ILLINOIS POLLUTION CONTROL BOARD

May

6, 1976

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

V.

)

PCB 75—358

VILLAGE OF PAW

PAW,

)

Respondent.

Ms. Mary C.

Schlott, Assistant Attorney General, Attorney

for Complainant

Mr. George

Fl,

Litow,

Kent,

Litow

& Wagner, Attorney for

Respondent

OPINION AND ORDER OF THE BOARD

(by Mr.

Young):

This case arises out of an Amended Complaint (Complaint)

filed by the Environmental Protection Agency

(Agency)

on

December 16,

1975,

alleging various violations by the Village

of Paw Paw (Village)

in the operation of a solid waste manage-

ment site.

The hearing, which was held in the Village on

December 17,

1975,

resolved the factual issues, while several

legal issues were raised by the Village in its defense.

Count

I alleged that the Village owned and operated a

refuse disposal site from July 27,

1974 to September 11, 1975

without an operating permit in violation of Rule 202(b)

(1)

of the Solid Waste Rules and in violation of Section 21(b)

and Section 21(e)

of the Environmental Protection Act

(Act).

Count II alleged that the Village has caused or allowed

open burning at its refuse disposal site from July 27,

1974,

specifically including but not limited to the dates of October

16,

1974,

January

7,

1975, and July 17,

1975 to September Il,

1975,

in violation of Rule 311 of the Solid Waste Rules and

in violation of Section 21(f)

of the Act.

Count III alleged that the Village has caused or allowed

open burning at its refuse disposal site from July 27,

1974,

specifically including but not limited to the dates of October

16,

1974, January

7,

1975, and July 17,

1975 to September 11,

1975, in violation of Rules 502 and 506 of the Air Rules and

in violation of Section 9(c)

of the Act.

21—301

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The subject of the Complaint is

a tract of

land owned

by the Village which is located

in Section 10, Township 37

North, Range

2 East in Lee County,

Illinois.

At the hearing various Agency inspection reports, site

photographs, and copies of Agency correspondence

to the

Village were received into evidence.

Agency correspondence

in

a series of seven letters during the period September 27,

1973, through August

7,

1975, warned the Village of the

alleged violations

at the site and of the need for an operating

permiL

(Exhibits

5,

6,

7,

8,

9,

10, 11).

Similar observations

at the site were noted by the agency inspectors

in their

reports and photographs taken at the site corroborate their

recorded observations.

Open dumping of refuse and evidence

of open burning were uniformly observed,

and on October

16,

1974, unattended open burning was observed

in progress

(Exhi-

bits

2,

3,

4,

13,

14).

The Village admitted in the pleadings that it deposits

at the site

landscape waste and concrete and tile residue.

In addition to

this,

the Village President,

Robert Rhea, Jr.,

admitted that the Village placed landscape waste and various

demolition materials generated by the Village at the site

(R.

124,

125).

The Village admits it does not have an operating

permit for the site

(R.

20).

Mr. Rhea further admitted the

landscape waste are burned five to eight times

a year at the

site

(R.

129).

Mr.

Rhea testified that only landscape wastes

and demolition material

generated by the Village is deposited

at the site,

and the Village does not allow materials generated

on private property

to be deposited at the site.

Since

the

Agency failed to introduce any evidence pertaining

to the

origin of the refuse,

for the basis of

this Opinion it will be

assumed that all refuse deposited at the site was generated

solely by the activities

of

the Village.

The Village raises several points

in its defense.

The

Village contends that it is not required

to have

a permit for

the site since it comes within

the exemption created within

Section

21(e)

of the Act.

If the Village properly comes

within the scope of Section

21(e)

exemption,

it similarly has

a valid defense against the alleged violation of Rule 202(b) (1)

since the Section

21(e)

exemption is expressly incorporated

therein.

Section

21(e)

reads:

(No person shall)

conduct any refuse—collection

or refuse—disposal operations, except for refuse

generated by the operator’s own activity, without

a permit granted by the Agency

...

The Village argued that since the refuse deposited at its

site was generated solely by its own activities,

the Village

21—302

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—3—

therefore comes within the exemption.

This same argument

was presented

to

the Board

in EPA v. City of Pontiac, PCB

74-396,

18 PCB 303

(August

7,

1975).

In that Opinion,

the

Board held that the legislative intent underlying the

exemption provision of

Section 21(e) was

to exempt minor

amounts

of refuse which could he disposed of without environ-

mental harm on the site where it was generated.

The Board

reaffirms our position in Pontiac because

to do otherwise

would

allow the creation of

a gap in the permit system incon-

sistent with the Act~sstated purpose of preventing pollution

or misuse of land arising out of improper refuse disposal.

For this reason,

the Board holds that the Village needed a

permit

for the operation of its landfill site and that by

operating such site without

a permit the Village violated

Rule 202(b) (1)

of the Regulations and Section

21(e)

of the Act.

That portion of the Complaint alleging violation of Section

21(b)

must be dismissed.

As was held in E

& E Hauling, PCB

74-473,

16 PCB 215

(1975),

a Section 21(b) open dumping charge

is not properly based on an operating permit violation.

The Village

also contends

that it is exempt from the pro-

visions

of the open burning regulations because

it comes within

the exception created

in Rule 503(c)

of the Rules.

Rule 503

(c) provides in relevant part that the open burning of land-

scape waste

is permitted if done on the premises on which such

waste

is generated,

and such activity does not occur

in a

prohibited area.

Rule 503(c) (1) requires that the landscape waste must be

burned on the premises on which such waste

is generated.

It

is

a rule of construction

that any exemption must be strictly

construed against the person claiming such exemption.

In this

instance,

the waste was not burned in the immediate area where

it was generated, but was hauled to an area outside the Village

to be burned.

While this rule does not require that the waste

be burned in the exact location where

it was generated,

just

as obvious

is the fact the exemption created was not intended

to permit the collection,

transportation and consolidation of

landscape waste

as was conducted by the Village.

Such a loose

interpretation of the phrase “premises on which it is generated”

would effectively nullify this particular exemption precondition

and frustrate

the legislative intent behind the open burning

ban announced

in Section

9(c)

of the Act.

For this reason, we

hold that the interpretation given

to this phrase by the Village

is in error.

It follows from this that the Village conducted

open burning

in violation of Rule

502 of the Air Regulations

and Rule 311 of the Solid Waste Regulations and in further

violation of Section

9(c)

of the Act.

21

—

303

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The Agency also alleged

in Count III that the actions

of the Village also constitute a violation of Rule 506 of

the Air Rules.

This rule provides:

It shall be the obligation of local govern-

ments as well as the Environmental Protection

Agency,

to enforce by appropriate means the

prohibitions

in this Part.

This provision must be read in conjunction with Section

2

of the Act which expresses the legislative intent that there

shall be cooperation between different state governmental

units in order to facilitate environmental protection.

This

was not intended to be an operative part of the Air Rules

but merely hortatory, and for this reason, the alleged vio-

lation of Rule 506 must be dismissed.

The Agency also alleged in Count II

a violation of Section

21(f)

of the Act based upon a violation of Rule 311

(Open

Burning)

of the Solid Waste Regulations.

Section 21(f)

reads

in relevant part:

(No person shall)

Dispose of any refuse, or

transport any refuse into this state for dis-

posal, except at a site or facility which

meets the requirements of this Act and of the

Regulations thereunder.

In order to give Section 21(f)

a meaning, it must be interpreted

consistent with other Section

21 subsections.

Section 21(a)

and

(b)

prohibits the open dumping of garbage and refuse re-

spectively.

Section 21(c)

prohibits the dumping of refuse on

public property while Section 21(d)

prohibits the abandonment

of any vehicle in violation of the “Abandoned Vehicles Amend-

ment to the Illinois Vehicle Code”,

Section 21(e)

prohibits

any refuse-collection or refuse-disposal operation, without

an operating permit.

Statutes are normally construed so that

effect

is given all of their provisions

so that no part will

be inoperative,

superfluous, void or insufficient.

Section

21(f)

adds meaning to the entire Section if it

is interpreted

as

a prohibition against the disposal of refuse by refuse

haulers or transporters at sites or facilities which do not

meet the requirements of the Act or Regulations.

Given this

meaning,

Section 21(f)

becomes a meaningful addition to Section

21 rather than a redundant or superfluous subsection.

By

encouraging refuse haulers and transporters to dispose of their

refuse at properly operated sites and by discouraging such

disposal at improperly operated sites,

it is anticipated that

the goals and objectives of the Act will be more quickly

realized.

By ensuring that refuse haulers will only dispose

of their refuse at properly operated sites, an economic incentive

will be provided to refuse site operators to comply with all

21—304

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—5—

site regulations,

for unless

the site

is properly

run,

the

haulers will take their refuse

(and business)

elsewhere.

In this instance the existence of open burning

(Rule

311) was alleged and proven as reason why the site did not

meet

the requirements

of the regulations.

It was also alleged

and proven that the Village transported the landscape waste

and demolition material

to the site from other premises.

These

facts are sufficient

to support

a finding that Section 21(f)

was violated.

In evaluating a monetary penalty for the violations set

out herein the Board must consider the factors included in

Section

33(c)

of the Act and other

facts

in this case.

The

opinion of the Village is typified by the statement of Mr.

Rhea:

“I could not ask a private owner to pay

for landscape waste that was generated on

Village property.

These people are interested

in their property and their property only.

I

realize Village property

is all their property,

but they do not want to be billed to pick up

Village landscape

(waste).

That is our job as

Village Board Members,

to find ways and means

to do this at no additional cost to them if

possible.”

(R.

149).

In accordance with this position,

the Village has disposed of

its landscape wastes at the expense of the State’s environ-

mental statutes and regulations.

This attitude is

to be dis-

couraged by the Board.

While the citizens of Paw Paw may not

be interested in Village property,

the disposal of Village

landscape waste

is nonetheless their responsibility.

Those

who generate waste can reasonably be expected

to bear the cost

of its disposal.

From testimony given at the hearing it appears

the Village can arrange

to have the landscape waste

(including

private as well as public) picked up by

a scavenger service at

a cost approaching $1900.00 per year.

While it is not clear

in what condition the scavenger service requires that the waste

be in before their handling,

this cost compares very favorably

with the $1600.00 the Village has expended in the last year

to haul away refuse which has collected at the site.

These

figures do not suggest that the Board would place

an unreasonable

burden on the Village by insisting that the landscape waste be

disposed of in an environmentally approved way.

The Board

is not sympathetic

to the Villagers allegation

that much of the refuse

is deposited without authorization.

If one operates a dump one must anticipate that there will be

unauthorized dumping of garbage and refuse at the site,

and

particularly so where it is unattended most of the time.

21—305

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—6—

The refuse deposited by the Village did not include

putrescible materials and the site was located

in an area

somewhat suitable for its use.

It was not disputed that the

Village was performing a necessary service, but the value of

such is considerably diminished

if not performed in an environ-

mentally sound way.

The manner

in which

the illegal open

burning was conducted is considered by the Board

in assessment

of an appropriate level of penalty.

While

the Village alleged

that the open burning was conducted

in a

safe and orderly

fashion, Agency evidence establishes that on at least one

occasion open burning occurred while unattended.

The fact that

the Village received numerous warnings and visits

from the

Agency but nevertheless persisted in remaining

in violation of

the law aggravates the violation.

Some mitigation

is

justified because Respondent

is

a

municipality.

The Board is aware of

the strained financial

position of most municipalities,

and the Village

is

no excep-

tion.

But such condition does not give the Village the right

to engage in conduct in violation of the State’s environmental

policies.

Under the circumstances the Board will assess

a

minimal penalty of $200.00 and will further require Paw Paw

to properly close the site or obtain a permit from the Agency

if it chooses

to continue depositing refuse at the site.

In

addition,

the Village shall cease and desist open burning

In

violation of Rule

502.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

1.

Respondent,

Village of Paw Paw,

is found

to have

operated its waste disposal site

in violation of Rule 202

(b) (1)

of Chapter

7 and Sections 21(e)

and 21(f)

of the Act

and

to have conducted open burning

in violation of Rule

502

of Chapter

2 and Section 9(c)

of the Act,

and shall pay a

penalty of $200.00 for such violations.

Penalty payment by

certified check or money order payable

to the State of Illinois

shall he made within

30 days of the date of this Order

to:

Fiscal Services Division,

Illinois Environmental Protection

Agency,

2200 Churchill Road,

Springfield,

Illinois,

62706.

2.

Respondent, Village

of Paw Paw,

shall cease and de-

sist violating Rule

202(b) (1)

of Chapter

7, Rule

502 of Chapter

2 and Sections

21(e)

and 9(c)

of the Act, as found herein,

within

30 days of the date of this Order.

3.

Respondent shall apply final cover within

90 days of

the adoption of this Order or apply for an operating permit

from the Agency within 30 days of this Order if it intends

to

21—306

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continue operating the site.

If an operating permit is not

issued within 90 days after application,

all operations shall

cease until the permit has been issued or the site permanently

closed.

4.

The charges alleging violation of Rule 506 of the Air

Rules and Section 21(b)

of the Act are dismissed.

IT IS SO ORDERED.

Mr. Jacob D. Dumelle concurs.

I, Christan

L. Moffett,

Clerk of the Illinois Pollution

Control Board, hereby certify the above Opinion and Order were

adopted on the /~“~

day of

1976 by

a vote of

~

Illinois Pollution

1 Board