ILLINOIS POLLUTION CONTROL BOARD

August 21, 1980

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

Complainant,

v.

)

PCB 79—262

MIKE MANEY AND GENE HElL,

d/b/a

)

METROPOLITAN WASTE COMPANY, a

PARTNERSHIP;

and LUCILLE

E.

KRtJSE,

)

HAROLD

THOMAS

and

GENE

THOMAS,

Respondents.

MR.

REED

~J.

NEUMAN

AND

MS.

CHRISTINE

G.

ZEMAN,

ASSISTANT

ATTORNEYS

GENERAL, APPEARED ON BEHALF OF THE COMPLAINANT.

MR. CHARLES E. HAMILTON APPEARED

ON

BEHALF

OF THE RESPONDENT MIKE

MANEY; MR. DALE M. FUNK APPEARED ON BEHALF OF THE RESPONDENT GENE

HElL; AND MR. JIM D.

KEEHNER APPEARED ON BEHALF OF THE

RESPONDENTS LUCILLE KRUSE, HAROLD THOMAS, AND GENE THOMAS.

OPINION AND ORDER OF THE BOARD

(by J.D. Dumelle):

This matter comes before the Board upon an amended complaint

filed February 27,

1980,

by the Illinois Environmental Protection

Agency (Agency).

The amended complaint alleges that Respondents,

Mike Maney

(Maney) and Gene Heil

(Heil),

are general partners

doing business as Metropolitan Waste Company

~Metropolitan)

and

have operated a sanitary landfill and solid waste disposal site

(said site)

in Belleville,

St. Clair County,

Illinois.

At all

times relevant to this complaint Metropolitan leased the property

constituting said site from the owners,

Respondents Lucille

E.

Kruse, Harold Thomas,

and Gene Thomas

(Kruse,

H.

Thomas,

and G.

Thomas). Operational permits were issued on March 10,

1978,

to

all Respondents, Maney

and Heil

(as operators of Metropolitan)

and Kruse,

H. Thomas,

and G.

Thomas

(as landowners),

authorizing

them to handle general municipal solid waste on said site.

Supplemental permits were issued to Respondent Maney,

on April

25,

1978, permitting Metropolitan to accept heavy metal sludge at

said site until the expiration date of April

25,

1979.

Complainant alleges that on various dates between June

6,

1978,

and February

22,

1980, Respondents Maney and Heil violated

various rules of Part III of the Illinois Pollution Control

Board Rules and Regulations, Chapter

7:

Solid Waste

(Solid

---

—2—

Waste Rules)

namely:

Rules

301,302,304,305(a)

and

310,

and

Section 21(b) of the Illinois Environmental Protection Agency Act

(Act).

The violations are alleged to be a result of:

(1) a

failure to provide a 6—inch daily cover,

(2) accepting sludges

after the supplemental permits had expired,

(3) placing sludge

outside of prepared trenches, and

(4) failing to make available

sufficient equipment.

Complainant also alleges that Respondents

Kruse,

N.

Thomas

and

G. Thomas have violated Rule 301 of the Solid Waste Rules and

Section

21(b)

of

the

Act

by

allowing

the

above

conduct

of

Maney

and Neil.

The hearing was held on May 29, 1980.

All Respondents were

present either in person or through counsel

•

testified for the Agency,

Maney as an adverse witness.

witness.

Thomas, withdrew after participating in the examination of Mr.

Wietes

and

stipulating

to

exhibits,

and

did

not

participate

thereafter.

David Wietes testified to a lack of daily cover at said site

on

June

6,

1978,

(R.36).

This testimony is bolstered by

Complainant’s Exhibit *6.

Ne further testified to a lack of

daily cover on a second inspection July 21, 1978

(R.40) shown in

Complainant’s Exhibits *7,A&B.

Much of the remainder of the

evidence of violations comes from Complainant’s Group Exhibit *12

which was admitted into evidence in lieu of the more detailed

testimony of the inspectors.

This was stipulated to by the

attorneys for Maney and Neil

(R.74).

This group of exhibits

consists of a number of inspection reports of said site

and can

July 21, 1978 and

September 22, 1978

and Oct.

March 22,

April 26,

1979:

July

9,

1979:

Daily cãer not provided on previous operation

day.

Inspector questions operating procedure.

Daily cover not provided on previously deposited

refuse, nor on previous operating day.

Problem

of insufficient general refuse.

Same problems as 3 previous inspection

dates.

Also, sludge being dumped outside

of trenches

and

ACTD—25 dozer inoperable.

No general refuse being taken in.

Same

as March 22, 1979, except that a

track

type

backhoe

(rented

the

last

2

weeks) was operating, but that was indicated

as insufficient operable equipment.

Site condition the same as April 26,

1979.

Rick Mane!1r indicated that

2 loads

of Pfizer’s sludge

had

come in that day.

Another load arrived during inspection.

---

—3—

August

8,

1979:

September 13,

1979:

November

27,

1979:

March

21,

1980:

Site deteriorating.

Still accepting

Pfizer sludge without permit and without

manifests.

Sludge being dumped outside

of trenches.

No general refuse being

taken in.

Large Bantam shovel is the

only operable equipment.

No cover provided.

3

Pfizer

loads

arriving

daily.

Observed

refuse

in

standing water.

Daily

cover

not

provided.

Inadequate

spreading

and compacting

of commercial refuse.

Insufficient operable equipment on site.

Observed oil-tar liquids which were not

permitted.

Large

backhoe

stuck

for

1½

weeks.

Tim Maney said they had received

no wastes for several weeks.

One dozer runs, but it wouldn’t start

that

day.

No

longer

have

track—mounted

backhoe; must use small dragline, but

need dozer to move it into place.

One

load of construction debris since

last

inspection, but not compacted or covered.

Observed refuse

in standing water.

Daily

cover not provided on previously deposited

refuse in trench #3.

Inadequate depth

of cover

in some areas.

These observations are further supported by photographs

which were presented into evidence as Complainant’s Group Exhibit

#11.

Despite the fact that Mike Maney testified that no

sludge was accepted at said site after

late May or early June

(R.114,

120 and 125),

the photographs in Complainant’s Group

Exhibit #11 and the investigation reports in Complainant’s

Group Exhibit #12 clearly establish that sludge was being

accepted at least as late as August

8,

1979.

As briefed and argued, there are

3 possible arguments against

liability which apply to some, or all,

of the Respondents:

(1)

that it was technically impracticable to conform with the

various statutes and rules;

(2) that the Agency and the

Attorney General were at least as responsible as the

landowners

in causing or allowing illegal acts to continue, and that the

landowners should, therefore,

be insulated from liablility;

and

(3) that the partnership had terminated.

The Board finds that it was not impracticable to comply

with the Act and Rules.

Though there was testimony concerning

the difficulty of compliance

(R.133—6),

alternative methods

for compliance were available,

including taking in more general

refuse

(R.82),

obtaining a permit modification

(R.82) and

using an alternative method of covering

(R.86).

There is no

competent testimony to show that the alternative method of

covering, which worked satisfactorily at Mid—States Landfill,

would not have worked at Metropolitan.

---

—4—

The second argument goes solely to the liability of the

landowners; Eruse, H. Thomas, and G. Thomas.

The

argument

is

that

since

the

Agency

and

the

Attorney

General

were

at

least

as

responsible

as

the

landowners

for

allowing

or

causing

illegal

acts

to continue on said site, that the landowners should not be

held

liable.

Respondents

have

cited

no

authority

that

imposes

a

duty

upon

the

Agency

or

the

Attorney

General

to

utilize

their

powers

in

cases

such

as

this,

and

the

Board,

therefore,

does

not

find

this

to be

a

defense.

The third,

and

final,

argument goes solely to the liability

of Bell.

The existence or non—existence of a partnership between

Haney and Heil is touched upon several times in the course of the

hearing, and

much

of the testimony points toward the non—existence

of

it (esp. R166-189).

The

record gives no indication

that

Hell

personally

participated

in

the

management

of

the

landfill,

or

even

that

he

was

aware

of

any

irregularities

in

its

operation

prior to the filing of the compliant.

However, neil admitted his

partnership involvement before the hearing (R.26) and failed to

object

to its inclusion in the record (R.29).

Therefore, the

Board finds that all evidence regarding the existence of the

partnership is immaterial and will not be considered and

that a

partnership

did

exist.

The Board notes that certain of the specific dates of

alleged violations do not appear to conform to the dates for

which investigation reports were entered into evidence.

However,

the Board finds that given the ongoing nature of

those

violations

and the failure to rebut violations on those dates, that each of

the alleged violations did

occur

on each of the dates

and

during

each of

the

periods

of

time

alleged.

The

Board

finds

further

that

the

evidence

as

a

whole

supports

the

view

that

al 1

Respondents

made

minimal

efforts

to

come

into

compliance

with

Board

Rules

and

the

Act

until

the

filing of the complaint, and that the laudatory efforts made

since the filing have come

too

late.

The regulatory scheme for

protecting the environment

can

only be truly effective if

compliance is maintained throughout the period of operation.

After

the

fact

compliance

does

little

to

remedy

the

inconveniences

that

affect

citizens

in

the

area

such

as

Mrs.

Virginia H. Smith who wrote to the Board to complain of the

conditions she had to endure.

For that reason, the Board finds

that

a

civil

penalty

is

required

to

aid

enforcement

of

the

Act

and

the

Board’s

Solid

Waste

Regulations

promulgated

pursuant

thereto.

The

Board

has

considered

the

factors

contained

in

S33(c)

of

the

Act in determining a reasonable penalty, including,

but not limited to, the aggravating factor of the mishandling of

wastea

containing heavy metals.

The Board finds

that a penalty

of $2,000 with respect to Metropolitan, and of $75 each with

respect to L.

Kruse, H. Thomas, and G. Thomas is one which will

protect the vitality of the

Act

and

the

Board’s

regulations.

This

Opinion

constitutes

the

Board’s

findings

of

fact

and

conclusions

of

law

in

this

matter.

---

—5—

ORDER

1.

The Respondents Mike Maney and Gene Heil,

dibla

Metropolitan Waste Company, a partnership, have

violated Rules 301,302,304,305(a) and 310 of Chapter

7:

Solid Waste Regulations and Section 21(b) of the

Illinois Environmental Protection Act.

2.

The Respondents Lucille E.

Kruse,

Harold Thomas

and Gene Thomas have violated Rule 301 of Chapter

7:

Solid Waste Regulations and Section 21(b) of the

Illinois Environmental Protection Act.

3.

That Respondents Mike Maney and Gene Heil, d/b/a

Metropolitan Waste Company,

a partnership,

shall pay

a

penalty of $2,000.

4.

That Respondents Lucille E.

Kruse,

Harold Thomas

and Gene Thomas should each pay a penalty of $75.

5.

That within 35 days these penalties shall be paid

by certified check or money order payable to the State

of Illinois,

and sent

to:

Environmental Services Division Illinois

Environmental Protection Agency

2200 Churchill Road

Springfield, Illinois

62706

IT

IS

SO

ORDERED.

I, Christan L. Moffett,

Clerk of the Illinois Pollution

Control Board, hereby ~ertify that the

ove Opinion and Order

was ~dopted on the

~(

~ day of

___________,

1980 by

a vote

Christan L. Mo

,

Clerk

Illinois Pollut

Control Board