ILLINOIS POLLUTION CONTROL BOARD

November 20,

1980

ILLINOIS ENVIRON1~1ENTALPROTECTION

AGENCY,

Complainant,

V.

)

PCB 79—271

GORDON FICKLIN, d/b/a Illini

Sanitary Service,

Respondent.

STEVEN GROSSMARK APPEARED ON BEHALF OF THE COMPLAINANT.

GLENN A. STANKO APPEARED ON BEHALF OF THE RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by J.D,

Dumelle):

The Environmental Protection Agency

(Agency) filed a

complaint against Gordon Ficklin

(Ficklin) on December

20,

1979,

alleging permit,

air pollution,

and open burning violations under

various sections of the Illinois Environmental Protection Act

(Act),

and various rules under Chapters

2 and

7 of the Board’s

Rules and Regulations

(Air Pollution Rules and Solid Waste Rules,

respectively).

Public hearings were held on July

22 and 23,

1980.

At all times pertinent to the complaint,

Ficklin has owned

five acres of property located north of

1—74 and east of Lincoln

Avenue,

in or near the city of Urbana, Illinois

(R.48).

It is

alleged that Ficklin violated Section 21(e)

of the Act and Solid

Waste Rules 201 and 202(a) by causing or allowing the development

of

a solid waste management site without a permit since on or

before January

1,

1979 to the date of filing of the Complaint.

It is further alleged that he violated Sections

9 and 21 of the

Act,

Air Pollution Rule 502 and Solid Waste Rule 311 by allowing

the burning of refuse disposed of at the site since on or about

November 17,

1979, to the date of the filing of the Complaint.

The factual disputes are few and relate largely to

mitigation rather than liability.

There

is no dispute that

during the summer months of

1979 materials such as dirt,

clay,

gravel,

concrete, brick, and asphalt have been deposited on

Ficklin!s land (site) to raise the level

of the grade and make

the site suitable

for the construction of buildings.

Ficklin

admitted this

(R.280—282) and several Agency photographs and

attendant testimony confirm it

(Compi. Ex’s,

2—4).

Ficklin

further admitted “that some trash has been deposited” on his

premises by persons other than himself

(R.284—5).

Ms. Grills,

an

---

—2—

Agency Inspector,

testified that between visits “an appliance,

a

wooden table,

and some other wooden pieces” had been dumped on

the site

(R.11O and Compl.

Ex.

15).

She also testified to

“concrete,

paper, wood,

plastics,

and metal” exposed on the site

(R.107 and

Ex.

14, among others).

The record contains

considerable, unrebutted testimony concerning the debris on the

site.

The first question that must be answered,

then,

is whether

filling with this debris requires a permit.

To decide that, the

following definitions become important.

“Solid Waste Management”

is defined

as “the processes

of storage,

processing or disposal

of solid wastes” under Solid Waste Rule 104(u).

“Solid Waste” is

defined as

“refuse” under Solid Waste Rule 104(s).

“Refuse” is

defined as

“garbage or other discarded materials” under Solid

Waste Rule 104(o).

Given these definitions,

the Board finds that Ficklin has

conducted refuse—disposal operations,

operated a solid waste

management site,

and developed a new or modified solid waste

management site without a permit

in contravention of Section 21

of the Act and Solid Waste Rules 202(a) and 201, respectively,

since Ficklin was never issued a permit

(R.113 and admission in

answer).

Ficklin argues that he only brought materials such as

concrete, asphalt,

clay,

brick and mortar on to his property and

that a permit should not be required for such materials

(R.421).

He also argues that any other materials were brought onto his

premises without his permission (R.421),

and that there is no

indication of regular dumping activities

(R.418). For those

reasons he feels that no violation should be found.

However,

under the above definitions, there is no exemption

for materials such as concrete and asphalt.

The case of

Environmental Protection Agency

v. Master Pattern,

Inc.

(PCB

75—477,

23 PCB 123, July 22,

1976) did carve out

a narrow

exception for concrete and rock where “the material

is placed

with sufficient dirt so that there are no interstices

to harbor

rodents or other animals that might serve as vectors

or that

might serve as an aquifer transmitting leachate,” and where the

potential for environmental harm is minimal.

In this case,

however,

it appears that there were such interstices; otherwise

the fire could not have started and burned for so

long.

Second,

and for the same reason,

there must have been a considerable

amount of putrescible materials which further distinguishes the

instant case from Master Pattern.

A third distinguishing

characteristic

is that these materials have been dumped in a

borrow pit which by its nature

is quite susceptible to standing

water.

This,

in turn,

may cause leaching such that the potential

for environmental harm is not minimal.

---

Further,

the “cause or allow” language of Solid Waste Rules

20? and 202(a) precludes the argument that the materials were

brought upon Ficklin’s property without his permission and that

no permit

is, therefore,

needed.

Someone must be responsible for

insuring that land

is

not subject to nuisance dumping, and that

is the owner of the land.

Finally, Ficklin himself testified

that such dumping occurred nearly every weekend

(R.350).

It was

therefore incumbent upon

him

to take such measures as were

necessary to stop it,

The Board also finds that Ficklin violated Section

9 of the

Act, Air Pollution Rule 502 and Solid Waste Rule 311 by

conducting refuse—collection and refuse—disposal operations and

causing or allowing open burning of those materials.

Ficklin again argues that he should not be held responsible

for these violations because he did not start the fire.

That may

or may not be the case.

Ficklin testified that the fire was

caused by his neighbor, Mr.

Jennings, when he was burning leaves

near Ficklin’s property line (R.342).

He further testified that

he could see where the fire “burnt right down the side of the

ditch, across the ditch; burnt a

few trees and got into my

stuff——leaves and whatever-—and started burning”

(R.342).

However, Mr. Jennings testified that he did not start the fire

(R.203),

that the fire was seventy or eighty feet west of his

property line

(R.217), that the

wind

was blowing away from

Ficklin’s property

(R.220),

that he was watching carefully to

make sure the fire was out

(R.222), and that he first noticed the

fire on Ficklin’s property two or three hours after

he

finished

burning leaves (R.217).

Regardless of who started the fire,

Ficklin by his own

admission allowed

it to continue to burn from November

17,

1979

(R.340—4) until

at least January of 1980

(R.362).

Ficklin

testified that on November 26,

1979,

Ms.

Grills told him he would

have to dig up the smoking area and then water

it or cover it

with dirt

(R.345).

However,

that day he had another project

underway and did not feel he “should drop that to put out some

puffs

of smoke”

(R.346).

He never did dig out the area, but

rather continued piling

“dirt on top of

it;

and really praying

for rain”

(R.347).

Praying

for rain and delaying

further action

until another project is completed is not sufficient to show that

Ficklin did not allow

the

fire to continue.

This is especially

true where such burning is causing bad odors to be emitted into

the air.

John C.

Miles,

an Agency Inspector, testified that he

detected

“a

smell of garbage burning” on January

5,

1980 and on

other occasions when the wind was blowing toward him from

Ficklin’s property (R.257).

He described the smell as “pungent”

(R.257)

and on December

16,

1979, he noted that the smoke

“was

going across 1—74 towards the country

club’t

(R.253—4).

Mr.

Jennings also testified to

“a garbage smell, rotten” coming from

Ficklin’s property during the summer of 1979

(R.188).

Ficklin

3~

---

—4—

himself testified that “there was a nasty odor out there through

the winter and up until early spring” though he attributed it to

garbage trucks which had been “burned up” elsewhere, but which he

had on his property to be “rejuvenated”

(R.358).

The Board finds that the Agency has met its burden of proof

with respect to each of the violations alleged against Ficklin.

PENALTY

Despite the lack of merit in Ficklin’s arguments regarding

liability,

they are mitigating with respect to any penalty that

will be assessed.

A consideration of Section 33(c)

of the Act

underscores

this.

The first factor cited in the section is the character and

degree of injury or interference with the health,

general welfare

or physical property of the people.

Here, such injury was

minimal.

There were some odors,

but the area

is such that few

people were affected

(R.321—2).

When Ms. Grills walked on

the site, a small part of the ground once collapsed under her

foot

(R.83), but there is no indication that this was a

substantial problem.

The second factor,

the social and economic value of the

pollution source,

is not particularly applicable to this case.

Mr. Ficklin did, apparently,

increase the value of the. land by

partially filling what was

a borrow pit

(R..306), but there is

no

social value to allowing nuisance dumping.

Third, the pollution source is relatively well suited to the

area in that the site was a borrow pit in a relatively

unpopulated area,

as discussed above.

Fourth, the technical practicality and economic

reasonableness of eliminating the emissions or deposits of the

pollution source are somewhat mitigating.

Mr. Ficklin made

substantial efforts both to stop the nuisance dumping and to put

out the fire.

During the winter of 1978—9 he put a cable across

the road leading to his site,

during the summer of 1979, he

parked some of his equipment on the access road to block it, and

in the fall of that year he cleared timber to make the site

less

attractive for such dumping

(R.286—7). With respect to the

fire,

Ficklin paid approximately $1200 to Jim Tull

in an attempt

to put

it out

(R.349).

There is also considerable testimony that

large

amounts of dirt were brought in to cover the fire.

There is no

indication that the fire continues to burn.

However, Ficklin has not done enough.

He must either

find

an effective means of stopping the nuisance dumping or take

measures to properly dispose of it in a prompt manner. He must

also obtain a permit if he intends to continue filling th~land

to insure that that filling is done in an environmentally

safe

---

—5—

The Board finds that a penalty

is a necessary and

appropriate aid to the enforcement of the Act.

However,

given that his conduct has not been grossly unreasonable,

and that he has expended considerable

money

and effort to

remedy the problem,

the penalty

will

be set at $250.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

1.

Gordon Ficklin, d/b/a/ Illini Sanitary Service,

has violated Sections

9 and

21 of the Environmental

Protection Act; Rules 201,

202(a) and 311 of the

Pollution Control Board Rules

and Regulations,

Chapter

7:

Solid Waste; and Rule 502 of the

Pollution Control Board Rules and Regulations

Chapter

2,

Air Pollution.

2.

Within 45 days of the date of this Order, Gordon

Ficklin shall cease and desist from violating

Section 21(e)

of the Act and Board Rules

201 and

202(a)

of Chapter

7:

Solid Waste.

This shall include

taking such measures as are necessary to either

prevent the nuisance dumping or to properly dispose

of any newly dumped material

in a prompt manner.

This

shall also include obtaining

a permit if he intends

to continue filling his

land.

3.

Within 90 days of the date of

this Order, the Respondent

shall pay, by certified check or money order payable to

the State of Illinois,

a penalty of $250 which

is to be

sent to:

Illinois Environmental Protection Agency,

Fiscal Services Division,

2200 Churchill Road,

Springfield,

IL

62706.

IT

IS SO ORDERED.

I,

Christan L.

Moffett, Clerk of the Illinois Pollution

Control Board,

hereby ce;tify that the above Opinion and Order

were adopteQon the

~

day of

_____________,

1980 by

a vote of

~.S~-O

Christan L. Mof~j., Clerk

Illinois Pollut±onControl Board