ILLINOIS POLLUTION CONTROL
BO1~RD
January 14, 1976
ENVIRONMENTAL PROTEC~ION AGENCY,
)
)
Complainant,
)
v.
)
PCB 75—278
BOYD WITVOET, SR.,
)
Respondent.
Messrs. Marvin
I. Medintz and Jeffrey Herden, Assistant
Attorneys General, appeared for the Complainant;
Mr. Frank
E.
Glowacki, Attorney, appeared for the Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr.
Zeitlin):
This matter is before the Board on a formal Complaint filed
by the Attorney General on July 21,
1975, alleging that Respondent
operated a solid waste management site in Cook County,
Illinois,
without the required operating permits from the Environmental
Protection Agency
(Agency.),
in violation of Sections 21(b)
and 21(e)
of the Environmental Protection Act
(Act),
and Rule 202 (b) (1)
of the
Board~sSolid Waste Regulations.
Ill.
Rev. Stat.,
Ch.
111—1/2,
SS 1021(e).,
1021(b)
(1975); PCB Regs., Chapter
7:
Solid Waste,
Rule 202(b) (1).
An Amended Complaint filed September 30,
1975, added
an additional count alleging violation of Section 21(b) of the Act
and Rule 314(f)
of Chapter
7,
in that Respondent was alleged to have
operated the same site in such a manner as to allow the infestation
of the surrounding area with vectors
(cockroaches).
A hearing was
held on October 17,
1975,
in Chicago.
The record in this matter shows clearly that Respondent operated
the site in question without the required permits from the Agency.
Respondent himself admitted accepting refuse at the site for a fee
and that, although a permit application had once been submitted to
the Agency, no permits had ever been received,
(R.
7,
8,
33,
38,
39).
Respondent did not ever consider closing the site after the permit
application had been denied by the Agency in 1974,
(R.
34).
Instead,
Respondent testified that the site was closed on October 15, 1975,
two days before the hearing in this matter and several months after
the original Complaint had been filed,
(R.
7).
Respondent also
admitted that he was aware of the permit requirement,
(R.
30—32).
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673
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We have no difficulty finding a violation of the permit require-
ment from August
27,
1974 until October 15,
1975 and, therefore,
violation of Section 21(e) of the Act and Rule 202(b) (1) of Chapter 7.
(In accord with substantial Board precedent, the allegation of violation
of Section 21(b) of the Act as regards this permit violation will be
dismissed.)
Nor do we have any difficulty in finding a violation of Rule 314(f)
of Chapter
7.
In addition to considerable citizen testimony on the
subject, the Attorney General ably presented testimony and exhibits
from Agency and Cook County Department of Public Health employees
showing that:
1.
There were large numbers of cockroaches on
Respondent’s site
(e.g.,
R.
48,
74, Compi.
Ex.
7,
9).
2.
There was a significant infestation of the
area surrounding the site,
(e.g.,
R.
11,
16,
19,
23).
3.
The site
in question was the source of the
cockroaches infesting the site’s neighbors,
(e.g.,
R.
14,
15,
21,
48).
The citizen testimony at hearing indicated that the problem here
is quite serious
One witness testified that it was necessary to
protect a child’s crib with insect netting,
(R.
16).
Another stated
that,
to control the insects,
it was necessary to use chemicals harmful
to her children,
(R. 19).
Other citizen testimony indicated that
massive numbers of very large cockroaches,
(see Compl.
Ex.
7, consisting
of bottled specimens),
infested the area, considerably interfering with
the normal enjoyment of life and property in the area of the site.
Turning to the factors in S33(c) of the~Act,we find the following:
1.
The character and degree of the injury caused by Respondent’s
violations was significant.
The Permit System is designed by the Board
to protect against just the sort of injury seen here,
and Respondent’s
wilifull operation without the required permits adds to the magnitude
of such injury.
2.
The social and economic value of a properly permitted and
operated solid waste management site cannot be questioned.
Here,
however, there was evidence that the site,
in addition to failing to
have the required permit, was not operated properly.
Respondent failed
to properly cover the refuse accepted at the site,
(R.
44), apparently
adding to the vector problem.
Roaches were seen to be emerging from
the soil on the site,
(R.
48,
74,
79).
The social and economic value
of an improperly run site,
leading to the problems seen here,
is
considerably diminished when weighed against the damage caused by such
operation.
19—674
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3.
The
operation
of
this
site,
in
light
of
the
problems
caused
by such operation was, under the circumstances, patently unsuitable
for the area in question.
We need not judge the suitability of a
properly permitted and operated site for the area in question here;
this site was unpermitted and improperly operated.
Because the problems
here began within the last three or four years,
and because the permit
violation dates only from August 27,
1974, priority in location is not
in issue here.
4.
Nor is the technical practicality and economic reasonableness
of eliminating the vector problem in issue.
Respondent agreed at the
hearing that,
should the Board find that there is
a vector problem, he
would engage professional exterminators to eliminate it,
(R.
94).
As
regards the permit violation, we find that where
a
site is
suitable for
operation as a sanitary landfill,
it
is both economically reasonable
and technically practical to obtain the required permits.
Looking next to the defenses raised by Respondent,
we find them
to be without merit.
Respondent first claimed that he could not
properly be charged here,
as the site in question is operated by a
partnership of which he
is only one member.
While the Hearing Officer
acted improperly in denying Respondent’s Motion to Dismiss on this
ground at hearing,
(such motion should have been referred to the Board),
the issue is nonetheless moot.
Respondent admitted full responsibility
for the operation of the site
(R.
7), as a partner, and can be held
individually responsible.
Nor in any case
is there a requirement that
the Board have before it all the partners in this type of situation.
Respondent then pointed to efforts that he had made to control the
vector problem.
The testimony showed that Respondent’s efforts were
notably without success, and were weak at best.
Respondent was sure of
neither the name of the “chemical outfit,”
(R.
25-26),
that he asked for
advice, nor the name of the chemicals that he ultimately used,
(R.
25-27).
In light of the problems testified to, Respondent’s occasional sprayings
over limited areas
(active areas only)
of the site were clearly
insufficient.
Respondent also attempted to show that there were other landfills
in the area, apparently in an effort to prove that the vectors may have
come from such other sites.
In light of the direct testimony elicited
by the Attorney General, any such proof would have had to have been of
considerable weight; it was, on the contrary, quite weak.
In fact,
Respondent never attempted to show anything except the bare existence
of
such
other
sites.
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675
—4—
Respondent last attempted to show that the site in question
accepted only “clean” fill,
such as demolition debris.
While Respondent
may have felt that the fill he accepted at the site should not cause
a vector problem, the testimony at hearing showed that it in fact did
cause the problem.
One Agency witness testified that the berm around
Respondent’s site was composed of a combination of dirt and “wrecking
material”; the same witness observed multitudes of cockroaches emerging
from cracks in the berm, and the antennae of many others visible just
below the surface,
(R.
48).
In light of the factors discussed above,
including the testimony
and evidence presented at hearing, the considerations in S33(c)
of the
Act and Respondent’s attempted defenses, we find that a penalty of $1,500
is appropriate here.
$1,000 is necessary,
we feel,
to aid in protecting
the permit system set up under the Act and our Rules; the additional $500
is necessary to aid in the enforcement of our Rule on vectors, particularly
in light of the seriousness of the problem here.
In addition, we shall
take Respondent up on his offer
to retain professional help in eliminating
that problem, and order him to do so.
Since Respondent has already closed the site, our cease and desist
order will present no hardship;
we shall also require that the site remain
closed until the problems here have been remedied.
It appears that
Respondent has filled the site to two—thirds of the original 150,000
yard capacity which it had after Respondent’s original use of the site
for sand extraction,
CR.
93).
While we find a violation of Rule 314(f), we must dismiss the
alleged violation of Section 21(b)
of the Act in connection with the
vector problem.
Operation in violation of Rule
314(f) cannot be equated
with the operation of an open dump,
or with open dumping.
This Opinion constitutes the findings of fact and conclusions of
law of the Board in this matter.
ORDER
IT
IS
THE ORDER OF THE POLLUTION CONTROL BOARD that:
1.
Respondent Boyd Witvoet,
Sr., is found to have
operated a solid waste management site in Cook County,
Illinois, without the required permits from the Environ-
mental Protection Agency, and in such a manner as to cause
a vector problem,
in violation of Section 21 (e) of the
Environmental Protection Act,. and Rules 202(b) (1) and
314(f) of Chapter
7: Solid Waste,
or the Pollution Control
Board Rules and Regulations.
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676
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2.
Respondent shall pay as a penalty for the
aforesaid violations the sum of Fifteen Hundred
Dollars
($1,500.00), payment to be made by certified
check or money order within thirty
(30) days of the
date of this Order,
to:
Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois
62706
3.
Respondent shall continue to cease and desist
all operations at said solid waste management site until
the aforesaid violations have been remedied.
Such
violations shall have been remedied when Respondent has
received all appropriate permits for said site from the
Environmental Protection Agency.
4.
Respondent shall engage the services of
professional exterminators, to eliminate all vector
problems on said site,
in conformity with all applicable
Rules and Regulations of this Board.
I, Christan L. Moffett,
Clerk of the Illinois Pollution
Control Board,
hereby certify the above Opinion and Order w re
adopted on the
Ji44’
day of
,
1976 by a vote of
-o
Illinois Pollution
Board
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677