ILLINOIS POLLUTION CONTROL BOARD
September 6, 2001
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
DOREN POLAND, LLOYD YOHO, and
BRIGGS INDUSTRIES, INC. a/k/a BRIGGS
PLUMBING PRODUCTS, INC.,
Respondents.
BRIGGS INDUSTRIES, INC.,
Third-Party Complainant,
v.
LOREN WEST and ABINGDON SALVAGE
COMPANY, INC.,
Third-Party Respondents.
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PCB 98-148
(Enforcement – Land)
PCB 98-148
(Citizens Enforcement – Land)
(Third-Party Complaint)
THOMAS DAVIS, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF OF
COMPLAINANT;
JOEL A. BENOIT OF MOHAN, ALEWELT, PRILLAMAN, AND ADAMI, APPEARED ON
BEHALF OF RESPONDENT, BRIGGS INDUSTRIES, INC.;
DOREN POLAND APPEARED
PRO SE
; and
LLOYD YOHO APPEARED
PRO SE
.
INTERIM OPINION AND ORDER OF THE BOARD (by E.Z. Kezelis):
This enforcement action comes before the Board on a three-count complaint filed by the
Illinois Attorney General, on behalf of the People of the State of Illinois (complainant), and at the
request of the Illinois Environmental Protection Agency (Agency), against Doren Poland
(Poland), Lloyd Yoho (Yoho), and Briggs Industries, Inc., a/k/a Briggs Plumbing Products, Inc.
(Briggs). Complainant alleges various violations of the Environmental Protection Act (Act) (415
ILCS 5/1
et seq
. (2000)) and Board regulations related to respondents’ operation of a permitted
landfill (old landfill) and an unpermitted site (unpermitted site), both of which are located in
Knox County, Illinois.
2
Specifically, in count one, complainant alleges that Poland, Yoho, and Briggs violated
Sections 21(a), (d), (e), and (p)(1) of the Act (415 ILCS 5/21(a), (d), (e), (p)(1) (2000)), by
causing or allowing open dumping of waste, by conducting a waste-storage or waste-disposal
operation without a permit, by disposing or storing waste at a site that does not meet the
requirements of the Act and Board regulations, and by causing or allowing open dumping
resulting in litter. In count two, complainant alleges that Poland, Yoho, and Briggs violated
Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2000)) and Sections 807.201 and 807.202(a) of
the Board’s waste disposal regulations (35 Ill. Adm. Code 807.201, 807.202(a)), by causing or
allowing the development and operation of a waste disposal site without first obtaining the
necessary development and operating permits. In count three, complainant alleges that Poland
and Yoho violated Sections 811.102, 811.103, 811.104, 811.302, 811.303, 811.304, 811.306,
811.307, 811.308, 811.309, 811.317, 811.318, 811.319(a), 811.501, and 811.700 of the Board’s
waste disposal regulations (35 Ill. Adm. Code 811.102, 811.103, 811.104, 811.302, 811.303,
811.304, 811.306, 811.307, 811.308, 811.309, 811.317, 811.318, 811.319(a), 811.501, 811.700).
Complainant also alleges in count three that Poland violated Sections 811.315 and 811.323 of the
Board’s waste disposal regulations (35 Ill. Adm. Code 811.315, 811.323), and that Poland, Yoho,
and Briggs violated Sections 812.101 and 813.102 of the Board’s waste disposal regulations (35
Ill. Adm. Code 812.101, 813.102). Each of the violations alleged in count three is predicated on
respondents’ purported failure to comply with various standards for new solid waste landfills,
including standards regarding: landfill location; surface water drainage; survey control; design
period; foundation and mass stability; liner; leachate drainage and management; hydrogeology;
groundwater impact and monitoring; detection monitoring; load checking; construction quality
assurance; financial assurance; and landfill applications.
Board Hearing Officer Steven C. Langhoff conducted hearings on behalf of the Board on
November 28 and 29, 2000. Post-hearing briefs were filed.
1
A number of procedural matters have arisen since the conclusion of the November
hearing. These procedural matters, a majority of which involved discovery disputes over two
engineering documents in the possession of Briggs, have all been addressed in previous Board
orders. In addition to these procedural matters, there is also a third-party complaint, filed by
Briggs, which is still pending and which will not be resolved in this opinion and order. Finally,
there is also a counterclaim filed by Briggs against fellow respondents Poland and Yoho. In this
opinion and order the Board will resolve the violations alleged by the complainant in its April 30,
1998 complaint, and the allegations by Briggs in its counterclaim, filed on September 25, 2000,
and amended on December 6, 2000.
FINDINGS OF FACT
1
Complainant’s brief is referred to as “Comp. Br. at __.” Yoho’s brief is referred to as “Yoho Br.
at __.” Poland’s brief is referred to as “Poland Br. at __.” Briggs’ brief is referred to as “Briggs
Br. at __.” Complainant’s reply brief is referred to as “Reply Br. at __.” Briggs’ response to new
matters raised in complainant’s reply brief is referred to as “Briggs Reply at __.” Complainant’s
supplemental brief is referred to as “Supp. at __.”
3
Briggs owns and operates a ceramics manufacturing plant (plant) in Knox County, Illinois.
On April 19, 1979, the Agency issued an operating permit to respondents Briggs, Poland, and
Yoho for a 15.8 acre landfill (old landfill). Comp. Exh. 5. The Agency-issued permit allowed for
the disposal of waste vitreous china, scrap clay, bricks, and broken portland cement concrete.
Comp. Exh. 2. Although Poland and Yoho owned and operated the landfill from 1979 to 1993,
Briggs was a co-permittee.
From 1979 to 1993, Briggs disposed of its ceramics waste at the old landfill. Its ceramics
waste included scrap clay, waste vitreous china, bricks, and waste concrete. Prior to closure of
the old landfill, Poland and Briggs sought and obtained Agency approval to reduce the size of the
old landfill from 15.8 to 4.6 acres. The 4.6-acre site was covered and closed in 1993. During this
1979-1993 time period, Briggs participated actively in the operations of the old landfill. For
example, when compliance issues arose with the Agency, it was Briggs who notified the Agency
that, “corrective measures [had] been taken to eliminate any future violations.” Comp. Br. at 2,
citing Comp. Exh. 9. In 1984, Briggs applied to the Agency for a modification of the permit.
Comp. Exh. 13. An employee of Briggs, Jim Willis, signed the application as site owner.
Id
.
The Agency issued a supplemental permit to Briggs in 1984. Comp. Exh. 14. In September and
October 1992, Briggs posted financial assurance in the form of letters of credit and a trust
agreement. Comp. Exhs. 17-20, 23. During the life of the old landfill, Briggs was also
responsible for paying half of the operating expenses of the site. Tr. at 88.
In 1993, the Agency granted a supplemental permit to Poland which approved the
closure/post-closure care plan and which reduced the size of the permitted landfill from 15.8 acres
to 4.6 acres. Comp. Exh. 21. During a November 29, 1993 inspection of the old landfill, Agency
personnel observed that waste had been deposited in an unpermitted area of the site. Briggs Exh.
B20.
Waste from Briggs’ manufacturing plant was disposed of at the unpermitted site from
approximately 1993 to 1997. Despite various efforts over time by one or more of the respondents
to secure a permit for the unpermitted site, an Agency permit was never obtained.
REGULATORY FRAMEWORK
Section 21 of the Act (415 ILCS 5/21 (2000)) forms the basis for the allegations of the
complaint. Section 21 of the Act provides, in pertinent part:
No person shall:
(a)
Cause or allow the open dumping of any waste.
* * *
(d)
Conduct any waste-storage, waste-treatment, or waste-disposal operation:
(1)
without a permit granted by the Agency or in violation of any
conditions imposed by such permit . . . ; [or]
4
(2)
in violation of any regulations or standards adopted by the Board
under this Act; or
(e)
Dispose, treat, store or abandon any waste, or transport any waste into this
State for disposal, treatment, storage or abandonment, except at a site or
facility which meets the requirements of this Act and of regulations and
standards thereunder.
* * *
(p)
In violation of subdivision (a) of this Section, cause or allow the open
dumping of any waste in a manner which results in any of the following
occurrences at the dump site:
(1)
litter;
* * *
415 ILCS 5/21(a), (d), (e), (p) (2000).
Also pertinent to the Board’s review of the alleged violations in this case are
Sections 807.201 and 807.202(a) of the Board’s solid waste regulations (35 Ill. Adm.
Code 807.201, 807.202(a)). Section 807.201 provides:
Subject to such exemption as expressly provided in Section 21(e) . . . of the Act as
to the requirement of obtaining a permit, no person shall cause or allow the
development of any new solid waste management site or cause or allow the
modification of an existing solid waste management site without a Development
Permit issued by the Agency. 35 Ill. Adm. Code 807.201.
Section 807.202(a) provides:
New Solid Waste Management Sites. Subject to such exemption as expressly
provided in Section 21(e) of the Act . . . as to the requirement of obtaining a
permit, no person shall cause or allow the use or operation of any solid waste
management site for which a Development Permit is required under Section
807.201 without an Operating Permit issued by the Agency, except for such
testing operations as may be authorized by the Development Permit. 35 Ill. Adm.
Code 807.202(a).
The following definitions are also helpful in considering the alleged violations:
“OPEN DUMPING” means the consolidation of refuse from one or more sources
at a disposal site that does not fulfill the requirements of a sanitary landfill. 415
ILCS 5/3.24 (2000).
“SANITARY LANDFILL” means a facility permitted by the Agency for the
disposal of waste on land meeting the requirements of the Resource Conservation
5
and Recovery Act, P.L. 94-580, and regulations thereunder, and without creating
nuisances or hazards to public health or safety, by confining the refuse to the
smallest practical volume and covering it with a layer of earth at the conclusion of
each day’s operation, or by such other methods and intervals as the Board may
provide by regulation. 415 ILCS 5/3.41 (2000).
“REFUSE” means waste. 415 ILCS 5/3.31 (2000).
“WASTE” means any garbage, . . . or other discarded material, including solid,
liquid, semi-solid, or contained gaseous material resulting from industrial,
commercial, mining and agricultural operations, and from community activities . .
. . 415 ILCS 5/3.53 (2000).
“SITE” means any location, place or tract of land used for waste management. A
site may include one or more units. 35 Ill. Adm. Code 807.104.
“SOLID WASTE MANAGEMENT” means “waste management.” 35 Ill. Adm.
Code 807.104
“WASTE MANAGEMENT” means the process of storage, treatment, or disposal
of waste, not including hauling or transport. 35 Ill. Adm. Code 807.104.
VIOLATIONS
The complainant alleges violations in its complaint pertaining to waste disposal operations
at the unpermitted site. The complainant maintains that the “liability of Poland and Yoho as both
owners and operators of the unpermitted site is clear and convincing.” Comp. Br. at 3. The
complainant also maintains that Briggs should be held liable in light of a recent appellate court
decision in which a person was found to be an operator of a landfill, “due to his substantial
involvement in the operations” of the site. Comp. Br. at 4, citing
People v. Bishop
, 35 Ill. App.
3d 976, 735 N.E.2d 754 (5th Dist. 2000).
As a preliminary matter, the Board finds that a majority of the facts pertaining to the
alleged violations are not in dispute. For example, there is no dispute as to the fact that waste
from Briggs’ plumbing fixtures plant was deposited over the course of four years at a site which
was not properly permitted and which does not satisfy the terms of the Act or Board regulations.
Furthermore, it is also undisputed that the waste currently remains in place and uncovered.
Count I: Open Dumping
In count I of the complaint, the complainant alleges that Poland, Yoho, and Briggs have
violated Sections 21(a), (d), (e), and (p)(1) of the Act (415 ILCS 5/21(a), (d), (e), (p)(1) (2000)),
by causing or allowing the open dumping of waste on a site (the unpermitted site) that does not
meet the requirements of the Act or Board regulations and for which a permit is lacking.
Complainant further alleges that Poland, Yoho, and Briggs have failed to remove any of the waste
from the unpermitted site.
6
The old permitted landfill completed closure activities in 1993. At that time, Poland and
Yoho ceased accepting waste for disposal at the old landfill. During an Agency inspection by
James Jones (Jones) in November 1993, waste was discovered in the unpermitted site. Tr. at 23.
Jones testified that the area of open dumping was less than one acre in size. Tr. at 24. As
evidenced by witness Jones during subsequent inspections, waste continued to be deposited in the
unpermitted site after 1993, and is still present today. Tr. at 25. The majority of waste deposited
in the unpermitted site was the ceramic-type waste from Briggs’ facility. Tr. at 28-29.
Poland and Yoho
The evidence presented by the complainant is clear that open dumping did occur on a site
that is not permitted to receive waste. Neither Poland nor Yoho dispute the fact that dumping
took place in the unpermitted site. As owners of the site, Poland and Yoho are clearly liable for
the violations alleged in count I of the complaint.
Poland and Yoho both maintain that they repeatedly made efforts to obtain a permit for the
unpermitted site, but were never successful.
See generally
Poland Br. and Yoho Br.
Furthermore, Poland stated that during a meeting with Agency officials, he was told that he could
continue to dump on the site so long as they were attempting to obtain a permit. Poland Br. at 1.
Each of the Agency witnesses deny making this statement to Poland (Tr. at 155, 163, 172, 265)
and, in fact, testified that they did not have the authority to allow open dumping to continue
without a permit (Tr. at 162, 170, 176).
On this count, the record is clear. As owners of the unpermitted site, Poland and Yoho
caused or allowed the open dumping of refuse on a site that was not permitted to receive waste.
The Board finds that Poland and Yoho violated Sections 21(a), (d), (e), and (p)(1) of the Act (415
ILCS 5/21(a), (d), (e), (p)(1) (2000)).
Briggs
Complainant alleges that Briggs is also liable for the violations alleged in count I.
Complainant maintains that from 1993 until 1997, Briggs continued to send its waste for disposal
at the unpermitted site. During this time, Briggs contributed financially to the daily operations
of the site and to the permitting efforts undertaken by Poland and Yoho. Tr. at 374; Comp. Br. at
6. Robert Orton, Briggs’ plant manager, testified that Briggs, “paid [Abingdon Salvage] a flat
daily fee, and then we agreed to pay half of the cost of bulldozing the landfill and half the cost of
the consulting services necessary to permit the landfill.” Tr. at 374.
Complainant also alleges that Briggs’ involvement with the permitting efforts is further
documented by the fact that the consultant continually copied Briggs on correspondence between
it and the Agency. Comp. Br. at 8. Additionally, complainant argues that Briggs recently
retained another consultant, Andrews Engineering, to take samples from the unpermitted site in
furtherance of continuing attempts to obtain a permit.
Id
. Although Briggs maintains that this
was done in an attempt to assist Poland and Yoho (Tr. at 380-81), complainant argues that this is
further evidence of Briggs “exercising control over the premises and, in doing so, conducting
landfill operations.” Comp. Br. at 8.
7
Complainant relies on People v. Bishop, 315 Ill. App. 3d 976, 735 N.E.2d 754 (5th Dist.
2000), in support of its argument that in deciding whether a person is an operator, “depends on the
specific facts of the case as a whole.” Comp. Br. at 8, citing
Bishop
, 315 Ill. App. 3d at 979, 735
N.E.2d at 757. According to complainant, the
Bishop court relied on Board cases and concluded
that, “whether a party’s name is listed as an operator in the permit is not the determining factor of
whether one is an operator.”
Id
., citing
Bishop
, 315 Ill. App. 3d at 979, 735 N.E.2d at 758.
Complainant also relies upon People v. McFalls
, 313 Ill. App. 3d 223, 728 N.E.2d 1152
(3rd Dist. 2000), in support of its argument that Briggs should be held liable for the open dumping
of waste at the unpermitted site. Comp. Br. at 9. Specifically, complainant states that the court in
McFalls
ruled that, “neither ownership, nor control, of an allegedly illegal disposal site is
necessary to effect the consolidation of refuse there.” Comp. Br. at 9-10, citing
McFalls
, 313 Ill.
App. 3d at 227, 728 N.E.2d at 1155. Complainant argues:
Briggs may be considered liable as an off-site generator in the context of People
v. McFalls because its actions effectuated open dumping at the unpermitted site.
Additionally, Briggs may be also considered liable as an operator in the context of
People v. Bishop
because of its active and direct involvement in the operations of
the permitted and unpermitted landfills, to wit: Briggs applied for and obtained
the original development and operating permits, Briggs posted financial
assurance, and Briggs made expenditures for landfill activities and engineering.
Comp. Br. at 10.
Briggs argues that, for a number of reasons, it should not be held liable for the violations
alleged in the complaint. First, Briggs maintains that it was solely because of its status as
“generator” of the waste, that the Agency referred it to the People for prosecution. Briggs Br. at
24;
See
Tr. at 270. Briggs argues that pursuant to the Board’s order in
People v. Waste Hauling
,
PCB 95-91 (May 21, 1998), its status as generator of the waste is irrelevant for purposes of
culpability.
Second, Briggs argues that because the alleged violations involve only the unpermitted
site, its involvement with the old landfill is not relevant. Briggs Br. at 25. Moreover, Briggs
argues generally that the complainant has failed to provide sufficient evidence in support of its
claim that Briggs is an operator of the unpermitted site. Briggs argues that for it to be considered
an operator of the unpermitted site, there must be some evidence of a “joint venture.” Briggs Br.
at 37.
Briggs claims that a “joint venture must include a community of interest between the
parties; a proprietary interest in a subject matter; the right of joint control over the venture; and
sharing of both profits and losses.” Briggs Br. at 37, citing
Pros v. Mid-America Computer Corp.
,
142 Ill. App. 3d 458, 469, 491 N.E.2d 851, 862 (2nd Dist. 1986). Briggs claims that since it did
not share in the profits and losses of the landfilling activities, it cannot be considered a joint
venturer, and therefore, cannot be considered an operator of the unpermitted site. Briggs Br. at
37.
8
Briggs specifically disputes the alleged violation of Section 21(p)(1) of the Act (415 ILCS
5/21(p)(1) (2000)), arguing that complainant has failed to prove the presence of litter at the
unpermitted site. Briggs Br. at 32.
Analysis
But for the alleged violation of Section 21(p)(1) of the Act, there is no dispute that the
violations alleged in count I occurred. The issue, however, is whether Briggs is responsible for
the alleged violations.
Section 21(a)
.
Section 21(a) of the Act provides that “[n]o person shall cause or allow the
open dumping of any waste.” 415 ILCS 5/21(a) (2000). Complainant’s evidence, coupled with
admissions by Poland and Yoho, prove that Poland and Yoho “caused or allowed” the open
dumping of waste at the unpermitted site. Equally convincing is the evidence that Briggs “caused
or allowed” the open dumping of waste at the unpermitted site.
While not an owner of the unpermitted site, Briggs is nevertheless responsible for the open
dumping. Briggs knew that its waste was being disposed at a site for which permits had not been
obtained. Despite this knowledge, Briggs continued to send its waste to the site and continued to
pay half of the bulldozing and engineering expenses for the unpermitted site. Briggs’ own
manager, Orton, testified that this was a “good deal” for Briggs. Tr. at 375. The evidence is clear
that Briggs had a long-standing arrangement with Poland and Yoho whereby Poland and Yoho
would provide the land on which Briggs’ waste would be deposited and Briggs would provide
financial and engineering assistance. This arrangement began with a permitted landfill and
continued, to Briggs’ benefit, after the old landfill had closed. Only when this arrangement
ceased to be financially attractive to Briggs, did Briggs cease sending waste to the unpermitted
site. Tr. at 376.
The Board finds that Poland, Yoho, and Briggs are each liable for violation of Section
21(a) of the Act (415 ILCS 5/21(a) (2000)).
Section 21(d) and (e).
Again, the evidence is clear that Poland and Yoho conducted
waste disposal operations without a permit and at a site not meeting the requirements of the Act or
Board regulations.
With regard to Briggs, the Board finds that it also is responsible for the alleged violations.
Section 807.104 of the Board’s waste disposal regulations defines “operator” as, “[a] person who
conducts a . . . waste disposal operation.” 35 Ill. Adm. Code 807.104. There was no permit for
the unpermitted site. Therefore, there was no permitted operator. Accordingly, the Board must
examine and weigh the facts of this particular situation to determine what person (or persons) was
responsible for the operation and maintenance of this unpermitted site.
Briggs urges the Board to take a very narrow view of what types of activities might
constitute “operating” a waste disposal site. Complainant, on the other hand, urges the Board to
follow the guidance established in
Bishop
. The Board is persuaded by this authority.
Specifically, in Bishop
, the court looked beyond the permit and found that a person could
be liable as an operator of a landfill based on actual involvement in the day-to-day operations and
9
maintenance of the site. Bishop, 315 Ill. App. 3d at 979-80, 735 N.E.2d at 757-58. Briggs was
involved in the day-to-day operations of the unpermitted site. Briggs was responsible for half of
the bulldozing expenses and half of the engineering fees related to the site. While Briggs claims
that it did not profit from the disposal activities at the unpermitted site, Briggs’ manager testified
that, even considering the bulldozing and engineering fees paid, this arrangement was still a
“good deal” for Briggs. Tr. at 275. Evidence was also presented to the effect that Briggs installed
a gate at the unpermitted site and that it, in late 2000, hired its own engineers to make further
attempts to secure a permit.
The Board concludes that Briggs’ involvement in the unpermitted site is more than merely
a generator of the waste, and that the weight of its involvement constituted “operation.” Briggs is
liable for the violations of Section 21(d) and (e) of the Act, as an operator of the unpermitted site.
Section 21(p)(1).
Section 21(p)(1) of the Act (415 ILCS 5/21(p)(1) (2000)) prohibits
open dumping that results in litter. The Act does not define “litter,” but in similar cases, the
Board has looked to the definition of “litter” in the Litter Control Act (415 ILCS 105/1
et seq
.
(2000)).
See generally
IEPA v. White
, AC 98-41 (February 18, 1999). Section 3(a) of the Litter
Control Act defines “litter” as follows:
“Litter” means any discarded, used or unconsumed substance or waste. “Litter”
may include, but is not limited to, any garbage, trash, refuse, debris, rubbish . . .
or anything else of an unsightly or unsanitary nature, which has been discarded,
abandoned or otherwise disposed of improperly. 415 ILCS 105/3(a) (2000).
According to this definition, the Board finds that the accumulation of discarded ceramic
waste on the unpermitted site constitutes litter under Section 21(p)(1) of the Act. The Board
further finds that Poland, Yoho, and Briggs are responsible for the open dumping that resulted in
this litter, and that they are therefore, in violation of Section 21(p)(1) of the Act.
Count II: Development and Operation of Landfill Without Permits
In count II, complainant alleges that Poland, Yoho, and Briggs violated the Act and Board
regulations by causing or allowing the development and operation of a new solid waste
management site without first obtaining from the required development and operating permits.
Again, it is undisputed that a new solid waste management site (unpermitted site) was developed
and operated on property owned by Poland and Yoho without the requisite permits.
Poland and Yoho
As owners of the property on which the unpermitted site was first developed and operated,
the liability of Poland and Yoho is clear. Neither Poland nor Yoho dispute the lack of permits for
the unpermitted site. Neither Poland nor Yoho dispute the fact that waste was deposited at an
unpermitted site.
The Board concludes that Poland and Yoho violated Sections 807.201 and 807.202 of the
Board’s waste disposal regulations (35 Ill. Adm. Code 807.201, 807.202) and Section 21(p)(2) of
the Act (415 ILCS 5/21(p)(2) (2000)).
10
Briggs
As in count I, complainant alleges that Briggs is also responsible for causing or allowing
the development and operation of a new solid waste management site without required permits.
Briggs argues that since it was neither the owner nor operator of the unpermitted site, it could not
be liable under count II for failing to obtain development and operating permits. Briggs Br. at 40.
Briggs incorporates the arguments it made in response to count I in response to these allegations
as well. Briggs Br. at 39-40.
The evidence presented by the complainant demonstrates that the continuation of dumping
activities after closure of the old landfill occurred with the knowledge and agreement of the three
respondents. Between them, Briggs, Poland, and Yoho, owned and operated the old landfill. The
evidence is clear that this relationship continued, albeit without a permit, even after closure of the
old landfill.
Briggs argues that its involvement in the old landfill is not relevant to the Board’s
consideration of the alleged violations at the unpermitted site. The Board disagrees. The
evidence regarding Briggs’ involvement with the old landfill (providing financing for
maintenance, engineering, and financial assurance), provides the Board with information
regarding the relationship between the three respondents at the time when the old landfill was
closing and the unpermitted site was beginning to accept waste. The only difference between
Briggs’ involvement in the old landfill and the unpermitted site is the lack of a permit specifically
naming Briggs as an operator of the site.
Having previously found that the extent of Briggs’ involvement with the unpermitted site
qualifies as “operation” for purposes of the applicable regulations, the Board finds that Briggs is
liable for the violations of 35 Ill. Adm. Code 807.201 and 807.202 and Section 21(d)(2) of the Act
(415 ILCS 5/21(d)(2) (2000)) as alleged in the complaint.
Count III: Violations of Standards for New Solid Waste Landfills
Complainant alleges that Poland and Briggs violated various provisions under the Board’s
solid waste regulations. Specifically, complainant alleges that Poland and Briggs:
(1) failed to
comply with landfill location requirements (35 Ill. Adm. Code 811.102, 811.302); (2) failed to
comply with surface water drainage requirements (35 Ill. Adm. Code 811.103); (3) failed to
comply with the survey control requirements (35 Ill. Adm. Code 811.104);
(4) failed to
comply with the design period assessment requirements (35 Ill. Adm. Code 811.303); (5) failed to
comply with the foundation and mass stability analysis requirements (35 Ill. Adm. Code
811.304); (6) failed to comply with liner requirements (35 Ill. Adm. Code 811.306); (7) failed to
comply with leachate drainage, collection, and management system requirements (35 Ill. Adm.
Code 811.307, 811.308, 811.309); (8) failed to comply with groundwater impact assessment and
groundwater monitoring requirements (35 Ill. Adm. Code 811.317, 811.318); (9) failed to comply
with detection monitoring program requirements
(35 Ill. Adm. Code 811.319(a)); (10) failed to
comply with construction quality assurance program requirements (35 Ill. Adm. Code 811.501);
(11) failed to comply with financial assurance requirements (35 Ill. Adm. Code 811.700); and
(12) failed to comply with permit application requirements (35 Ill. Adm. Code 812.101, 813.102).
11
Complainant alleged that Briggs also failed to comply with the permit application requirements of
35 Ill. Adm. Code 812.101 and 813.102.
In addition to the above-referenced violations, complainant also alleged that Poland,
alone, violated Sections 811.315 and 811.323 of the Board’s waste disposal regulations (35 Ill.
Adm. Code 811.315, 811.323), by failing to conduct a hydrogeological site investigation and
failing to establish a load checking program to detect and discourage attempts to dispose of
regulated hazardous wastes.
In its brief, complainant states that, “[t]here is no genuine issue of material fact regarding
the violations by . . . Poland and . . . Yoho as to . . . the total lack of compliance with the
numerous Part 811 standards and requirements.” Comp. Br. at 5. Neither Poland nor Yoho deny
any of the alleged violations.
The Part 811 landfill requirements (35 Ill. Adm. Code 811) apply to landfills as defined in
35 Ill. Adm. Code 810.103. The Board finds that pursuant to the definitions of Section 810.103,
an open dump may be considered a landfill for purposes of the Part 811 standards. Specifically,
the definitions of “landfill” and “waste pile” provide:
“Landfill” means a unit or part of a facility in or on which waste is placed and
accumulated over time for disposal, and which is not a land application unit, a
surface impoundment or an underground injection well. For the purposes of this
Part and 35 Ill. Adm. Code 811 through 815, landfills include waste piles, as
defined in this Section.
“Waste pile” means an area on which non-containerized masses of solid, non
flowing wastes are placed for disposal. For purposes of this Part and
35 Ill. Adm.
Code 811 through 815, a waste pile is a landfill, unless the operator can
demonstrate that the wastes are not accumulated over time for disposal. . . . 35 Ill.
Adm. Code 810.103.
Accordingly, the Board finds that the waste deposited at the unpermitted site constitutes a waste
pile under the definitions of 35 Ill. Adm. Code 810.103, and is thus also considered a landfill for
purposes of the Part 811 requirements.
While the Board finds that the Part 811 requirements do apply to the unpermitted site, the
Board finds that the complainant has failed to prove respondents’ liability for a majority of the
alleged violations. Specifically, the Board finds that the complainant failed to prove violations
of the following regulations: 35 Ill. Adm. Code 811.302, 303, 304, 306, 307, 308, 309, 315, 317,
318, 319(a), and 323. These regulations specifically apply to landfills accepting chemical and
putrescible wastes, which are defined as:
“Chemical waste” means a non-putrescible solid whose characteristics are such
that any contaminated leachate is expected to be formed through chemical or
physical processes, rather than biological processes, and no gas is expected to be
formed as a result.
12
“Putrescible waste” means a solid waste that contains organic matter capable of
being decomposed by microorganisms so as to cause a malodor, gases, or other
offensive conditions, or which is capable of providing food for birds and vectors.
Putrescible wastes may form a contaminated leachate from microbiological
degradation, chemical processes, and physical processes. Putrescible waste
includes, but is not limited to, garbage, offal, dead animals, general household
waste, and commercial waste. All solid wastes which do not meet the definitions
of inert or chemical wastes shall be considered putrescible wastes. 35 Ill. Adm.
Code 810.103.
The evidence presented during hearing suggests that the material disposed of in the
unpermitted site is inert waste, which is defined as:
“Inert waste” means any solid waste that will not decompose biologically, burn,
serve as food for vectors, form a gas, cause an odor, or form a contaminated
leachate, as determined in accordance with 35 Ill. Adm. Code 811.202(b). Such
inert wastes shall include only non-biodegradable and non-putrescible solid
wastes. Inert wastes may include, but are not limited
to bricks, masonry, and
concrete (cured for 60 days or more). 35 Ill. Adm. Code 810.103.
The Board finds that the complainant has failed to prove that the wastes deposited in the
unpermitted site are chemical or putrescible wastes. The Board notes that respondents have
attempted and failed to obtain a permit for the unpermitted site which would classify the site as
an inert waste landfill. The Board, however, does not interpret the lack of a permit as evidence
suggesting that the wastes in the unpermitted site are not inert. The Board finds that there is
insufficient evidence in the record at the present time to definitively classify the wastes as either
inert or chemical/putrescible. Accordingly, the Board finds that there have been no proven
violations of 35 Ill. Adm. Code 811.302, 303, 304, 306, 307, 308, 309, 315, 317, 318, 319(a), or
323.
The Board also finds that there is no violation of Part 700, which requires owners or
operators, “of a permitted waste disposal facility” to provide financial assurance. 35 Ill. Adm.
Code 700. There is no dispute that this is an unpermitted site, and accordingly, there can be no
violation of the financial assurance requirements, which, by their own terms, apply specifically
to permitted waste disposal facilities.
The Board is left then, with alleged violations by Poland and Yoho of 35 Ill. Adm. Code
811.102, 103, 104, and 501. Also remaining are alleged violations of 35 Ill. Adm.
Code 812.101
and 813.102 by Poland, Yoho, and Briggs. These regulations involve facility location, surface
water drainage, land surveys, construction quality assurance program requirements, and
permitting applications.
Regarding the alleged violations of the Part 811 standards, complainant offered no
specific proof during the hearing. In its brief, complainant merely stated, “[t]here is no genuine
issue of material fact regarding the violations by Doren Poland and Lloyd Yoho as to the
operation of the unpermitted landfill and as to the total lack of compliance with the numerous
Part 811 standards and requirements.” Comp. Br. at 5.
13
These allegations are not specifically addressed by Poland or Yoho either. In response to
its alleged violation of 35 Ill. Adm. Code 812.101 and 813.102, Briggs states as follows:
[t]he Board has never held anyone liable for violating these provisions, nor do
reported Board opinions indicate that anyone has ever previously been charged
with violating these provisions. The People’s Brief does not discuss these
charges. . . . [a]s Briggs was neither [owner nor operator], Briggs never applied
for a permit application, complete, on the proper forms, or otherwise. Briggs Br.
at 40-41.
The burden of proof in an enforcement action is on the complainant. In this case,
complainant has put forward no proof in support of the alleged violations of 35 Ill. Adm. Code
811.102, 103, 104, 501, and 813.102. As for the alleged violation of 35 Ill. Adm. Code 812.101,
the Board finds that insofar as this Section requires owners or operators of a landfill to apply for
and obtain development and operating permits, this violation has been proved as to each of the
three respondents.
In conclusion, therefore, the Board finds that Poland, Yoho, and Briggs have violated
Section 812.101 of the Board’s waste disposal regulations (35 Ill. Adm. Code 812.101). As for
the other alleged violations in count III, the Board finds that the complainant has failed to satisfy
its burden of proof or that the section for which a violation is alleged is inapplicable to this
situation (35 Ill. Adm. Code 811.700).
REMEDY
Compliance/Penalty/Attorney Fees
The complainant seeks both a technical remedy and a monetary remedy. Complainant
seeks a Board order directing the removal and proper disposal of the waste from the unpermitted
site. Complainant maintains that this is “critical to the efficacy of a cease and desist order [and]
it is not enough that the Respondents be directed not to dispose of any additional wastes at the
dump site.” Comp. Br. at 12. Complainant concedes that the removal and proper disposal of the
waste will be costly, but that it is necessary, along with a monetary penalty, to deter others from
similar violations. Comp. Br. at 13.
Furthermore, in its reply brief, complainant was able to argue that the documents
produced by Briggs after a post-hearing motion to compel (Andrews documents
2
) reveal the
existence of a potential threat to the environment from both the old landfill and unpermitted site.
Comp. Reply Br. at 16. Complainant argues that the sampling results contained in the Andrews
documents indicate that “‘there is a point of discharge that appears to seep directly from the fill .
. . [there] may be further complications at the facility’ [and] that ‘[a]ny exceedance in any round
of sampling for the entire post-closure care period of the facility will result in reclassification of
the site as a Putrescible and Chemical Waste Facility.’” Comp. Reply Br. at 17, citing Exh. 73.
2
Over the objection of Briggs, the Andrews documents were allowed into the record and are
known as Exhibits 73 and 74.
14
Complainant argues that the Andrews documents contain information that suggests that the
wastes are not as benign as Poland, Yoho, and Briggs maintain.
In addition to the technical remedy, complainant also seeks an award of a monetary
penalty, apportioned among the respondents as follows: (a) Poland - $5,000; (b) Yoho - $5,000;
and (c) Briggs - $25,000. Finally, complainant seeks an award of attorney fees totaling $10,104,
to be assessed against Briggs, alone.
Poland, Yoho, and Briggs disagree with complainant’s assertion that removal of the
waste is necessary. Poland states that the costs of removing and properly disposing of the waste,
“could cost as much as a million dollars.” Poland Br. at 2. Poland and Yoho both emphasize
that the same “inert” materials found in the unpermitted site are buried at numerous other
locations in Knox County and that they pose no threat to human health or the environment.
Poland Br. at 2; Yoho Br. at 2. Yoho requests that they be allowed to cover the waste in place.
Yoho Br. at 2.
Briggs also disputes the need to move the waste. Briggs notes that, “[t]he People do not
explain why they are seeking the removal of the waste or how such removal will benefit the
environment.” Briggs Br. at 47. Briggs maintains that the wastes do not threaten the
environment and that the hearing record demonstrates that the “material is benign.”
Id
. Briggs
argues that, “[t]he Board, with its expertise, can evaluate and consider the harm posed by this
material, especially in light of the fact that the 2.3 acre [unpermitted site] is adjacent to the 4.6
acre [old landfill] containing exactly the same type of material.” Briggs Br. at 47, citing
IEPA v.
Welin, PCB 80-125 (May 13, 1982). Briggs suggests that an appropriate technical remedy
would be to cover the material in place. Briggs Br. at 48.
Briggs relies on three prior Board cases in support of its argument that the waste should
be allowed to remain in place. According to Briggs, IEPA v. Fischbach
, PCB 76-59 (Sept. 15,
1976),
Welin
, PCB 80-125 (May 13, 1982), and IEPA v. Ficklin, PCB 79-271 (Nov. 20, 1980),
all support the conclusion that,
where the material deposited at an unpermitted site has not been shown to pose a
threat to the environment, the appropriate remedy is a cease and desist order, an
order requiring that the material be covered with soil and vegetated, and a penalty
which is mitigated by the cost of applying cover. Briggs Br. at 49.
Compliance
The Board concludes that there is currently insufficient information in the record before it
to determine whether the wastes disposed of at the unpermitted site pose such a risk to the
environment to require removal. Although the wastes appear, from the testimony presented, to
be inert, there is also insufficient evidence for the Board to conclude definitively that they are, in
fact, inert, and as such, could be safely covered and monitored in place. Accordingly, the Board
directs the parties back to hearing on the issue of technical relief. The hearing officer is directed
to contact the parties to determine how they wish to proceed with this aspect of the case.
Penalty/Attorney Fees
15
Because the Board cannot fully consider the issue of penalty without also making a
determination as to the appropriate technical relief, the Board will refrain from making a final
determination on penalty until after further hearings are completed. The Board will also address
the issue of attorney fees in its final opinion and order in this case.
BRIGGS’ COUNTERCLAIM
Briggs filed a counterclaim seeking contribution from Poland and Yoho on September
25, 2000, and amended it on December 6, 2000. Briggs seeks contribution from Poland and
Yoho on the basis that Poland and Yoho “directly and proximately caused” the violations alleged
in the complaint. Amended Counterclaim at 2.
Having previously found that Briggs is also liable as an operator of the unpermitted site,
the Board concludes that Briggs’ counterclaim must fail. Briggs has failed to demonstrate that it
is entitled to the relief requested therein, and accordingly, the counterclaim and the relief
requested therein is denied.
CONCLUSION
For the reasons set forth herein, the Board finds that Poland, Yoho, and Briggs have
violated various provisions of the Act and Board regulations as alleged in the complaint.
Specifically, the Board finds that Poland, Yoho, and Briggs have each violated Sections 21(a),
(d), (e), and (p)(1) of the Act (415 ILCS 5/21(a), (d), (e), (p)(1) (2000)) and Sections 807.201,
807.202(a), and 812.101 of the Board’s waste disposal regulations (35 Ill. Adm. Code 807.201,
807.202(a), 812.101), by causing or allowing open dumping of waste, by allowing the
development and operation of a waste-storage or waste-disposal operation without a permit, by
disposing or storing waste at a site that does not meet the requirements of the Act and Board
regulations, and by causing or allowing open dumping resulting in litter.
The Board has also concluded that complainant failed to satisfy its burden of proof with
regard to the alleged violations of Sections 811.102, 811.103, 811.104, 811.302, 811.303,
811.304, 811.306, 811.307, 811.308, 811.309, 811.315, 811.317, 811.318, 811.319(a), 811.323,
811.501, 811.700, and 813.102 of the Board’s waste disposal regulations (35 Ill. Adm. Code
811.102, 811.103, 811.104, 811.302, 811.303, 811.304, 811.306, 811.307, 811.308, 811.309,
811.315, 811.317, 811.318, 811.319(a), 811.323, 811.501, 811.700, 813.102).
Finally, the Board denies Briggs counterclaim and the relief requested therein.
Having found the above-referenced violations, the Board remands this matter to the
hearing officer for further hearings on the appropriate technical relief,
e.g.
, removal of waste or
cover and monitor in place.
ORDER
1.
The Board finds that Doren Poland, Lloyd Yoho, and Briggs Industries,
Inc., a/k/a Briggs Plumbing Products, Inc. (Briggs), have violated the
following provisions of the Act and Board regulations: Sections 21(a),
(d), (e), and (p)(1) of the Act (415 ILCS 5/21(a), (d), (e), (p)(1) (2000))
16
and Sections 807.201, 807.202(a), and 812.101 of the Board’s waste
disposal regulations (35 Ill. Adm. Code 807.201, 807.202(a), 812.101).
2.
The Board finds that Briggs has failed to demonstrate its entitlement to the
relief requested in its counterclaim and accordingly denies the
counterclaim and the relief requested therein.
3.
The Board orders further hearings be held to determine the appropriate
relief,
e.g.
, removal of waste or cover and monitor in place.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above interim opinion and order on September 6, 2001, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
