-,

T~IOL

b~A~ID

-I

~

~

Complainant;

:~wy

bttorne~y,

appeared for Respondent,

~ucared

pro

se,

~.

ZcitJin):

2

u

~ompiaint

filed by the

y,

charging in a

single count

r

~:-:ra:)

and the

City of Spring

~iY-ed

layer

of final covert not

~ ti~n

qurface

of

a

previously operated

~n~rnCounty,

Illinois,

in violation

~cr’~ticn

Act

(Act)

and Rule 305(c)

~viros

that

final cover be in

f~-~1placement

of refuse.

A

~

in Hennepin,

Illinois, at

n~cntto file a

Stipulation and

~

tPIS

Enforcement

case.

A Stipu~~

=

~=

(~tipulation)

was in fact filed

I

~

he 1)~~i for

this

~

by the City

from

approximately

~

waste

disposal site.

~

~tq

with the

requirements of

c

~ec~ded

i-o sell

the property

~

the application

of final cover

e

~

~2)

The site

was sold by the

~

n P~o~st2b,

1975,

at

which time the

~

~

R~

305(c)

of

Chapter

7.

Inasmuch

~

ceased on the

site

by

June

1,

1974,

olace by

approximately

July

31,

1974,

t

c

/

~

SO

t~~_

o~

-~

-,-~

J—-

C

~

~en

~r

C

-‘~~

(

~-~-v

i

e

Y~

---

The parties stipulate that final cover was not in fact completed

on the site until approximately June 22,

1976,

(Stip.,

¶13).

Exhibits

supporting that conclusion,

(Stip.,

¶14), comprised primarily of

Agency inspection reports, indicate that this was the fact.

This

Stipulation carries the Agency’s burden of proof under

§

31(c)

of

the Act, and we have no difficulty concluding that Respondents did

in fact violate

§

21(b)

of the Act and Rule 305(c)

of Chapter

7.

The parties did not, however,

stipulate as to the issue of whether

a penalty should be imposed in this matter,

or the amount Of any

such penalty, which requires further discussion of matters in

aggravation

or

mitigation

of

the

stipulated

offense.

It

is

apparent

from

the

Stipulation

that

the

site

in

question

is not suitable for use as a solid waste management site.

It

is

located in the path of natural drainage through high,

sandy bluffs

along

the

south

side

of the Illinois River,

(Stip.,

¶3).

The parties

agree

that

this

increases

the

danger

of

leachate

generation

and

contamination of an on—site stream tributary to the Illinois River,

and

increases

the

possibility

of

refuse

being

washed

out

of

the

fill and carried downstream.

The parties stipulate that there is

a

history

of

complaints

to

the

Agency

concerning

water—borne

garbage

and

downstream

well

contamination,

(id.).

The

City

should

have

realized the necessity of final cover at least as early as July 18,

1974:

An

exhibit

to

the

Stipulation,

a

letter

of

that

date

from

the

Agency

to

the

Mayor

and

Counsel

of

Spring

Valley,

fully

set

forth the need for cover on the site.

The photographic exhibits

accompanying the Stipulation indicate continuing problems

as the

result of the failure to apply final cover from that time until

such

cover

was

actually

applied.

By way of mitigation,

the Stipulation shows that shortly after

Respondent Kettman purchased this site from the City on August 26,

1975,

he sent a letter to the Agency stating an intent to complete

final cover as soon as possible.

Kettman then signed a written

agreement with the Agency,

dated November

12,

1975,

agreeing to

properly apply and grade all final cover by December 31,

1975.

However,

becu

use of

wet: weaLher

lol.

lowed by

frozen

j

round

,

as

well

as serious equipment breakdowns,

final cover was only approxi-

mately 75 percent complete by December 31,

1975.

Subsequent

to an

April

8,

1976 Agency investigaMon,

further work was conducted on

final cover.

However, further equipment breakdowns again delayed

completion.

Following the filing of the Complaint in this matter on May

4,

1976,

a further Agency investigation on May 19,

1976

indicated that

although further progress had been made,

“some work remained,

particularly around the edges of the fill.”

(Stip.,

¶10.)

An

Agency investigation on June

22,

1976,

finally disclosed “that a

compacted layer of at least two feet of final cover had been applied

over all portions of the site and had been properly graded and seeded

to prevent erosion, and that the site was

in general compliance.”

(Stip.,

¶11.)

24

—

608

---

Regardless of which Respondent bears responsibility

for final

cover on this

site,

a delay of very nearly two years cannot be

excused. For that reason,

the Board

finds that a penalty is necessary

in this case to encourage prompt compliance with the final cover

requirements of our Rules, enacted pursuant to the requirements of

the Act,

We shall impose a civil penalty of $250.00.

It is sufficient

for our purposes

to encourage these and other owners or operators

to timely comply with the Act and our Regulations, and to emphasize

the importance of the final cover requirement

to prevent land and

water pollution

that these Respondents both bear liability for the

necessary penalty.

Although Respondents failed to carry their burden with respect

to

§ 33(c)

of the Act, our finding that a penalty is necessary

is

reinforced by examination of the factors set forth there.

Processing

and Books v,

PCB,

64

Ill,

2d 68,

351 N.E.2d 865

(1976).

First,

it

~

exhibits

to the Stipulation that the site in question

constituted a serious pollution hazard before final cover was applied.

Second,

inasmuch as the site was no longer being used for refuse

disposal,

it apparently had little social or

economic value; what

little value it may have had was diminished almost entirely by the

unusable state

in which

it was allowed to remain.

Third,

the site

is, as noted above, unsuitable for the use to

which

it was put.

Its

priority in location is not an issue in this matter,

Finally,

the

fact that the site has now been covered demonstrates,

in addition

to mitigating the offense by eliminating it, that it was technically

and economically feasible to apply cover at the appropriate time.

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.

Respondents Frank Kettman and the City

of Spring

Valley are found to have failed to apply necessary final

cover to a solid waste management site

in Putnam County,

Illinois,

in violation of Section 21(b)

of the Environmental

Protection Act and Rule 305(c)

of Chapter

7:

Solid Waste,

of this Board~sRules and Regulations.

24

—

609

---

—4--

2.

Respondents shall pay as a penalty for said

violations

the sum of Two Hundred Fifty Dollars

($250),

payment to be made within thirty

(30)

days of the date

of this Order to:

Environmental

Protection

Agency

Fiscal Services Division

2200 Churchill Road

Springfield,

Illinois

62706

I,

Christan

L.

Moffett, Clerk of the Illinois Pollution

Control

Board,

hereby

certify

the

above

Opinion

and

Order

we

e

adopted

on

the

~

day of

,

1977,

by

a

vote

of

.~

Christan

L.

Moffet~

erk

Illinois Pollution Control Board

24