ILLINOIS POLLUTION CONTROL BOARD
July 18, 1996
RODNEY B. NELSON, M.D.,
Complainant,
v.
KANE COUNTY FOREST PRESERVE,
JACK E. COOK, CHAIRMAN, KANE
COUNTY BOARD, WARREN
KAMMERER, CHAIRMAN,
Respondents.
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PCB 94-244
(Enforcement - Water, Citizens)
RODNEY B. NELSON, M.D. APPEARED PRO SE;
JOSE VELA, JR., ASSISTANT STATE’S ATTORNEY APPEARED ON BEHALF OF THE
KANE COUNTY BOARD; and
PATRICK M. KINNALLY and TIMOTHY O’NEIL, MURPHY, HUPP, FOOTE, MIELKE
& KINNALLY APPEARED ON BEHALF OF KANE COUNTY FOREST PRESERVE.
OPINION AND ORDER OF THE BOARD (by E. Dunham):
This matter comes before the Board on a complaint filed on September 6, 1994 by
Rodney B. Nelson, M.D. (Nelson) against Kane County Forest Preserve (Forest Preserve),
Jack E. Cook, Chairman, and Kane County Board (Kane County), Warren Kammerer,
Chairman. The complaint alleges that Midway/Settlers’ Hill Landfill is leaking leachate
causing pollution to the groundwater and threatening to cause pollution to the Fox River in
violation of Sections 12 (a) and (d) of the Environmental Protection Act (Act) (415 ILCS 5/12
(a) and (d) (1994)).
Hearings were held on August 11, 1995, October 6, 1995 and November 3, 1995
before hearing officer Allen Schoenberger in Geneva, Illinois. Dr. Nelson filed a post hearing
brief on December 26, 1995. Kane County filed its response brief on January 29, 1996 and
the Forest Preserve filed its response brief on February 5, 1996. Dr. Nelson filed a reply brief
on February 13, 1996.
2
BACKGROUND
Settlers’ Hill Golf Course (a.k.a. Midway Landfill) is a closed solid waste landfill on
which a golf course has been constructed. (Comp. at 1.)
1
Midway Landfill was closed in
October of 1982 because it had reached its design capacity. (Tr3. at 57, 73.)
Settlers’ Hill
Landfill is an operating solid waste landfill adjacent to Settler’s Hill Golf Course. (Comp. at
1.) These facilities are located in Geneva, Illinois. (Comp. at 3.) The Fox River located west
of the landfill, flows in a north-south direction. (Tr2. at 62.)
At the hearings, Nelson presented testimony and exhibits to support his allegations and
did not call any other witnesses. Kane County presented testimony from Tim Harbaugh,
director of environmental management for Kane County, Joan Underwood, senior consultant
in hydrogeology with Rust Environmental, and Dale Hoekstra of Waste Management, division
president of Settlers’ Hill Recycling & Disposal Center.
Dale Hoekstra, provided testimony concerning the groundwater monitoring program at
the facilities. Midway Landfill has 7 wells that monitor groundwater. (Tr3. at 58.) Settlers’
Hill Landfill has 12 wells that monitor groundwater. (Tr3. at 58.) One well between Settlers’
Hill and Midway Landfill is shared by both facilities. (Tr3. at 58.) Testing is performed
quarterly and reported to the Illinois Environmental Protection Agency. (Tr2. at 101.) Five
basic parameters are measured at Midway Landfill. (Tr2. at 101.) Fourteen inorganic
parameters and 41 volatile organic compounds are tested for at Settlers’ Hill Landfill. (Tr2. at
101.)
The golf course contains surface water drainage ponds which are used for irrigation.
(Tr3. at 60.) The drainage ponds are not located on top of any refuse areas. (Tr3. at 60.) The
water drainage ponds on the golf course were constructed of clay materials to handle the runoff
and surface water drainage from the facility. (Tr3. at 60.) Mr. Hoekstra also testified that the
liner at Midway Landfill is an in-situ liner and consists of a minimum of 10 feet of clay
material. (Tr3. at 50.)
Nelson contends that through the course of examination of groundwater monitoring
reports, he believes that leachate is contaminating and polluting the groundwater, and
potentially will contaminate and pollute the Fox River. (Comp. at 3.) He contends that the
groundwater underlying the entire site becomes commingled so that the continued use of the
landfill creates a water pollution hazard. (Comp. at 3.) He further alleges that due to the
commingling of groundwaters, the landfill is not monitorable. (Comp. at 3.) Nelson contends
that the golf course watering program is adding to the leachate production. (Comp. at 3a.)
1
Comp. at ___ refers to the complaint filed by Nelson. The transcript from the hearing held
on August 11, 1995 is designated by (Tr1.). References to the transcripts from the hearings
held on October 6, 1995 and November 3, 1995 are designated by (Tr2.) and (Tr3.)
respectively. Exhibits presented by Dr. Nelson are referenced by Nel. Exh. Exhibits
presented by Kane County are referenced by Kane Exh.
3
Nelson observes that there is a thousand-fold difference in iron content in the shallow
aquifer groundwater in wells only a few hundred feet apart. (Comp. at 3b.) Nelson asserts
that the iron content measured in wells around Midway Landfill show an enormous variation in
iron concentration that cannot be reasonably accounted for by chance alone. (Tr1. at 15.)
Nelson alleges that significant groundwater degradation has occurred in the area and that the
degradation is getting worse. (Tr1. at 19.) Nelson urges the Board to adopt the German and
Canadian standard of a maximum limit of 300 ug/L for iron in groundwater that is used for
drinking water. (Tr1. at 68.)
To support his allegations, Nelson performed a two-tailed t-test on the iron data
collected from the monitoring wells. The results of this statistical analysis were submitted as
an exhibit. (Nel. Ex. 9.) Nelson used the data from wells G11D and G109. (Tr2. at 221.)
Well G11D is located west of Midway landfill and well G109 is located on the southeast edge
of the landfill. (Tr2. at 221, Kane Exh. 17.) To prepare the table Nelson transcribed data
from the readings for iron content of the groundwater for each well from the quarterly
monitoring reports. (Tr1. at 64.) He then placed the data in a tabular form identifying the
columns by the well number and the rows by the date. (Tr1. at 64.) The bottom column is a
computation of the arithmetic mean determination of each of those determinations. (Tr1. at
64.) Using the statistical analysis program Quatro-Pro, he performed a t-test for paired
samples on the means of two of the wells to show that there is a highly statistically significant
difference in the groundwater iron between two of those wells. (Tr1. at 64.) The remainder of
the table identifies some of the actual statistical parameters that are involved in performing the
paired two [sic] t-test. (Tr1. at 64.)
Nelson claims that the variation in iron in the groundwater shows that leachate is
escaping from Midway Landfill. (Tr1. at 15.) Nelson selected iron because iron is easily
measured, its presence in groundwater is related to the quality of potable water and it creates a
reducing environment. (Tr2. at 7.) Nelson testified that iron rich water fosters the spread of
disease. (Tr1. at 13.) He also stated that iron ingestion in high quantities is a threat to
approximately one in 500 people who are afflicted with the disease hemochromatosis. (Tr. at
13.) Nelson admits that the iron measured in the wells does not exceed any Illinois regulatory
standard for iron content in groundwater. (Tr2. at 50.) Nelson did not perform any analysis
for other constituents. (Tr2. at 79.)
Nelson asserts that the golf course is irrigated using retention pond water based on the
presence of sprinklers and hoses at the facility. (Tr1. at 61.) Nelson asserts that Midway
Landfill was not constructed with a clay or synthetic bottom liner. (Tr1. at 61.)
Nelson asserts that the critical aspect of his complaint is that there is a potential source
that contaminates the upgradient well and renders the monitoring system at Settlers’ Hill
Landfill improper. (Tr2. at 84.) Nelson claims that Settlers’ Hill cannot be adequately
monitored for leachate escape and should be immediately closed. (Tr1. at 20.) Nelson also
asserts that the methane collection system of the closed Midway Landfill and Settlers’ Hill
Landfill are connected based on a review of the engineering designs. (Tr1. at 61.) He also
asserts that the leachate collection systems are connected. (Tr1. at 61.)
4
Nelson contends that there is a potential pathway that runs downhill from the landfill to
the Fox River. (Tr2. at 36.) He observes that there is a point on the banks of the Fox River
where the dolomite layer comes to the surface. (Tr2. at 36.)
Tim Harbaugh, director of environmental management for Kane County explained the
monitoring performed at Settlers’ Hill and Midway Landfills. (Tr2. at 101.) Mr. Harbaugh
testified that Settlers’ Hill Landfill was constructed with a leachate collection system and that
Midway Landfill was retrofitted with a leachate collection system underneath portions of the
facility. (Tr2. at 111.) He described the liner under Settlers’ Hill Landfill as a recompacted
clay liner and the liner under Midway Landfill as an in-situ liner. (Tr2. at 111.)
Mr. Harbaugh testified that the standard for iron in Class 1/Class 2 groundwater is 5
mg/L. (Tr2. at 114.) He further observed that the groundwater quarterly reports for Midway
from 1990 to the present show that this iron standard has not been violated. (Tr2. at 114.) He
also testified that iron is naturally occurring in this area. (Tr2. at 115.)
Mr. Harbaugh indicated several errors made by Dr. Nelson in transcribing numbers
from the monitoring reports to the statistical test. (Tr2. at 119-121.) He also noted that
Nelson used 100 for readings that were nondetect. (Tr2. at 119.) Nondetect readings are
usually recorded as 50. (Tr2. at 190.)
Joan Underwood senior consultant in hydrogeology with Rust Environmental testified
that the variation in iron content can be accounted for by chance. (Tr2. at 169.) She testified
that since iron is a naturally occurring element in groundwater you can see a lot of variation in
iron content. (Tr2. at 169.) She also testified that iron is a poor indicator of contamination
due to its variability in nature. (Tr2. at 187.) Ms. Underwood presented iron data from
private wells in the surrounding township that show a variation in the level of iron in these
wells. (Tr2. at 178.) Ms. Underwood testified that there is no continuous flow from the
landfill area to the Fox River. (Tr2. at 183.) She also testified that the monitoring program
adequately monitors the groundwater at the site. (Tr2. at 186.) She stated that the wells at the
landfills are placed to detect any potential impacts by looking at the groundwater flow
directions and the background water. (Tr2. at 186.)
Miss Underwood also stated that the t-test is not an appropriate test to apply for the
comparison of monitoring data from two wells. (Tr2. at 199.) She testified that the t-test
looks at whether you have similar data between two data sets and assumes that the data is
normally distributed. (Tr2. at 199.) She further stated that sets from the monitoring wells are
not normally distributed so the t-test would not apply. (Tr2. at 199.)
Kane County submitted a monitoring report by the USEPA from a site assessment
performed at Midway Landfill in February 1995. (Kane Exh. 1.) The USEPA sampled the
groundwater for volatile organic compounds, semivolatile organic compounds, and metals.
(Kane Exh. 1 at 2.) The USEPA reported that no contamination of the groundwater was
detected or identified. (Kane Exh. 1 at 3.)
5
DISCUSSION
In an enforcement proceeding before the Board, the burden of proof is by a
preponderance of the evidence. (Lefton Iron & Metal Company, Inc. v. City of East St. Louis
(April 12, 1990), PCB 89-53 at 3, 110 PCB 19, 21; Bachert v. Village of Toledo Illinois, et
al. (November 7, 1985), PCB 85-80 at 3, 66 PCB 279, 281; Industrial Salvage Inc. v. County
of Marion (August 2, 1984), PCB 83-173 at 3-4, 59 PCB 233, 235-236, citing Arrington v.
Water E. Heller International Corp., 30 Ill. App. 3d 631, 333 N.E.2d 50. 58, (1st Dist.
1975).) A proposition is proved by a preponderance of the evidence when it is more probably
true than not. (Industrial Salvage at 4, 59, 233, 236, citing Estate of Ragen, 79 Ill. App. 3d 8,
198 N.E.2d 198, 203, (1st Dist. 1979).) A complainant in an enforcement proceeding has the
burden of proving violations of the Act by a preponderance of the evidence. (Lake County
Forest Preserve District v. Neil Ostro (March 31, 1994), PCB 92-80.). Once the complainant
presents sufficient evidence to make a prima facie case, the burden of going forward shifts to
the respondent to disprove the propositions. (Illinois Environmental Protection Agency v. Bliss
(August 2, 1984), PCB 83-17, 59 PCB 191.)
The issue before the Board is whether the complainant has first made a prima facie case
and then proven by a preponderance of the evidence that respondents, Kane County and Forest
Preserve, have violated Sections 12(a) and 12(d) of the Act in the operation of Settlers’ Hill
Golf Course and Settlers’ Hill Landfill. Section 12 of the Act provides in relevant part;
No person shall :
a) cause or allow the discharge of any contaminants into the
environment in any State so as to cause or tend to cause water
pollution in Illinois,
* * *
d) Deposit any contaminants upon the land in such place and manner so
as to create a water pollution hazard;.....
(415 ILCS 5/12)
Section 3.55 of the Act defines water pollution as an “alteration of the physical,
thermal, chemical, biological or radioactive properties of any water of the State, or such
discharge of any contaminant into any waters of the State, as will or is likely to create a
nuisance or render such waters harmful or detrimental or injurious to public health, safety or
welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate
uses, or to livestock, wild animals, birds, fish, or other aquatic life.” (415 ILCS 5/3.55.) In
those court cases that discuss the meaning of the phrase "cause or allow", the courts have
determined that the phrase relates to a person's past or ongoing acts or omissions. (Perkinson
v. IPCB, 187 Ill. App. 3d 689, N.E.2d 901, (3rd Dist. 1989); Hindman v. EPA, 42 Ill. App.
3d 766, 356 N.E.2d 669, (5th Dist. 1976); Freeman Coal Mining Corp. v. IPCB, 21 Ill. App.
3d 157, 313 N.E.2d 616, (3rd Dist. 1974); Meadowlark Farms v. IPCB, 17 Ill. App. 3d 851,
308 N.E.2d 829, (5th Dist. 1974); Bath, Inc. v. IPCB, 10 Ill. App. 3d 507, 294 N.E.2d 778,
(4th Dist. 1973); (see also Goose Lake Association v. Drake (February 25, 1993), PCB 90-
6
170, Turner v. Chicago, Title & Trust Co. (February 27, 1992), PCB 91-146, 130 PCB 227;
Turner v. Franke (February 27, 1992), PCB 91-148, 130 PCB 259; County of Jackson v.
Taylor (January 10, 1991), AC 89-258, 118 PCB 37).)
Nelson’s prima facia case consists of statistical analysis which he contends shows a
trend towards increasing concentrations of iron in wells downgradient from the landfill
complex. Nelson asserts that if the Board were to adopt a German and Canadian standard for
iron in drinking water, the landfills would exceed the standard.
Section 12(a) of the Act prohibits discharges “.. so as to cause or tend to cause water
pollution in Illinois”(emphasis added). Water quality standards were adopted in Illinois to
reflect natural background levels of constituents, when naturally occurring, and to be
protective of human health and environment. Adoption of a German and Canadian standard of
300 ug/L, while it may be enforceable in those countries, does not take into account the
natural presence of iron in groundwater in Illinois. Further, as a policy matter, the Board will
not change a rule in order that a violation may be found in an enforcement case. Adoption of
rules can only be accomplished through a petition for rulemaking comporting to Section 28 of
the Act.
The Board finds the complainant, Nelson, has failed to prove by a preponderance of the
evidence that respondents, Kane County and Forest Preserve, have violated Sections 12(a) and
(d) of the Act. The evidence presented by Nelson shows that there is a variation in iron levels
measured in the monitoring wells at the facility. This variation is insufficient to support a
finding of violation of Section 12 of the Act. The record indicates that the variation in iron
could be due to natural variations of iron in groundwater, variations in flow of the
groundwater under the landfill or from sources other than the landfill. (
See supra
testimony of
Joan Underwood.) There is nothing in the record to indicate that leachate is leaking from the
landfill resulting in contamination to groundwater or the Fox River.
Nelson’s own testimony indicates the speculative nature of the theories he presented to
the Board. Nelson stated “[o]ne very likely explanation for this enormous variation in ground
water iron is leachate escape from Midway Landfill” (Tr1. at 15) and “[m]any potential
explanations could be advanced for this phenomenon” (Tr1. at 16).
The record contains insufficient information concerning the watering system at the golf
course to support a finding that the watering practice at the facility is contributing to an
increase in the production of leachate. The record does not contain a full description of the
watering practices at the facility including the volume of water used, sources of water,
frequency of watering or soil content of cover. Lacking this type of information concerning
the watering practices at the facility, the Board is unable to determine what effect, if any, the
watering practices have on the production of leachate at the facility. In addition, there is no
quantitative data in the record to show the amount of leachate production or an increase in the
production of leachate.
7
The USEPA performed a site assessment at the facility in February of 1995 and found
nothing to indicate that leachate was leaking from the landfill and contaminating the
groundwater. (Kane Exh. 1.) The monitoring reports from the facilities are sent to the Agency
for review. The Agency has the authority to order remedial action or to bring an enforcement
action against Kane County if the monitoring reports indicate any contamination. There is
nothing in the record to indicate that the monitoring reports have indicated any pollution
problems at the facility. In fact, the record indicates that the monitoring reports have shown
that the parameters tested are within the allowable levels. There is nothing in the record that
would warrant the Board to require that additional action be taken in monitoring the activities
at these facilities.
In its response brief, the Forest Preserve requests that it be dismissed from this matter
on the grounds that Nelson has failed to prove ownership of the golf course by the Forest
Preserve. The Forest Preserve maintains that the allegation of ownership is “simply untrue”.
By finding for respondents on the merits of the case, the Board need not reach the merits of
these arguments.
The above opinion constitutes the Board’s findings of fact and conclusions of law in
this matter.
ORDER
The Board hereby finds that complainant has failed to prove by a preponderance of the
evidence that the respondents, Kane County and Forest Preserve, have violated Sections 12(a)
and (d) of the Act.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) provides for
the appeal of final Board orders within 35 days of the date of service of this order. The Rules
of the Supreme Court of Illinois establish filing requirements. (See also 35 Ill. Adm. Code
101.246 "Motions for Reconsideration.")
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the _____ day of ___________, 1996, by a vote
of ______________.
___________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board