ILLINOIS POLLUTION CONTROL BOARD
May 20,
1976
ENVIRONMENTAL PROTECTION AGF~CY,
)
Complainant,
)
v.
)
?CB
75—406
RICHARD
0.
Mc~
OE
Ic:,
)
i~es:onJent,
OPINION AND ORDER OF
THE
BOARD
(by Mr.
Durn
lie);
On October 17,
1975,
the
Environmental Protection Agency
(Agency)
filed before the Board a Complaint against Respondent
Richard
C. McCormick,
alleiing a violation of Rule 305(c)
of
the Board’s Solid Waste Regulations and hence Section 21(b)
of the Environmental Protection Act
(Act).
On November
5,
1975 the Agency filed and sent to the Respondent a Request
for Admission of Facts,
to which Respondent did not respond
(R.
50).
On January
2,
1976,
the Agency filed and sent to
the Respondent a notice to appear at the scheduled hearing and
produce documents relating to the economic reasonableness
of compliance with the Board’s Regulations and the Act.
On
January
14,
1976,
a hearing was held on this matter in the
Marshall County Courthouse,
Lacon,
Illinois.
Respondent
failed to appear at this hearing and no documents were
produced
(R.
51); nor did any representative or attorney
of Respondent appear
CR.
21),
The Hearing Officer in this matter,
Mr. Jeffrey
J. Estes
states:
I want the record to show that
I have called the
Respondent,
Richard
C. McCormick at all the public
areas of this Courthouse in Lacon, Illinois,
and,
for that matter, in the Circuit Court
Room, and
he has not responded.
He has been duly notified
of this hearing in the manner prescribed by statutes
and the procedural rules
(R.
3).
I would like to note here,
before
I forget it, that
this hearing was commenced at 10:30 this morning.
21 —423
—2—
It was set for 10:00 and we waited for thirty
minutes.
It is now several hours
since the hearing
was schedried to start and Mr. McCormick has not
appeared yet
(A. 4~),
Rule ~20
of
the
hoard’s
Procedural
Rules
provides:
“Failure
of
a party to
a1~j:earon the
date
set
for
hearing,
or
failure
to
proceed
as
ordered
by the Board,
shall
constitute
a
default,
The
Board
shall
thereafter
enter
such
order
as
appropriate
based
upon
the
a vidence
introduced
at
the
hearing.”
The
Board
must
therefore now consider
the
record
established
by
the
Admissions
under
Rule
314
and
the
evidence
presented
by
the
Agency
at
the
Januaru
14,
1976 hearIng.
Pursuant to
Rule 314(c)
of
Lhe Procedural
Rules,
each
of
the
matters of fact
of
which
adeission
was
requested
are hereby
deemed admitted.
Further
admitted are the
genuineness and
accuracy of each document for
which
admission was requested.
The following facts
are thus
established:
1.
Respondent formerly operated a
solid
waste
site
southeast of Magnolia
in
Marshall
County.
2.
Respondent ceased operations
of
the
site
on
or
about
August
5,
1974.
3.
Respondent
did
not,
as
of
October
7,
1975,
provide
the
final
cover required by Rule 305(c)
of
the
Solid
Waste
Regulations.
On
the
basis of these “admissions” the Board finds Respondent
in
violation
of
Rule
305(c)
of
the
Solid
Waste
Regulations
and
Section
21(b)
of the Act as alleged in the Complaint.
Further,
the
same
finding
is
fully
supported
by
the
Agency’s
evidence
presented
at
the
hearing.
The
Board
must next determine the appropriate remedy.
Section 33(c)
of the Act requires that the Board take into
consideration all of the facts and circumstances bearing upon
the reasonableness of the violations.
However,
the question
presented is what happens when the record is silent on any of
those factors.
Section 31(c)
of the Act places the burden of proof of
the
33(c)
factors upon the Respondent to show mitigation where,
as in this case, the alleged violation involves one of the
Board’s Regulations.
By failing to produce the requested docu-
ments and by failing to appear at the hearing, Respondent has
21
—424
—3—
failed in that burden and has thus waived his right to have
“.
.
.aIl
the facts and circumstances bearing upon the reasonableness.
.
considered under Section
33(c)
of the Act.
At the hearing the Agency stated that its estimate of
the cost of covering the site would be $40,000
CR.
14).
This
estimate was based on the determination that 43,000 cubic
yards of dirt would be required
(R.
15)
and that there is
sufficient dirt available at the site location
(R.
14,
39).
As Respondent operates a landfill site north of Minok,
Illinois
(R.
16)
,
he already has the necessary equipment and men employed
on his payroll
CR.
25).
This could considerably lessen the cost
of applying the final cover
(R.
15).
The Board will order Respondent
to cease and desist this
violation of the Act.
To accomplish
this,
Respondent must properly
close and cover the site,
including grading to provide drainage
and seeding to prevent erosion, within ninety days of the date
of this Order.
It is admitted that Respondent ceased operation of the site on or
about August
5,
1974
(see above).
Further, Exhibit 20
is the
lease and agreement by which Respondent was allowed to operate
the site
(R.
31).
The lease expired over a year ago.
Therefore,
the cease and desist order requires the Respondent to comply
with Rule 305(c)
of the Solid Waste Regulations;
to properly
apply a final cover.
The Respondent’s default and the fact that he had been
previously requested to apply
a final cover
(Exhibit 16,
17)
indicate a definite lack of good faith.
The Board further
takes notice of a prior Board Order
(PCB 72-16)
referenced
in the record
(R.
17).
In that enforcement action the Board
found this same Respondent to have violated regulations
in
his daily operation of this same landfill site,
assessed a
penalty of $250.00,
and ordered Respondent
to cease and desist
the violations at this site.
Further, Exhibit 24
is
a Judgment
against Respondent, entered in the Circuit Court for the Tenth
Judicial Circuit
(No.
74—E-126), ordering him to remit
$250.00
to the State of Illinois at the Environmental Protection
Agency.
This Order was sought and obtained by the Attorney
General of Illinois
to recover the penalty assessed against
Respondent in PCB 72-16 which he had failed to pay
CR.
18).
These
facts clearly establish
a course of conduct demonstrating
bad faith.
21—425
—4—
The Board therefore finds that a performance bond in the
amount of $40,000 is necessary to insure compliance with this
Order.
The Board further finds
a substantial penalty to be
appropriate in this cause.
In making this determination
the Board has considered the evidence presented by the
Agency relative to the factors
as described in Section
33(c)
of the Act.
While finding that Respondent has waived its
right to have mitigating factors considered,
the Board will,
in fashioning this remedy consider that evidence pertaining
to 33(c)
factors which does appear
in the record.
33(c) (1)
The main purpose of this final cover requirement
is to prevent leaching
CR.
13).
Leachate has such adverse
effects as de—oxygenating and/or contaminating ground water
and wells with materials toxic to humans
as well as other
wildlife
CR.
14).
Mr. William Child, Regional Supervisor
of the Agency’s Division of Land Pollution Control, Central
Region, testified that he has observed leachate coming
from Respondent’s site.
The leachate enters a small
intermittent stream which probably flows into Bud Creek
(R.
23,
24).
The problem of leachate is amplified by
the fact that the site is located
in a headwater area
(R.
23).
Exhibit
4 describes
the nature of the observed
leachate problem.
While there is no documentation of
specific adverse environmental effects,
it appears that
they would exist.
Such contamination of groundwater,
streams and wells
is not only unnecessary but the damage
to our environment is difficult to measure.
33(c)(2)
A closed landfill has no positive social or economic
value except for new uses of the land.
An improperly covered
landfill has a highly negative social and economic value.
When operated, this site apparently did have social value as
a place
to dispose of domestic waste.
However, improper operating practices
such as the violations found in PCB 72-16 negate any such
value where an alternate disposal site probably exists.
Further,
Respondent has a minimal investment in the site
(R.
31, Exhibit 20).
33(c) (3)
Respondent’s site consists of sIx acres of gravel
pits
(R.
45).
An intermittent stream runs through this
headwater area
(R. 23).
Aside from these factors, which
demonstrate that the site is unsuitable for
a landfill,
there are only five residences shown to be in the immediate
21—426
—5—
vicinity of the site
(Exhibit
1,
B.
28).
Each of these
people apparently has an interest
in the land on which the
landfill was operated and were parties to the lease which
allowed Respondent to fill the gravel pits
CR.
27
to
29,
Exhibit 20).
33(c) (4)
There is no doubt that the application of final
cover to a landfill is both technologically practicable and
economically reasonable.
On the evidence before
the Board,
it is obvious that Respondent’s operation of this site
was not a matter of extreme expense. The payment of $15
or $20 monthly rent on an operating landfill was not a hardship
to the operator
(R.
32).
Further,
as discussed above, Respondent
already has the necessary equipment and manpower, and the cover
material
is at the site.
Consideration of these factors leads
to the conclusion
that a substantial penalty is appropriate.
It is not enough
merely to order a violator to do that which he was required
to do in the first place.
A substantial penalty
is necessary
here to aid enforcement of the Act.
Respondent has created
a danger of contaminating rivers, groundwaters and wells,
and all apparently because compliance with the law would
cost money.
The purpose of the Act is,
“....to assure that
adverse effects upon the environment are fully considered and
borne by those who cause them”
(Section 2-b).
The Board will
require that Respondent pay
a civil penalty of $5,000.
This Opinion constitutes the Board’s findings of
fact
and conclusions of law.
ORDER
1.
Respondent Richard
C. McCormick is hereby found to have
violated Rule 305(c)
of the Board’s Solid Waste Regulations
and Section
21(b)
of the Act.
2.
Respondent Richard
C. McCormick shall cease and desist
the aforesaid violation and shall properly close and
cover the subject site,
including grading to provide
drainage and seeding to prevent erosion, within 90 days
of the date of this Order.
A final closing plan shall
be presented to the Illinois Environmental Protection
Agency within
30 days of the date of this Order.
21—427
—6—
3.
Respondent Richard C. McCormick shall pay
a penalty for
for the aforesaid violation the sum of $5,000
to the
State of Illinois, payable by certified check or
money order within
35 days of the date of this Order
to:
State of Illinois
Fiscal Services Division
Illinois Environmental Protection
Agency
2200 Churchill Road
Springfield, Illinois
62706
4.
Respondent Richard C. McCormick shall post
a performance
bond,
in a form satisfactory to the Agency,
in the
amount of $40,000 to guarantee compliance with paragraph
2 of this Order.
The bond shall be posted, within 10
days of the date of this Order, with:
Fiscal Services Division
Illinois Environmental Protection
Agency
2200 Churchill Road
Springfield, Illinois
62706
IT IS SO ORDERED.
I, Christan L. Moffett,
Clerk of the Illinois Pollution Control
Board,
hereby certify the above Opinion
nd Order were adopted on the
~
day of May, 1976 by a vote of
-
Q
Illinois Pollution
Board
21—428