ILLINOIS POLLUTION CONTROL BOARD

June

23,

1971

ENVIRONMENTAL PROTECTION AGENCY

v.

)

PCB

# 71-41

CLAY PRODUCTS CO.

et.

al.

Larry

R.

Eaton

for the E.P.A. Agency

James

T. Moham and Alfred B.

LaBarre for the Respondent

Opinionof

the Board

(by Mr. Currie):

This complaint,

like

that, in EPA v.

Sauget,

# 71-29

(decided

May

26,

1971), charges the respondents with numerous violations

of the regulations and of

the statute with regard to the operation

of

a landfill

for solid waste disposal.

As in Sauget, we

find

the

evidence establishes several of the charges and fails to establish

others.

We order that violations

cease and

a money penalty be paid.

The landfill in question,

located in Springfield,

is admittedly

owned by respondent Clay Products and operated under lease by

respondents Buerkett and Hinds.

In order to assure that the owner

exercises care that improper operations do not occur on his property,

we

think

it appropriate

that

the prospective provisions

of our

order apply to it as well as to its lessees.

Count

3 of the complaint alleges open dumping in violation

both of section 21 of the Environmental Protection Act and of

rule 3.04 of

the Rules and Regulations for Refuse Disposal Sites

and Facilities

(hereafter “Landfill Rules”), adopted by

the

Department of Public Health in 1966 and effective by virtue

of

section

49

(c) of the statute,

Open dumping is

a catchall term

that embraces

a number

of specific infractions alleged elsewhere

in the complaint.

In light of our findings on these more

specific counts we do not find it necessary to decide whether

or not they also constitute open dumping.

Count

4 alleges open burning,

Although deliberate burning

was denied

(R.

371),

respon~1entsconceded that on

two occasions

when EPA inspectors were on the premises

fires were in progress,

started,

it is said, by discarded cigarettes

(R.

371)’.

The

evidence

is that some effort was made tq cover the burning

material

CR.

65,

372) but that in one instance the fire smoldered

for twelve hours

CR.

380)

and that no effort was made to extinguish

it while the inspector was present

(R,

63).

As we held

in EPA

v. Cooling,

# 70-2

(December

9,

1970),

the statute and the

regulations

are not limited to deliberate violations,

Care must

be exercised to prevent fires from occurring and to extinguish

them if they do.

We think by exercising proper care the respondents

here could have prevented the discard of lighted cigarettes

and

2 —33

---

could have ended the fires more quickly.

Respondents have caused

or allowed open burning.

Count

5 charges

the absence of convenient sanitary facilities

for employees working at the landfill, in violation of Rule

4.03

Cc).

But the evidence

is that adequate facilities are provided at the

company~s office, variously described as

100 yards from the landfill

gate

CR,

373)

and as 1,000 feet from where dumping took place

CR.

88).

As in the Sauget case,

we find these facilities sufficient,

We cannot expect toilets every thirty feet on

a landfill site,

Count

6 alleges that access to the site has been permitted “at

all hours

of the day”,

in violation of Rule 5,02.

But that rule

does not limit hours of operation;

it forbids access when there

is no employee

on the

site,

The allegation is fatally deficient,

Count

7 alleges that refuse has been dumped over a “large

impractical

area”, contrary to Rule

5.03.

The evidence on

this

issue is conflicting and largely subjective,

Respondents testified

the area open at one time was generally kept to

a width of 50

to

100 feet

CR.

382,

399),

that

the area can be and is adequately

handled by their equipment

CR,

399), that anything much

less would

cause delays in unloading

trucks

CR,

320),

An Agency inspector

testified that he had observed

a working area roughly l00~ x 75~

to l00~ CR,

164)

and

that in his opinion this

area should have been

reduced by one third

to one half because

it was

too large

to be

covered in a day by the equipment available

(R.

171, 181-82).

We

recognize the desirability of keeping the working area small,

as

EPA~switness urged,

not only to facilitate cover but also to

reduce blowing material

and to lessen the attraction of pests

(H.

182).

But on the present record we do not find sufficient

evidence that the area worked was overly large,

Count

8 alleges that unsupervised unloading has been allowed,

that no portable fences were

used

to prevent material from blowing,

and that the area was not policed to collect scattered material,

all in violation of Rule 5,04,

The proof

is clear that on one

occasion a truck was unloaded while no employee was on hand

(R,

108).

Such

a violaticn creates obvious risks of improper disposal,

It is

the duty of the owner and operator to prevent such problems by

providing supervision at all

times,

Moreover,

it is clear that until

recently there were no portable fences for use when conditions

required them to restrain blowing material

CR,

107,

166).

There

was

some suggestion by respondents that this provision applies only

when

there

is

a risk that material will be blown beyond

the property

line

CR.

139),

but the suggestion lacks merit,

The owner and operator

are bound to keep the site itself from becoming unnecessary unsightly,

and the regulation specifically requires fencing to avoid material

blowing from the “unloading site”,

in order

to keep the refuse where

it is dumped.

There was also testimony that blowing litter had not

been collected

CR.

108).

Violations of Rule

5.04 were therefore shown,

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Count

9 charges

a failure to spread and compact refuse

as

required by Rule

5.06.

There was evidence

that refuse on one

occasion was left as deposited without being spread or compacted

(R.

104—05,

109).

The Rule requires that refuse be spread and

compacted “as rapidly as refuse is admitted to the site”,

The

rule is clear; equipment must be operating immediately upon

deposit of refuse.

A violation was shown,

Count

10 alleges failure to cover refuse at the end of each

working day as required by Rule 5.07.

Violations were clearly

shown,

First, there was proof that recognizable refuse items

remained uncovered for two consecutive

days

CR.

40,

67—68,

79,

82—83, 109—110),

as in the Sauget case.

Second,

there was testimony

that some refuse requiring cover

lay exposed,

and that other

lay

inadequately covered,

some

of it in water or

in liquid waste

(H,

32—33,

113—14,

116—17,

168,

189—90,

206,

211),

since before

the dates alleged in the complaint

CR,

95—96,

110,

137).

While

the original failure to cover these old items

as the refuse was

deposited was

not charged in

the complaint,

the duty to cover

is

a

continuing one extending to

“all exposed refuse” at the end of each

day,

Count 11 alleges

the discharge of hazardous

liquids

at the

landfill

site without the approval required by

Rule 5.08

Csee

R,

113,

208,

359).

The respondents demonstrated approval by

the Department of Health for the deposit of oil wastes

in

Impoundment No,

1, where most of the liquid waste was observed

CR.

63—64,

113,

359,

388,

412,

434 and Ex,

H.

3—1),

Two Agency

witnesses testified to oil

in

a second impoundment that the

respondents asserted was not used for this purpose

CR.

167—68,

179—80,

183—84,

208,

359,

388).

Whether using

two pits

for oil

would violate the Health Department~s order to

“contain the dumping

of the hazardous materials received from Sorco Oil and Refining

Company in

a separate pit” we need not decide,

for

the undisputed

evidence by one Agency witness was

that an oily liquid had also been

seen on the ground in the vicinity of Impoundment No.

1

CR,

208-09).

The presence of this waste in April of 1971 gives rise

to the inference

it was

put there sometime since

the preceding October,

Whether or

not the respondents put it there,

they had the obligation,

as in the

case

of open burning,

to prevent others from doing

so,’

The violation

is established,

All

oil deposit has now ceased because the Agency

has refused to renew permission

(R,

412—14).

Count

12 alleges the absence of rodent control under Rule 5,09,

As we held in Sauget, proper cover is

a type of rodent control that

is always required.

But further controls

are necessary only

“as

directed by

the Department”

(now the Agency), and since it was

stipulated there has been

no such direction in the past

CR.

121),

there

is

no proof of violation.

Counts

13 and

14 allege improper salvage operations andscavenging,

in violation of Rules 5.10

and

5.12

(a).

The relation between

2

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35

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salvaging and scavenging

is not altogether clear;

suffice it that

on one occasion the undisputed testimony is that an unidentified man

was seen manually sorting dumped refuse

CR,

122), which is flatly

forbidden.

It is the owner’s and operator’s duty to prevent such

activities.

Count 15 alleges

that refuse has been disposed of in standing

water in violation of Rule

5.12

Cc).

There is much evidence

that

refuse was

seen in water

CR,

32-33,

206), and this evidence was relied

on above

to show

a violation of the cover requirements,

But Rule

5.12

Cc) requires

a showing that refuse was put into

the water;

here we

cannot infer either that

the water was there before

the refuse

CR.

64)

or that the deposit was chargeable

to these respondents

CR.

72).

This

is not

to say this

type of violation can be proved only by eyewitnesses

to the dumping itself, but we

find the record inconclusive in this

case,

See EPA v. Amigoni,

PCB

# 70—15,

(February

17,

1971),

There was

however, proof that o

one occasion burning refuse was pushed into

water during an effort to put it out

CR.

45,

379).

This seems an

undesirable way to combat

fire,

in light of the regulation; but we

cannot say

it is never

a permissible choice between two evils,

Count

16 alleges that inadequate measures have been taken

to prevent

contamination of ground and surface waters,

in violation of Rule

4,02

Ca)

and of sections 12

(a)

and

Cd)

of the Act, which prohibit water

pollution and water pollution hazards,

There is proof

that,

as

the

result of leaching through refuse

CR,

285), water impounded on the

site

is high in oxygen-demanding materials and total solids,~-

CR,

274-75,

279-82),

so that its discharge

to stream or aquifer might

cause pollution,

and there

is proof that in one impoundment the water

level was

near

to overflowing

CR.

191-92,

367).

But there is

insufficient proof that any water escaping from these ponds would be

likely

to reach either stream or aquifer

CR,

192,

242-43,

278,

297,

312,

327,

361,

367-68),

and consequently we find no violation in this

regard.

We do think respondents would be well advised in order to escape future

complaints

to avoid the mixing of refuse and water on their premises.

Count

17 alleges unsightly and improper operation in purported

violation of section

20 of

the Act,

But that section forbids nothing;

it is

a statement of policy for

use in interpreting

the operative

sections

of the Act,

In sum, we

find violations with respect to open burning, unsuper-

vised unloading,

spreading, compacting,

and covering,

fencing,the deposit

of liquids,

scavenging,

and the collection of scattered materials

The

testimony of a County Health inspector that the~sitewas generally ~well

operated

(R,3l9—65)

does not contradict EPA’S case, but it has wei~htin

mitigation.

We are told by EPA that operation has since improved

in many respects

CR,

130-131),

We shall order that no further

infractions occur,

and

to deter future violations we shall assess

a

penalty of $500.

The sum is smaller than

in Sauget and earlier ‘cases,

for the violations appear less serious,

1.

Respondents sought to exclude several

test re~ultson the ground the

Agency’s witness had not performed the tests herself.

For reasons

given by the hearing officer this motion was properly denied

CR.

264—66),

2 —36

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This opinion constitutes

the Board’s finding of fact and

conclusions of

law.

ORDER

1.

Clay Products

Co.,

Merle K.

Buerkett, and Lowe

G.

Hinds shall

cease

and desist from violations

of the Environmental Protection

Act and of the Rules and Regulations

for Reftise Sites

and

Facilities,

as follows:

a)

No open burning shall be allowed.

b)

No unloading shall be permitted without supervision.

c)

Refuse shall

be spread and compacted

as rapidly as

it

is admitted to the site,

d)

Refuse shall be covered daily as required by the Rules.

e)

Any exposed refuse presently on the

site shall be covered

as required by

the Rules.

f)

Portable fences shall be provided whenever weather conditions

require in order

to reduce the scattering of litter, and

scattered litter shall be collected,

g)

The discharge of liquids shall not be allowed except as shall

be authorized by

the Agency in the

future.

h)

Scavenging

shall not be permitted,

2.

Merle

K, Buerkett and Lowe

G.

Hinds are jointly and severally

ordered to pay to the State of Illinois on or before July

1,

1971,

the total sum of $500 as

a penalty for

the violations

described in the Board’s opinion.

I,

Regina

E.

Ryan, Clerk of the Board,

Opinion and Order was entered on the

that the above

1971,

2

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37