ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v.

)

PCB 78—33

FRED LEHMKUHL, CHARLES BRATVOGEL,

RICHARD JACKSON, CITY OF EAST ST.

LOUIS, a Municipal Corporation,

)

CHARLES GREEN, and ARNOLD SPIRTAS,

)

Respondents.

MR. PATRICK J. CHESLEY, ASSISTANT ATTORNEY GENERAL, APPEARED ON

BEHALF OF THE COMPLAINANT,

RICE, DURSO

& RICE, ATTORNEYS AT LAW

(MR. CARMEN S. DURSO, OF

COUNSEL), APPEARED ON BEHALF OF RESPONDENTS FRED LEHMKUHL,

CHARLES GREEN, AND ARNOLD SPIRTAS,

McROBERTS, SHEPPARD, McROBERTS

& WIMMER, ATTORNEYS

AT LAW

(MR. WILLIAM L. WIMMER, OF COUNSEL) APPEARED ON BEHALF OF

RESPONDENT CHARLES BRATVOGEL.

RIPPLINGER & RANSOM, ATTORNEYS AT LAW

(MR. SCOTT DIXON, OF COUNSEL)

APPEARED ON BEHALF OF RESPONDENT CITY OF EAST ST.

LOUIS.

OPINION AND ORDER OF THE BOARD

(by

D.

Satchell):

This matter comes

before the

Board on the February

6,

1978

Complaint brought by the Illinois Environmental Protection Agency

(“Agency”).

On

August

18,

1978,

the Agency filed a Motion to Amend

the Complaint and Add Parties,

On August

24,

1978,

the Board

entered an Order which granted the Agency’s motion,

The Amended Complaint added Charles Green

(“Green”) and Arnold

Spirtas

(“Spirtas”)

as parties to this

case,

Count

I of the Amended

Complaint alleged

that,

from December

1, 1975 until April

1,

1976,

Respondents Fred Lehmkuhl

(“Lehmkuhl”), Charles Bratvogel

(“Bratvogel”),

Richard Jackson

(“Jackson”), City of East St. Louis

(the “City”),

Green, and Spirtas operated a solid waste disposal

site

(“site”)

located to the rear of the Bi—State Warehouse at 650 North Front

Street in the City of East St. Louis,

St. Clair County,

Illinois

without an Operating Permit from the Agency in violation

of

Rule 202(a) of Chapter

7:

Solid

Waste Regulations

(“Chapter

7”)

---

Count

II of the Amended Complaint

alleged

that, after refuse

disposal operations

ceased on April

1,

1976,

the Respondents faile~

to place

the requisite final cover on the site

in

violation of

Rules 301

and 305(c)

of

Chapter

7 and Section 21(b)

~of the

Act.

The first

hearing in this case was held on August

9, 1978.

After numerous

discovery motions were filed, the

Board entered an

Order on January

10,

1980 which attempted

to

expedite the proceedings

(i.e., a hearing

was ordered to be held within 60

days).

Further

hearings

were

subsequently

held on February

21,

1980 and March

5,

1980,

during

which settlements were presented,

On March

3,

1980,

a

Statement

of

Stipulated

Settlement between

the Agency

and Respondents Lehmkuhl,

Green,

Spirtas and the City

of East St.

Louis was filed,

At the March

5,

1980

hearing,

a

proposed, but

unsigned, settlement between the

Agency and Respondent

Bratvogel

was presented, because the Respondent

lived

and worked

in

another state.

On November 10,

1980,

the Statement of

Stipulated

Settlement

between the Agency and Respondent

Bratvogel

was filed.

*

Although

the remaining

Respondent,

Mr, Richard Jackson,

received

a copy of the

Amended Complaint and was personally

served

on April

19,

1978 with a

Request to Admit Facts, he did not

reply to the Agency’s

Request to

Admit Facts and apparently

did

not

choose to participate

in these proceedings.

(See:

Comp.

Exh, 1~2),

At the hearing

on March

5,

1980,

the Assistant Attorney

General

asked that

the Board:

(1)

deem that the facts delineated in the

Agency’s

Request to Admit Facts be considered

as

admitted

proof of

all the

material

allegations against Respondent Jackson;

(2)

impose

a $1,000.00

fine against Jackson;

(3) order

Jackson “to place

final cover

on the site so that he, in addition to

the

other parties,

will be

liable

for the placement of the final cover on the site”;

and

(4) state

that Jackson~s “liability be joint and severable from

the other

Respondents”.

(R.

31—32),

Accordingly,

under

the Board’s Procedural Rule 314(c),

each

of the

matters of fact of which admission was

requested

is

hereby

deemed to be

admitted because

of Respondent Jackson’s failure to

reply to the

Agency’s Request

to Admit Facts,

Additionally, in

accordance with

the Board’s Procedural Rule 327

on default,

the

Board

believes it appropriate to find that Respondent

Richard

Jackson has

violated Rules 202(a),

301,

and 305(c)

of Chapter

7:

Solid Waste

Regulations

and Sections 21(b) and

21(e)

of the Illinois

*Although

the settlement was not signed at the time of

the hearing,

the substance

of the Stipulation filed on November

10, 1980 was

presented.

The Board

finds that Procedural Rule

331 has

been

substantially

complied with.

---

Environmental

Protection Act,

Respondent Jackson is hereby

ordered

to cease and desist

from further violations and pay a

penalty of

$1,500

00

The Statement

of Stipulated Settlement between

the

Agency and

Respondent Bratvogel

indicates that

Mr. Charles

Bratvogel subleased

the property in question

to the other Respondents for the purpose

of operating

a

solid

waste disposal site,

Mr.

Bratvogel

had an

agreement with Respondents

Lehmkuhl,

Spirtas,

Green,

and Jackson

“that he would

receive

one dollar for every truck

load of refuse

dumped at the

site,”

Refuse disposal operations were

conducted

from December

1,

1975 until April

1,

1976.

It is stipulated that

none of the Respondents

had obtained

an

Operating Permit from

the

Agency for the

site and that they failed to place the requisite

final cover on

the site,

Thus, the

proposed

settlement agreement

between the Agency

and Bratvogel provides that Bratvogel shall:

(1) cease and desist

from using

and/or operating a

landfill

on this

site until

a proper

permit

is obtained from the Agency;

(2) promptly

pay a one—fifth

share

of the cost

(but in no event more than

$1,000.00)

of placing

the necessary final cover on the site;

and

(3) pay a stipulated

penalty

of $250.00

The Statement

of Stipulated Settlement between the

Agency and

Respondents Lehmkuhl,

City

of East St. Louis, Green, and Spirtas

provides that the

Respondents agree to:

(1) cease and

desist from

using and/or

operating a landfill on the site until

a proper permit

is obtained from

the Agency;

(2) pay a penalty of $250.00

each;

and

(3) promptly

place

suitable final

cover over the entire surface

where refuse

was

deposited

at the landfill site (i.e.,

“suitable

cover material

consists of any naturally occurring soil or earthy

material which is

free from refuse

and

large rocks” and “does not

include cinders,

pot ash,

bricks,

concrete, demolition wastes,

and

gob or other mining

waste products”),

Additionally, the

Stipulation

provides that

“the method of application of the final cover and

the

source of

machinery

and labor

shall be

determined by the

Respondents,

Fred Lehmkuhl,

Charles Green,

and Arnold Spirtas” who “agree to

keeo

detailed records

concerning the cost associated with applying

such

final cover,”

Moreover, the City

of East St. Louis has agreed

“to

pay a one—fifth

share

of the cost for the placement of final cover

on the site.”

In evaluating

this enforcement action and the proposed

settle-

ment agreements,

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,

The Board finds these stipulated

agreements acceptable

under Procedural

Rule 331 and Section

33(c)

of the Act.

Respondents

Lehmkuhl, i3ratvogel, City of East St.

Louis,

Green,

and Spirtas are

hereby ordered to cease and desist from

further

violations, pay

stipulated penalties of $250.00

each,

and follow

the agreed—upon

measures for placing suitable final

cover on the

site in accord

with their respective proposed settlement agreements.

---

This Opinion

constitutes the Board’s findings of fact and

conclusions of

law in this matter.

ORDER

It is the Order of

the Illinois Pollution Control Board that:

1.

Respondent

Richard Jackson

has violated Rules 202(a),

301,

and 305(c) of Chapter

7:

Solid Waste Regulations and Sections 21(b)

and 21(e) of the

Illinois Environmental Protection Act,

2.

Respondent

Richard Jackson shall cease and desist

from

further violations,

3.

Within 60

days of the

date of this Order, Respondent

Richard Jackson

shall,

by certified check or money order payable

to the State of

Illinois,

pay a penalty of $1,500.00 which

is

to

be sent to:

Illinois

Environmental Protection Agency

Fiscal Services Division

2200 Churchill

Road

Springfield,

Illinois

62706

4,

Respondents Fred Lehmkuhl, Charles Green, Arnold Spirtas

and the City of East

St.

Louis shall

comply with all the terms and

conditions of the

Statement of Stipulated Settlement filed March

3,

1980,

which is

incorporated by

reference as

if fully

set forth

herein.

5.

Respondent

Charles Bratvogel

shall comply with all the

terms and conditions

of the Statement of Stipulated Settlement

Liled

November 10,

1980,

which is incorporated by reference as

if fully

set forth herein,

6.

Within

60

days

of the date of this Order, Respondents

Fred Lehmkuhl,

Charles Bratvogel,

City of East St.

Louis,

Charles

Green, and Arnold

Spirtas shall,

by certified check or money order

payable to the

State of Illinois, pay the stipulated penalties of

$250.00 each,

which are

to be sent to:

Illinois Environmental Protection Agency

Fiscal

Services Division

2200 Churchill Road

Springfield,

Illinois

62706

Mr. Werner

dissented,

Chairman Dumelle concurred,

I,

Christan L,

Moffett,

Clerk of the Illinois Pollution Control

Board, hereby certify

that the above Opinion and

Order were adopted

on the

~9-tk- day

of

~

1980 by

a vote of

_!:j~::_L

~stanL.Moffetlrk

Illinois Pollution Control Board