~L1hflIS
~OLL~~T1~)N
CcNTFCL
BOAFD
Februar~’
17,
1971
ENV I RONPENTAL
F FOTECTInN
ACENCY
~CB
70—17
R.
H.
CHARLETT
Oninion of the
Board
(by
Cr.
Kissel)
The Environmental Protection Agency
filed a comolaint against
R.
H.
Charlett of El
Paso,
alleging that during the period of July
27
to July
31,
1970, he had permitted the open burning of refuse,
the
open dumninq of refuse,
the imnrooer oneration of
a refuse disposal
site,
and the disposal of refuse in standing water,
in violation of
various provisions of
the Environmental Protection Act,
the Rules
and
Regulations Governing
the Control of Air Pollution,
and the
Rules
and
Regulations
for Refuse Disposal Sites
and Facilities.
The Agency
sought the entry of
a cease
and desist order against the Resoondent
for
the violations alleged and the assessment
of
a penalty
in the amount
of $10,000
for
each violation, olus
$1000
for each day such violation
shall
be shown
to have continued.
On the date
of
the hearing, December
11,
1970,
the Agen~vpresented an amended coonlaint, adding
the dates
of October
6 and
7, ±970,for continued violations
in all
the areas
except open burning;
the complaint also alleged that Charlett had
operated his site in such
a manner as
to create
a water pollution
hazard.
Charlett made no obiection
to the filing of
the amended
complaint.
Russell H.
Charlett operates
a refuse disposal
site
in Woodford
County;
the site receives
the garbage and refuse from three neighboring
towns
and several local farmers six days
a week.
(R.
11,
24,
103)
Charlett received
a total of approximately $4320.00 in 1968
and 1969
from those who used the site;
in those years, he expended $1992.42
plus depreciation on an HD—5 tractor,
gates
and
a fence toward the
operation of the site.
(R.
18,24)
Charlett
also engages
ii~i
the busi-
ness of excavation,
demolition,
and the hauling of corn cobs,
gravel
and dirt.
(R.
10,
19)
With regard to the question of open dumping and
the alleged
failure
to cover and compact, several Agency witnesses testified
that
during their visits in July and October the garbage on Charlett~s site
was neither coveredn~ compacted and that the face of the fill
lay
open.
(R.
34,
49)
Several photographs submitted into evidence
corroborated their testimony.
(Exs.
3-8,
9-15)
Charlett in his
1
—
233
tted
the
truth o~
the
Anency
‘s
alleqations,
Though
re
~ccurs
six days
a
week,
he
had
scent
only
two
to
three
hours
twe weeks
coverino
and
comoactinc.
(R.
22)
He attributed
the
lack
of
cover in
7uly
to the unavailability of equipment.
(R.
27)
In October~ he estimated that
he snent only three days covering
and
comractinq.
(F.
87)
Rescondent’s acknowledgement
of his open dumping
and
of
his
failure to cover and comnact daily
as
the Regulations
demand
is
a ready indication of his commission of the violations al-
leged.
There
is
no question
that
Charlett violated the
Rules
and
Regulations which deal
with
the oneration of refuse disoosal
sites.
He admits
it.
He does
say, however,
that he
did not keep up,
or pur-
chase, adequate machinery
to do the proper covering and compacting
job on the site because he had been informed, second hand,
by
a
“representative
of
a State AgencyH
(unidentified)
that the State
was prepared
to close him down.
This
“representative” also
told
him that such legal action was imminent,
In the opinion
of the Board,
illegal operation of
a refuse site cannot be justified on
the basis
that it will be closed down in the near
future.
In
fact, Charlett
could have operated the site pronerly by maintaining
the equipment
he had on the oremises.
He didn’t do
that, and therefore he should
be held accountable for his actions.
Charlett’s disposal site was located near
a small pond.
Witnesses testified that refuse was seen floating on this pond, (R.33,43,7l)
Charlett even admitted that refuse from his disposal
site was pushed
into the pond.
(R.
28)
This method
of disoosal
of wastes
is in viola-
tion of Rule
5.12(c) which
states:
“Rule 5.12.
PROHIBITED ACTIVITIES.
The following activities
shall be prohibited
in conjunction with
or upon the site of
the sanitary landfill.
(c)
Deposition
of refuse
in standing water.”
Charlett admits that the refuse
is dumped in the standing water on
his
site.
He may have indicated
that
persons other than him~elf
actually put the refuse
in the water, but this
is no defense,
Since
he
is
the operator of the disposal site,
he must be
the one held
responsible
for its illegal operation.
A more difficult question is presented as
to whether in dumping
refuse into
the
standing water Charlett was
in violation of Section
12(d)
of the Environmental Protection Act,
We find
that he was.
The
definition of the word,
“waters”,
in the Act specifically
covers
“all
accumulations of water, surface or underground.”
The fact that this
water pond may dry
uo
in the summer in some years would not in our
opinion exclude
this
oond
from
the definition of
“waters” in the Act,
1
-~
234
Further,
there
is
no
nuestion
that
the
operation
of
a
refuse
SLLO
whereby
refuse
is
disnosed
into
the
waters
of
the
State creates
e
water oollution hazard as stated in Section 12(d)
of
the
hct.
This
may also be
a violation of 12(a)
of
the Act except
for
the
tact
that
there
was
no
expert
testimony
which
connected
the
high
COD
(chemical
oxygen demand)
and chloride
levels
in
the pond to the
type of refuse
being disposed in it by Charlett.
Agency personnel testified that during their visit to the
site
in July they witnessed a smoldering fire.
(R.
33,44)
Roger Miller,
who
aids
Resoondent
in
the
operation
of
the
site,
recalled
the
fire
of which they spoke.
It had occurred on one
of
the
municipal
garbage
trucks;
the
fiery
load was placed senarately
from the remainder of
the garbage
so that the
fire would not spread.
(R.
93)
Miller
attempted to douse the
fire with several buckets of water; when he
left,
the refuse nile was steaming, but did not apoear to be afire.
(R.
94)
Charlett has met his obligation to extinguish fires which
occur on his disposal
site.
Therefore,
we
find no violation of
the
onen burning crohibitions
in
the Environmental Protection Act, or
the
Rules and Regulations governing
the oneration of Refuse Disposal
Sites.
In sum,
the evidence has established that Charlett has nermitted
the open dumping of refuse,
the improper operatthon of
a refuse
disposal
site,
and the disposal of refuse
in standing water so
as
to
create water pollution hazard and violate Rule 5.12(c)
of the Rules
and Regulations
for Refuse Disposal
Sites
and Facilities.
The
individual
who
chooses
to
operate
a
sanitary
landfill
site
bears
a
special responsibility toward the land he is using and toward the
environment.
Despite repeated warnings
and visits from the various
State
agencies,
Charlett
persisted
in
remaining
in
flagrant
violation
of the applicable Rules
and Regulations
and of the Environmental
Protection Act.
A oenalty in the amount of $500.00
(a total of $1500.00
shall be assessed for each violation committed.
The
following
order
thereby
issues:
1.
Charlett shall cease the open dumping of
refuse,
2,
Charlett shall operate
the refuse disposal site
in compliance
with Rules
5,03,
5.05,
5.06 and 5,07 of the Rules
and Regulations
for
Refuse Disposal
Sites
and Facilities,
In accordance with said
Rules,
he
shall
cover
and
compact
at
the
appropriate intervals and shall
maintain
the
necessary
operational
equipment on the site.
3.
Charlett shall cease the disposal of refuse in standing
water.
4.
Charlett shall remit to the Environmental Protection Agency
the
sum
of
$1500.00
in
penalty.
I
235
5.
Should Charlett decide to cease operations
on the site, he
shall comply with Rule
5.07(b)
as
to final cover~
6.
Charlett
shall forthwith bring his site into compliance with
all applicable
State statutes, Rules and Regulations.
I, Regina
E.
Ryan, Clerk of the Pollution Control Board,
ceç,~ifythat the ~pard
adopted the above opinion and order
this
I
/ti
day of
.j~
~
,
1971.
1
~
L~e~
/
/
/
I Dissent
1
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236