ILLINOIS POLLUTION CONTROL BOARD
October14,
1971
ENVIRONMENTAL
PROIBOrI ION AGENCY
v.
)
PCB
71—172
ARTHUR GERDES
Larry
I~.
Eaton,
attorney
for the Environmental Protection Agency
Richard
Rasmussen,
attorney
for
Arthur Gerdes
Opinion and Order of the
Board
(by Samuel
R. Aldrich):
On June
30,
1971,
the Environmental Protection Agency
(“Agency”)
filed a complaint charging
the respondent with numerous violations
of the Rules
and Regulations
for Refuse Disposal Sites
and Facilities
(“Land
Rules”)
and of the Environmental Protection Act
(“Act”).
Mr.
Gerdes owns
a landfill for solid waste disposal near Nauvoo,
Illinois.
The Agency subsequently amended
its complaint so
as to
include three additional counts,
We find several of the charges
well proven and impose
a money penalty.
The landfill in question is located on
a
farm owned by Mr.
Gerdes
and has been operated by him for about six years
(R.
80,
81).
The
site was closed about July
15,
1971,
at the direction
of the Nauvoo
city council
(R.
108,
109).
We here consider violations which the
Agency alleges occurred up to and through August
11,
1971,
the date
the amended complaint was
filed.
The first count of the cc~plaintalleges open dumping in violation
both of Rule
3.04 of the Land Rules and of Section
21 of the Act.
Open dumping is
a general term which embraces
a number of specific
violations
of the rules alleged elsewhere
in the complaint.
As in
EPA
v.
Clay Product:~Co, et al.,
PCB
71-41
(June
23,
1971),
our
findings
on
the specific violations make
a determination of open
dumping unnecessary.
Count
2 of the complaint alleges operation of the landfill without
posted hours of operation as required by Rule
4.03(a)
of the Land
Rules.
Witnesses
for the Agency testified that the only sign posted
at
the entrance was
one indicating that
the site served as
a city
dump
(P.
23,
53,
70).
Mr.
Gerdes stated that
the landfill
site was
open from
8:00 am
to 4:30 pm on Saturdays and Sundays
only
(R.
82).
He admitted that
for the past two years
the hours or days
of operation
had been posted in
the local paper
only,
not at the site
(R.
82,
83).
A violation was clearly proved.
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639
Count
3 alleges the absence of
a shelter,
in violation of Rule 4.03(c)
of the Land Rules.
The Rule requires that a shelter be furnished
which is convenient for use by operating personnel.
The record
indicates that at one time
a trailer was present at the site but
that it was removed about three years ago
(R.
23,
83,
84).
Mr. Gerdes
testified that he worked at the site
for only about two hours
at
a
time and used sanitary facilities
in town
(R.
85).
We
find
a
violation of Rule 4.03(c) was
proved.
Count
4
charges respondent with permitting access to the site during
hours when operating personnel were not present and with permitting
unsupervised unloading of refuse,
in violation of Rules 5.02 and
5.04 of the Land Rules.
A witness for
the Agency testified that on
two occasions he observed persons depositing waste at the site when
operating personnel were not present
(R.
19,
20).
The record
indicates that on another occasion the gate at the entrance
to the
site was open despite the absence of operating personnel
(R.
51).
Respondent has violated both Rule
5.02 and Rule 5.04.
Count
5 alleges that no portable fences were provided or used to
prevent material from blowing,
in violation of Rule 5.04.
Agency
inspectors testified that on numerous occasions they observed no
portable fences on the site
(R.
24,
57,
71).
However,
Rule
5.04
requires only that portable fences be used “when necessary to
prevent blowing litter from the unloading site,”
There
is
no ihdi-
cation that litter was blowing from the unloading site
on the
occasions
cited.
In the absence of evidence relating to the neces-
sity of portable fences we find no violation has been proved.
Count
6 alleges insufficient operational eeuipment,
in violation of
Rule 5.05 of
the
Land
Rules.
The
Rule
requires that equipment
“be
available
at the site
at all times to permit operation of
the
landfill
according
to the
approved
plan,”
The
record
clearly
indicates
that sufficient equipment was not always present at the site
(R.
23,
45).
However,
a crawler tractor was observed on several occasions by
Agency inspectors
(R.
51,
71).
Elmer Eraus testified that Mr. Gerdes
moves in earthmoving equipment from his construction business as
needed
(R.
100).
The evidence thus indicates that sufficient
equipment was available.
To require this equipment to be at the site
at all times,
even when
the landfill
is closed,
would be unreasonable.
We find no violation of Rule 5.05.
Count
7 alleges insufficient spreading and compacting of refuse,
in violation of Rule 5.06.
The
Rule requires that refuse be spread
and compacted
as rapidly as it is admitted
to the
site,
That proper
spreading and compaction has not always been proLded is evident from
the record,
On
two occasions persons were observed depositing refuse
when operating personnel were not present
(R.
19,
20).
Agency inspec-
tors testified that they observed uncompacted refuse during several
visits
to the site
(R.
25,
73).
The question of whether the deposition of
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640
refuse occurred at times when
the landfill site was closed is
not
relevant to the issue of compaction.
The operator of
a landfill
must bear the responsibility for proper handling of refuse irrespec-
tive of when and how it is deposited.
We have already found that
Mr.
Gerdes permitted access
to the site during hours when operating
personnel were
not present.
It
was
up to Mr. Gerdes
to prevent such
access and,
if unauthorized dumping did occur,
to provide proper
spreading and compaction
as soon as possible after the event.
A
violation was proved,
Count
8 charges Mr. Gerdes with failing
to cover
refuse at the end
of
the working day,
in vjolation of Rule 5,07
(a).
Violations were
clearly shown.
An Agency inspector
testified that refuse remained
uncovered
for two consecutive
days
(R.
31).
Mr.
Gerdes admitted
that not all refuse had been covered
(R,
87).
Count
9 alleges failure
to provide
a final cover
for refuse as
required by Rule 5.07(b).
The Rule states that at least two
feet
of material shall be placed over the surface of all completed
portions of the fill within six months following the final placement
of refuse.
Mr.
Gerdes stated that he had recently “cleaned up” the
site but had not yet covered all of the fill
face
(R.
91,
93),
It
is true that at the time of the hearing only one month had passed
since
the
site
was
closed.
However,
an Agency inspector testified
that
a portion of the landfill
area had received no additional
refuse for
a period of almost a year, yet had been given only
a
shallow cover
(R~ 30,
31).
We interpret this fact to mean that
the area had received
a final placement of refuse
and that a final
cover is thus required.
We find respondent
to be
in violation of
Rule 5.07(b).
One additional matter is worthy of coxninent~
Much testimony was
received concerning the
lack of cooperation given respondent by
those who used his landfill
site.
Several witnesses referred to the
lack of adequate financial compensation.
Even neighboring townships
failed
to pay
for the privilege of using
the landfill
CR.
95).
The
mayor of Nauvoo testified that the City does not have sufficient
funds
to compensate Mr.
Gerdes adequately
(R.
113).
Mr. Gerdes
indicated he could not operate the landfill unless he were
to
receive
greater remuneration
CR.
94).
Counsel for the Agency expressed
the hope that people would some day realize the cost of living must
include the cost of disposing of their waste products in
a proper
manner
(R.
116),
We could
not agree more.
We fully appreciate the
service rendered to
a community by landfills such as that of
Mr.
Gerdes,
However,
the rules require that refuse be disposed of
properly.
We cannot allow
landfills to be operated outside the law,
even if money is saved
for the community
in the process.
We are
encouraged by the fact that efforts are now underway to raise money
for the support of the Gerdes landfill
(R,
97).
It is our fervent
hope that these efforts will meet with success.
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641
Counsel
for the Agency requested that prior to reopening of the site,
respondent be ordered
to apply for
a permit from the Agency as
if
the site were
a new one
(R~116).
He asserted that this would further
ensure proper operation of the landfill.
In our judgment,
requiring
Gerdes
to
obtain
a
permit
is unnecessary, however.
At the time of
the hearing the landfill had been inoperative for only one month, and
Gerdes
indicated
that
he
wished
to
reactivate
the
site
(R.
94).
Furthermore,
there
is
no
indication
in
the
record
that
the siting
of
the
landfill
is
such
as
to
pose
a
threat
of
pollution.
There
is
thus
no
need
for
the
Agency
to
investigate
siting
through
the
normal
channel
of
the
permit
procedureS
We
think
that
proper
operation
of
the landfill
can be ensured by ordering that
any
further
operation
be
conducted in strict
accordance
with the rules.
We will
so order,
In summary,
we
find violations with respeot to the posting of hours
of operation,
provision of
a shelter, permitting uncontrolled access
to the site,
unsupervised unloading,
spreading and compacting, daily
cover, and final cover.
For these violations we shall assess
a
penalty of
$200.
The amount of the penalty is less
than the amount
we have imposed
in other cases involving landfills
(see EPA v.
Bath,
Inc.
and John L.
Walker, PCB 71-52,
and EPA v.
Oscar
E. Denn
,
PCB 71-32).
In
t
e instant case
the operation is relatively small
in size.
It is
operated only
two days per week
and the violations
are less flagrant.
Mr. Currie
and Mr.
Kissel dissent in part
for reasons stated in
a
separate opinion.
This opinion constitutes the Board’s findings of fact and conclusions
of law.
ORDER
I.
Arthur Gerdes shall comply with Rule 5.07(b)
of the Rules and
Regulations for Refuse Disposal Sites and Facilities by pro-
viding final cover for refuse at his landfill site.
2.
In the event the landfill owned by Arthur Gerdes is reopened,
it shall be operated
in strict accordance with the Rules
and
Regulations for Refuse Disposal Sites and Facilities
and with
the Environmental
Protection Act.
3.
Arthur Gerdes shall within 35 days after receipt of this order
pay to the State of Illinois
the sum,
in penalty,
of
$200.
I, Regina
E.
Ryan, Clerk of
the Pollution Control Board, hereby
certify that the Board adopted the above opinion and order this
l4day of
October
,l97l.
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