the County had the opportunity to review respondent’s brief prior
to submitting its brief thus, circumventing the intent of
simultaneous filing.
In its response, complainant asserts that it did not review
respondent’s post—hearing brief before sending its post-hearing
brief to respondent via facsimile,
though no affidavit was filed
with the assertion.
Complainant claims that the granting of
respondent’s motion would result in great prejudice to
complainant while respondent is not prejudiced by the filing of
the complainant’s brief one day late.
The Board denies complainant’s motion and accepts
complainant’s post—hearing brief instanter.
Exhibit
3
&
5 are excerpts from the Narrative Inspection
Report prepared the County of Du Page’s inspector on February 11,
1994.
3
DISCUSSION
Pursuant to Section 31.1(d) (2)
of the Act,
if the Board
finds the alleged violation occurred, then the final order issued
shall include a finding of violation,
and shall impose the
penalty specified in subdivision
(b) (4)
of Section 42,
i.e. $500
per violation.
Section 31.1(d) (2) further provides that if the
Board finds the violation resulted from uncontrollable
circumstances,
it shall adopt a final order which makes no
finding of violation and which imposes no penalty.
Thus,
a two-
part inquiry is required:
first, the Board must determine whether
there was
a violation based on the record in this case, and if
so, the Board must then determine whether the violation was
caused by uncontrollable circumstances.
The Board may not hold
that a violation has occurred unless
it finds by a preponderance
of the evidence that the record proves that a violation occurred.
The sole violation alleged is
a single count violation of
Section 21(0) (5)
of the Act:
5. uncovered refuse remaining from any previous operating
day or at the conclusion of any operating day, unless
authorized by permit.
The sole issue before the Board in this administrative citation
is whether the alternate daily cover placed by
WNI
on February
11,
1994 was adequate.
Witnesses at hearing were Mr. Rodd Elgis, Principal
Environmental Specialist,
for the County and Mr. Tim Wolford,
Operations Manager,
for WMI.
Mr.
Elgis acknowledged that he had
been inspecting the Green Valley Landfill of
WNI
on his own for
five months, and that he had limited experience in the placement
of alternate daily cover
(ADC)
(Tr. at 93.)
In Mr. Wolford’s
testimony, he indicated that he had been managing the landfill
for 16 months and that the landfill had been using the same type
of ADC for the entire 16 month period.
(Tr. at 149
-
151.)
Mr.
Wolford stated that the method employed in removing ADC is to
bury the plastic sheeting in refuse and cover the refuse with
earth at the next opportunity.
(Tr.
at 172
-
177.)
Mr.
Elgis testified that he arrived at the landfill on
February
12,
1994 at 7:00 a.m.
(Tr. at 33.)
He observed that the
previous day’s working face was covered with plastic tarps.
(Tr.
at 44.)
He also observed that areas of the previous day’s
working face were exposed through the tarp.
(Tr. at 45.)
Contemporaneous photographs were presented by the County in
support of its allegation that waste remained uncovered from the
previous working day.
(Comp.
Exh.
4.)
The photographs show
plastic sheeting used as ADC covering the prior days’ working
face.
Some areas of exposed waste are shown
in the photographs.
4
The County alleges that the uncovered waste remained uncovered
from the previous day.
In rebuttal,
WNI
presented testimony that landfill workers
were in the process of removing and burying the ADC when the
County inspector arrived.
WNI
claims that the waste was not left
uncovered from the previous workday
(Tr. at 164) and the exposed
waste in the photographs is the result of work done the morning
of the inspection
(Tr. at 175).
The photographs show waste on
top of some of the plastic sheeting and heavy equipment working
on the waste high on the face of the slopes.
WMI
presented testimony from landfill personnel that
questions the interpretation of events witnessed by Mr.
Elgis
during his inspection of the landfill.
The testimony of Mr.
Wolford depicted the photographic evidence as showing that no
violation had occurred.
The burden of proving that a violation
has occurred rests solely upon the County.
Based upon the
testimony and the photographic evidence presented supporting
WMI’s assertion that there had been no violation,
the Board finds
that the County has failed to prove,
by a preponderance of the
evidence, that a violation has occurred.
This administrative citation
is accordingly dismissed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
(415 ILCS
5/41
(1992)), provides for appeal of final orders of the Board
within
35 days of the date of service of this order.
The Rules
of the Supreme Court of Illinois establish filing requirements.
(See also 35 Ill.
Adm. Code 101.246, Motion for Reconsideration.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi~that the above Rpinion and order was
adopted on the
//~-/—~
day of
/U~?t~~’
,
1994,
byavoteof
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Dorothy M.
Illinois P0
Control Board