ILLINOIS POLLUTION CONTROL BOARD
March 31,
1994
LAKE
COUNTY
FOREST
)
PRESERVE
DISTRIcT,
)
Complainant,
v.
)
PCB 92—80
)
(Enforcement)
NEIL OSTRO, JANET OSTRO,
)
and BIG FOOT ENTERPRISES,
)
)
Respondents.
)
MARK
STANG
AND
PETER
FRIEDMAN,
of
BURKE,
WEAVER
&
PRELL,
APPEARED
ON
BEHALF
OF
COMPLAINANT;
and
JAY NELSON
AND
JACK
WATSON,
of
SCHAFFENEGGER, WATSON,
&
PETERSON,
APPEARED ON BEHALF OF RESPONDENTS.
INTERIM
OPINION
AND
ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter is before the Board on Lake County Forest
Preserve District’s (District) May 29, 1992 complaint,
as amended
on February 16, 1993,
against Neil Ostro,
Janet Ostro, and Big
Foot Enterprises
(collectively, the Ostros).
The complaint is
brought pursuant to Section 31(b)
of the Environmental Protection
Act (Act), which allows any person to file with the Board an
enforcement action alleging violations of the Act or Board rules.
(415 ILCS 5/31(b)
(1992).)
The Ostros are previous owners of
property acquired by the District by condemnation.
The District
alleges violations of Sections 21(a), 21(e),
21(f), and 21(m)
of
the Act.
(415 ILCS 5/21(a),
(e),
(f), and
(m)
(1992).)
Hearings were held on November 12 and December 14,
1992, and
on January 18,
20, and May 19,
1993.
No members of the public
attended.
The parties subsequently filed briefs, as well as a
number of motions related to discovery disputes.
For the reasons set forth below, we find that the Ostros
violated Sections 21(a),
(e),
(f)(l), and
(m) of the Act.
BACKGROUND
This case involves a 15.4 acre tract of land located at the
northwest corner of Sunshine Avenue and Route 45 in Lake Villa,
2
Lake County,
Illinois.
(Am. Joint Exh.
14 at 1.)’
Neil Ostro,
along with two others, acquired the property on or about Nay
1,
1970.
Neil Ostro and his partners operated
a day camp, known as
Camp Malibu, on the property.
(Tr. at 196.).
In
1976
Neil
Ostro
became the sole owner of the property.
(Ain.Joint Exh.
14 at 2.)
Neil and Janet Ostro resided on the property from 1976 to 1988.
(Am. Joint Exh.
14 at 3.)
The Ostro’s tenant, Richard Ramlow,
lived on the property from 1988 until May 1990.
(Id.)
On or
about May 7,
1986, Neil Ostro conveyed legal and equitable title
to the property to Janet Ostro.
(Am. Joint Exh.
14 at 2.)
The
District began condemnation proceedings against the property in
1988,
and on December 22,
1989 the District acquired fee simple
title to the property for $385,000.
(Am. Joint Exh.
14 at 2—3.)
The District took possession of the property on May 30,
1990.
In the mid-1970s, Neil Ostro purchased twenty 55-gallon
barrels of paint.
Neil Ostro used the paint to paint buildings
and other objects at the day camp.
All of the paint was used,
with the exception of two full barrels and one partially used
barrel.
(Am. Joint Exh. 14 at
3; Pr. at 205.)
Neil Ostro did
not use any of the paint after 1980.
(Tr. at 206, 397.)
The
empty barrels, as well as the barrels with paint remaining in
them, were placed on the east side of the property, along Route
45.
(Am. Joint Exh.
14 at 3; Tr.
at 208-209.)
The Ostros did
not cover the barrels or provide any type of liner between the
barrels and the ground.
(Tr. at 209—210.)
The Ostros made no
arrangements to dispose of the barrels before the District
acquired the property in 1989.
(Tr. at 218, 225-226.)
There
were approximately 15 barrels left on the property after the
District took possession of the property on May 30,
1990.
(Am.
Joint Exh. 14 at 3.)
Between November 1990 and January 1991, District employees
worked on the property demolishing the buildings on the property.
(Tr. at 73,
117,
140.)
In December 1990, three of those
employees discovered the barrels.
Those employees, Paul Wagner,
Edward Sands, and Dennis Dougherty, testified that the barrels
were almost completely buried in the side of the berm near Route
45.
(Tr. at 74—76,
118,
141.)
Wagner and Sands testified that
the barrels had holes in them and were frail,
rusty, and stacked
on top of each other.
(Tr. at 125,
142—143.)
Both men stated
that at least one of the barrels was leaking a black “tar-like”
substance or heavy oil from a hole in the bottom of the barrel.
(Id.)
After discovering the barrels, the District contacted the
Illinois Environmental Protection Agency
(Agency) emergency
1
Amended Joint Exhibit 14
is a stipulation of facts
agreed to by the parties.
3
response team.
(Tr. at 254.)
The response team told the
District
that
the District would have to conduct further sampling
and testing, and that the site would have to be cleaned up,
including the removal of all contaminated soil.
(Tr. at 255.)
The District then contacted the Ostros to tell them that they
must remove the barrels.
The District directed the Ostros to
contact Brian Martin of the Agency for guidance in complying with
environmental laws.
(Tr. at 403-404.)
Neil Ostro contacted
Martin, and then sent an August 21,
1991 letter to the District
stating that he had contacted a lab and a licensed waste hauler,
and that it appeared that the work could be completed in 120
days.
(Am. Joint Exh.
14 at 4; Joint Exh.
3.)
On August 26,
1991, Safety-Kleen,
Inc., which had been
retained by the Ostros, took a sample of the contents of one of
the barrels, and conducted laboratory tests on that sample.
(Am.
Joint Exh. 14 at 4; Joint Exh.
4.)
In the fall of 1991,
Neil
Ostro and Richard Ramlow entered onto the property and used a
hook connected to
a backhoe to pull the barrels out of the
ground.
(Tr. at 388-390, 467-471.)
Mr. Ostro and Mr. Ramlow
placed the barrels which still had paint in them into two yellow
85-gallon overpacks supplied by Safety-Kleen.
(Am. Joint Exh.
14
at 4; Tr. at 389, 409.)
Eight to ten empty drums were taken to
the Cleveland Corporation for recycling.2
(Tr. at 384, 388—390,
396,
407.)
Both Neil and Janet Ostro testified at hearing that
they were prepared to have Safety—Kleen dispose of the barrels in
the overpacks,
but that they could not because the District would
not provide the incident number that Safety-Kleen needed to
obtain a manifest.
(Tr. at 414—416,
425,
453—454.)
On November
15,
1991, the District sent a letter to the Ostros stating that
the Ostros were not authorized or permitted to enter onto the
property without prior written consent of the District.
(Resp.
Exh.
4.)
On November 14,
1991, Engineering
& Testing Services,
Inc.,
retained by the Ostros, took soil samples from the area where the
barrels had been.
(Am. Joint Exh.
14 at 4; Joint Exh. 5.)
On
November 15,
1991,
the Agency collected soil and water samples
from the property.
(Am. Joint Exh.
14 at 4; Joint Exh.
6.)
On
December 30,
1991, the Agency sent a compliance inquiry letter to
the District, stating that the District was apparently in
2
The record is conflicting as to the date that Neil
Ostro removed the barrels.
The joint stipulation of facts states
that two barrels were placed into yellow overpacks
in September
1991.
(Am. Joint Exh.
14 at 4.)
However, Neil Ostro testified
that this occurred in November 1991
(Tr. at 409),
and Janet Ostro
testified that the date was November 11,
1991
(Tr. at 467).
4
violation of 35 Ill.
Adm. Code 722.111 for failing to provide a
waste determination.3
(Joint Exh.
8.)
The District hired Ecology Services,
Inc., to investigate
the extent of contamination in the barrel area and to remove any
contaminated materials.
Ecology Services began that work on
March
4,
1992.
John Hauser of Ecology Services testified that
there was a noticeable solvent—type odor from the excavation made
by Ecology Services.
(Tr. at 173-174; Comp.
Exh. 4—6.)
Hauser
also testified that he discovered
a small stockpile of soil west
of the barricaded area, which had the end of a 55-gallon barrel
lying on top.
(Pr. at 178—180.)
Hauser stated that there was
some resin-like material leaking onto the pile of soil.
(Pr. at
179; Comp.
Exh.
8.)
Ecology Services took nine soil samples,
which were then tested.
(Joint Exh.
9.)
On July 22,
1992, GSC
Environmental, also retained by the District, took a sample of
the stockpiled soil,
and submitted the sample to Chemical Waste
Management for analysis.
(Am. Joint Exh.
14 at 5; Joint Exh.
10.)
On November 10,
1992, the District received a permit from
the Agency to dispose of the stockpiled soil at the CID landfill
in Calumet City,
Illinois.
(Pr. 262; Comp. Exh.
15.)
On November 11,
1992, the Ostros’ consultant,
Philip Mole,
collected five soil samples from the stockpiled soil on the
property.
Those samples were analyzed by Tenco Environmental
Laboratories.
(Am. Joint Exh.
14 at 6; Joint Exh.
13.)
On
November 20,
1992, the District’s contractor took samples from
the two yellow overpacks,
and from a green overpack which
contained the fragment of the barrel found by Ecology Services.
(Joint Exh.
11,
12; Am. Joint
Exh.
14 at 5—6.)
The two yellow
overpacks were removed from the property by agreement of the
parties after the first day of hearing (December 14,
1992).
(Pr.
at 415.)
OUTSTANDING MOTIONS
There are three motions in this case which have not yet been
ruled upon:
the Ostros’ motion for directed finding, the Ostros’
motion for discovery sanctions,
and the District’s motion for
rule to show cause.
At the January 18 hearing in this matter, the Ostros
presented a motion for directing finding.
A written copy of that
motion was filed with the Board on January 22,
1993.
On February
Section 722.111 requires a person who generates solid
waste to determine whether that waste is a hazardous waste.
(35
Ill.Adm.Code 722.111.)
5
25,
1993, while ruling upon a discovery dispute, the Board stated
that we would defer ruling upon the motion for directed finding
until our decision on the merits of the case.
The motion for
directed finding alleges that the District has not proven: that
the Ostros violated any statute or regulation; that there has
ever been any Class F listed waste on the property; that there
is
any contamination of the soil;
and that the Ostros deposited any
contaminants on the property.
Thus, the Ostros moved for a
directed finding of no liability.
The District responded to the
motion at hearing.
(Tr.
at 282—285.)
The motion for directed finding is denied. The Ostros have
not provided any argument or citation to the record in support of
their motion.
The District argued that it had established that
the Ostros had violated Sections 21(a), 21(e), 21(f),
and 21(m)
of the Act, through Mr. Ostro’s testimony and through other
testimony and exhibits.
We find that the District had carried
its burden of establishing a
prima
facie case so as to withstand
a motion for directed finding.
The Ostros also moved for discovery sanctions.
The Ostros
contend that the District’s response to its request for
production of pictures, slides, motion pictures, or videos of the
property was incomplete, and that the District produced 75
additional photographs one business day before the first day of
hearing.
The Ostros ask that the Board enter appropriate
sanctions.
In response, the District maintains that all of the
photographs which were produced late either came into existence
or came to the attorney’s attention after the District filed its
response on October 14,
1992.
The Board is concerned by the allegations that the
District’s response to the request for production was incomplete.
However, the District has stated that the photographs which were
produced after the October response either were taken after that
date, or came to the attorney’s attention after that date.
The
hearing officer stated twice that he would accept the Ostros’
attorney’s representation that he needed more time to prepare,
based on the late production.
(Tr. at 28-30.)
The hearing
officer also gave the Ostros additional time to take further
discovery
(Pr.
38-39, 226-229), and further depositions of the
District’s witnesses were subsequently noticed. There is no
indication in the record that the District intentionally withheld
the photographs.
Additionally, the Ostros were given additional
time for discovery.
The motion for discovery sanctions is
denied.
Finally, the District filed a motion for rule to show cause.
This motion relates to a dispute over a subpoena served by the
6
District on an insurance adjuster.4
The District contends that
the dispute could have been avoided, and resources saved,
if the
insurer had tendered the challenged documents to the hearing
officer for an
in
camera inspection.
Thus, the District asks
that the insurer be ordered show cause why it should not be held
in contempt, and to pay the District’s reasonable expenses in
obtaining an order of production.
The motion for rule to show cause is denied.
In our April
22,
1993 order, the Board noted its frustration with the dispute
surrounding the subpoena.
However, after further proceedings
before the hearing officer, the dispute was subsequently
resolved.
We see nothing to be gained at this point by further
cluttering this case with matters not related to the alleged
violations of the complaint.
ALLEGED VIOLATIONS
A complainant in an enforcement proceeding has the burden of
proving violations of the Act by a preponderance of the evidence.
This standard of proof requires that the proposition proved must
be. more probably true than not.
Once the complainant presents
sufficient evidence to make
a
prima
facie case, the burden of
going forward shifts to the respondent to disprove the
propositions.
(Illinois Environmental Protection Aaency v. Bliss
(August 2,
1984), 59 PCB 191, PCB 83—17.)
Section 21(a~
Section 21(a) of the Act states that no person shall “cause
or allow the open dumping of any waste”.
(415 ILCS 5/21(a)
(1992).)
The District contends that the Ostros’
actions, or
inaction,
in leaving the empty and full barrels on the property
constitutes open dumping.
The District argues that because the
barrels had already been used for their primary purpose, and then
discarded, those barrels are “waste” under the statutory
definition.
(415 ILCS 5/3.53
(1992).)
The District further
maintains that the barrels were consolidated, from one or more
sources, at a disposal site that does not meet the requirements
of a sanitary landfill, and that therefore the definition of
“open dumping” is satisfied.
(415 ILCS 5/3.24
(1992).)
As to the issue of “cause or allow”, the District notes that
the Act is
malum prohibitum,
and that proof of guilty knowledge,
The circumstances of the motion to quash subpoena are
set out in the Board’s February 25,
1993 and April
22,
1993
orders.
7
wilfulness,
or intent is not necessary to prove a violation of
the Act.
(People v.
Fiorini (1991),
143 Ill.2d 318,
574
N.E.2d
612.)
The District argues that the Ostros did not take any steps
to ensure the proper storage or removal of the barrels during
their ownership of the property,
and that the Ostros permanently
abandoned the barrels when ownership of the property was
transferred to the District.
The District maintains that the
Ostros caused or allowed the barrels to be dumped on the
property, and caused or allowed the substances in those barrels
to leak into the surrounding soil.
The District concludes that
the Ostros’
actions constitute open dumping of waste in violation
of Section 21(a).
The Ostros do not specifically challenge the District’s
allegation that their actions violated Section 21(a).
The Ostros
did contend,
in their motion for directed finding, that the
District has not proven that the Ostros violated any statute or
regulation.
However, the Ostros have not provided any evidence,
citation to the record, or legal argument in support of that
assertion.
The Board finds that the Ostros violated Section 21(a),
in
that they caused or allowed the open dumping of waste.
We agree
that the barrels constitute “waste”.
The Act defines “waste” as
“any garbage...or other discarded material...”
(415 ILCS 5/3.53
(1992).)
It is undisputed that neither the barrels nor the paint
remaining in the barrels were not used after
1980.
(Tr.
at 206,
397.)
We find that the barrels, having been used for their
primary purpose and subsequently left along the edge of the
property, constitute “waste”.
(~
Illinois Environmental
Protection Agency v.
Thomas (January 23,
1992), AC 89—215, slip
op. at 3-4.)
We also find that consolidating the barrels along
Route 45 constituted “open dumping”.
There is no allegation by
the Ostros that the area along Route 45 meets the requirements of
a sanitary landfill.
As to the issue of whether the Ostros “caused or allowed”
the open dumping, we agree with the District that the Act is
malum prohibitum,
and that it is not necessary to prove that the
Ostros
intended,
or
knew,
that
their
actions
violated
the
Act.
(Freeman Coal Mining Co.
v. Pollution Control Board
(1974),
21
I1l.App.3d 157,
313 N.E.2d 616; Neadowlark Farms. Inc.
v.
Pollution Control Board
(1974),
17 Ill.App.3d 851,
308 N.E.2d
829.)
The District has presented evidence that the Ostros
purchased the barrels, and placed those barrels along Route 45 on
the property.
The District has also shown that the Ostros did
not provide for proper storage or removal of the barrels while
the Ostros owned the property, and that the barrels were left on
the property when the District obtained ownership.
The Ostros
have not disputed any of these facts.
The Board finds that the
8
District presented sufficient evidence to make a
prima facie
case.
we also find that the Ostros have not presented any
evidence disproving the allegations.
In sum, we hold that the
Ostros caused or allowed the open dumping of waste, in violation
of Section 21(a)
of the Act.
Section 21(e)
Section 21(e)
of the Act provides that no person shall
“dispose,
treat,
store or abandon any waste...except at a site or
facility which meets the requirements of this Act and of
regulations and standards thereunder.”
(415 ILCS 5/21(e)
(1992).)
The District argues that the Ostros disposed of the
barrels, which are “waste”,
in a manner that allowed the contents
of the barrels to leak into the soil.
The District also contends
that the record shows that the site does not meet any applicable
land disposal requirements of the Act, since the Ostros have not
produced any permit which would have authorized the Ostros to
dump the barrels along Route 45.
The District concludes that the
Ostros improperly disposed and abandoned waste
in an illegal,
unpermitted site on the property, and thus violated Section 21(e)
of the Act.
The Ostros have not specifically challenged the District’s
allegations that their actions violated Section 21(e).
As noted
above, the Ostros did assert,
in their motion for directed
finding, that the District has not proven that the Ostros
violated any statute or regulation.
However, the Ostros have not
provided any evidence, citation to the record, or legal argument
in support of that assertion.
The Board finds that the Ostros disposed, stored, or
abandoned waste in violation of Section 21(e).
As we found
above,
the barrels constitute “waste”.
Additionally, the record
clearly shows that the Ostros left the barrels on the property so
as to dispose,
store, or abandon them.
There is no evidence that
the area in which the barrels were left meets the requirements of
the Act and regulations for a temporary or permanent waste
storage or disposal site.
The Board finds that the District
presented sufficient evidence to make a
prima facie
case.
We
also find that the Ostros have not presented any evidence
disproving the allegations.
In sum, we hold that the Ostros
violated Section 21(e)
of the Act, by disposing,
storing, or
abandoning waste at a site or facility which did not meet the
requirements of the Act and the regulations.
Section 21ff) (1)
Section 21(f) (1)
of the Act states that no person shall
conduct any hazardous waste disposal operation without a RCRA
9
permit for the site issued by the Agency.
(415 ILCS 5/21(f) (1)
(1992).)
The District contends that the record shows that the
Ostros improperly used a portion of the property as a hazardous
waste disposal site, without obtaining a RCRA permit.
The
District states that although “hazardous waste disposal
operation” is not defined in the Act, the term “hazardous waste
disposal site”
is defined as “a site at which hazardous waste is
disposed.”
(415 ILCS 5/3.16
(1992).)
The District further
states that the Board’s rules establish that a solid waste
exhibits the characteristic of corrosivity,
and is thus
hazardous,
if a representative sample of the waste has a pH
greater than or equal to 12.5.
(35 Ill.
Adin.
Code 721.122.)
The
District maintains that it is undisputed that Neil Ostro placed
the barrels which still contained material into yellow overpacks
purchased from Safety—Kleen.
The District states that samples
from one of the yellow overpacks show that the material had a pH
of 13.
(Jt. Exh.
12.)
Thus, the District concludes that the
solid waste in the overpacks exhibited the characteristic of
corrosivity and is a hazardous waste pursuant to 35 Ill.
Adm.
Code 721.Subpart C.
The District argues that based on the deteriorated condition
of the barrels,
it is “more than likely” that the hazardous
wastes in the barrel subsequently placed in the overpack may have
first entered into the environment by leaking into the
surrounding soil on the property.
The District states that the
Act defines “disposal” as dumping waste so that the waste ~y
enter the environment.
(415 ILCS 5/3.08
(1992).)
In sum, the
District argues that Neil Ostro used a portion of the property as
a hazardous waste disposal site, without a RCRA permit,
in
violation of Section 21(f).
In response, the Ostros argue that the District has not met
its burden~ofproof to show that the paint and the soil are
hazardous wastes.
The Ostros contend that their expert, Philip
Mole,
testified that the paint did not contain any
concentrations of any substances above regulatory limits
(Tr. at
294,
310;
Jt. Exh.
4,
11), and that the District did not offer
any evidence of any regulatory violation with respect to the
paint.
The Ostros maintain that it was a barrel fragment that
tested above the regulatory limit for corrosivity, and that the
District has not shown any evidence of any injury to people or
the
environment.
In
reply,
the
District disputes the Ostros’ allegation that
the
corrosive
material
came
from
a
barrel
fragment
(placed
in
a
green overpack by Ecology Services).
The District contends that
the record is clear that the material which tested as a pH of
13
came from a yellow overpack which contained viscous material.
(Tr.
153—155;
Jt.
Exh.
12.)
10
The Board finds that the District has carried its burden of
proof to show that the Ostros violated Section 2l(f)(1).
The
District has shown that it was material from one of the yellow
overpacks,
not the drum fragment, which tested at a pH level of
13.
(Tr.
at 153—155; Jt.
Exh.
12.)
Section 721.120 of the
Board’s rules states that a solid waste is
a hazardous waste if
it exhibits any of the characteristics identified in Subpart
C.
Section 721.122(a) (1)
states that a solid waste exhibits the
characteristic of corrosivity
if it is aqueous and has a pH of
greater than or equal to 12.5.
Thus, that material was
hazardous.
The Ostros do not dispute that the pH exceeded 12.5,
nor do they cite any authority (or result) from their statement
that there is no showing that the corrosivity characteristic
caused any injury to people or the environment.
Additionally, given the unrebutted testimony that the
barrels had holes in them and were frail and rusty
(Tr. at 125,
142—143), the District has carried its burden of showing that the
waste was disposed so that it may have entered the environment.
(415 ILCS 5/3.08
(1992).)
The Ostros have not raised any
argument that the activities at the property did not constitute a
hazardous waste disposal site, beyond challenging that the pH
result came from a barrel fragment and not from the yellow
overpack.
Thus,
since we have found that the material in the
overpack (which came from the partially and completely filled
barrels) meets the regulatory definition of “hazardous”, and
since the Ostros have not rebutted the District’s
prima facie
case, we find that the Ostros violated Section 21(f) (1) of the
Act by conducting a hazardous waste disposal operation without a
RCRA permit.
Section 21(m)
Section 21(m)
of the Act provides that no person shall
transfer interest in land which has been used as a hazardous
waste disposal site without written notification to the Agency.
(415 ILCS 5/21(m)
(1992).)
The District argues that the property
was a hazardous waste disposal site because the material which
tested at a pH level of 13 was disposed of on the property.
Thus, the District concludes that by transferring the property to
the District without first notifying the Agency, the Ostros
violated Section 21(m).
The Ostros have not specifically challenged the District’s
allegations that their actions violated Section 21(m).
Again,
the Ostros did assert,
in their motion for directed finding, that
the District has not proven that the Ostros violated any statute
or regulation.
However, the Ostros have not provided any
evidence, citation to the record, or legal argument in support of
that assertion.
11
The Board finds that the District has presented sufficient
evidence to establish a
prima
facie case.
We found,
in
determining that the Ostros violated Section 21(f)(1), that the
District has established that at least some of the material on
the property was hazardous, and that the hazardous waste was
disposed on the property.
The Ostros have not presented any
evidence challenging the allegation that the property was a
hazardous waste disposal site, nor have they alleged that they
notified the Agency before transferring the property to the
District.
Thus, we find that the Ostros violated Section 21(m)
of the Act.
REMEDIES
The District asks the Board to enter an order directing the
Ostros to remove all remaining hazardous substances from the
property, conduct
a comprehensive environmental analysis of the
property, and undertake all necessary environmental remediation
of the property.
The District also requests that the Board
assess civil penalties against the Ostros, and that the Board
award the District the costs of its clean-up activities on the
property.
In response to the District’s requested remedies,
the Ostros
contend that no sanctions should be imposed against them because
they made a good faith effort to dispose of the substances but
were prevented from doing so by the District.
The Ostros further
contend that any order requiring them to clean up soil to levels
articulated only in a generic clean-up objective for underground
storage tank leaks would violate their constitutional due process
rights.
The Ostros also maintain that there is no evidence that
the District cleaned up anything to support an award of clean-up
costs,
and that there is no legal authority for the Board to
enter such an order.
Finally, the Ostros assert that the Board
should deny the remedies sought by the District because those
remedies violate the Act’s purpose of promoting conservation and
encouraging recycling.
Remediation of Site
Initially,
the Board notes that in its reply brief, the
District states that it does not ask that the soil be remediated
to a cleanup objective for underground storage tank leaks.
Thus,
we need not rule upon the Ostros’ claim that utilizing those
objectives would violate their due process rights.
The District asks that the Ostros be ordered to remove the
stockpiled soil and remediate the excavation pit.
In deciding
whether to issue such an order, the Board must consider the
factors delineated in Section 33(c)
of the Act:
12
1.
the character and degree of injury to, or interference
with, the protection of the health,
general welfare and
physical property of the people;
2.
the social and economic value of the pollution source;
3.
the suitability or unsuitability of the pollution
source to the area in which it is located, including
the question of priority of location in the area
involved;
4.
the technical practicability and economic
reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting from such
pollution source; and
5.
any subsequent compliance.
(415 ILCS 5/33(c)
(1992.)
After considering these factors, the Board finds that the
Ostros must provide for further evaluation and remediation of the
property.
The record shows that twenty barrels, three of which
still contained material, were placed in an unprotected area
along a highway, without proper cover or liners.
Those barrels
deteriorated over a period of at least ten years, and at least
some of the material in the barrels leaked onto the ground.
The
Ostros did not take any action to clean up the site until others
had discovered the problem.
The pollution source (the barrels)
has no inherent social or economic value, and is unsuitable for
this area.
Although the record is not specific on the technical
practicability and economic reasonableness of remediating the
site,
it is generally known that it is possible to remediate
soils.
We order the Ostros to further investigate possible
contamination of the stockpiled soil and the excavation pit.
Depending upon the results of that investigation, the Ostros must
perform necessary remediation.
Both the investigation and
remedjation are to be done at the direction of, and with the
approval of, the Agency.
This includes, of course, obtaining any
necessary permits.
The District is directed to allow the Ostros
and their contractors all necessary access to the property.
Clean up Costs
As to the Board’s authority to order that the Ostros
reimburse the District for its cleanup costs, we find that we
have the authority to enter such an order.
In People
v.
Fiorini
(1991),
143 Ill.2d 318,
574 N.E.2d 612, the supreme court held
13
that although the award of cleanup costs is not expressly
provided for in the Act,
it would not hold that such an award
would not be an available remedy for a violation of the Act under
appropriate facts.
The court stated that such
a determination is
properly left to the trial court’s discretion.
(Fiorini,
574
N.E.2d at 625.)
While
Fiorini involved a case brought in
circuit court, the Board’s authority is broader than the circuit
court’s authority to hear enforcement cases.
(415 ILCS 5/31-
5/33, 5/42,
5/45 (1992).)
For example,
a citizen
(other than the
Agency, Attorney General, or state’s attorney) must first bring
all enforcement actions before the Board.
If we were to find
that the circuit court had a remedy (award of clean up costs)
which was not available before the Board, we would be finding
that citizens have fewer remedies for violations of the Act.
We
also find that allowing the award of clean up costs
in some cases
will further the purposes of the Act, by encouraging persons to
remediate a threat to the environment immediately, knowing that
their costs could be reimbursed.
Section 33(a)
specifically
allows the Board to enter such final orders as it deems
appropriate.
We find that this broad grant of authority, coupled
with the supreme court’s refusal in Fiorini to find that the
award of cleanup costs is not available under the Act, gives the
Board the authority to award cleanup costs.
We believe that in
deciding whether or not to award such costs,
reference should be
made to the factors set forth in Section 33(c) of the Act.
Having made those initial determinations,
the Board finds
that a further hearing is necessary in this case.
We direct the
hearing officer to schedule a hearing, to be completed no later
than June 3,
1994,
for evidence on the following issues:
1.
The amount and reasonableness of costs incurred by the
District in performing clean up at the property; and
2.
Any
other additional information necessary for the
Board to award clean up costs and impose appropriate
penalties,
if the Board finds those awards necessary.
After the hearing is completed, the Board will enter its
final order, awarding clean up costs and imposing penalties as we
find appropriate.
This opinion constitutes the Board’s findings of fact and
conclusions of law as to the violations alleged in the District’s
complaint.
ORDER
The Board finds that Neil Ostro, Janet Ostro, and Big Foot
Enterprises
(collectively, the Ostros) violated Sections 21(a),
14
21(e), 21(f)(1),
and 21(m) of the Environmental Protection Act
(415 ILCS 5/21(a),
21(e), 21(f)(1), and 21(m)
(1992)), by their
activities on the property at the northwest corner of Sunshine
Avenue and Route 45 in Lake Villa, Illinois.
The Ostros are
ordered to provide for further investigation, and any necessary
remediation, of the stockpiled soil and the excavation pit on the
property.
That investigation and remediation must be done with
the approval of the Illinois Environmental Protection Agency,
including the securing of any necessary permits.
The Lake County
Forest Preserve District is ordered to allow the Ostros and their
contractors all necessary access to the property.
The Board also
orders that further proceedings be held,
consistent with the
above opinion.
IT IS SO ORDERED.
I,
Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opini n and order was
adopted on the
~/J~’Y
day of
7~1.
,
1994, by a vote
of
5—~
.
/
~1
~—‘~Dorothy
M.
Gup~’i, Clerk”
Illinois P0
tion Control Board
