ILLINOIS POLLUTION CONTROL BOARD

June

20,

1991

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Complainant,

AC 90—36

v.

)

 (IEPA 192—90—AC)

(Administrative Citation)

)

ESG WATTS,

 INC.,

)

a foreign corporation,

Respondent.

MR. WILLIAM

SELTZER APPEARED FOR COMPLAINANT.

MR.

THOMAS

J.

 IMMEL

OF

IMMEL,

ZELLE, OGREN, MC

CLAIM

 & COSTELLO

APPEARED

FOR

RESPONDENT.

OPINION

AND

ORDER OF THE BOARD

(by

3.

 C. Marlin):

This matter is before the Board upon a four-count

administrative citation filed May 7,

 1990 by the Illinois

Environmental Protection Agency

 (“Agencytt).

 The citation alleges

that ESG Watts,

 Inc.,

 (“ESG”) violated the provisions of the

Illinois Environmental Protection Act (“Act”) by allowing

uncovered refuse to remain from a previous operating day; by

conducting a sanitary landfill operation in a manner which

results in leachate flow entering waters of the State and which

results in leachate flows exiting the landfill confines; and, by

 failing to submit reports required by permits or

 Board

regulations.

 Ill. Rev.

 Stat.

 1989,

ch.

 111 1/2,

 par.

 1021(p) (2),

(p) (3),

 (p) (5)

and

 (p) (11).

 The Respondent filed a timely

Petition for Review.

Hearing

was

held

this

matter

August

22,

1990

the

Illinois

Environmental

Protection

Agency,

2200

Churchill

Road,

Springfield,

Illinois.

Mr.

John

Richardson

and

Mr.

Tim

Zook

testified

behalf

the

Agency.

Mr.

Michael

Rapps

and

Mr.

Leonard

Foulks

testified

behalf

the

Respondent.

members

the

public

commented

testified.

Closing

arguments

were

made by both parties in lieu of filing briefs.

BACKGROUND

ESG is the present operator of a landfill located in

Sangamon County,

 Illinois under permit No.

 l980-23-OP, designated

with

Site

Code

No.

1678220037

and

commonly

 known

the

Sangaluon

County

Landfill.

March

1990

Agency

inspector

John

P. Richardson

 inspected the landfill.

A

copy

his

inspection

report was filed with the citation.

 On the basis of his direct

observation the Agency determined that ESG violated the Act in

the manner set forth in the citation.

 Respondent seeks a civil

penalty of $500.00 for each of four violations for a total of

$2,000, plus the imposition of hearing costs incurred by the

Board

and

the

Agency.

APPLICABLE

LAW

Section 21(q)

 of the Act states:

person

shall

violation

subdivision

(a)

Section 21, 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 ~f the

following conditions:

leachate

flows

entering

waters

the

State;

leachate

flows

exiting

the

landfill

confines

(as

determined

the

boundaries

established

for

the

landfill

permit

issued

the

Agency);

uncovered

refuse

remaining

from

any

operating

day

the

conclusion

any

operating

day,

unless

authorized

permit;

11.

failure

submit

reports

required

permits

Board

regulations;

Penalties

actions

this

type

are

$500

for

each

provision

plus

any

hearing

costs

incurred

the

Board

and

the

Agency.

Ill.

Rev.

Stat.

1989,

ch.

111

1/2,

par.

l042(b)(4).

the

Board

finds

the

violation

occurred,

must

impose

the

penalty

and

costs.

If,

however,

the

Board

finds

that

the

violation resulted from uncontrollable circumstances, the Board

imposes

penalty

and

makes

finding

violation.

Ill.

Rev.

Stat.

 1989,

ch.

 111 1/2, par. l0311(d)(2).

DISCUSSION

The Agency alleges that ESG violated the Act in four

distinct

manners.

First,

that

the

on—site

 inspection revealed

uncovered

refuse

remaining

 from a previous operating day.

Second,

the

landfill

operated

manner

 resulting in leachate

flows entering waters of the State.

 Third, that such leachate

also

exited

the

landfill

confines.

Fourth,

the

Respondent

failed

to submit reports required by permits or Board regulations.

ESG

stipulated

violation

the

cover

requirement

hearing.

(R.l3,l4).

contested,

however,

the

remaining

charges.

The first of three remaining charges is that ESG operated

the

landfill

such

manner

as~to

result

the

flow

leachate to waters of the State.

 Mr. John Richardson testified

behalf

the

Agency.

inspected

the

facility

March

1990.

 testified that there was a large amount of uncovered

refuse

the

 northeast slope of the landfill.

 At the base of

the fill were three ponded areas containing dark liquid.

 ~Refuse

floated in the water.

 The liquid foamed as it was pumped into a

nearby stream.

 (R.20)

Mr.

Richardson

took

number

photographs

showing

the

uncovered

refuse,

the

ponding~1~

the

foaming

discharge

and

the

stream.

(Gr.Exh.A)

(R.22-25)

The

photos

showed

erosion

channels

the

hill

and

exposed

refuse

the

erosion

channel.

(R.26)

 Richardson testified that the site pumps the water from

the ponds at the bottom of the face into an unnamed tributary

that transects the site and flows into the Sangamon River.

 (Id.)

Mr.

Richardson

also

obs?rved

that

the

ponded

water

was

dark

and

turbid.

(R.28).

The

ponds,

testified,

were

present

each

his

visits

the

site

and,

his

opinion,

were

collecting

runoff

from

the

slope

the

landfill.

(R.32)

Richardson

testified

that

Tim

Zook

the

Agency

collected

samples

effluent

from

the

pump

outfall,

point

upstream

the

outfall

and

point

 downstream.

 (R.37)

Mr.

Richardson

 admitted that tests must be performed on the

liquid

determine

 whether

contained

some

constituent

which

had

been

removed

from

the

refuse.

Under

the

present

regulation,

The

term

“leachate”

defined

Board

regulations

“liquid containing materials removed from solid waste”

(35

 Ill.

Adm.

 Code 807

104).

 The Agency and Respondent concur that this

definition is the one applicable to the charged violation and in

effect on the date of the alleged violation.

 The Board regulation

was admitted as Exh.3.

 The proposed definition pending at the time

in R88-7 was admitted as Exh.4.

 The Respondent objected to the admission of

a

 number of

photographs of the site on the basis of their relevance.

 After

review of these photographs the Board finds they meet the test of

relevant evidence found

 in Board procedural

 rules.

35

 Ill. Adm.

Code

103.204

4

the

liquid

coming in contact with solid waste

 and of itself

would not render the liquid a leachate.

 (R.64-65)

 Mr. Richardson

also admitted that both the site and the ponded areas were muddy

and shallow.

 (R.69)

Mr. Tim Zook of the field operations section of the Water

Pollution Office of the Agency also testified.

 On March 7,

1990

he collected samples from the Sangamon County landfill.

He

sampled the pump outfall effluent and the receiving stream which

 runs to the Sangamon River from the site.

 (R.94-95)

 For the

stream samples he used a point 80 yards upstream at the property

line and three hundred yards downstream,

 also at the property

line.

 These samples were analyzed by an IEPA lab in Champaign,

he testified.

 The results were submitted as Exhibit

D.

 (R.96)

The

samples

exhibited

different

readings

for

the

indjvidual

parameters

depending

location,

stated.

(R.l07)

Total

dissolved

solids

registered

542

parts

per

million

(ppm)

upstream

as compared to 1,970 ppm at the effluent or outfall measurement.

At the outfall, biochemical five-day oxygen demand

 (BOD5) was 580

ppm while upstream it was one.

 The downstream sample showed 95

ppm.

 (R.108)

 For iron, the effluent reading was 7,852 micrograms

per liter ug/l and upstream 198 ugh.

 For manganese the effluent

level was 2,624 ug/l and upstream 313 ug/1.

 In his opinion, the

increases in the receiving stream were caused by the effluent

discharge.

 (R. 112)

Mr. Zook admitted that all of the parameters mentioned are

not unique to the constituents of landfills.

 (R.1l6)

 He also

admitted that water which runs over disturbed earth may exhibit

 increased readings of BOD5 and suspended solids.

 He also

conceded that the samples he took did not exhibit evident odor.

(R.ll9)

Mr. Michael Rapps of Rapps Engineering and Applied Science

of Springfield, Illinois testified on behalf of the Respondent.

Concerning the question of whether the liquid observed by the

Agency constitutes leachate, he testified that an article on the

statistical composition of landfill leachates observed in

Illinois published by P. Clark and R.

 Piskin

 (Exh.6)

 found that

landfill leachate is typically red to orangish—red, odiferous and

having a sheen on it.

 (R.136-l39)

 In his opinion, water which

ponds after running down surface slopes having exposed refuse is

not leachate.

 (R.138)

 Rapps also testified that plasticizers

were present at the site and remained from a gunpowder plant.

Plasticides are a dark,

 oily looking substance, he stated.

Rapps further testified that the base material of the

landfill is limestone, coal and shale.

 These materials,

if

disturbed he stated, could mineralize water passing through them

and would lead to higher readings of total dissolved solids,

manganese and iron.

 (R.143)

 Mr. Rapps testified that he looked

at the Agency’s analytical reports and could not say if it was

leachate.

 He did state that if it was leachate,

 it fell outside

the norm.

 The average total dissolved solids as reported by

authors Clark and Piskin is 10 times that observed at the site.

(R.145)

 Rapps also testified that the COD and

BOD5

measurements

were equal, meaning that the oxygen demand supplied by the

effluent was not biological but chemical, thereby indicating that

the oxygen demand “was not a bacteriological thing.”

 Rapps also

looked at the ratio of iron to chloride, sulfates, sodium,

calcium, etc found in the effluent and that reported in the

article exhibit.

 He stated there was “no comparison.”

 The ratio

of iron to chlorides in the effluent was .012 while in the

leachate literature it was 0.9.

 He testified that this was true

of all the ratios he looked at.

 (R147)

 Finally, Mr. Rapps

testified that he examined the photos submitted by the Agency and

concluded that the liquid they were observing was stormwater, not

leachate.

 (R.148)

On examination by the Agency Mr. Rapps admitted that water

running off exposed refuse would have lower levels of

contaminants than that in the Clark and Piskin report.

 Mr. Rapps

testified,

 though, that this would be “a different definition of

leachate than the Agency historically used.”

 (R.l54-155)

 Rapps

did, however, admit that the contaminants shown in the effluent

were likely picked up at the base of the mound.

 (R.l58)

 Rapps

also admitted that the refuse observed in Agency photos in the

ponded water could “produce leachate as defined by Board

regulations.”

(R. 163—164)

Mr. Leonard Foulks, site—manager/operator of the Sangamon

Valley Landfill also testified on behalf of the Respondent

concerning the leachate issue.

 Foulks testified that the

facility pumps ponded rainwater to a stream.

 A sample of the

discharge is taken to a lab.

 The lab is to inform them if the

discharge cannot be made.

 Foulks testified that he has never

been told by the lab not to discharge.

 (R.l77,185)

Finally, the Agency alleges that ESG failed to file reports

required by permit or Board rules.

 Mr. Richardson testified that

ESG

required

submit

reports

the

Agency

concerning

its

composting operations.

 The permittee was to first report data

gathered from the effective date of the permit through March 1,

1989 on or before April

1,

 1989 and thereafter, annually.

 (R.44-

45,

 51-52

)

 The required information, he testified,

 is set forth

in paragraphs l2(a)-(g)

 of the facility’s Supplemental

Experimental Permit.

 (Exh.B)

 Mr. Richardson testified that ESG

cUd not submit this information, rather Capital Area Clean

Community

System,

Inc.

(“CACC”)

did.

CACC

submitted

letter

dated January 6,

 1989 to the Agency which states that it was “to

keep you informed as to the volume of leaves at the ...site”

attaching a report given to the Springfield City Council and

invited the Agency to contact them should they have any

6

questions.

 (Exh.C)

 This information, he stated, was incomplete.

(R.5l)

ESG supplied testimony in rebuttal through Mr. Rapps and Mr.

Foulk.

 Mr. Foulk testified that the City of Springfield was the

former lessee and operator of the composting program but

abandoned the site.

 The lease was admitted as Exh.

2.

Mr.

 Foulk

testified that he did not know who was responsible for submitting

reports regarding site operations.

 (R.l78-l80)

ANALYSIS

The first issue to be resolved by the Board is whether water

which runs over exposed refuse and is shown to exhibit high

levels of total suspended solids,

 BOD5,

 iron and manganese, is

leachate as defined by Board regulations.

 We find that it is.

Leachate is defined in Board regulations as “a liquid

containing materials removed from solid waste.”

 For the Agency

to prove a violation of the statute prohibiting the discharge of

leachate into the waters of the State or to areas outside the

 site the Agency must show, by a preponderance of the evidence,

that the liquid it tested contained materials removed from solid

waste.

 The Agency has tested

the

liquid’s parameters and found

high levels of BOD5, total suspended solids, iron and manganese.

The Agency has shown that this liquid came from a ponded area

beneath an exposed face of refuse.

 The Agency also elicited

testimony that precipitation ran down the face of the exposed

area.

 We believe the Agency’s evidence is sufficient to make a

prima fade case that the liquid is therefore leachate.

The Respondent has attempted to rebut the Agency’s case by

two primary means.

 The Respondent introduced testimony and

exhibits on the average composition of leachate in Illinois and

demonstrated that the tested parameters. do not match the average

set forth in the literature.

 The Respondent also introduced

evidence of the present condition and composition of the site and

testimony that runoff from the site could produce elevated

readings of the tested parameters.

Respondent’s theory is that the liquid tested was

storm

water runoff, not leachate.

 While this may explain increased

mineral content, total dissolved solids and turbidity, we believe

that the increase in five-day biochemical oxygen demand is

produced by organic constituents.

 The organic constituents

impacting oxygen supply

in

 the liquid more probably than not came

 from the landfill refuse.

Respondent also argues that as the

BOD5

 and COD effluent

test readings are equal, the oxygen demand is chemical not

biological.

 The Board finds this a statement to be

7

scientifically incorrect.

 Both

BOD5

and COD parameters describe

the results of tests for the oxygen demand placed on the tested

materials by organic matter.

 Chemical oxygen demand

 (COD)

 is a

measure of the oxygen equivalent of the organic matter content of

a sample that is susceptible to oxidation by a strong chemical

oxidant—-an indirect measure of organic material in terms of the

amount of oxygen required to completely oxidize it.

 Five-day

biochemical oxygen demand

 (BOD5) measures the amount of oxygen

which has been utilized in five days by microorganisms to oxidize

organic materials present in the sample.

Nor do we believe that in order to constitute leachate, the

parameters tested must approximate a demonstration of the norm.

The testimony introduced by Respondent only shows what levels the

average leachate in Illinois exhibits.

 It does not prove that

liquids exhibiting different characteristics are not leach~ate.

However, the statistical evidence found in the Clark and Piskin

article set forth the ranges for the tested parameters.

Our

comparison of the tested parameters against those shown in the

 literature shows that 17 of the 23 tested fall well within the

ranges set forth in the Clark and Piskin article.

 The authors

also confess that the composition of leachate in Illinois “is

highly variable”.

 (Exh.6, p.11)

 We are reminded that leachate,

as defined in Board regulations,

 is a liquid containing materials

removed from solid waste.

 We therefore find Respondent’s

evidence does not rebut the Agency’s showing that the liquid

present at the site contains materials removed from solid waste.

The evidence adduced at hearing regarding discharge of the

liquid into the waters of the State and discharge off-site was

unrebutted.

ESG

argues

however

that

since

the

off—site

discharge

was

fact

the

 discharge

into

the

stream

the

Agency’s

twin

charges

were

“double—dipping.”

 (R.195)

 The Agency has admitted

that

the

 same act led to the two charges

 (R.68)

The

statute

establishes

separate

violations

the

conduct

sanitary

landfill

 operations in a manner which results in

(1)

leactiate flows entering waters of

the

State;

and

(2)

leachate

flows exiting the landfill confines.

 This recognizes that the

harms caused by the violations are separate and distinct.

The

harm

in discharging to waters of the State is in the harm to a

State resource.

 The harm, however, in discharging leachate off-

site is that it contaminates property belonging to another

person.

 Both were violated here.

 Therefore, the Board finds

that ESG has violated sections 21(p) (2) and

 (3) of the Act.

We now turn to whether the Agency has proven a violation of

the reporting requirements.

 By the terms of the supplemental

experimental permit the burden was upon the permittee, ESG, to

supply the requisite information.

 The “information” was not

supplied by the permittee but by the operator Capital Area Clean

Community System,

 Inc.

 In closing argument it was argued that

8

CACC’s letter met the permit requirement and that,

 if it didn’t,

the Agency had every opportunity to contact the Office of the

Mayor of Springfield regarding it but failed to do so.

Our

4~reviewof the letter and the permit leads us to conclude that the

information did not meet the list of requirements spelled out by

the permit.

 In fact,

 what is offered by ESG as proof of

compliance is a letter and program summary submitted to another

entity.

 Moreover, the initial report was to contain information

regarding site activities through March

 1, 1989.

 The letter is

dated nearly two months prior to this date.

 It does not,

therefore,

 appear to be in response to the permit requirement.

Regarding the claim that the Agency had adequate

opportunity to question CACC or ESG about the deficiencies, we do

not find an Agency duty to seek out information as Respondent

argues.

 Again,

 it was the permittee’s duty to supply the

requisite information.

 Therefore, after review of the te~timony

and exhibits we find that ESG has violated Section 21(p) (11)

of

the Act for its failure to submit required reports.

ORDER

1.

 Respondent is hereby found to have been in violation on

March

7,

 1990 of Ill.

 Rev. Stat.

 1989,

ch.

 111 1/2, par.

l021(p)(2),

(p)(3),

(p)(5)

and

(p)(ll).

2.

 Within 45 days of this Order Respondent shall, by certified

check or money order,

 pay a civil penalty in the amount of $2,000

payable to the Illinois Environmental Protection Trust Fund.

Such payment shall be sent to:

Illinois Environmental Protection Agency

Fiscal

Service

Division

2200 Churchill Road

Springfield, Illinois 62706

Respondent shall also place its Federal Employee Identification

Number

or Social Security

Number

upon 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,

 (Ill. Rev. Stat.

 1989,

ch.

120,

 par.

 10-1003), 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 is

stayed.

3.

 Docket A in this matter is hereby closed.

Within

days

this

Order,

the

Agency

shall

file

statement

its

hearing

costs,

supported

affidavit,

with

9

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.

 Such filings shall be entered in Docket

B in this matter.

5.

 Respondent

hereby

given

leave

file

 reply/objection to the filings as ordered in paragraph

 4 of this

Order

within

days

this

Order.

Section

 of the Environmental Protection Act,

 Ill. Rev.

Stat.

1989,

ch.

111

1/2,

 par.

 1041, provides for appeal of final

Orders

the

Board

within

days.

The

Rules

the

Supreme

Court

Illinois

 establish filing requirements.

ORDERED.

3.

Dumelle

dissented.

Dorothy

Gunn,

Clerk

the

 Illinois Pollution Control

Board,

hereby

certif

that

the

above

Opinio

Order

was

adopted

the

______________

day

___________________________

1991

vote

_______________.

Dorothy

Illinois

P0.

Control

Board