ILLINOIS POLLUTION CONTROL BOARD
September 15, 1982
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Complainant,
v.
)
PCB 81—182
)
CAPITAL CITY LAND, INC., an
)
Illinois corporation,
MERLE BUERKETT, TOWN AND COUNTRY
)
BANK OF SPRINGFIELD, TRUSTEE,
)
an Illinois Bank, BUNN PARK
)
INDUSTRIES,
INC.,
a dissolved
)
Illinois corporation, ESTATE OF
)
MAX
RISEMAN, deceased,
)
MONIKA U. M. WEINER, RICHARD WEINER,
)
THOMAS FLATTERY, ERNIE L.
SCHMIDT,
)
JOHN DOE, JANE ROE, ED EVANS,
JOHN
)
HOLTMAN, CLARENCE “BUD” GARNER and
)
NANCY DIMARTINO,
)
Respondents.
MR. GREIG R. SIEDOR, ASSISTANT ATTORNEY GENERAL, APPEARED
ON BEHALF OF THE COMPLAINANT.
MR. HERMAN G. BODEWES, ATTORNEY AT LAW, APPEARED ON BEHALF
OF RESPONDENT MERLE BUERKETT.
MR.
CRAIG RANDALL, LONDRIGAN
AND
POTTER, APPEARED ON BEHALF
OF RESPONDENTS BUNN PARK INDUSTRIES,
INC.,
ESTATE OF MAX
RISEMAN, DECEASED, MONIKA U.N.
WEINER AND RICHARD
WEINER.
MR.
THOMAS FLATTERY APPEARED PRO SE.
OPINION AND ORDER OF THE BOARD (by N.E. Werner):
This matter comes before the Board on the November 12,
1981 Complaint brought by the Illinois Environmental Protection
Agency (“Agency”).
A hearing was held on March
3, 1982 which
primarily resolved various legal complexities resulting from
the Agency’s intial action against the wrong party (i.e.,
Strata,
Inc.,
a dissolved corporation).
Accordingly, an Amended Complaint
was filed on April
20, 1982.
On April 26,
1982, Respondent
Thomas Flattery requested to be dismissed as a party respondent
in this action.
On May 27, 1982, the Board entered an Order
denying Respondent Flattery’s motion.
A hearing was held on
August
4,
1982.
The parties filed a Stipulation and Proposal
for Settlement on August
9,
1982.
48-151
—2—
Respondent Bunn Park Industries,
Inc.,
a dissolved Illinois
corporation, was involuntarily dissolved on December
1,
1978 by
the Illinois Secretary of State for failure to pay an annual
franchise tax and failure to file an annual report.
Shareholders
in Bunn Park Industries,
Inc. included Respondents
Estate of Max
Riseman, deceased,
Monika U.M. Weiner
(as legatee of Irwin Weiner,
deceased),
Richard Weiner, Thomas
P. Flattery,
Ernie L.
Schmidt,
and unknown persons designated as John Doe and Jane Roe
(“Bunn
Park Industries Shareholders”),
Respondents Ed Evans, John Holtman, Clarence “Bud” Garner
and Nancy DiMartino (“Land Trust Owners”) are the four sole
shareholders of Capital City Land,
Inc. and are also the beneficial
owners of a land trust, Number 240, which is held by the Town and
Country Bank of Springfield, Trustee
(“Bank”), an Illinois bank.
It
is stipulated that,
from September 1, 1973 until August
31,
1974, Respondent Merle Buerkett
(“Buerkett”) operated,
pursuant to a 1—year lease made by Respondent Bunn Park Industries,
Inc.,
a sanitary landfill on a 16—acre tract of land located to
the east of Bunn Park near Fox Bridge Road in Springfield,
Sangamon County,
Illinois.
(Stip.
3). Buerkett indicated that he
did not deposit refuse on the property after August 31,
1974 and
asserted that he performed some final covering operations on the
16—acre tract during the time period from September 1,
1974 until
January, 1975.
(Stip.
3-4).
The Agency noted that, on one or more
occasions after August 31,
1974, Buerkett signed inspection
reports which indicated that he was the owner and operator of the
property.
(Stip,
4).
The Board notes that Respondent Buerkett
has previously been before the Board for improper landfill
operations on leased property as early as 1971.
EPA v. Clay
Products, Merle Buerkett, et al., PCB 71—41,
June 23,
1971
(See:
Dissenting Opinion of J.D. Dumelle in PCB 71—41);
E.P.A.
v. Merle Buerkett and Harold Cline, PCB 77—294,
30 PCB 109
(April 27,
1978);
(Also see:
Order in PCB 77—294 dated June
8,
1978
at
30 PCB 395).
The parties have also stipulated that, from September,
1974
until January,
1975,
Respondents Bunn Park Industries,
Inc. and
Bunn Park Industries Shareholders “caused or allowed the
consolidation of refuse from one or more sources at the said
16-acre tract as a central disposal site”.
(Stip.
3—4).
On
November 18,
1974~. the Agency issued an Operating Permit to
Burin Park Industries,
Inc.
for a solid waste disposal site on
a 49—acre tract “in the North half of the Northwest Quarter of
Section 11,
and the South half of the Southwest Quarter of Section
2, Township 15 North,
Range
5, West of the Third Principal
Meridian in Springfield, Sangamon County,
Illinois (hereinafter
“site”)”.
(Stip.
4).
The Operating Permit authorized the handling
of demolition and construction waste, as well as other non—putrescible
refuse, thereby “excluding garbage and liquid waste unless otherwise
speicified by supplemental permit”.
(Stip.
4).
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—3—
On February 18, 1977,
Respondents Bunn Park Industries,
Inc.
and Bunn Park Industries Shareholders sold the 49—acre site to
Respondent Capital City Land,
Inc. and to Respondents Land Trust
Owners, who placed their interest in the property into Land Trust
Number
240,
held by Respondent Bank.
(Stip.
4),
Insufficient depth of final cover material was placed on
various portions of the site during the time period from January
2,
1975 until mid—1980 in violation of Rules 301 and 305(c) of
Chapter
7:
Solid Waste Regulations
(“Chapter 7”) and Section
21(b) of the Illinois Environmental Protection Act
(“Act”), as it
was
in effect prior to January 1,
1980.
(Stip.
4—5).
A subsequent
Agency inspection of the site on April 22, 1982 revealed that the
requisite final cover had been placed on the property.
(Stip.
5).
On May 20, 1982,
the Agency notified Respondent Ed Evans in writing
that the site was properly closed and that the appropriate final
cover had been applied.
(Stip.
5).
However, the parties have noted
that,
should settling problems occur, the Agency “is not estopped
from seeking that additional cover be placed on the site.”
(Stip.
5).
The Agency states that:
(1)
leachate was ponded on the
property and flowed into a small tributary of Sugar Creek on
October 20,
1975; June
30, 1976;
July 16,
1976; April
12, 1977;
May 11, 1977; August 31,
1977; June
8,
1978; and April
17, 1979;
(2)
inadequate measures were taken to control
leachate (although
the problems now have been “fully corrected”);
(3) because of
damage to a monitoring well, no water sample analysis results
were submitted to the Agency from April
1,
1979 until April
20,
1982, although such sampling results were regularly submitted
prior to April
1,
1979;
(4) no Respondent made any effort to
replace or repair the damaged monitoring well prior to April 20,
1982;
(5)
a monitoring well was installed on the landfill site on
May 10, 1982 in compliance with Agency specifications; and
(6)
the failure to take adequate measures to monitor leachate were in
violation of Rules 301 and
.314(e) of Chapter
7 and Section 21(b)
of the Act
(as it was in effect prior to January
1,
1980) and
Section 21(a)
of the Act
(as
it went into effect January
1,
1980).
(Stip.
5—7).
Respondents Capital City Land, Inc., Land Trust Owners, and
Bank state that responsibility for the violations alleged in
Counts
I through IV fo the Amended Complaint is partially within
the purview of Respondents Bunn Park Industries,
Inc. and Bunn
Park Industires Shareholders because the contract for purchase of
the landfill in 1977 by Respondents Capital City Land,
Inc. and
Land Trust Owners “spelled out that final cover, leachate control
and leachate monitoring well requirements would be taken care of
by sellers, Respondent Bunn Park Industries,
Inc.”
(Stip.
7).
The Agency has requested that the Board dismiss Count V of the
Amended Complaint and dismiss Respondents Thomas Flattery,
Ernie
L. Schmidt, John Doe and Jane Roe from the proceeding.
(Stip.
7).
48-153
—4—
The proposed settlement agreement provides that:
(1)
Respondents Bunn Park Industries,
Inc., Bunn Park Industries
Shareholders
(with the exception of Thomas Flattery,
Ernie
L. Schmidt,
John Doe and Jane Roe), Capital City Land,
Inc., Land Trust Owners,
Buerkett and Bank have violated Rules 301,
305(c)
and 314(e)
of Chapter
7 and Section
21(b) of the Act
(as it was in effect
prior to January 1,
1980)
and Section 21(a) of the Act
(as it
went into effect on January
1,
1980);
(2) Respondents Capital
City Land,
Inc., Land Trust Owners and Bank agree to comply with
the requirements of Rule 318 of Chapter 7 and “assert that they
took expeditous steps to remedy the leachate and final cover problems
with the landfill upon their obtaining the landfill property in February,
1977”; and
(3)
a stipulated penalty of $3,000.00 shall
be assessed
against Respondents Bunn Park Industries,
Inc., Bunn Park
Industries Shareholders
(with the exception of Thomas Flattery,
Ernie
L.
Schmidt, John Doe and Jane Roe), Capital City Land,
Inc., Land Trust Owners,
and Bank.
(Stip.
8—10).
In evaluating this enforcement action and proposed
settlement agreement, the Board has taken into consideration all
the facts and circumstances in light of the specific criteria
delineated in Section 33(c)
of the Act and finds the settlement
agreement acceptable under Procedural Rule 331.
The Board will
dismiss Count V of the Amended Complaint and dismiss Respondents
Thomas
Flattery,
Ernie
L.
Schmidt,
John
Doe
and
Jane
Roe
from
this
action.
The
Board
finds
that
Respondents
Bunn
Park
Industries,
Inc.,
Bunn
Park
Industries
Shareholders
(with
the
exception
of
Thomas
Flattery,
Ernie
L.
Schmidt, John Doe and Jane
Roe),
Capital
City
Land,
Inc.,
Land
Trust
Owners,
Merle
Buerkett,
and
Bank
have
violated
Rules
301,
305 Cc),
and
314
(e) of Chapter
7
and
Section
21(b)
of
the
Act
(as
it
was
in
effect
prior
to
January
1,
1980)
and
Section
21(a)
of
the
Act
(as
it
went
into
effect
on
January
1,
1980).
A
stipulated
penalty
of
$3,000.00
shall
be
assessed
against
the appropriate Respondents.
This
Opinion
constitutes
the Board’s finding of fact
and
conclusion of law in this matter.
ORDER
It
is
the
Order
of
the
Illinois Pollution Control Board
that:
1.
The Respondents, Capital City Land, Inc., Merle
Buerkett,
Town and Country Bank of Springfield, Trustee, Bunn
Park Industries, Inc., Estate of Max Riseman, deceased, Monika
U.M. Weiner, Richard Weiner,
Ed Evans, John Hoitman, Clarence
“Bud” Garner and Nancy DiMartino, have violated Rules 301,
305(c)
and 314(e) of Chapter 7:
Solid Waste Regulations
arid Section
21(b) of the Illinois Environmental Protection Act
(as it was in
effect prior to January 1,
1980)
and Section 21(a) of the Act
(as
it went into effect on January 1,
1980).
48-154
—5—
2.
Within
30
days
of
the
date
of
this
Order,
the
Respondents shall, by certified check or money order payable to
the
State
of
Illinois,
pay
the
stipulated
penalty
of
$3,000.00,
for which they shall be jointly and severally liable, to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois 62706
3.
Count V of the Amended Complaint is hereby dismissed.
4.
Respondents Thomas Flattery, Ernie L.
Schmidt,
John Doe, and Jane Roe are hereby dismissed as Respondents
in this proceeding.
5.
The Respondents shall comply with all the terms and
conditions of the Stipulation and Proposal for Settlement
filed on August
9,
1982, which is incorporated by reference
as
if fully set forth herein.
IT IS SO ORDERED.
Chairman Dumelle and Mr. Anderson concur.
I, Christan L. Moffett,
Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and Order
were adop~edon theJ~
day ~
1982 by a
Christan L. Moffe~
,
lerk
Illinois Pollution
ritrol Board
48-155