ILLINOIS POLLUTION CONTROL BOARD
    December 14,
    1994
    COUNTY OF DUPAGE,
    )
    Complainant,
    AC 94—20
    V.
    )
    (Administrative Citation)
    WASTE MANAGEMENT OF ILLINOIS
    (GREEN VALLEY LANDFILL),
    Respondent.
    RAYMOND E.
    HANSEN, ASSISTANT STATE’S ATTORNEY APPEARED ON BEHALF
    OF COMPLAINANT;
    PERCY L. ANGELO and JONATHAN E. SINGER OF MAYER, BROWN and PLATT,
    APPEARED ON BEHALF OF RESPONDENT.
    OPINION AND ORDER OF THE BOARD
    (by E. Dunham):
    This matter comes before the Board on an administrative
    citation issued by the County of DuPage
    (County) to respondent on
    April
    1,
    1994.
    On May 4,
    1994, Waste Management
    (WMI)
    filed an
    appeal of the administrative citation.
    A hearing on this matter was held on August 25,
    1994,
    in
    Wheaton,
    Illinois before hearing officer Allen Schoenberger.
    Respondent filed its post-hearing brief on October 11,
    1994.
    Complainant filed its post-hearing brief instanter on October 12,
    1994.
    The administrative citation alleges that Waste Management
    is
    the present operator of the Green Valley Landfill in Naperville,
    Illinois.
    The administrative citation was issued as a result of
    an inspection of the facility on February 12,
    1994.
    The
    administrative citation alleges violation of Section 21(o) (5)
    of
    the Act (415 ILCS 5/21(o) (5) (1992)) which carries a statutory
    civil penalty of $500.
    MOTIONS
    Before reviewing the administrative citation the Board will
    consider various pending motions.
    Before the Board
    is a “Motion
    to Strike” filed on October 11,
    1994,
    by respondent and a “Motion
    to Strike Complainant’s Post-Hearing Brief” filed on October 13,
    1994.
    The County of Du Page filed a “Response to the Motion to
    Strike”
    on October
    18,
    1994.
    On October 27,
    1994, WMI filed a
    response to complainant’s response.
    The County of Du Page filed
    a “Response to Respondent’s Motion to Strike Complainant’s Post
    Hearing Brief” on October
    26,
    1994.

    2
    In the motion to strike, respondent seeks to strike
    “immaterial and prejudicial” allegations from the administrative
    citation and from the opening statement presented at hearing.
    Respondent also seeks to strike Exhibits
    3
    &
    51
    admitted into
    evidence at the hearing.
    Respondent claims that the allegations
    are irrelevant to the violation alleged in the administrative
    citation and have been placed in the citation solely to prejudice
    WMI.
    In its response, complainant claims that the motion to
    strike is untimely.
    (35 Ill. Adm. Code 103.140.)
    Complainant
    also asserts that Exhibits
    3
    &
    5 are relevant to show the
    conditions observed on the day of the inspection.
    The Board finds that the motion to strike is timely filed.
    The Board further finds that the exhibits were not prejudicial to
    WMI.
    The respondent’s motion to strike materials entered into
    the record by the County is therefore denied.
    In its motion to strike complainant’s brief,
    respondent
    claims that pursuant to the hearing officer’s order, simultaneous
    post-hearing briefs were to be filed with the Board on October
    11,
    1994, with the parties serving each other via facsimile or
    messenger on the same day.
    Respondent states that it served its
    brief on the County via facsimile starting transmission at
    approximately 4:15 on October 11,
    1994.
    Respondent claims that
    the County,
    in violation of the hearing officer’s order did not
    serve its brief on
    WMI
    until after the close of business on
    October 11,
    1994,
    by sending a facsimile at approximately 7:40
    p.m.
    WNI
    claims that it is prejudiced by this late filing since
    the County had the opportunity to review respondent’s brief prior
    to submitting its brief thus, circumventing the intent of
    simultaneous filing.
    In its response, complainant asserts that it did not review
    respondent’s post—hearing brief before sending its post-hearing
    brief to respondent via facsimile,
    though no affidavit was filed
    with the assertion.
    Complainant claims that the granting of
    respondent’s motion would result in great prejudice to
    complainant while respondent is not prejudiced by the filing of
    the complainant’s brief one day late.
    The Board denies complainant’s motion and accepts
    complainant’s post—hearing brief instanter.
    Exhibit
    3
    &
    5 are excerpts from the Narrative Inspection
    Report prepared the County of Du Page’s inspector on February 11,
    1994.

    3
    DISCUSSION
    Pursuant to Section 31.1(d) (2)
    of the Act,
    if the Board
    finds the alleged violation occurred, then the final order issued
    shall include a finding of violation,
    and shall impose the
    penalty specified in subdivision
    (b) (4)
    of Section 42,
    i.e. $500
    per violation.
    Section 31.1(d) (2) further provides that if the
    Board finds the violation resulted from uncontrollable
    circumstances,
    it shall adopt a final order which makes no
    finding of violation and which imposes no penalty.
    Thus,
    a two-
    part inquiry is required:
    first, the Board must determine whether
    there was
    a violation based on the record in this case, and if
    so, the Board must then determine whether the violation was
    caused by uncontrollable circumstances.
    The Board may not hold
    that a violation has occurred unless
    it finds by a preponderance
    of the evidence that the record proves that a violation occurred.
    The sole violation alleged is
    a single count violation of
    Section 21(0) (5)
    of the Act:
    5. uncovered refuse remaining from any previous operating
    day or at the conclusion of any operating day, unless
    authorized by permit.
    The sole issue before the Board in this administrative citation
    is whether the alternate daily cover placed by
    WNI
    on February
    11,
    1994 was adequate.
    Witnesses at hearing were Mr. Rodd Elgis, Principal
    Environmental Specialist,
    for the County and Mr. Tim Wolford,
    Operations Manager,
    for WMI.
    Mr.
    Elgis acknowledged that he had
    been inspecting the Green Valley Landfill of
    WNI
    on his own for
    five months, and that he had limited experience in the placement
    of alternate daily cover
    (ADC)
    (Tr. at 93.)
    In Mr. Wolford’s
    testimony, he indicated that he had been managing the landfill
    for 16 months and that the landfill had been using the same type
    of ADC for the entire 16 month period.
    (Tr. at 149
    -
    151.)
    Mr.
    Wolford stated that the method employed in removing ADC is to
    bury the plastic sheeting in refuse and cover the refuse with
    earth at the next opportunity.
    (Tr.
    at 172
    -
    177.)
    Mr.
    Elgis testified that he arrived at the landfill on
    February
    12,
    1994 at 7:00 a.m.
    (Tr. at 33.)
    He observed that the
    previous day’s working face was covered with plastic tarps.
    (Tr.
    at 44.)
    He also observed that areas of the previous day’s
    working face were exposed through the tarp.
    (Tr. at 45.)
    Contemporaneous photographs were presented by the County in
    support of its allegation that waste remained uncovered from the
    previous working day.
    (Comp.
    Exh.
    4.)
    The photographs show
    plastic sheeting used as ADC covering the prior days’ working
    face.
    Some areas of exposed waste are shown
    in the photographs.

    4
    The County alleges that the uncovered waste remained uncovered
    from the previous day.
    In rebuttal,
    WNI
    presented testimony that landfill workers
    were in the process of removing and burying the ADC when the
    County inspector arrived.
    WNI
    claims that the waste was not left
    uncovered from the previous workday
    (Tr. at 164) and the exposed
    waste in the photographs is the result of work done the morning
    of the inspection
    (Tr. at 175).
    The photographs show waste on
    top of some of the plastic sheeting and heavy equipment working
    on the waste high on the face of the slopes.
    WMI
    presented testimony from landfill personnel that
    questions the interpretation of events witnessed by Mr.
    Elgis
    during his inspection of the landfill.
    The testimony of Mr.
    Wolford depicted the photographic evidence as showing that no
    violation had occurred.
    The burden of proving that a violation
    has occurred rests solely upon the County.
    Based upon the
    testimony and the photographic evidence presented supporting
    WMI’s assertion that there had been no violation,
    the Board finds
    that the County has failed to prove,
    by a preponderance of the
    evidence, that a violation has occurred.
    This administrative citation
    is accordingly dismissed.
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act,
    (415 ILCS
    5/41
    (1992)), provides for appeal of final orders of the Board
    within
    35 days of the date of service of this order.
    The Rules
    of the Supreme Court of Illinois establish filing requirements.
    (See also 35 Ill.
    Adm. Code 101.246, Motion for Reconsideration.)
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certi~that the above Rpinion and order was
    adopted on the
    //~-/—~
    day of
    /U~?t~~’
    ,
    1994,
    byavoteof
    ~,-_~)
    Dorothy M.
    Illinois P0
    Control Board

    Back to top