ILLINOIS POLLUTION CONTROL BOARD

May 20,

1993

COUNTY OF OGLE,

Petitioner,

v.

)

 AC 92—26

Docket A

&

B

ROCHELLE DISPOSAL SERVICE,

)

 (Administrative Citation)

INC.,

 and CITY OF ROCHELLE,,

ILLINOIS,

)

Respondent.

OPINION

AND

ORDER OF THE BOARD

 (by G.

 T. Girard):

This matter is before the Board on an administrative

citation

 (AC)

 filed by the County of Ogle pursuant to the

Environmental Protection Act.

 (415 ILCS 5/1 et seq.

 (1992).)

The citation was filed on April

2,

 1992, and alleges that

respondents, Rochelle Disposal Service (Rochelle Disposal)

and

the City of Rochelle

 (Rochelle)

 violated Section 21(0) (12)

 of the

Act by conducting a sanitary landfill operation in a manner which

resulted in

 a failure to collect and contain litter from the site

by the end of each operating day.

Both respondents filed a petition for review with the Board;

Rochelle on May 4,

 1992,

 and Rochelle Disposal on April 15,

 1992.

A hearing was held on February 11,

 1993,

 in the Ogle County

Courthouse, Oregon,

 Illinois at which no members of the public

were present.

 Rochelle Disposal submitted a brief on March 15,

 1993,

 and no other briefs were filed in the proceeding.

PROCEDURAL HISTORY.

On June 4,

 1992,

 the Board entered an order which ruled on

several motions before the Board.

 (See County of Ogle v.

Rochelle Disposal Service Inc.,

 and City of Rochelle, AC 92-26,

(June

4,

 1992)

 (cited as 6/4/92 ord.

 at).)

 Specifically, the

order granted a motion to amend the caption,

 and denied motions

to dismiss and motions for summary judgement filed by

respondents.

At hearing on February 11,

 1993,

 the Hearing Officer granted

a motion to amend the “factual part of the complaint” so that the

date listed as January 29,

 1991,

 in the inspection reports is

amended to read January 29,

 1992.

 (Tr. at 5—6.)

BACKGROUND

Rochelle owns

 a facility located in the County of Ogle

~2-061.3

2

referred to as Rochelle Municipal #2 Landfill

 (landfill)

and

Rochelle Disposal contracts to operate the facility.

 (Tr.

at

86.)

 The facility is permitted by the Illinois Environmental

Protection Agency as

 a sanitary landfill in the State of

Illinois.

Rochelle maintains the scales at the facility and handles

all billing of gate receipts.

 (Tr.

 at 88.)

 Rochelle Disposal,

under the provisions of the contract, performs certain duties

which include the operation and maintenance of the landfill.

(Tr. at 103.)

On January 29,

 1992,

 Stephan Rypkema of the Ogle County

Health Department conducted an inspection of the landfill.

Mr.

Rypkema stated that he had been to the landfill approximately 20

times and tries to visit the landfill on a monthly basis.

 (Tr.

at 12.)

 Mr. Rypkema indicated that prior to beginning his

inspection he notified the scale operator of his presence and

established that there had been no waste received that morning,

(Tr. at 19 and 21.)

 Mr. Rypkema stated on this visit that he

observed and photographed “quite a lot of blown litter scattered

all along the southern bank” of the landfill in an area that is

approximately

 50 by 800 feet.

 (Narrative inspection report at

1;

Tr. at 21.)

 On the basis of Mr. Rypkema’s inspection an

administrative citation was issued.

STATUTORY

FRAMEWORK

Section 21(0) (12)

 of the Act provides that:

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:

failure to collect and contain litter from the site by

the end of each operating day.

Section 31.1(d) (2) provides,

 in pertinent part,

 that:

If,

 based on the record,

 the Board finds that the

alleged violation occurred,

 it shall adopt a final

order which shall include the administrative citation

and findings of violation as alleged in the citation

and shall impose the penalty specified in subdivision

(b) (4)

 of Section 42.

 However,

 if the Board finds that

the person appealing the citation has shown that the

violation resulted from uncontrollable circumstances,

L~2-06L41~

3

the Board shall adopt a final order which makes no

finding of violation and which imposes no penalty.

DISCUSSION

Rochelle Disposal presents three arguments in support of its

position that the administrative citation was improperly issued.

The three arguments are that:

 1) the evidence at the hearing did

not demonstrate that Rochelle Disposal allowed litter to

accumulate,

2)

 the facts leading to the issuance of the citation

were due to uncontrollable circumstances, and

3)

 that Rochelle

Disposal is not “subject to enforcement proceedings under the

Environmental Protection Act”.

 (Resp.

Br.

 at 1-5.)

First the Board notes that the argument that Rochelle

Disposal is not subject to enforcement proceedings under the Act

has already been adequately addressed in the Board’s June 4,

1992

order.

 However, the Board will reiterate that the Act clearly

provides that “no person (emphasis added)

 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”.

 (6/4/92 ord. at 2.)

Mr.

Clyde Gelderloos, president of Rochelle Disposal, testified that

except for operation of the scales Rochelle Disposal is

“contracted to provide”

 a big part of the operation and

maintenance of the landfill.

 (Tr.

 at 103.)

 Thus, Rochelle

Disposal does have responsibilities at the site which would

include picking up litter.

 The Act clearly is enforceable

against any person who violates the Act and Rochelle Disposal is

no exception.

 Therefore, the Board finds that the Act is

enforceable against Rochelle Disposal.

Rochelle Disposal also argues that the evidence at hearing

did not demonstrate that Rochelle Disposal allowed litter to

accumulate.

 The Board disagrees.

 Mr. Rypkema stated at hearing

that he established that no waste had been received on the

morning of his inspection prior to his arrival.

 (Tr. at 19 and

21.)

 Therefore, any litter accumulated on site upon his arrival

would have by necessity been from at least the previous day.

Further,

 Mr. Gelderloos admitted that litter remained on the site

 due to weather conditions.

 (Tr. at 94-97.)

 Also, the

photographs clearly show litter on site at the facility.

 (Exh.

2.)

 Thus,

 the Board finds that Rochelle disposal “caused or

allowed” litter to accumulate in violation of Section 21(0) (12)

of the Act.

Uncontrollable Circumstances

Having found a violation the Board will examine the argument

put forward by Rochelle Disposal that the litter accumulation was

due to uncontrollable circumstances.

 Rochelle Disposal argues

t~t2-OSL~.5

4

that the weather prevented Rochelle Disposal from picking up the

litter and that the employees hired to remove litter had been ill

the day prior to inspection.

 c~ithregards to the weather,

Rochelle maintains:

Both parties conceded at hearing that there

had been a snowstorm some days prior to the

date of the inspection,

 and that the

temperature remained predominately below

freezing between the date of the snowstorm

and the date of the inspection.

(R.

 94).

The snowstorm which covered litter at the

site obviously made it impossible to remove

the litter

—

 one simply cannot remove what

one cannot see.

 Thereafter,

 litter was

removable only as nature allowed,

 i.e. only

as snow either evaporated or melted, thus

releasing the litter and making it available

for pickup.

 The evidence demonstrates that,

in fact, had been done by Rochelle Disposal

Service,

 Inc.,

 because the only place that

had litter remaining was where the litter was

frozen to the ground; the remainder of the

area was litter

 free.

(Res.

 Br. at 3.)

Although the Board has previously held that weather

conditions can result in circumstances where the occurrence of

litter

 is uncontrollable, that is not the case here.

 (See St.

Clair County v. 3

 & R Landfill,

 Inc.,

 111 PCB 143, AC 89-18

 (May

10,

 1990.)

 In this case,

 the testimony of Mr. Gelderloos

indicated that not all litter was frozen to the ground.

 (Tr. at

106—108.)

 Specifically, Mr. Gelderloos states that in Exhibit 2-

E some of the litter is loose.

 He further states that there was

18

 inches of snow on the ground in the area.

 (Tr.

 at 107.)

Thus,

 by respondents’s own admissions some of the litter was not

frozen to the ground.

 Further, an examination of the photographs

submitted into evidence also clearly establishes that not all the

litter was frozen to the ground.

 Therefore, the Board finds that

the weather did not result in uncontrollable circumstances in

this case.

Rochelle Disposal also argues that the illness of the

“litter pickers” contributed to the accumulation of litter.

The

Board is not persuaded that illness of employee(s)

 is an

uncontrollable circumstance in this case.

 Mr. Gelderloos

testified that in the past temporary workers had been hired to

assist in the picking up of litter.

 (Tr. at 97-98.)

 No evidence

as to why such temporary help was not called in was presented.

Therefore, the Board finds that the accumulation of litter was

not due to uncontrollable circumstances and the citation was

~t~.-O6l.6

5

properly issued.

Rochelle Disposal also cites to several court cases in

support of its position that no penalty should be imposed.

 First

Rochelle Disposal states “imposition of penalties under the Act

is not to be invoked for punishment, but to aid enforcement of

the Act”

 (citing Harris—Hub Co.

 v. Pollution Control Board,

50

Ill.App.3d 608,

 8 Ill.Dec.

 685, 365 N.E.2d 1071 1977).)

 (Res.

Br.

 at 3-4.)

 Then Rochelle Disposal states:

In determining whether

 a penalty should be

assessed, the Board should take into account

such factors as the evidence of good faith

on

the part of Rochelle Disposal in addressing

the problem, whether there was evidence of a

continuing disregard for the requirements and

procedures designed to protect the

environment, whether Rochelle Disposal

 Service,

 Inc. has incurred any expense in

addressing the situation and whether there

was evidence introduced that the violation,

if any, was intentional.

 (Citing Archer

Daniels Midland

 v. Pollution Control Board,

149 Ill.App.3d 301,

102

 Il1.Dec.

 687,

500

N.E.2d 580

 (1986) and Wasteland,

 Inc.

v.

Pollution Control Board,

 118 Il1.App.3d 1041,

75 Ill.Dec.

 143, 456 N.E.2d 964

 (1983).)

(Res.

Br.

 at 4.)

The Board notes that the cases cited by Rochelle Disposal

are cases brought pursuant to the regular enforcement provisions

contained in Section 31 of the Act.

 However, the instant matter

was brought under the administrative citation provisions of

Section 21 of the Act.

 The Act is quite clear that violation of

Section 21(0) (12)

 of the Act will result in a $500 fine.

The

Board has no authority to mitigate such a fine.

 IEPA v.

Jack Wright, August 30,

 1990, AC 89-227,

 114 PCB 863 and IEPA v.

Dennis Grubaugh, October

16,

 1992, AC 92-3,

 136 PCB 425.)

CONCLUSION

The Board finds that Rochelle Disposal violated Section

21(o) (12)

 of the Act and that such violation did not occur as a

result of uncontrollable circumstances.

ORDER

1.

 Respondent is hereby found to have been in violation on

 January 29,

 1992,

 of 415 ILCS 5/21(o) (12)

 (1992).

2.

 Within 30 days of the date of this order,

 respondent

LJ~4~UO

6

shall, by certified check or money order, pay a civil

penalty in the amount of $500 payable to the Ogle

County Treasurer.

 Such payment shall

 be sent to:

Ogle County Treasurer

Ogle County Courthouse

P.

 0. Box 40

Oregon, Illinois

61061

Respondent shall include the remittance form and write

the case name and number and their social security or

federal employer identification 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 of 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 upon Rochelle Disposal.

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

Rochelle Disposal.

 Such filings shall be entered in

Docket B of this matter.

5.

 Respondent

 is 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

I, Dorothy M. Gunn,

 Clerk of the Illinois Pollution Control

Board, hereby certify

that

 the above opinion

ar4

 order was

adopted on the

________________

 day of

_________________

1993,

 by a vote of

(~.

(-7

 &~ç~47

borothy M.4ünn,

 Clerk

Illinois PbAlution Control Board

1. 2

—

0 6 ~