ILLINOIS POLLUTION CONTROL BOARD
    January 19,
    1995
    ILLINOIS
    ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Complainant,
    )
    V.
    )
    AC 94—8
    (Administrative Citation)
    ATKINSON LANDFILL COMPANY,
    )
    (IEPA 9—94-AC)
    )
    Respondents.
    JAMES
    F.
    RICHARDSON,
    ASSISTANT
    COUNSEL,
    APPEARED
    ON
    BEHALF
    OF
    COMPLAINANT;
    BRANKO
    VARDIJAN,
    PRESIDENT,
    APPEARED
    PRO SE.
    INTERIM OPINION
    AND
    ORDER OF THE
    BOARD
    (by
    G.
    T.
    Girard):
    On February 10,
    1994, the Illinois Environmental Protection
    Agency (Agency) filed an administrative citation pursuant to
    Section 31.1 of the Environmental Protection Act
    (Act).
    (415
    ILCS 5/31.1 (1992).)
    The citation alleges that Atkinson Landfill
    Company
    (Atkinson) violated Sections 21(o)(5),
    (o)(9) and
    (o)(12)
    of the Act.
    On March 18,
    1994, the Board received a request for
    review filed by Atkinson.
    Hearing was held before Hearing Officer Steven Gunning on
    October 4,
    1994 at Cambridge, Rock Island County,
    Illinois.
    No
    members of the general public made a statement at the hearing.
    For the reasons enunciated below, the Board finds that
    Atkinson was in violation of Sections 21(o) (5),
    (0)
    (9) and
    (0)
    (12) of the Act.
    BACKGROUND
    Atkinson is the present operator of a facility located in
    Henry County,
    Illinois.
    The facility is operated as a sanitary
    landfill under an Agency operating permit No.
    1980-33-OP and
    designated as site code NO. 0730200003.
    The facility is commonly
    known to the Agency as Henry County Landfill #2.
    (AC at
    1.)1
    On December 15,
    1993,
    Robert Wagner, an Agency inspector
    accompanied by James Jones,
    an Agency employee, inspected the
    facility.
    Based on the December 15,
    1993 inspection, the Agency
    The administrative citation will be cited as “AC at
    _“;
    the request for review will be cited as “Pet.
    at
    _“;
    and the
    transcript will be cited as “Tr. at
    ....“.

    2
    issued the administrative citation alleging violation of Sections
    21(o)(5),
    (o)(9) and
    (o)(12) of the Act.
    APPLICABLE
    LAW
    The administrative citation issued against respondents
    alleges violations of subsections
    (5),
    (9) and
    (12) of Section
    21(o)
    of the Act.
    Section 21(o) provides that no person shall
    conduct a sanitary landfill operation in a manner which results
    in:
    5.
    uncovered refuse remaining from any previous operating
    day or at the conclusion of any operating day, unless
    authorized by permit;
    9.
    deposition of refuse in any unpermitted portion of the
    landfill;
    ***
    12.
    failure to collect and contain litter from the site by
    the end of each operating day.
    (415 ILCS 5/21(o)(5),(9) and (12).)
    The Board has adopted the definition of litter used in the
    Litter Control Act.
    (See St.
    Clair County v. Louis Mund,
    (August
    22,
    1991), AC 90-64).
    “Litter” means any discarded, used or
    unconsumed substance or waste and may include:
    ...any garbage, trash,
    refuse, debris...or anything else of
    an unsightly or unsanitary nature which has been discarded,
    abandoned or otherwise disposed of improperly.
    (415 ILCS 105/3)
    Pursuant to Section 31.1(d) (2)
    of the Act, the Agency bears
    the burden of proof in this case.
    (415 ILCS 5/31.)
    Also,
    pursuant to Section 31.1(d) (2) of the Act,
    if the Board finds
    that the alleged violation occurred, then the final order issued
    shall include a finding of violation, and shall impose the
    penalty of $500 per violation as specified in subsection
    (b) (4)
    of Section 42 of the Act.
    FACTS
    AND
    ARGUMENTS
    The
    request
    for
    review
    of
    the
    citation
    filed
    by
    Atkinson
    states:

    3
    On December 15,
    1993 IEPA personnel inspected the landfill.
    No mention of citations was brought to the operator’s
    attention.
    With regard to the citations, uncovered refuse,
    deposition of refuse in an unpermitted area,
    failure to
    collect and contain litter, the Atkinson Landfill Company
    cites that one load of waste had already been accepted for
    disposal and that the items cited are wrongfully so.
    Additionally, the refuse in an unpermitted area is that of
    construction debris used for road construction during
    inclement weather.
    (Pet. at 1.)
    Mr. Branko Vardijan, President of Atkinson, testified on
    behalf of the respondent.
    Mr. Vardijan testified that the
    weather and the poor condition of the equipment, as well as not
    having the proper equipment at the time of the inspection, made
    it difficult to operate the landfill.
    (Tr. at 23—25.)
    Mr.
    Vardijan also testified that “the material we are using for roads
    was
    -
    -
    in the way I’m thinking was legal.
    It was not really the
    way he said,
    it was garbage.
    It was road material.”
    (Tr. at
    25.)
    Mr. Vardijan also testified that the area had been cleaned
    up and that they were cooperating with the Agency.
    (Tr. at 31.)
    Finally,
    in response to cross—examination, Mr. Vardijan testified
    that he was not at the site on December 15,
    1993.
    (Tr. at 27.)
    Mr. Robert Wagner testified that the site had not received
    waste prior to his arrival on December 15 and waste was not
    accepted while he was present.
    (Tr. at 15 and 17.)
    Mr. Wagner
    did testify that the weather was bad and in fact stated that “it
    was a muddy mess”.
    (Tr. at 9.)
    Mr. Wagner did not cite any
    violations in the active phase of the landfill because of the
    weather conditions.
    (Id.)
    The photos taken and marked as
    exhibits were taken in the area around phase 5 and the north
    fence line.
    (Tr. at 12,
    14,
    18,
    19 and 21.)
    Mr. Wagner
    testified that he reviewed the permits issued to Atkinson and
    even talked to the permit section regarding permits.
    (Tr. at 14
    and 37.)
    Phase
    5 is not permitted to receive waste and the
    permits do not allow for road construction using fill material.
    (Id.)
    Further, the hours of operation based on the permits are
    7:30 a.m. to 6:00 p.m. and Mr. Wagner arrived at 6:52 a.m.
    (Tr.
    at
    7 and 15.)
    DISCUSSION
    The Agency must prove that the violations occurred as
    alleged.
    The Agency presented exhibits which clearly show litter
    in areas around the landfill.
    Additionally, the Board finds that
    Mr. Wagner’s uncontroverted testimony supports the pictorial
    evidence (Exhibit 1) that litter had accumulated along the fence
    line in violation of Section 21(o) (12) of the Act.
    Further, the
    Board is persuaded that Mr. Wagner was aware as to which areas at
    the site were permitted and therefore, the Board finds that the
    Agency demonstrated that waste was deposited in unpermitted areas

    4
    of the landfill in violation of Section 21(0) (9) of the Act.
    Finally, the evidence clearly supports a finding that debris was
    left uncovered from a previous operating day in violation of
    Section 21(0) (5)
    of the Act.
    In addition, the Board notes that
    the exhibits and testimony clearly establish that the material
    being used for “roads” was not proper fill material and,
    therefore, also constitutes litter.
    Having found that the violations occurred the Board also
    finds that the violations were not a result of uncontrollable
    circumstances.
    Although the weather at the site was inclement at
    the time of the inspection,
    the litter along the fence line
    appears to have been accumulating for a period of time.
    Further,
    the other violations also appear to have been ongoing.
    Therefore, the Board does not believe that the weather
    contributed to the violations occurring.
    Finally, the Board notes that Atkinson maintains that the
    violations have been corrected.
    However, the Act, by its terms,
    does not envision a properly issued administrative citation being
    dismissed or mitigated because a person is cooperative or
    voluntarily cleans up the site.
    (IEPA v. Jack Wright
    (August 30,
    1990), AC 89—227,
    114 PCB 863.)
    Clean—up of the site is not a
    mitigating factor under the administrative citation program.
    (IEPA v. Dennis Grubaugh (October 16,
    1992), AC 92-3, _PCB_.)
    CONCLUSION
    The Board finds that the Agency has established that the
    Atkinson Landfill Company violated Sections 21(o) (5),
    (0)
    (9) and
    (0)
    (12) of the Act.
    The Board further finds that the violation
    were not a result of uncontrollable circumstances.
    Therefore,
    Atkinson Landfill Company is found in violation and must pay a
    civil penalty of $500 per violation for a total penalty of
    $1,500.
    Respondent is also required to pay hearing costs
    incurred by the Board and the Agency.
    The Clerk of the Board and
    the Agency will therefore be ordered to each file a statement of
    costs, supported by affidavit, with the Board and with service
    upon Respondent.
    Upon receipt and subsequent to appropriate
    review, the Board will issue a final order in which the issue of
    costs is addressed.
    This opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    1.
    Respondent is hereby found to have been in violation on
    December 15,
    1993, of 415 ILCS 5/21(o)(5),
    (9)
    and
    (12)
    (1992).

    5
    2.
    Within 30 days of this order, the Agency shall file a
    statement of its hearing costs, supported by affidavit,
    with the Board and with service upon respondent.
    Within the same 30 days, the Clerk of the Pollution
    Control Board shall file a statement of the Board’s
    costs, supported by affidavit and with service upon
    respondent.
    3.
    Respondent
    is hereby given leave to file a
    reply/objection to the filings as ordered in paragraph
    2 of this order within 45 days of this order.
    4.
    After the deadline for filing such information and
    reply thereto has expired, the Board will issue a final
    order assessing the statutory penalty, and making the
    appropriate award of costs.
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act (415 ILCS
    5/40.1) provides for the appeal of final Board orders within 35
    days of service of this decision.
    The Rules of the Supreme Court
    of Illinois establish filing requirements.
    (But see also,
    35
    Ill. Adm. Code 101.246, Motions for Reconsideration.)
    I, Dorothy M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify that the above ,interim opinion and order
    was adopted on the
    /9~
    day of
    ___________________,
    1995,
    by
    a vote of
    ~//
    ~
    -~DorothyM. ,&inn, Clerk
    Illinois P6illution Control Board

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