ILLINOIS POLLUTION CONTROL BOARD
September 23,
1993
COUNTY OF OGLE,
)
Complainant,
v.
)
AC 91—32
S.A. File
#
91—R—1002
(Administrative Citation)
ROCHELLE DISPOSAL SERVICE,
)
INC.,
and CITY OF ROCHELLE,
)
ILLINOIS,
)
Respondents.
)
MS. ROBBIN STUCKERT, ASSISTANT STATE’S ATTORNEYS OF OGLE COUNTY,
APPEARED ON BEHALF OF THE PETITIONER;
MR. KURT KLEIN APPEARED ON BEHALF OF ROCHELLE DISPOSAL SERVICES,
INCORPORATED.
OPINION
AND
ORDER OF THE BOARD
(by
C.
A. Manning):
This action was initiated on June 28,
1991, by the filing of
an administrative citation by the County of Ogle (County).
The
administrative citation was filed pursuant to Section 31.1 of the
Illinois Environmental Protection Act
(Act).
The authority to
issue administrative citations was delegated to the County
pursuant to Section 4(r)
of the Act.
(415 ILCS 5/31.1 and
5/04(r)
(1992).)
The administrative citation charges Rochelle
Disposal Services
(Disposal)
and the City of Rochelle
(City) with
violation of Section 21(o) (1)and 21(0) (12)
of the Act.1
A public hearing in this matter was held pursuant to Section
32 of the Act on April
15,
1993, at the Ogle County Courthouse in
Oregon,
Illinois, before the Pollution Control Board Hearing
Officer
Mr.
Peter Smith.
Pursuant to a post-hearing briefing
schedule,
Disposal filed a memorandum and argument in support of
its position in this case on June
1,
1993.
No other briefs were
filed in this matter.
FACTS
The City of Rochelle owns a sanitary landfill located in the
Section
21
of
the Act was amended by Public Act
87-752,
effective January
1,
1992.
As
a
result, the two subsections that
the County filed alleging violation,
21(p) (1) and (12) were changed
to 21(o)(1)
and
(12).
2
city
limits
referred to as Rochelle Municipal #2 Landfill.
The
City of Rochelle contracted with Disposal to operate the
landfill.
Pursuant to the operating permit,
Disposal begins
operations at 7:00 a.m.
(Exh.
4
at
l3.)2
The County’s
inspector,
Steven Rypkema, inspected the site on April 29,
1991,
beginning at 7:04
a.m. and ending at 10:02 a.m.
(Tr.
at
11,
12,13)
Rypkema stated that upon arrival to the site there was a
dump truck unloading waste at the active area of the site where
the daily cover had already been removed.
(Tr. at 20,
21,
22,
Exh.
2a and 2b).
Litter was located on the site in the southern
direction of the active area.
(Tr. at 24-34,
Exh.
2c-e).
In
addition,
litter lined the banks in the southern portion of a
nearby creek which borders the south and east perimeters of the
site.
(Tr. at 22-34, Exh.
2f-g).
The litter consisted of paper
and similar materials.
(Tr. at 17-35, Exh.
2a—l).
Mr.
Rypkeina
stated that the weather conditions were cool and cloudy with the
winds from the southeast.
(Tr. at 34).
In the inspection report
entered into the record as County’s Exhibit 3, Rypkema stated
that the wind velocity was somewhere between 5-15 miles per hour
(mph).
At the hearing he more specifically testified that the
wind velocity to be 5-10 mph from the southeast.
(Exh.
3 at
12,
Tr. at
61)
Located south of the site is an open dump which is roughly
40 to 50 feet away from the creek where Mr. Rypkema observed
refuse.3
The open dump’s northern border has no barriers with
only a few scattered trees between it and the creek.
(Tr. at
99.)
Following the inspection the County notified the
respondents of the possible violations based upon the inspection.
(Tr. at 64).
In a letter to the County
in response to the
notification, respondents stated that due to high winds the
previous day’s litter was blown off-site and that their first
priority was to collect the off-site litter and then collect the
on-site litter. They stated that they were in the process of
cleaning up that litter on the day of the inspection.
(Tr.
at
65)
Based upon this inspection the County filed an
administrative citation for the violation of Section 21(0)1 and
2
The County
entered
into the record
a
hand drawn diagram
depicting
•the
various
locations
of
the
observed
litter,
corresponding photographs of the site,
and the inspection report,
and permit respectfully,
as County’s Exhibits
1,
2,
3 and
4. The
Transcript will be referred to as “Tr.” and the exhibits will be
referred to as ~Exh.~t.
~ There
is no evidence
in the record as to ownership of the
open dump.
3
(12)
of the Act, failing to collect and contain litter from the
site by the end of the operating day and allowing refuse in
standing or flowing water,respectively.
ISSUES
A.
Proper Party
In its memorandum and argument4 submitted to the Board on
June 1,
1993, Disposal claims that it is not a proper party since
it does not “conduct”
a sanitary landfill operation as the term
is intended in the Act.
(Hem.
at 5—6.)
Disposal states that the
permit to operate a landfill at the site in question was issued
by the Illinois Environmental Protection Agency to the City and
that Disposal merely has a contract to work at the site.
(Hem.
at
6.)
Thus, Disposal argues it is a contractor, not an
operator.
(Hem. at 6.)
B.
Section 21(o)(1) and
(12) violation ~
Disposal argues that the County has failed to demonstrate
(1) that the observed litter on the site was from the previous
operating day in violation of Section 21(0) (12),
and
(2) that it
caused or allowed refuse in standing or flowing water in
violation of Section 21(o) (12)
of the Act.
DISCUSSION
A. ProPer Party
The question of Disposal being a proper party to this action
has been previously decided.
On June 4,
1992,
the Board in this
case issued an order denying Disposal’s motion to strike and
dismiss.
We stated: that “Rochelle Disposal
is properly a party
to this action as a person conducting a waste operation at a
permitted site.”
(County of Ogle v. Rochelle Disposal Service,
~The memorandum and argument filed by Disposal on June 1, 1993
will be referenced as “Hem.”.
~ Section 21(0) (1) and
(12) of the Act states:
o.
Conduct
a
sanitary
landfill
operation
which
is
required
to
have
a
permit
under
subsection
(d)
of this Section,
in
a manner
which results in any of the following:
1.
refuse in standing or flowing water;
12.
failure to collect and contain
litter from the site by the end of
each operating day
4
Inc.. and The
City
of Rochelle,
(June
4,
1992)
AC
91—32,
PCB
at,
2.,
See also County of Ogle.
Rochelle Disposal Service, Inc.~
and The City of Rochelle,
(October
1,
1992)
AC
92—64,
PCB
at,
260.)6
B.
Did Disposal violate Section 21(0) (1)
by failing to collect
and contain litter from the site by the end of the operating day.
Mr. Rypkema inspected the site and documented through direct
observation and photographs the extensive proliferation of litter
throughout the site.
Rypkema began his inspection at 7:04
a.xn.,
four minutes after the site was permitted to began its
operations.
(Exh.
4 at 13.)
The photographs of the litter at
the site vary in the times taken with the first being taken at
7:14
a.m. and the last taken 8:10
a.in.
Disposal argues that the
evidence does not demonstrate that the litter is from the
previous operating day.
(Memo at 3.)
The winds on the day of the inspection were coming from the
southeast at somewhere between 5-10 mph.
The observed litter was
to the south of the active area in the opposite direction of
where the wind was blowing on that day.
Respondents stated they
were in the process of cleaning the litter the day of the
inspection.
They claimed the litter had been blown off—site due
to heavy winds the day before.
Section 21(0) (12)
of the Act
states that a violation occurs when there is a failure to collect
and contain litter at the end of each operating day.
(415 ILCS
5/21(o)(12).)
Based on the record the Board finds that the
observed litter was from the previous operating day.
For the
above stated reason the Board finds Disposal in violation of
Section 21(o) (12)
of the Act.
C.
Did Disposal violate Section 21(o) (1) by conducting
its
landfill
in a manner to allow litter in standing or flowing water
in violation of Section 21(o)(1).
The County also is alleging the violation of Section
21(o) (1)
of the Act for operating a landfill
in such a manner
that allows for refuse to be in standing or flowing water.
The
record indicates that
a 65 foot stretch of
a creek located a 1/4
a mile south of the active area of the landfill site contained
refuse.
While Disposal makes the argument that the refuse
in the
creek could have come from the open dump,
record evidence shows
that the directional flow of the litter near the creek is
6
Pursuant to the Act, Disposal is a person conducting a waste
operation at
a permitted site.
The pertinent section of 21(o)
of
the
Act
states:
“no
person
shall
conduct
a
sanitary
landfill
operation which is required to have
a permit under subsection
(d)
of this Section, in a manner which results in any of the following
conditions:....”
(415 ILCS 5/21(o) (1)).
5
consistent with the flow from the previous day’s
litter.
Moreover, Disposal produces no credible evidence which conflicts
with this conclusion. Rather,
such conclusion
is buttressed by
the testimony of the County inspector.
We therefore find
Disposal
in violation of Section 21(o)(1.).
For these reasons,
and since Disposal did not argue the
“uncontrollable circumstances” defense pursuant to Section
31.1(d) (2), the Board finds respondent in violation of Section
21(p) (1)
of the Act.
PENALTY
Penalties in administrative citation actions are prescribed
by Section 42(b) (4)
of the Act which states:
In an administrative citation action under Section 31.1
of.
this Act, any person found to have violated any provision of
subsection
(p)
of Section 21 of this Act shall pay a civil
penalty of $500 for each violation of each such provision,
plus any hearing costs incurred by the Board and the Agency.
Such penalties shall be made payable to the Environmental
Protection Trust Fund to be used in accordance with the
provisions of “An Act creating the Environmental Protection
Trust Fund”,
approved September 22,
1979, as amended;
(415
ILCS 5/42(b) (4)
(1992).)
Respondents will therefore be ordered to pay a civil penalty
of $1000 based on the violations as found.
Further, pursuant to
Section 42(b)(4)
of the Act, respondents are also required to pay
hearing costs incurred by the Board and the County.
The Clerk of
the Board and the County of Ogle will therefore be ordered to
each file a statement of costs,
supported by affidavit, with the
Board and with service upon respondents.
Upon receipt and
subsequent to appropriate review, the Board will issue a separate
final order in which the issue of costs
is addressed.
Additionally, Docket B will be opened to treat all matters
pertinent to the issue of costs.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
Respondents, the City of Rochelle and Rochelle Disposal
Inc.,
are hereby found to have violated 415 ILCS
5/21(o) (5)
(1992).
2.
Within 30 days of this order, the Respondents shall pay
the sum of one thousand dollars
($1000.00)
by check or
money order to the Ogle County Treasurer.
The payment
shall
be mailed
to:
6
Ogle
County
Treasurer
Ogle County Courthouse
P.O. Box 40
Oregon,
Illinois 61061.
Respondents shall also write their Federal Employer
Identification Number or Social Security Number on the
certified check or money order.
Any such penalty not paid within the time prescribed
shall incur interest at the rate set forth
in
subsection
(a) of Section 1003 of the Illinois Income
Tax Act,
(35 ILCS 5/1003
(1992)),
as now or hereafter
amended, from the date payment is due until the date
payment is received.
Interest shall not accrue during
the pendency of an appeal during which payment of the
penalty has been stayed.
3.
Docket A in this matter is hereby closed.
4.
Within 30 days of this order, the County shall file a
statement of its hearing costs,
supported by affidavit,
with the Board and with service on the Respondents.
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 the
Respondents.
Such filings shall be entered in Docket B
of this matter.
5.
Respondents are hereby given leave to file a
reply/objection to the filings as ordered in paragraph
4 of this order within 45 days of this order.
IT IS SO ORDERED.
Board Member 3. Theodore Meyer dissents.
Section 41 of the Environmental Protection Act
(415 ILCS
5/41
(1992).) provides for appeal of final orders of the Board
within 35 days.
The rules of the Supreme Court of Illinois
establish filing requirements.
See also,
35
Ill.
Adin. Code
101.246., Motions for Reconsideration.
.1, Dorothy H. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opir~ionand order was
adopted on the
c2~
day of ______________________,
1993,
by a vote of
/
.
/~
~
j
-
~
~L1
~
LDorothy N. ~inn, Clerk
Illinois Pollution Control Board