ILLINOIS POLLUTION CONTROL BOARD

December

3,

1981

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB

79—256

ESL,

INC., AND

WASTE MANAGEMENT

OF ILLINOIS, INC.,

Respondents.

OPINION AND ORDER OF THE BOARD

(by J.

~nderson):

As the procedural history of this action was set forth

in

the Board’s Order of October

22,

1981,

it will not he repeated

here.

The first four paragraphs of that Order are hereby incor-

porated

into this Opinion as

if fully

set forth.

On November 23,

1981 the parties filed a joint motion

for reconsideration of the October

22 Order, which Order again

rejected a Stipulation and Proposal for Settlement

(Eirst submit-

ted August 18,

1981 but supplemented May

18,

1981)

and further

ordered that this action go to hearing.

The stipulation was

rejected because it “does not contain

a full

stipulation

of

all

material facts pertaining to the nature, extent and causes

of

the

alleged facts... but

instead mainly

only representations

of what

each party would anticipate proving at hearing... which

are

neither admitted facts nor proven facts.”

The motion for reconsideration is granted.

All hut the

first

4 paragraphs of the October

22 Order are vacated,

The November filing is,

in essence,

a supplement

to the

original stipulation,

as the “parties agree that this motion and

the submissions herein should he made part

of the record upon

which the Board decision is based”

(p.

6).

It

is the parties

position that “no useful purpose can be served by further hearings,

and that staff time of all concerned

is better spent” elsewhere.

In support of this position the parties submit that

“the Stipulation represents

a form of

‘no contest’

by

the respondents

in anticipation of avoiding needless

litigation.

The parties respectfully submit that the

uncontested and unrefuted representations of the Agency

have the same effect as uncontested and unrefuted

testimony which would he elicited from witnesses

at a

hearing and may be used as

such by the Board

to make

findings limited to this proceeding.

The respondents

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2

respectfully submit

that these representations

may be

used similarly as admissions

for

the limited purposes

of this proceeding”

(p.

3).

The motion then goes on to

more fully advise the

Board of the

premises on which this

proposed Stipulation is

based,

The complaint was

filed November 30,

1979.

All six counts

allege violations

continuing through the complaint~s filing date,

Count

I of

the Complaint alleges

that beginning November

1,

1975 respondents

constructed and operated storage lagoons without

necessary permits,

in violation of Rules 201,

202,

and

210 and

Sections

21

(b,

e) of

the Act.

Count IT alleges that

beginning

January

1,

1978

respondents violated a supplemental

permit by

disposing

of

liquid wastes by landfarming,

in violation of Rules

210 and 302 and

Section 21(a)

of the Act,

The Agency states that,

as to Count

I, while use of the lagoons was not specifically

requested in the

various permit applications,

that

lagoons did

appear on engineering

drawings, and that lagoon

use was treated

as a permitted activity

by Agency inspectors

(Motion 3).

Respondents state that as to

Count II,

permit applications

to

landfill instead of

landfarm

were the

result of

a coding error

on the applications.

Count III charges that beginning June

1,

1979 anaerobic

decomposition of wastes

in storage lagoons caused discharge of

odors, unreasonably interfering

with

citizens’ enjoyment of life

and property,

in violation of Section 9(a) of the Act.

The

Agency

would present testimony

of

at least

25 residents who would LestiEy

to

illness and inability to

fully

use

their

property, and of

Agency personnel who would

testify that ESL was

the odor source

(Stip.

5—6).

Count

IV charges

beginning January

1,

1978 that the

landfarming methods of

respondent~s created a water pollution

hazard in violation of

Section 12(d)

of the Act.

The Agency would

show that

no permit

application was made,

hut that no further

environmental threat is posed assuming new permit conditions are

met

(Stip.

6, Motion

5).

Count V alleges

that beginning October 17, 1979 sludges were

dried on the landfill~s

surface without a permit,

in violation of

Rules

201,

202,

and

210 and Sections

21

(h,

e)

of the Act.

Count

VI alleges violation

of cover requirements

from March

10,

1976,

and daily litter

collection

requirements from June

9,

1977 in

violation of Rules

301,

305,

and 306 and Section

21(a)

of the

Act.

There is no contest

or comment concerning

this allegation.

The parties proposed

settlement provides that respondents

shall not operate

their site until operating permits

are received,

and

provides for payment

of

a $7,000 penalty.

Based on the stipulation,

hearing record,

and November

motion, the Board is

persuaded

that,

on balance,

the better course

is

to

accept this proposed stipulation and settlement,

rather than

44—134

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3

to send the matter to hearing.

In

so doing, the Board in no way

expresses approval of the stipulation procedure as used in this

action.

While the Board has ‘finally been more fully advised of

the facts and circumstances of this action as required by

Procedural Rule 334 and Section 33(c)

of the Act, this twice

supplemented

“no contest” stipulation is accepted only

in the

interests of adniinistrative economy.

The Agency is advised that

the Board disfavors this “no contest” approach, and that future

stipulations will be strictly scrutinized

for completeness and

full compliance with Procedural Rule

334.

The Board finds respondents have violated Chapter

9 and the

Act as alleged in the Complaint.

The Stipulation and Proposal

for Settlement

is accepted.

This Opinion constitutes

the finding

of facts and conclusions

of

law of the Board in this matter,

ORDER

1.

Respondents,

ESL,

Inc.

and Waste Management

of Illinois,

Inc.,

have violated Rules 201,

202,

210,

301,

305, and 306 of

Chapter

9:

Solid Waste, and Sections

9(c) and 21(a,

h,

d, and e)

of the Environmental Protection Act.

2.

Within 45 days of the date of this Order, Respondents

shall,

by certified check or money order pay to the State of

Illinois,

a stipulated penalty of $7,000 which is

to be sent to:

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

Fiscal Services Division

2200 Churchill Road

Springfield,

IL

62706

3.

The Stipulation and Proposal

for Settlement of August 30,

1980

as

supplemented May

18,

1980 and November

23,

1981

(Joint

Motion for Reconsideration)

is incorporated herein as if fully set

forth.

4.

The November

23,

1981 motion for reconsideration

having been granted,

all but the first

4 paragraphs of the Board’s

Order of October

22, 1981 are vacated.

IT

IS SO ORDERED.

Board Members J. Dumelle and N. Werner concurred.

I,

Christan L.

Moffett, Clerk of the Illinois Pollution

Control Board, her~JDycertify thatj~theabove Opinion and Order was

adopted o~nthe

,~

P~’

day of

_____

__________,

1981 by

a

vote of

~-L)

,

‘

~

&~‘i

~

___—

Christan

L. Mof

Clerk

Illinois Polluti

‘Control Board

44—135