ILLIflO3J:

I’CiJ,!41.1Tl’

::

co::~

ROb

BOARD

February 17, 1971

ENvtRofl~ir~NT.?.I.

1’ROT;:c’rloN

z1c:m:ci

)

v.

)

EPCD 70—15

)

ELI IsMJGOUI

)

Opinion

of

the

Board

(by

fir.

Kissel):

The

Environn’~nta1 Protection

Agency

filed

a

comnlaint

a’~ainst

Eli

Anic;oni,

r)lc!!rina

that

fron

July

24

to

July

31,

1970,

he

h::d

pernitted

thc

ot~e:aburning

of

refuse,

the

onen

duninq

o~ roftme,

the

operation

o:

~

refw.;e

clisnosal

site

in

violation

ot

exts-Jnq

rules

an:~

re’:n:ttiontt,

aptt

the

dir.nosal

of

refuse

in

standinc!

inter,

all

in

violation

Cit

variou.:

provisions

of

the

Environtental

Protection

Act,

of

the

~:uJ.~:;

hn:!

Peeu3ations

Govarninit

the

Control

of

Air

Polluta’,n,

antt

of

the

Ri:t:~s

;~ndRc’;uiaticns

3.c’r

Re~uso Disrosa

Sites

ur~dflacii.i ties.

The’

f.gencv

sought

the

entry

oC

a

cease

and

&si!.t.

c,r:lr.

r

ac”.

i r:’ t

t.he

~

md

the

im~csition

of

a

penal

ty

in

the

r::n,nt

tif

3

0, 0(U)

tnr

eac~i

~1

oiaticic

an1i

$lOfl~jfor

ec~chday

suca

vi

Cilfl

i “r’ ~

.

1. be ~h’.t:n

tn

lire

conu ‘wet.

An

ar~cn’~ect

con’,lri nt

filed

n:i

the

et:~yct~hearizr;

clsc. aflc~yeds$r;il:ar vio1~t5~mson October

6

and

7,

ldI7O;

fl

also

ccnt.encc!d

that,

wittii~ the

r~att’c~two time

periods,

A:ai.:ctni

h4:1

ctist-sed

oC

qarhage

arnl

other

contaminant.s

from

the

rc~fus~

dic~’n:;a1 site

in

such

a

manner

a:;

to

create

a

water

pollution ha7r~rd, in vio.ction

of

Section

12(d)

or

the Environnental

Protection Act.

On

the

dat.n

of

the

hear

zig,

Docfr!ber

1 2,

1970, Resnondent

fi I

ed

an

oral

notition

for

a

variance

anC~ nresonted

tcstiir,nv

at

the

hc~arin7

to

substantiate

his

var

‘moe

rc~uvz:t.

Araiç’oni

sonaht

a

varlaz:re

for

90

days,

during

which

ti:act

he

wonid

only

be

required

to

cover

the

refuse

once

a

t~eek, though

dunrii n~jwould

occur

tuice

a

week.

The

Board

has

ordered

the

variance

netition

to

be

consolidated

with

the

enforcorent

action.

2n

ordt~r to

consolidate

the

two

actions,

one

pro::c:Oura.

noi•nt

nn~t he

dealt

with.

Scction

37

o~ the

Environ-

mental

Protection

Act

rcnui’7es

nnklic

notice

to

be

given

and

an

Agency

invest~‘~z~tion

uncierthken

when

the

Board

is

in

recoint

o~ a

variance

requczt.

The

issues

in

the

two

cases

(enforcenent

cLn2

variance)

are

identical

in

this

instance,

and

the

requisite

stLtutory

notices

were

published

pr3or

to

the

enforcement

!iearinq,

f’irther

givin4

of

such

rinor

notices

in

the

variance

case

is

unnecessary.

This,

plus

the

fact

that

the

Acsencv

most

asr~urec21yir~vesti~atet the

enforcc~ori(. case

before

bringin-

it,

serves

the

nurnose

oC

the

Act

of

giving

the

pubflc

adc~c~uata

op’ortunity

to

narticinat:e.

Since

th~

decision

of

the

Board

to

hold

a

hearinn

in

a

variance

case

is

a

discretion:try one by

statute,

it

is concluded that a further hearing

in

this

case

would

be

ur1necnssarv.

1-229

---

The

evidence

o

crocl

in

the

case

recjrirdi

rnj

the

I llcqal

osoratien

of

the

re fuse

si

to

wow

I thou~:

subs t anti

a

I

ci is a’

rea:cer: t.

there

was

no

cues Lion

that:

I

then

Loss

o~eiati

re-

a

refuse

disoosel

site

end

that

he

did

ire

cn’cir

0

seas

sri-S

the

ret

U:; U

nil

e

rio

was

rcoui

red

by

the

ape

icabla

lr

sn-s

:c--~slat

Less

qo’zernr;cr

the

oneration

of

such

refuse

d~onossi

foci

11 to cs

.

In

fact,

Amic’oni

oven

admitted

that:

riot

only

did

ho

not:

eeoc:

the

f~oe of

the

nile,

but

he

or tim-sled

that

h~

did

not

CC~’fC5

th~

refuse

nile

mare

than

once

every

too

weeks.

(B.

69)

Further

•

ho

s’soci

f i cell-:

admitted

that

duel

ne

the

time

comelainod

of

he

did

oct

cover:

the

refuse

nile

at

all.

(B.

12,

14,

22,

27,

35)

Several

witnesses

testi

fied

that

durinc

their

visits

to

the

~migoni

55th

they

witnessed

cuen

hurnin~

of

refuse.

(B.

1

2,

26)

In

fact,

one

of

the

Agency

witnesses

actually

witnessed

a

driver

of

a

garbeqe

truck

owned

by

the

Vi ilace

of

boanoke

dome

his

load

and

start

the

refuse

which

hod

just

boon

dumeed.

on

fire.

(Ft.

50)

Even

Russell

Charlett

,

a

neighbor,

wi. tnessed

smoke

emanetino

from

the

Amigoni

r; ito

,

general

lv

of

So::

a

yb

it

by

the

VI l1sc~e of

Boanoke

garbage

truck

.

(h

.

4

5)

hoiqoni

nrefc~ssed

not

to

know

abou

S

the

hu~ni

~j

(~fl

ilL

c

‘c

j4

,

thc

r

II

~

Cii

0

flO

i~

iO~

thOU

that

he

was

aware

that

~fir;

ter

‘

s

Seed

Comaanv

cli:

do

some

burnine

at

the

site

under

eke

direction

and

ounervi

ol on

of

the

State

Denortr:ent

of

Aaricultu:e.

(P.53)

Amiconi

s

lack

of

knowloclee

of

hurnine

on

his

si

So

cr~nric~tho

considered

a

defease

to

Unis

action.

Si nec

ho

was

the

ooerator

at

a

refuse

dior’c~sal

to,

ho

should

hove

known

thet

there

may

be

abuses

by

those

who

dunned

there,

air:

that

those

nereono

would

use

the

illegal

means

ci

enon

burninci

to

dionose

at

their

wastes.

It

would

seem,

and

this

Steord

sci

holds

,

that

Amiqoni

is

in

the

sane

position

as

hr.

Neal

in

the

case

of

the

Environment-al

°rotection

Agency

v.__Harry

Neal,

PCI

70—S.

In

that

case

witnesses

teoti

tied

that

a

~iickas

burninr~

on

the

site

of

an

auto

salvage

onorator,

lit.

Neal,

as

Mr.

Aminoni

did

in

this

case,

attemutc:cI

to

defend

himself

by

saying

that

he

had

rio

know

edee

of

the

fire.

This

Board,

however,

stated

that

since

Mr.

Neal

in

his

auto

salvage

business

could

reasonably

anticinate

that

autos

would

indeed

catch

fire,

even

accidentally,

he

should

be

constantly

aware

of

that

nossibilitv,

If

a

fire

did

occur,

the

burden

would

shi ft

to

hr.

heal

to

prove

that

the

fire

occurred

accidentally.

It

would

seem

that

the

same

erinci

ules

should

apoly

to

the

case

at

hand.

fir.

Amigoni

did

not

sustain

his

burden

of

proof

thtt

th~ fires

were

accidental,

or

even

further,

that

he

had

the

adenuate

surveillance

of

the

site

to

even

determine

if

a

fire

were

taking

oboe.

In

addition

to

the

shiftinci

of

the

burden

ofT

proof

as

we

found

in

the

Neal

case

and

our

finding

here,

an

owner

of

a

refuse

disposal

facility

must

he

resnonsible

for

the

actions

of

those

who

he

allows

to

dune

refuse

on

his

urooertv.

If

such

nersons

use

anon

burning

to

dispose

of

their

refuse

on

his

facility,

it

will

be

presUme;

that

such

is

allowed

and

consented

to

by

the

owner

of

the

refuse

facility.

An

owner

of

such

a

facility

has

a

duty

to

sunervise

its

operations

and

to

stan

open

burning

on

his

premises

whether

by

himself

or

by

those

who

he

allows

to

do

so.

Although,

as

nointed

out

above,

the

Agency

met

its

proof

with

regard

to

the

illegal

orseration

of

a

refuse

disposal

facility,

and

1

—

230

---

the illegal open burning of refuse, the Agency did not prove

that

Mtigoni operated his refuse disposal facility so as to create a water

pollution hazard.

The evidence was clear that the

standing

water

nearby

the

refuse

facility

was probably there only after porio’is of

heavy rain, and further there was no evidence as to the

water

quality

in the standing water, or how it was, if at all, deteriorated as a

result of the operation of ?niqoni’s refuse facility.

In addition,

there

was

no

evidence

in

the

record

that

the

water

was

there

before

the refuse was dumped, and

therefore,

the

regulations

regarding

water

pollution were not violated.

We must

now

deal with the petition for variance filed by Ainigoni.

He reguefls 90 days withiw which he

may

continue in violation

of the applicable rules and regulations as to conpacting and covering.

He seeks permission to cover the refuse once a week instead of twice

a week, as the dumping schedule would demand.

To sustain his proof

that compliance with the Rules and Regulations would irnose an

arbitüry and unreasonable hardshjn, Resnondent, in his petition,

cites the following cons±derations:

1.

The Village of Roanoke whose refuse chiefly fills the site

the citizens have become accustomed to it.

2.

Operation

within the

Rules and Requlntiuns would irnose

additionel

expense

unon

the Respcndent who is

now

operating

this

site

at

no

profit

to

himself.

3.

Respondent would conduct no burning on the site.

4.

Respondent is making a thorough investigation to see if it

would be profitable or feasible for him to orerate a solid

disposal site on this location and,

if so, he would file

an auplication with the State Departnont of Health to

determine whether the site can be aoproved.

If it is

approved,

then: he would operate within the Rules and

Regulations of the Pollution Control Board.

Additionally, in the testimony offered in the course of the enforcement

hearing, Respondent indicated that comnliance would~prove difficult

due to the present winter weather.

Tha petition indicates, however,

that Respondent would find it possible to cover and connect once a

week; with the ready availability of equipment which Resnondent

enjoys, no reason annears to this Board why if compacting and

covering can be done once a week it cannpt just as well be done on

the two occasions when dunning occurs.

Though Resnondent states that he is operating the site “at no

profit to himself,” the testimony offered at the hearing casts some

doubt upon that contention.

Amigoni testified that he spent an

average of $2500 per year to opetate the site.

In returw, he

received $2000 per yeat fro~the Village

ol! Roanoke and $125 in

seed corn from Pfister’s.

CR.

86, 54-65)

The

dumo

site is not

merely that, but is being used by Amigoni for the removal of gravelS

I

—

fll

---

and then the conversion of the exhaqsted areas of the gravel pit into

tillable farmland.

CR. 55)

Further, Amigoni hires and pays

no

one

especially for the covcrinq and comoacting done approximate)y every

two

weeks.

It is only when his construction employees are free

or

when they are hauling chit gravel that the dump is covered over.

CR.

67,

68)

It is difficult to understand what “arbitrary or unreasonable

hardship” would be imposed on Ainigoni if he were required to comply

•with the law.

He has the machines, .the men and the time to operate

this facility the way it should be operated, and to operate it

otherwise could cause harm to the people of

the

State

of

Illinois.

The Board hereby enters the following order:

1.

Amigoni is to place the site in compliance with the Rules

particularly with regard to Rules 5.06 and 5.07 for covering

•and compacting.

2.

Amigoni is to cease and desist the open burning ot retuse

or the causing of open burning of refuse, in violation of

Section 9Cc) of the Environmental Prbtection Act, and

Rules 2—1.1 and 2—1.2 of the Rules and Eeguations

Governing

the Control cf Air Pollution and Rule 3.05 of the Rules and

Regulations for Refuss Disposal Sites and Facilities.

3.

Amigoni is to cease and desist the open dumoing of refuse

or the causing of open dumping of refuse in viplation of

Sections 2lCa)

and

Cb) of the Act and of Rules 3.04,

5.06

and 5.07 of the Rules and Regulations for Refuse Disposal

Sites

and

Facilities.

4.

Amigoni

is

to

cease

operation

o~the refuse disposal site

in violation of Rules 5.05,

5.06 and 5.07 of the Rules

and

Regulations

for Refuse Disposal Sites and Facilities.

5.

If Ainigoni should decide to cease operations on the site,

he shall comply with Rule 5.07(b) of the Rules and Regulations

for Refuse Disposal Sites

Sand

Facilitiet requiring

two

feet

of final cover within six mOnths of the final placement of

refuse.

6.

Mtigoni shall remit to the Environmental Protection Agency

th~sum, in penalty, of $1500.00.

I, Regina B.

Ryan, Clerk of the Pollution Control Board,

cóçtify

that.

the.Board

adopted the above ooinion and order this

IIM

day of

:t../.:nat,:~

,

l9fla.~

(

~).

‘IL

••Y”•~

1-232