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October
5,
1995
COUNTY OF WILL,
)
Complainant,
v.
)
AC 94—98
AC 95—1
AC 95—2
CDT LANDFILL CORP.,
)
(Administrative Citation)
(WC 94AC2, WC 94AC3, WC 94AC5)
Respondents.
MS. CYNTHIA CAMPBELL, ASSISTANT STATE’S ATTORNEY, APPEARED ON
BEHALF OF COMPLAINANT;
SCOTT HOSTER, APPEARED ON BEHALF OF RESPONDENT.
INTERIM OPINION
AND
ORDER OF THE BOARD
(by J. Yi):
On December 5,
1994 and January
3,
1995 the County of Will
(County), pursuant to authority delegated to the County under
Section 4 of the Environmental Protection Act (Act)
by the
Illinois Environmental Protection Agency
(Agency), filed three
administrative citations pursuant to Section 31.1 of the Act.
(415 ILCS 5/4 and 5/31.1
(1994).)
The first citation filed on
December 5,
1994, docketed as AC 94-98, alleges that CDT Landfill
Corp.
(CDT Landfill)
violated Section 21(o) (9) of the Act.
(415
ILCS 5/21(o) (9)
(1994).)
On January
3,
1995, the County filed
two s~parat~admin
trativ~c~itations,dock~t~das AC 95—1 and
95—2 alleging violations Sections 21(0) (9) and 21(o) (11)
of the
Act, respectively.
(415 ILCS 5/21(0) (11)
(1994).)
The Clerk of
the Board received three requests for review of the
administrative citations on January 11,
1995, February 6 and 7,
1995 filed by the CDT Landfill.
The Board consolidated these matters for the purpose of
hearing.
The hearing was held before Chief Hearing Officer
Michael L. Wallace on March 10,
1995,
in Joliet,
Will County,
Illinois.
No members of the general public made a statement at
hearing.
No briefs were filed in this matter.
The Board will
also consolidate these matters for the purpose of decision.
For the reasons below, the Board finds CDT Landfill in
violation of Section 21(o) (11) of the Act as alleged in AC 95-2
for failing to file its annual report and in violation of Section
21(0) (9)
of the Act as alleged in AC
95-1
for placing waste in an
unpermitted area of the landfill.
The Board finds that CDT
landfill is not in violation of Section 21(o) (9)
of the Act as
alleged in AC 94-98.
2
BACKGROUND
CDT Landfill is the present operator of a facility located
in Will County,
Illinois.
The facility is operated as a sanitary
landfill under an Agency operating permit No. 1992-083-LF and
designated as site code NO. 1978170006.
The facility is commonly
known to the Agency as CDT Landfill.
(AC at
1.)’
On November 23,
1994,
Mr. Narayan KedarQ,
a
County inspector
and Mr. Lou Arrigoni P.E. and Mr. John Lazzara P.E.
(both of HDR
Engineering, a consulting firm) inspected the facility.
Based on
the November 23, 1994 inspection, the County issued two separate
administrative citations alleging violation of Sections 21(o) (9)
and
(o) (11)
of the Act, respectively.
(AC 94—98, AC 95-2.)
On December 15,
1994, Mr. Frank Kalisik, a County inspector,
inspected the facility.
Based on the December 15,
1994
inspection, the County issued another administrative citation
alleging violation of Section 21(o)
(9)
of the
Act.
(AC 95-1.)
FACTS
Prior to the issuance of the administrative citations Mr.
Kalisik inspected the site on three previous occasions, September
13 and 20,
1994,
and October 26,
1994.
(Tr. at 122—125.)
During
those inspections Mr. Kalisik discussed with CDT Landfill
personnel his belief that the waste material was above the
permitted elevations and that a survey control
(a stake placed at
a certain location that has an elevation marker attached) was
needed at the site where activity was taking place.
(Tr. at 126-
127.)
After a November 9,
1994 inspection by Mr. Kalisik, who
observed no survey control, the County det~rminAdthat a survey
should be conducted at the site.
(Tr. at 132-133.)
This survey
was conducted by HDR Engineers on November 23,
1994.
(Tr. at
133.)
On November 23,
1994, Mr. Kedare, Mr. Arrigoni and Mr.
Lazzara inspected the site.
Mr. Arrigoni and Mr. Lazzara were
hired by the County to perform a survey to estimate the height of
the landfill.
(Tr. at
9,
31.)
Using the established bench
marks2 they started to survey the site using a level and a
1
The filed administrative citations will be referenced as
“AC.
at
“,
and transcript will be referenced as “Tr. at
“,
and
the complainant’s exhibits will be referred to as “Comp.
Ex.
and respondents exhibits will be referred to as “Resp.
Ex.
“.
2.Bench Mark
is a definite point or Xnown elevation and
location and of more or less permanent character.
The bench
marks used by the County’s consultants are groundwater monitoring
wells whose elevations are indicated in the development plan.
ranging rod.
(Tr. at 12-14.)
Utilizing this surveying method
they estimated elevations at five
(5) points on the landfill
slope.
(Tr. at 14-24, Comp.
Ex.
#4.)
The first two estimated
points of elevation were located on top of a haul road with
estimated heights of 639.93 ft and 641 ft.
(Tr. at 19-20, Comp
Ex.
#4.)
The other three points of estimmted elevation were
located 30 to 50 ft east of the haul road.
(Tr.
at 23-24,
Comp.
Ex. #4.)
The estimated elevations for those locations are 644.44
ft,
644.24 ft and 644.10 ft.
(Tr. at 23, Comp.
Ex.
#4.)
All the
points of estimated elevations were located in trenches 2 and 4.
(Conip.
Ex. #5.)
According to the development plan,
this area of
the landfill lies between final contours of 632 ft and 634 ft.
(Comp. Ex. 1.)
However, Mr. Arrigoni could not state the actual
elevation of the waste at the estimated points of elevation.
(Tr. at 32.)
Mr. Kedare testified that the development plan established
the contours and elevations “beyond which the site is not
supposed to
go.”
(Tr.
at 57.)
Mr. Kedare stated further that
after allowing for final cover the highest point for the refuse
to be placed between the contours of 632 ft and 634 ft is 628 ft.
(Tr.
at 62-64.)
Mr. Kedare also stated that no final cover was
in place.
(Tr. at 64.)
However, Mr. Kedare,
like Mr. Arrigoni,
could not state the depth of the cover that was in place or the
height of the waste at those points.
(Tr. at 64-65.)
Mr.Kedare
believes, based on the survey and development plan,
that CDT
Landfill was in violation for placing waste in an unpermitted
area of the landfill.
(Tr. at 75-76.)
As stated previously, Mr. Kalisik inspected the site on
December 15,
1995.
Based on his observations of that day and the
HDR survey, Mr. Kalisik f~1tthat CDT Landfill had not corrected
the problem of waste being placed above the final contours.
(Tr.
at 135-136.)
In addition Mr. Kalisik observed active filling
taking place in trenches 3 and 6 of the site.
(Tr.
at 136.)
Mr.
Kalisik observed a large mound of refuse deposited and compacted
with daily cover being applied.
(Tr.
at 136.)
Mr. Kalisik used
leachate manhole No.
4 as the nearest survey control to make his
determination.
(Tr. at 137.)
Based on the development plan
(Comp. Ex.
1), Mr. Kalisik noted that the elevation of the rim of
manhole No.
4 to be 635.50 ft.
(AC 95-1 at 3.)
Further,
he
determined by using a measuring stick that the rim was
approximately 6 ft above the landfill surface.
(Tr.
at 139.)
Mr. Kalisik testified that the 6—foot distance from the landfill
surface to the rim of the manhole is to accommodate the placement
of the final cover.
(Tr. at 139-140.)
In addition,
Mr. Kalisik
observed looking north that the contour elevation increased
significantly, equaling the height of a large commercial truck.
(Tr.
at 143-153, AC
95-i.
at
3.)
Mr. Kalisik presented
photographs taken in the vicinity of manhole No. 4 to show the
overfilled area.
(Comp. Ex.
#7, #8, #9
& #10.)
Since the
development plan does not show any higher elevations north of the
4
survey control, the County alleges that CDT Landfill deposited
waste in an unpermitted portion of the
landfill.
In addition,
Mr. Kalisik testified that there was space available in trench
#6, but not in trench #3.
Mr. Kalisik also testified that none
of the areas had final cover in place and that all his
statements, that the landfill is over the height of the final
contours, are based on his visual observations.
Finally, Mr.
Kalisik could not state the elevation of the waste.
(Tr.
159-
161.)
CDT Landfill presented one witness, Mr. Douglas Andrews, a
licensed professional engineer who has been a consulting
engineer
for landfills for several years.
(Tr at 175—180.)
Mr. Andrews
testified that the survey was not accurate and, more
specifically, was not accurate for determining the height since
the survey only estimated the elevation of the cover over the
refuse.
(Tr. at 182-183.)
Additionally, Mr. Andrews stated that
in some instances it may be desirable to fill refuse higher than
the final contours to allow ror settlement.
(Tr.
at 184.)
Mr.
Andrews also testified concerning two regulations:
35 Ill. Adm.
Code 811.104 which requires landfills to be resurveyed every five
years, and 35 Ill. Adm.
Code 811.105 which requires landfills to
achieve the highest density possible.
(Tr. at 185-186.)
Mr.
Andrews believes the result of these regulations is that a
landfill operation may place refuse over height to achieve those
requirements and in acknowledgement that a landfill will settle.
(Tr. at 186—187.)
Mr. Andrews believes that the landfill did not
violate its permit because “the contour elevations shown on the
design plans are the elevations of the final, cover and they will
have to conform with the elevations when they apply the final
cover, but that hasn’t happened yet.”
(Tr.
at 189.)
Concerning the alleged violation of Section 21(o) (11) of the
Act, the parties at hearing stipulated that the annual report was
not filed by May
1,
1994.
(Tr.
at 76.)
In addition CDT landfill
filed two letters to the Agency requesting an extension of time
to file the annual report.
(Resp. Ex. #1 and #2.)
The last
requested extension by CDT landfill ended July 31,
1994.
(Resp.
Ex. #2.)
The parties also stipulated that the annual report was
filed on March
2,
1995.
(Tr.
at 76.)
APPLICABLE
LAW
The administrative citations issued against respondent
allege violations of
subsections
(9)
and
(11)
of Section 21(o)
of
the Act.
In pertinent part,
Section 21(0) provides that no
person shall conduct a sanitary landfill operation in a manner
which results in:
9.
deposition of refuse in any unpermitted portion of the
landfill;
11.
failure to submit reports required by permits or Board
regulations;
(415 ILCS 5/21(o) (9) and (12).)
Pursuant to Section
31.1(d) (2)
of the Act,
the
County bears
the burden of proof in this case.
(415 ILCS 5/31.1(d) (2)
(1994).)
Also, pursuant to Section 31.1(d) (2) of the Act,
if the
Board finds that the alleged violation occurred, then the final
order issued shall include a finding of violation, and shall
impose the penalty of $500 per violation as specified in
subsection
(b) (4)
of Section 42 of the Act.
(415 ILCS 5/42
(1994).)
ARGUMENTS
Section 21(o) (11)
The County argues that compliance after the fact is no
defense to a administrative citation and therefore CDT Landfill
is in violation of Section 21(o) (11)
of the Act for failing to
submit the annual report on May
1,
1994.
After July 31,
1994,
the date of the last requested extension,
there was no further
requests and the report was not filed until March
1,
1995.
CDT Landfill admits that it has failed to submit the annual
report when it was due.
However, CDT Landfill claims that it was
in the process of acquiring the proper form for submitting the
information from the Agency and requested two extensions
of time
to file such report, the last extension being until July 31,
1994.
Additionally, CDT Landfill asserts that it was waiting to
secure a significant modification before filing the annual
report.
For these reasons CDT Landfill argues that the Board
should not find a violation.
Section 21(o) (9)
The County argues that the development plan (Comp.
Ex. #1)
in conjunction with the operating permit
(Comp.
Ex.
#6)
establishes an elevation limitation for disposal of refuse during
operation and upon final closure.
The County asserts that the
points at which elevations were estimated are located in an area,
according to the development plan, where the final contour
elevations are between 632 ft and 634 ft.
Considering the
accuracy of the estimations,
the height of the landfill at those
points is approximately
10
ft above the permitted contour.
The
County concludes that even if 6 ft of final cover was in place
the County concludes that the waste is above 632 ft and 634 ft
and, therefore,
located in an unpermitted area of the landfill.
Additionally, the County asserts that the observations of Mr.
Kalisik demonstrate that the CDT Landfill failed to correct the
problem and that the waste in trench
3 is also above the height
limitation and therefore is in violation of Section 21(0) (9)
of
the Act.
CDT Landfill argues that the County has not carried its
burden of proof.
CDT Landfill states that the County by the
admissions
of its
own employees that they do not know how high
the refuse actually is, failed to prove that the refuse has been
placed in an unpermitted area.
Furthermore, CDT Landfill asserts
that the County admits the estimated height elevations are rough
at best.
CDT Landfill also argues that even if the Board were to
find that it was in fact over the height limitations set forth in
the development plan the landfill is still operation and those
limitations do not apply.
CDT Landfill argues that the height
limitation applies only at final closure and that the permit
itself does not contain any limitations during the operation of
the landfill.
DISCUSSION
Section 21(0) (11)
CDT Landfill admits to not filing the annual report with the
Agency as required and argues several reasons why it did not file
the report, none of which are uncontrollable circumstances.
Since uncontrollable circumstances are the only defense to an
administrative citation violation, we find that CDT Landfill
violated Section 21(o) (11)
of the Act.
Section 21(o) (9)
The Board has previously found a violation of Section
21(o) (9)
of the Act where a landfill placed waste above height
limitations.
(See Logan County Health Department v.
Lincoin\Logan Landfill,
(July
1,
1993), AC 92-50.)
We find that
the final contours as depicted on the development plan, which is
part of the permit issued by the Agency,
limits the height of the
landfill not only at final closure but also during operation of
the landfill.
As noted in the operating permits issued by the
Agency in this matter the operating permit refers to the trench
markings and waste footprints, the two dimensional boundaries, as
stated on the development plan as if it was part of the operating
permit.
The Board has found that waste placed outside of the
waste footprint during operation of the landfill to be in
violation of Section 21(0) (9)
of the Act.
(See Illinois
Environmental Protection A~encvv. City of Herrin,
(December
6,
1989), AC 88—93.)
We find no reason to treat the three
dimensional boundary or the height limitations as set forth in
the development plan any differently.
The height limitations
serve several purposes which are important during the operation
as well as at final closure of the landfill such as structural
integrity of the mound.
Additionally, the operating permit does
not allow for CDT Landfill to operate the landfill above the
height limitations.
Therefore the height limitation for final
contours are limitations that apply during the operation of the
landfill as well as at final closure.
Given the above case precedent, we find that based on the
record before the Board, with regard to the allegation in AC 95-
1, that CDT Landfill was in violation of Section 21(o) (9)
of the
Act based on the December 15,
1994 inspection.
Based on the
record, Mr. Kalisik’s testimony and photographs
(Comp.
Ex. #8,#9
and #10), which were not challenged by respondent, the waste was
deposited above the height limitations which constitutes a
violation of Section 21(o) (9)
of the Act.
Having found that the
violations occurred and since CDT Landfill does not argue
uncontrollable circumstances, the Board also finds that the
violations were not a result of uncontrollable circumstances.
Based on the record before us, the Board finds that CDT
Landfill was not in violation of Section 21(0) (9)
of the Act
based on the November 23,
1994 inspection which led to the filing
of AC 94-98.
Although we believe that the survey done by the
County was sufficiently accurate to determine the elevation of
the landfill on that particular day, the County could not testify
that waste was at a certain elevation.
The burden is on the
County to demonstrate that the waste was being placed above the
elevation limitations.
In the administrative citation process
the complainant must demonstrate, based on the record, that there
was a violation.
In this case the County has not satisfied its
burden of proof.
The Board cannot determine that there was a
violation without making the assumption that the
cover
was
not
10
ft to 12 ft thick.
Therefore we find that the County has failed
to demonstrate that the waste has been placed in an unpermitted
area of the landfill.
CONCLUSION
The Board finds that the County has demonstrated that CDT
Landfill violated Sections 21(o) (9) and
(0)
(11)
of the Act as
alleged in AC 95-1 and AC 95-2 and that these violations were not
the result of uncontrollable circumstances.
Additionally, the
Board finds that CDT Landfill did not violate Section 21(0) (9) of
the Act as alleged in AC 94-98.
PENALTY AND COSTS
Penalties in administrative citation actions are prescribed
by Section 42(b) (4)
of the Act which states:
In an administrative citation action under Section 31.1
of this Act, any person found to have violated any
8
provision of subsection
(p)
of Section 21 of this Act
shall pay a civil penalty of $500 for each violation of
each such provision, plus any hearing costs incurred by
the Board and the Agency.
Such penalties shall be made
payable to the Environmental Protection Trust Fund to
be used in accordance with the provisions of “An Act
creating the Environmental Protection Trust Fund”,
approved September 22,
1979, as amended;
(415 ILCS 5/42(b)(4)
(1992).)
In the Board’s final order in this case, respondent will be
ordered to pay a civil penalty of $1,000 based on the violation
as found.
Further, pursuant to Section 42(b) (4)
of the Act,
respondent
is also required to pay hearing costs incurred by the
Board and the County.
Those costs are not contained in the
record at this time.
Therefore as part of this interim order,
the Clerk of the Board and County are ordered to each file a
statement of costs,
supported by affidavit,
with the Board and
with service upon respondent.
This interim opinion constitutes the Board’s interim
findings of fact and conclusions of law in this matter.
A final
order will be issued pursuant to the interim order which follows.
INTERIM ORDER
1.
Respondent, CDT Landfill,
is hereby found to have
violated 415 ILCS 5/21(0) (9) and
(0)
(11)
(1994)
on
December 15,
1994 and November 23,
1994, respectively.
2.
The County of Will is hereby directed to file a
statement of its hearing costs, supported by affidavit,
with the Board and with service on the respondent, CDT
Landfill,
Inc., within 14 days of service of this
order.
Within the same 14 days, the Clerk of the
Pollution Control Board shall file
a statement of the
Board’s costs, supported by affidavit and with service
upon the respondent, CDT Landfill,
Inc.
3.
Respondent, CDT Landfill,
Inc.,
is hereby given leave
to file a reply to the filings ordered in paragraph 2
within 14 days of receipt of that information, but in
no case later than 40 days after the date of this
order.
4.
After the deadline for filing such information and
reply thereto has expired, the Board will issue
a final
order assessing the statutory penalty, and making the
appropriate award of costs.
Board niemeber J. Theodore Meyer dissented.
I, Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above interim opinion and order
was adopted on the
~Z5
day of
~
,
1995, by a
~
~
Dorothy
~7
Gunn,
Clerk
Illinois(~ollutionControl Board
IT IS SO ORDERED
9
vote
of
4—!
