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.
    2
    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
    2
    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.
    2
    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.
    2
    642

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