ILLINOIS
    POLLUTION
    CONTROL BOARD
    September
    16,
    1971
    ENVIRONMENTAL PROTECTION AGENCY
    PCB 71-53
    CHARLES
    R.
    RHODES
    Larry
    R.
    Eaton, attorney
    for the Env~ronmenta1Protection Agency
    James E,
    Henson and Jeffrey Davison,
    attorneys for Charles
    R~Rhodes
    Opinion and Order of the Board
    (by Samuel
    R~
    Aldrich):
    Charles
    R,
    Rhodes was charged with
    a number of violations of the Rules
    and Regulations
    for Refuse Disposal Sites and Facilities
    (“Land Rules”)
    and
    of
    the Environmental Protection Act
    (uActu),
    Respondent owns
    and operates
    a landfill near Decatur,
    Illinois,
    At the hearing on
    July
    16,
    1971,
    two of
    the alleged violations were dropped
    by
    the
    Environmental Protection
    Agency (R~ 129)
    We find the evidence
    establishes several of the charges and impose
    a money penalty and
    a
    cease and desist order~
    On July
    21,
    1971, Mr~ Rhodes filed
    a motion to dismiss the complaint,
    contending that the Land Rules
    are not applicable
    to
    his landfill
    site.
    The motion notes that Section 475 of the
    1965 Illinois Refuse
    Disposal Law specifically excepted from the Land Rules
    any county
    having
    a department of public health.
    The Rhodes landfill
    is located
    in Macon County which has had
    a department of health since 1963
    (R,266).
    Respondent contends that,
    although Section 475 was later repealed,
    the Land Rules have not been made applicable
    to the counties
    origi-~
    nally exempted.
    As we noted in another case
    (EPA v~ Bath,
    Inc.
    and
    John L~Walker,
    PCB 7l~52) this argument is entirely without merit.
    The exemption
    afforded Macon County by Section
    475 disappeared with
    repeal of that Section~ ~We find that
    the Land Rules are
    fully
    applicable to the Rhodes landfill,
    The complaint first alleges
    a violation of Rule 2~O2of the Land Rules
    and of Section
    12(a)
    and
    (b) of the Act.
    Rule
    2,02 relates
    to landfill
    sites that
    are subject
    to
    flooding~
    Such sites are
    to be avoided,
    if
    possible~
    The record clearly shows that the area in question has been
    subject to flooding
    in
    the past when
    the
    Sangamon
    River
    has overflowed
    its banks
    (R~ 297,343)~
    Water was observed adjacent to the site in
    a ravine which leads
    to the
    river
    (R.
    59),
    According to the rules, sites already located in areas which may be
    subject
    to
    flooding are to be protected by dikes.
    Reference was made
    to
    the existence
    of
    a dike although its adequacy
    was
    not established
    CR.
    56).
    Respondent did install
    a floodgate
    at
    the recommendatiOb
    of
    an
    Aqency inspector
    CR.
    293),
    There was testjmdny that on several
    2
    439

    occasions this
    gate was held open by
    logs or brush
    CR.
    54,
    57).
    Mr.
    Rhodes admitted that this did occur in the spring of 1971
    (R.
    307).
    The record indicates that flooding occurs less frequently now that
    much of the land on the site has been filled
    (R.
    297,
    343).
    It
    seems likely that flooding problems will be minimized when
    the flood-
    gate is again in operation.
    We will therefore require that
    it be
    kept in good repair.
    In addition,
    respondent is advised to avoid
    operating his landfill close to the river so
    as
    not to create a water
    pollution hazard.
    Mr. Rhodes is also alleged
    to have dumped refuse over
    a
    large,
    impractical area
    in violation of Rule 5.03 of the Land Rules.
    Certainly
    the record indicates that the face of the fill has
    at times covered
    quite
    a large area,
    Agency witnesses estimated the face
    to be as
    much
    as
    600 feet long
    CR.
    66).
    Adam Larimore, an inspector
    for the
    Agency, was
    of the opinion that 100 feet of open face is the maximum
    amount that one tractor operator can handle adequately
    (R.78).
    His
    judgment was challenged by counsel for the respondent ~R. 81),
    We are
    well aware of the difficulty in arbitrarily distinguishing between
    “practical”
    and “impractical” in the sense referred to here.
    None-
    theless,
    the fact remains that respondent has failed
    to cover the
    refuse satisfactorily,
    as will be discussed later.
    We think that
    the large area over which refuse
    is dumped precludes
    the possibility
    of proper covering.
    We
    find that respondent is in violation of
    Rule
    5.03.
    Respondent is charged with violating Rule 5.07 of the Land Rules by
    failing to cover all exposed refuse at the end of each working day.
    Violations were clearly shown,
    Agency witnesses testified that on
    several occasions
    daily cover was not provided
    (R.
    33,
    34,
    183,
    240),
    Mr.
    Rhodes admitted that cover was not always provided because of
    insufficient cover material
    or bad weather
    CR.
    287,
    290).
    The complaint further alleges improper salvage operations
    in
    violation
    of Rule 5.10(d)
    of the Land Rules.
    The
    Rule
    requires
    that
    salvaged
    materials either
    be
    removed from the site daily or be stored such
    that
    they will not create
    a nuisance,
    rat harborage,
    or unsightly
    appearance.
    Mr.
    Rhodes indicated that certain materials were
    at
    times
    salvaged
    (R.
    302)
    and that articles
    may
    remain
    on
    the
    site
    for
    a week
    or longer
    CR.
    304).
    Agency witnesses testified that such articles
    were not elevated above
    the ground
    and thus created
    a rodent harborage
    CR.
    60,
    61,
    115,
    147,
    160).
    A rat was observed by an Agency inspector
    during
    a visit to
    the
    site
    (R.
    63),
    and
    Mr.
    Rhodes admitted that
    he
    had seen rats on
    the
    premises
    (R.
    303).
    As we noted
    in
    EPA
    V.
    J.
    C.
    Dill,
    PCB
    71-42,
    the rules do not require that salvaged naterials be elevated.
    Nevertheless,
    we agree with
    the contention of Agency witnesses that
    elevation is an effective deterrent to rodents and therefore
    a highly
    desirable operating procedure.
    The evidence establishes the fact that
    salvaged materials were neither removed nor stored so as
    to
    avoid rat
    harborage.
    We
    find that
    a violation was shown.
    The final allegation concerns
    the deposition of refuse
    in standing
    water,
    contrary to Rule 5.12(c)
    of the Land Rules.
    There is evidence
    that refuse was observed
    in water flowing through the ravine mentioned
    2
    440

    previously
    (R.
    59,
    178).
    However,
    the Rule requires proof that refuse
    was put into
    the water.
    In
    the absence of additional information con-
    cerning the flow characteristics of
    the water in the ravine we cannot
    know whether or not water was present at the
    time the refuse was deposit ~
    The record is simply inconclusive
    in this
    regard.
    We
    find that no
    violation has been est~blished.
    One additional matter deserves comment.
    Counsel for both complainant
    and respondent suggested in their closing statements that the Board
    consider modifying
    its procedural rules so as to allow negotiated
    settlements or compromises between the litigants
    CR.
    347,
    349,
    350).
    The hope was expressed that such compromises would considerably
    shorten proceedings of
    this type and reduce costs.
    We agree that
    a reduction in the time
    and expense of litigation
    is
    a desirable goal.
    Counsel for the respondent specifically suggested that the Board
    grant
    to the Attorney General some authority to negotiate such
    agreements
    CR.
    350).
    This requires
    no action by
    the Board because
    the Attorney General already has such authority under Section 333
    of
    the Procedural
    Rules of the Board which states:
    All parties to any case
    in which a settlement or compromise
    is proposed shall file with
    the Board
    a written statement,
    signed by
    the parties,
    or their authorized representatives,
    outlining the nature of,
    the reasons for and the purposes
    to be accomplished by the settlement.
    It was further suggested that
    the hearing officer be granted additional
    powers
    and autho±ity.
    The Environmental Protection Act,
    Section 33,
    explicitly charges the Pollution Control Board with responsibility
    for examining the record and rendering decisions.
    There
    is no
    provision for delegating additional responsibility
    to the hearing
    officer.
    To summarize,
    we find violations with respect to inadequate protection
    against flooding, dumping over
    a
    large, impractical
    area,
    failure to
    provide daily cover, and improper salvaging.
    We shall order that no
    further infractions occur and assess
    a penalty for past violations of $l~00.
    This opinion constitutes the Board’s findings of fact and conclusions
    of law.
    ORDER
    1.
    Charles
    R.
    Rhodes shall cease and desist from violations of the
    Rules and Regulations
    for Refuse Disposal Sites and Facilities
    as follows:
    a)
    The floodgate near the landfill site shall be kept
    in good
    repair and in an operational condition at all
    times,
    b)
    Dumping of refuse shall be confined to the smallest practical
    area.
    c)
    Refuse shall be covered daily as required by the Rules.
    2
    441

    d)
    Salvaging
    shall be carried out
    in
    a sanitary manner,
    salvaged
    materials being removed from the site daily or properly
    stored as required by the Rules.
    2.
    Charles
    R.
    Rhodes shall within
    35 days after receipt of this
    order pay
    to the State of Illinois
    the sum,
    in penalty,
    of $1500.
    I concur
    I dissent
    I, Regina E.
    Ryan,
    Clerk of the Pollution Control Board,
    certify
    that the Board adopted the above Opinion and~Oçderthis 16
    September
    ,
    1971.

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