ILLINOIS POLLUTION CONTROL BOARD
November
1,
1979
COUNTY
OF
OGLE,
Complainant,
v.
)
PCB 78—149
)
BROWNING-FERRIS INDUSTRIES
)
OF ROCKFORD,
INC.,
Respondent.
MR. PETER J. WOODS, STATE’S ATTORNEY,
OGLE COUNTY, ILLINOIS
AND
DENNIS RILEY, ASSISTANT STATE’S ATTORNEY, OGLE COUNTY, ILLINOIS
APPEARED ON BEHALF OF THE COMPLAINANT.
NESSRS. HARVEY M. SHELDON AND MICHAEL DUFF OF NISEN, ELLIOTT
&
?~EIERAPPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by Dr. Satchell):
On May 23, 1978 the County of Ogle,
Illinois filed a complaint
against Browning—Ferris
Industries of Rockford, Inc.
(BFI) alleg-
ing that the
Respondent operated its landfill at Davis Junction,
Ogle County,
Illinois in violation of its operating permit issued
by the Illinois Environmental Protection Agency
(Agency)
and in
violation of
certain Board Rules and Regulations of Chapter
7:
Solid Waste Regulations
(Chapter 7)
and solid waste provisions of
the Environmental Protection Act
The complaint specifically alleged that:
1.
On or before January 6,
1978 BFI failed to maintain
operational roads within its site in an adequate state
for all weather conditions,
in violation of Rule 314(b)
of Chapter
7.
2.
On or before January 6,
1978, February 1 and 21,
1978,
March
7,
8 and 29, 1978 and April 20,
1978 BFI failed
to provide adequate daily cover in violation of Rule
305(a)
of Chapter 7.
3.
On or before March 30,
1978, April
4, 20 and 28, 1978
BFI allowed large amounts of litter to escape to ad-
joining lands in violation of Rule 306 of Chapter 7.
36—5
—2—
4.
On or before February 21, March
7,
8,
29 and April 20,
1978
BFI failed to provide adequate intermediate cover in viola-
tion of Rule 305(b)
of Chapter
7.
5.
On or before March
7,
8,
29 and April 20,
1978 BFI failed
to spread and compact solid waste as required by Rule
303
of Chapter
7.
6.
On or before March
7 and
8,
1978 BFI, due to inadequate
cover,
failed to prevent liquid waste from seeping out of
a cell in violation of Rule 314(e)
of Chapter
7.
7.
On or about March
7,
8,
29 and April 20, 1978 BFI failed
to properly handle STP sludge and failed to maintain a
required 100 feet excavated area ahead of the filling
operation in accordance with its permit.
8.
On or before March
8,
29 and April 20,
1978 BFI allowed
open dumping of refuse at its landfill site in violation
of Section
21(a)
arid
(b)
of the Environmental Protection
Act.
9.
On or about February 21,
1978 BFI failed to supply an
adequate depth of daily cover to an area located south
of the fill area in violation of Rule 305 of Chapter 7.
10.
On or about January 20,
1978 BFI failed to provide
sufficient equipment, personnel and supervision to
ensure that operations complied with the requirements
of its permit and Chapter 7.
Hearings were held on December 20, 1978 and on December 21, 1978
at the Ogle County Courthouse in Oregon, Illinois at which time the
Complainant Ogle County and the Respondent BFI presented testimony
and submitted exhibits for the record.
Respondent objected to
admission of inter-office memoranda in Ex.
5 as irrelevant and in
Exs.
2,
4 and
8 as self-serving.
The Hearing Officer ruled Ex.
5
inadmissible because it was self—serving and admitted the remaining
exhibits, noting that they contained material of little probative
value
(R.
69,
85-89).
Procedural Rule 320(b)
provides that the
Hearing Officer is to admit evidence where there is an arguable
interpretation of substantive law.
The Board upholds the Hearing
Officer’s rulings
and, furthermore, has not relied on the object-
ionable aspects of the remaining exhibits in reaching its decision.
~6—6
—3—
on
two
separate occasions during the hearings, Complainant
alleged that Respondent’s conduct was not in compliance with the
Hearing Officer’s order to exclude witnesses from the hearing.
Complainant claimed that the presence during the hearings of
David Beck, Respondent’s consultant, violated the Hearing Officer’s
order since the order provided only for a representative of BFI at
Respondent’s table
(R. 253-259).
The Board finds that Complain-
ant’s objection is without merit.
The Respondent has the discretion
to select an appropriate representative as an assistant during the
hearing, notwithstanding the relationship with the Respondent.
Complainant’s motion is denied;
the testimony of David Beck is
admitted into evidence.
Also during the hearings the Complainant moved to strike
testimony of Respondent’s witness Charles Clark on the basis that
his discussions with the Respondent’s Counsel prior to the hearings
were in violation of the Hearing Officer’s order to exclude wit-
nesses during the hearing.
The Board agrees with the Hearing
Officer that it is permissible for any attorney to confer with a
witness before a hearing.
The Hearing Officer’s determination is
affirmed; the testimony of Charles Clark is admitted into evidence
(R.
333—338)
The allegations against BFI involve its 160 acre solid waste
management site located at Davis Junction in Ogle County, Illinois.
The BFI site serves approximately 100,000
people in northern
Illinois
and is designed to receive an average daily load of 1000
to 1200 cubic yards of refuse
(R.
173,
194;
P. Ex.
l)*.
On February 27,
1975 the Agency issued a development permit
to BFI for the construction and development of the sanitary land-
fill site.
The permit contemplated that the site would be divided
into three landfill phases and developed in accordance with the
supplemental development permit.
The site is designed to accept
approximately 2,866,000 cubic yards of refuse in Phases
1
through
3 and to operate continuously 310 days per year for 23 years.
Currently, Phase
1 is operating and
is reportedly receiving
approximately 1200 cubic yards per day
(R.
194,
225; P. Ex.
1).
*Since Complainant’s exhibits were submitted and admitted
into evidence as “Petitioner’s Exhibits”,
the Board will cite this
reference and future references
to Complainant’s exhibits as
indicated using the
“P. Ex.” abbreviation.
36—7
—4—
On February
1,
1977 BFI entered into a contract with the
Rockford Sanitary District
(Rockford)
to accept 80,000
cubic
yards of sludge vacuum filter cake
(VFC)
for a unit price of
$3.45 per cubic yard or a total of $276,000 for a duration of
approximately fifteen months ending April
30, 1978
(R.
Ex.
4).
According to the terms of the contract, Respondent had to be
prepared to receive VFC at the Davis Junction landfill between
the hours of 6:00
a..m. and 6:00 p.m.,
afterward changed to 7:00
a.m.
to 7:00 p.m.
Respondent was also responsible for complying
with the applicable laws and regulations.
Furthermore, Respondent
agreed to assume
all responsibility for making estimates of the
size and kind of equipment necessary for the disposal of
VFC
(R.
164—170;
R.
Ex.
4).
The allegations in this Complaint concern the operations at
the Davis Junction site between November,
1977
and April,
1978.
while the Complainant requests no money penalty,
it has petitioned
the Board to revoke the operating permit issued to the Respondent
for operation of its Davis Junction site.
In prior cases involving questionable solid waste operations,
the Board has issued orders to cease and desist operations based
upon specific findings that the site in question presented an
imminent hazard due to existing geological conditions or that the
operational history of the disposal site has exhibited a chronic
disregard for the solid waste disposal requirements of the Board
Rules and the Act.
EPA v. Everett J. LaVoie, et al., PCB 72-191,
5
PCB 121
(August
8, 1972);
CEE v. Earl Baker et al., PCB 72-23,
5
PCB 415
(September
12,
1972); EPA v.
Harold Broverman et al.,
PCB 76—114,
28 PCB 123
(November 10,
1977).
Complainant
has
conceded
that
the
site
was
geologically
suit-
able
(R.
317).
There
is
evidence
that
the
site
has
been
in
sub-
stantial
compliance since
April, 1978
(R.
91,
125;
R.
Grp.
Ex.
3)
Although there
is evidence of violations in the record, it does
not
amount to a chronic disregard for the solid waste disposal require-
ments.
The Board,
therefore,
finds the evidence inadequate to
warrant the revocation of the Respondent’s permit.
The Board will
consider the evidence in the record in light of the Complainant’s
charges of violation of the permit provisions, the Act and Board
regulations
to determine whether the Complainant has met its burden
of proof and whether a penalty is justified to aid in the enforce-
ment of the Act.
36—~
—5—
INTRODUCTION
Complainant’s
case-in—chief
is
largely
confined
to
the
testimony
of
field
investigations
and
exhibits,
including
reports
and
photographs
submitted
by
Mr.
Henry
Cobo,
a
field
specialist
for
the
Agency.
Mr.
Cobo’s
evidence
is
based
upon
field
inspections
conducted
at
the
Davis
Junction site
on January 6
and
April
20,
1978.
The
Respondent
claims
in
defense
that
the
County
of Ogle failed to meet its burden
with
respect
to
the
alleged
violations
of
its
complaint.
In
the
alternative,
where
violation
may
be
determined, the Re-
spondent
contends
that
the
record
adequately
indicates
that
compliance
with
the
requirements
were
either
impossible
or
would
have
caused
an
arbitrary
or
unreasonable
hardship.
OPERATI
ONAL ROADWAYS
Paragraph
1
charged
BFI
with
failure
to
maintain
operational
roads
during
all
weather
conditions
at
the
Davis
Junction
site
for the contemplated 310 days of operation per year in violation
of Rule
314(b) of Chapter
7 which requires
“
.
.
.
roads ade-
quate to allow orderly operations within the site.”
Despite numerous inspections of the BFI’s Davis Junction
landfill
site,
the only evidence in the record regarding
inoperable roads is limited to an inspection by Mr. Cobo on
an extremely wet, muddy day.
Mr. Cobo testified that during
his January
6,
1978 inspection he observed and photographed
a refuse vehicle having traction problems and requiring the
assistance of BFI’s spare tractor to push the vehicle up an
incline near the fill face in Phase
1 to the graveled access
road
(R. 25—28;
P. Ex.
2).
There is no question that on January
6,
1978 the area at
the BFI fill face was muddy and the graveled roadway was
covered with mud, more mud than the sporadic, twenty—five
per cent covering characterized by Respondent’s witness,
David Beck.
However, evidence of a single stuck vehicle
does not establish that BFI failed in general to maintain
operational roads in an adequate state
for all weather
conditions.
36—9
—6—
The charge in Paragraph
1 alleging inoperable roads
in
violation of Rule 314(b)
is dismissed.
COVER AND
SEEPAGE
Paragraphs
2 and
4 charged BFI with violations
of the daily
and intermediate cover requirements of Rule 305(a)
and 305(b)
of
Chapter
7 on or before January
6 until April 20,
1978.
Paragraph
6 alleged that the Respondent failed to prevent liquid waste from
seeping out of a landfill cell in violation of Rule 314(e)
on or
before March
7 and 8,
1978.
In this case,
Mr.
Cobo testified that he observed protrusions
of garbage, wood and paper in a small fifteen foot area in the
fill face on February 21,
1978 prior to the beginning of operations
(R. 44).
On the March
7,
1978 inspection,
Mr. Cobo observed and
photographed an area of approximately twenty feet by ten feet in
the fill face with no daily cover and inadequate depth for the
entire area.
The witness characterized that the slope of the open
face was too steep to retain proper amounts of cover, although no
actual measurements were conducted at the fill face.
Testimony
and exhibits further revealed that liquid waste had seeped through
the cover of the fill face on that day
(R.
55,
61, 121;
P. Ex.
4).
On March 29,
1978 Mr. Cobo observed and photographed three open
faces
in
the
fill
face
before
operations
had
begun
(R.
74;
P.
Ex.
7).
Mr.
Cobo also observed protruding garbage through the fill
face cover before the day’s operations on April 20, 1978
(R.
78).
Evidence
and
testimony
concerning
Mr.
Cobo’s
inspection
on
January
6,
1978 is not conclusive regarding daily cover.
Testimony
regarding Kenneth Bechely’s visits to the Davis Junction site on
May
1
and 10,
1978 discloses no specific evidence of daily cover
violations on those dates
(R.
161—162).
Although the Respondent has conceded
the occurrence of
isolated daily cover violations,
it claims that severe weather
conditions made it impossible
to dig, apply and maintain adequate
cover.
While Mr.
Cobo’s inspection reports
(p. Ex. 2—8
reveal
that the ambient air temperature ranged from two to forty degrees
Fahrenheit, the record also indicates that BFI did not have avail-
able a ripping device at the Davis Junction site to facilitate
acquisition of suitable cover material through the frozen ground.
Since a ripping device
is essential to operation of any sanitary
landfill disposal facility which contemplates 310 operating days
per year,
the Board finds that application of suitable daily cover
may have been technically feasible had the proper equipment been
36—10
—7—
available during this severely cold winter of 1977-78.
This
matter will be treated further when the Board assesses adequacy
of Respondent’s equipment at the Davis Junction site.
Intermediate cover provisions of Rule 305(b) require that a
compacted layer of at least twelve inches of suitable material
be placed on all surfaces of the landfill at the end of each day
of operation where no additional refuse will be deposited within
sixty days.
Since Respondent’s cut and fill operation contem-
plated no additional deposits of refuse in the trenches after
daily cover had been applied, the Board concludes that any seg-
ment of the Davis Junction site in Phase
1 to the south of the
working face would be in technical violation of Rule 305(b)
if
determined to be without sufficient intermediate cover material
at the end of the day of operation.
Testimony and exhibits revealed that Mr. Cobo discovered
intermediate cover violations on two occasions during numerous
inspections
of the BFI site.
On February 21,
1978 Mr. Cobo
observed garbage protrusions over two acres through the inter-
mediate cover of Phase
1 while the air temperature was two degrees
Fahrenheit
(R.
49;
P.
Ex.
3).
However, subsequent inspections on
March
7 and
8,
1978 indicated marked improvement in the cover
(R.
63,
66).
On April 21, 1978 Mr. Cobo discovered erosion of inter-
mediate cover due to heavy traffic in that area, but BFI was making
suitable reparations
at the time of the inspection
(R.
78;
P. Ex.
8).
Because the Davis Junction site was in the process of contin-
uously improving its intermediate cover and making immediate re-
pairs of segments eroded by traffic, the Respondent contends that
no violations should be levied against the site.
Furthermore,
BFI has challenged the field observation evidence of Mr. Cobo
with expert testimony of Charles Clark, Consulting Engineer.
Mr.
Clark has postulated, without the benefit of an on—site inspection
of the intermediate cover condition, that the presence of litter
on top of intermediate cover had no bearing on whether the cover
met the twelve inch depth requirement.
Respondent contends that
without measurements of the intermediate cover depth, the evidence
is insufficient for establishing violation
CR.
328).
During cross—examination, Mr. Cobo concluded from field
observations that the exposed refuse was uncovered or tracked up
by the cover equipment.
The photographs in focus from the Feb-
ruary 21,
1978 inspection
(P. Ex.
3) indicate that the protrusions
of garbage and refuse
in the cover were not the result of random
deposits of litter, but refuse improperly covered with suitable
material at the end of the day of operation
(R.
49).
Refuse
protruding through the cover layer may result in channels which
would allow water to penetrate refuse cells and defeat a purpose
of the cover requirement.
36—11
—8—
In view of
the foregoing,
the Board finds that the testimony
and the exhibits are sufficient to establish violation of the
daily cover requirements of Rule 305(a)
on February 21, March
7,
March 29 and April 20, 1978.
The record also shows that Respond-
ent was in violation,
on or about February 21, 1978 and April 20,
1978, of the intermediate cover requirements of Rule 305(b).
In Paragraph
6 the County of Ogle alleged that BFI’s failure
to prevent seepage of liquid waste from a refuse cell was in vio—
lation of Rule 314(e)
of Chapter 7 which provides that
“
.
.
.
no
person shall cause or allow the development or operation of a
sanitary landfill which does not provide
.
.
.
adequate measures
to monitor
and
control leachate.”
Respondent has constructed a
berm and cutoff trench and taken other steps to control leachate.
Testimony by Mr.
Cobo claiming that
an absorption cell was
operating with an expired permit proved to be inaccurate
(R.
98-
102;
P.
Ex.
3).
However, on March
7 and
8,
1978 Mr. Cobo observed
and photographed frozen seepage which had escaped the daily cover
which was determined above to be inadequate
(R.
55,
67).
The presence of uncontrolled leachate flows on the site is
evidence of inadequate measures to control leachate.
In this
case,
however,
it
appears that the inadequacy results only from
inadequate daily cover.
Since Respondent has already been found
in violation of the daily cover rule and since there is no evi-
dence that the leachate actually threatens to leave the site,
the
314(e)
charge is dismissed.
LITTER
Paragraph
3 alleged that on numerous occasions BFI allowed
litter to escape to adjoining lands
in violation of Rule 306 of
Chapter
7 which provides that:
“All litter shall be collected from
the sanitary landfill site by the end of each working day and either
placed in the fill and compacted and covered that day, or stored in
a covered container.”
Although the rule does not mention escape of
litter from the site, the charge is more narrowly drawn.
The
re-
spondent has stipulated that litter has blown off its site onto
adjoining lands on March 24,
1978, on April 20,
1978 and on at
least three other occasions.
In response to a blowing litter com-
plaint,
Mr. Cobo conducted an investigation at the Davis Junction
site on March 29,
1978 but reported no blowing litter in the
ensuing report.
On the May 10,
1978 inspection,
Mr. Bechely dis-
covered no blowing or flying litter
(R.
17, 116,
162;
P.
Ex.
7)
36—12
—9—
To prevent litter from escaping the boundaries of the BFI
landfill,
the Respondent has constructed four to five foot soil
berms and has placed wind screens around the operating face to
serve as barriers to the litter.
Furthermore,
a six foot boundary
fence was constructed at a cost of nearly $1760 to catch blowing
litter.
BFI also responded to litter complaints from neighboring
landowners with overtures to clean up the papers and litter es-
caping from the landfill.
This record of preventative measures
is, however, diminished by Respondent’s delay in controlling
litter until March,
1978
(R.
83,
133,
146, 182;
P. Ex.
7;
R. Ex.
8)
The Board finds that Respondent’s Davis Junction site was in
violation of Rule 306
of Chapter
7 for allowing litter to escape
from its boundaries
on the five separate occasions
as stipulated
in the record.
SLUDGE
Paragraphs
5,
7,
8 and
9 charged the Respondent with violations
relating to BFI’s failure to properly accept, spread, compact and
cover sewage treatment plant sludge cake from the Rockford Sanitary
District in violation of its permit, Rules 303 and 305 of Chapter 7
and Sections
21(a)
and 21(b)
of the Act.
As stated above, BFI had contracted with Rockford to accept
vacuum filter cake
(VFC or sludge cake)
between the hours of 7:00
a.m.
and 7:00 p.m.
While the Complainant’s principal witness, Mr.
Cobo, believed that Agency policy required a ten to one
(10:1)
sludge to refuse mixture, the record reveals that this requirement
did not apply to VFC.
BFI’s amended permit apparently allowed a
four to one
(4:1)
ratio and also allowed VFC to be placed at the
top of the fill face to be mixed with refuse at the toe prior to
application of suitable cover
(R.
33—35, 123,
165—74;
P.
Ex.
4).
In accordance with the permit provisions and Rule 303, BFI
was required to direct the Rockford sludge cake to the top of the
working face and spread and compact it with the refuse into the
cell at a slope no greater than three horizontal to one vertical.
Rule 305 required six inches of daily cover or twelve inches of
intermediate cover as dictated by the intended future use of the
land.
During the March
7,
1978 inspection Mr. Cobo discovered and
photographed five piles of frozen sludge cake deposited in the
southeast corner of the landfill near the access roadway.
The
VFC deposits had not been spread, compacted or mixed with refuse
nor had appropriate cover been applied.
Furthermore, Mr. Cobo
3 6—13
—10—
observed
that
the
fill
face
slope
exceeded
the
three
to
one
(3:1)
ratio
stipulated
in
Respondent’s
permit
CR.
57,
59—61,
62,
121;
P.
Ex.
4).
On
March
8,
1978
Mr. Cobo observed that the same
conditions
existed
(R.
67).
Mr.
Cobo’s
March
29,
1978 inspection
revealed
more
than
five
piles
of
exposed,
uncompacted
and
unspread
sludge
cake
deposited
at
the
BFI
site
(R.
74—75;
P.
Ex.
7).
During
the
April
20,
1978
inspection,
Mr.
Cobo observed that the sludge
cake
was
not
being
properly
mixed
with
the
refuse
(R.
79).
In
other
testimony,
Mr.
Bechely
failed
to
clarify
whether
he
had
observed
sludge
handling
violations
during
his
May
visits
to
the
BFI
site
(R.
160)
Since
the
evidence
here fails to show open dumping of garbage,
the
Board
will
dismiss
the
charge
of
a
Section
21(a)
violation.
The record is, however, sufficient to establish BFI’s failure to
compact,
spread
and
mix
sludge
with
refuse
and
provide
adequate
cover
on
March
7,
March
8,
March
29
and
April
20,
1978.
These
constitute violations of Rules 303 and 305 of Chapter
7 and thus
violations
of
Section
21(b)
of
the
Act.
The
Board
further
finds
Respondent
in
violation
of
the
slope
requirements
of
its
permit
on
March
7,
1978.
In
mitigation,
BFI
has
presented
witnesses
who
have
stressed
that
circumstances
surrounding
the
sludge
cake
operation
made
it
difficult
for
the
Davis
Junction
site
to
properly
dispose
of
it.
Mr.
Cleatos
Atkinson,
general
manager
of
the
Davis
Junction
site,
claimed
that
the
site
had
no
control
over
the
amount
of
sludge
cake
or
the
time
at
which
the
sludge cake was to be delivered.
Once
the
material
was
deposited
at
the
site,
it could not be moved
until
mixed
with
refuse.
It
was
claimed
that
the frozen sludge
cake
was
impossible
to
move.
Respondent claimed that when it
was
dumped
at
the
site
after
7:00
p.m.
or
deposited in parts of the
landfill
away
from
the
working
face
it
could
not
be
spread,
com-
pacted or moved to a proper location in the site for suitable
disposal
CR.
173, 192,
233,
321)
Prior
tests
and
studies
with
sludge
cake
indicated
that
BFI
could
adequately
dispose
of
260
cubic
yards
of
sludge
cake
mixed
with
an
anticipated
1000
cubic
yards
of refuse.
However, on
at
least
eight
different
occasions during the
1977—78
winter,
including
March
6,
7,
29,
April
19
and
20,
1978
the
Rockford
sludge
cake
deliveries
exceeded
260
cubic
yards
at
a
time
when
the
daily
volume
of
dry
refuse
deliveries
fell
below the expected
1000
cubic
yard
level
(R.
172—17 7)
36—14
—11—
While it is apparent that the sludge cake exceeded the
maximum amount estimated in Rockford’s description to bidders,
Respondent’s
defense
ignores
BFI’s
voluntary
commitment
with
Rockford
to
accept
its
sludge
cake
and
to
dispose
of
it
in
a
manner consistent with the requirements of this state.
The
agreement, which obligated BFI to accept over a fifteen month
period
80,000
cubic
yards
of
sludge
cake
for
$3.45
per
cubic
yard
or
a
total
of
$276,000
also
required
BFI
to
provide
all
labor,
services, tools and equipment necessary to receive and
properly
dispose
of
it
(R.
Ex.
4).
This case concerns Respondent’s non-delegable duties to the
State of Illinois and not its contractual commitments.
BFI had
the
duty
to
evaluate
its
operation
at
Davis
Junction
to
ensure
that it had the capability to properly dispose of the sludge cake
prior
to
entering
into
the
agreement
with
Rockford.
Where
complete
capability was lacking, BFI had the obligation to make necessary
improvements,
apply
for
supplemental
permits,
or negotiate revisions
to
the
agreement
so
that
it could be properly performed in accordance
with
its
permit,
the
Rules
and
Act.
The
record
indicates
that
conditions during the
1977-78
winter
made
it
difficult
to
handle
and
properly
dispose
of
sludge
cake
in
the
manner
anticipated
by
the
Respondent.
However, the Board will
not
relieve
BFI
of
all
responsibility
to
Illinois
Rules
and
permit
requirements
simply
on
a
claim
that
compliance,
at
the
time
perform-
ance was required, would have been difficult.
While the Board may
consider
problems
with
the
timing
of
deliveries
and
location
of
sludge cake deposits as legitimate mitigating factors,
the Board also
believes that any hardship experienced by BFI was largely self-imposed.
EXCAVATION
FLOOR
SPACE
Paragraph
7
alleged
that
BFI
failed
to
maintain
a
100
foot
excavation
area
ahead
of
the
working
face
as
required
by
its
permit.
Mr. Cobo testified that on March 7,
8 and 29, 1978 he observed that
BFI had failed to provide 100 feet of north—south floor space in
Phase
1
of
the
Davis
Junction
site
(R.
57,
68,
75).
Having reviewed the evidence in the record regarding excavation
floor space,
the Board finds that in its Application for Supplemental
Permit
(P. Ex.
1), BFI was required to develop at least 100 feet of
north-south floor space prior
to operation of the Davis Junction site.
However, nothing in the record indicates that BFI was obliged to main-
tain a 100 foot excavation space during daily operations
(P. Ex.
1).
Since there
is no evidence to show that 100 feet of floor space was
required
by
Respondent’s
permit,
the
allegations of excavation floor
space
are
dismissed.
36—15
—12—
EQUIPMENT, PERSONNEL AND SUPERVISION
Paragraph 10 alleged that BFI had failed to provide sufficient
equipment,
personnel
and
supervision
to
ensure
that
operations
com-
plied
with
the
requirements
of
its
permit and Chapter
7.
While the Respondent has supplemented the record with evidence
of
the
cost
of
additional
equipment,
our
findings
above
concerning
cover violations indicate that the equipment
was
insufficient
to
excavate
suitable
daily
and intermediate cover
material.
According
to
the
record,
a
ripping
device
is
necessary
to
rip
or
to
uncover
suitable
cover
material
from
frozen ground.
Mr. Atkinson testified
that
the
ripping
device
was
ordered
for
the
Davis
Junction
site
at
the
suggestion
of
Mr.
Cobo
in
the
fall
of
1977.
Upon
delivery
in
December,
1977
Respondent
discovered
that
the
wrong
device
had
been
sent
and
another
unit
had
to
be
ordered.
Respondent notes
that additional equipment including the ripping device and the
tractor which cost $68,000 was not required by its permit.
However,
the ripping device should have been in place from the beginning for
an all weather landfill operation such as the Davis Junction site.
Although the Respondent may have met the requirements of its
permit with the equipment on the premise, BFI was not relieved of
its responsibility to comply with the other Chapter 7 requirements
(R.
177—180,
185,
214;
R. Ex.
6).
In addition,
the Board finds that BFI did not provide adequate
supervision and failed to
implement
safeguards
within
the
context
of
its
contractual
agreement
to
ensure
that the Rockford sludge
cake
was
properly
accepted,
deposited and disposed.
BFI should
have
provided
the
necessary
equipment
or
personnel to protect
against
violation.
In
view
of
these
determinations,
the
Board
finds
that
BFI
failed
to
provide
adequate
equipment,
personnel and supervision to ensure
compliance
with
its
permit
requirements, the regulations and Act.
SECTION
33(c)
FACTORS
AND
REMEDIES
Section
33(c)
of
the
Act
requires
the
Board
in
making
its
decision
to
consider
and
evaluate
the
character
and
degree of
injury of the violations, the social and economic value of the
pollution source,
the suitability of the pollution source to its
location and the technical practicability and economic reasonable-
ness of reducing or eliminating the pollution violation.
The Board
will consider the facts and circumstances bearing upon the reason-
ableness of the violations before imposing any remedial provisions
of the Act.
The Board makes the following findings:
36—16
—13—
1.
The character and degree of the injury must be considered
in light of our determinations in this enforcement action.
The Board has reviewed this record and has found that the BFI
landfill operation at Davis Junction was in violation of daily
and intermediate cover requirements of Rules
305(a)
and 305(b);
has allowed blowing litter to escape from its site; has vio-
lated provisions of its permit, the rules and Act in failing
to properly receive and dispose
of sludge cake and provide
adequate equipment, personnel
and
supervision
to
ensure
that
proper disposal practices were maintained at all times during
the complaint period.
While these violations do not warrant
an order to cease and desist
disposal
operations,
the exist-
ence of operational violations at Davis Junction during winter
conditions undermines effective management of consistent solid
waste
practices
in this state.
While violations were not
determined
to
be
continuous
and
no
immediate
environmental
damage was disclosed in the record, the Board must impose its
penalty provisions
as incentive for future compliance with
the Act, Board Rules and permits.
2.
The BFI site at Davis Junction has social and economic
value when properly operated.
It is designed to accept and
dispose of 1000 to 1200 cubic yards of refuse serving approx-
imately 100,000 people in northern Illinois.
However, these
factors will not excuse the Respondent from violations of the
solid waste requirements of this state.
3.
The record supports BFI’s contention that the Davis Juction
site is geologically sound and
environmentally
suitable.
Ex-
pert testimony indicates that the BFI landfill is the most
suitable site for disposal of the Rockford sludge cake
(R.
317).
However, the Board finds that operations of the site in viola-
tion of specific requirements of the Rules and the Act and at
variance with its permit diminishes the social and economic
value of the site to the State of Illinois.
4,
As stated in connection with specific violations, the
Board
finds that compliance with the applicable
solid waste
requirements was technically feasible and economically reason-
able.
While there is some indication in the record that the
certain requirements were not taken seriously enough at the
very beginning of the operation,
there is little indication
of willful or intentional disregard of applicable solid waste
requirements.
In view of these determinations, the Board will assess a
penalty of $1,oooto ensure future compliance
as an aid to the
enforcement of
the
Act.
Respondent BFI shall cease and desist
from future violations
of the Act and Board regulations.
36—17
—14—
This Opinion constitutes the Board’s
findings of fact and
conclusions of law in this matter.
ORDER
It is the Order of the Pollution Control Board that:
1.
The charges alleging violation of the 100 foot excavation
floor space permit requirement, violation of Rules 314(b)
and 314(e)
of Chapter
7:
Solid Waste Regulations and
Section 21(a)
of the Environmental Protection Act are
hereby dismissed.
2.
Browning—Ferris Industries of Rockford,
Inc.,
is ~iereby
found to have operated the Davis Junction landfill site
in violation of:
the daily cover requirements of Rule
305(a)
of Chapter
7:
Solid Waste Regulations on Febru-
ary 21, March
7, March 29 and April 20,
1978;
the
intermediate cover requirements of Rule 305(b)
on or
about February 21 and April 20,
1978; and the sludge
disposal requirements of its permit, Rules
303 and 305
and Section 21(b)
of the Environmental Protection Act
on March
7,
8,
29 and April 20,
1978.
3.
Browning-Ferris Industries of Rockford,
Inc.,
is hereby
found in violation of Rule 306 of Chapter 7:
Solid
Waste Regulations for allowing litter to escape from its
boundaries on five separate occasions,
including March
24 and April 20,
1978;
and has failed to provide suf-
ficient equipment, personnel and supervision to ensure
that operations
at the landfill are
in compliance with
its permit, Chapter
7:
Solid Waste Regulations and the
Environmental Protection Act.
4.
Browning—Ferris Industries of Rockford, Inc.
shall cease
and desist from violations of its permit, Chapter
7:
Solid Waste Regulations and the Environmental Protection
Act.
5.
Browning-Ferris Industries of Rockford,
Inc.
shall, by
certified check or money order payable to the State of
Illinois,
pay a civil penalty of$l,00.0 which is to be
sent to:
36—18
—15—
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
Illinois 62706
I,
Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion and Order were
adopted on the
/~~/_day of
~
,
1979 by a vote of______
Chfistan L.
Moffett,
~l~k
Illinois Pollution Control Board
36—19
