ILLINOIS POLLUTION CONTROL BOARD
June
7,
1990
ILLINOIS ENVIRONNENTAL
)
PROTECTION AGENCY,
)
Complainant,
V.
)
AC 89-131
(Dockets A
&
B)
(Administrative Citation)
)
(IEPA No.
9711-AC)
ESG WATTS,
INC.,
)
Respondent.
WILLIAN
SELTZER,
APPEARED
ON
BEHALF
OF
COMPLAINANT,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY;
THOMAS
J.
IMNEL,
INNEL,
ZELLE,
OGREN,
NCCLAIN,
GERMEPAAD
&
COSTELLO, APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by N. Nardulli):
This matter comes before the Board upon a petition for review
of an administrative citation filed by ESG Watts,
Inc.
(“ESG”)
on
July
19,
1989.
The citation alleges
one violation
of
section
21(p) (5)
of the Illinois Environmental Protection Act
(“Act”) and
was served on ESG on June
15,
1989 by the Illinois Environmental
Protection Agency
(“Agency”).
A hearing was held on October
6,
1989 at which three members of the public attended.
ESG
is
the
operator of
a sanitary
landfill
located
in
the
Sangamon
County,
Illinois,
operating
the
facility
pursuant
to
Agency permit No.
1980-23-OP.
On May
2,
1989,
between 4:32 a.m.
and 7:30
a.m.,
Ricky
Lanham,
an
employee
of
the
Agency’s Land
Control Division,
inspected
ESG’s
facility
and viewed uncovered
refuse from the previous working day in an area 125 yards in length
and 25 yards in width in violation of section 21(p) (5)
of the Act.
(Ill.
Rev.
Stat.
1987,
ch.
111
1/2,
par.
1021(p) (5).)
Section
21(p) (5)
of the Act provides that
(p)
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:
5.
uncovered refuse remaining from any previous
operating day or at the conclusion
of any operating
day,
unless authorized by permit;
ESG does
not
contest the Agency’s
allegation
that
ESG violated
section
21(p) (5)
of
the Act.
Rather,
ESG asserts
that
it was
112—47
2
weather conditions and equipment breakdowns prevented it from being
able to excavate
in its “borrow area”
causing ESG to run out of
cover material.
(ESG Brief at 11; Tr. at 22.)
Pursuant to section
31.1(d) (2) of the Act, ESG asserts that the violation resulted from
“uncontrollable circumstances” and that, therefore, the Board must
adopt an “order which makes no finding of violation and imposes no
penalty.”
(Ill.
Rev. Stat.
1987,
ch. 111 1/2,
par.
1031.1(d) (2).)
The
Agency
presented
the
testimony
of
Ricky
Lanham
who
conducted the on-site inspection of ESGts facility.
The bulk
of
Lanham’s testimony concerned establishing that ESG violated section
21(p) (5)
of the Act and
is,
therefore,
irrelevant to the Board’s
determination
of
whether
ESG
established
the
existence
of
“uncontrollable circumstances.”
However,
Lanham testified that,
on
the morning
of
his
inspection,
the active
area
of
the
site
appeared dry,
although he did not actually test the soil..
(Tr.
at 20—21.)
According to Lanharn, there were two “ponded areas”
at
the site; one located between the active area where the uncovered
refuse was found and the borrow area, and one located smaller pond
located southwest
of the active
area.
(Tr.
at 20-21
;
IEPA
Ex.
1.)
Lanhain opined that the ponds resulted from
a collapsed berm
in a creek running through the property.
(Tr.
at 20—21,
56-57.)
Lanham testified that he viewed the borrow area from a distance of
approximately 100 feet.
(Tr. at 47.)
Lanham stated that there was
no standing water within the borrow area and that the soil in that
area was not
in
a muddy
condition.
(Tr.
at
86;
IEPA
Ex.
14.)
Lanhain
opined that
he did not know whether excavating equipment
would have been
able to get into the borrow area.
(Tr.
at
87.)
However,
Lanham testified that the road
leading
from the active
area to the borrow area did not go through the pond.
(Tr.
at 88-
89.)
Relying
on
IEPA
Ex.
2,
Lanham
stated
that
the
road
transversed the western most boundary of the site, continued north
and then back within an area near the borrow area.
(Tr.
at
89.)
Over ESG’s objection,
the hearing officer admitted IEPA’s
Ex.
16
consisting of
a U.S. Department of Commerce “Local Climatological
Data Monthly Summary” which
lists negative to
“trace” amounts
of
preôipitation
on April
30
through May
2,
l990~
This
data was
collected at the National Weather Service Office located at Capitol
Airport in Springfield, approximately three miles from ESG’s site.
(IEPA Ex.
16; Tr.
at 175.)
ESG
presented
the
testimony
of
Leonard
Foulks,
operations
manager for ESG.
(Tr. at 95.)
Foulks testified that it was ESG’s
practice to stockpile cover material, taken from Area II
(i.e., the
“borrow area”), at the edge of the active area
(i.e., the area of
the violation)
on a daily basis.
(Tr.
at
108.)
However,
on May
1,
1990, there was not enough cover material stockpiled because the
two “scrapers”
(i.e., machinery for moving the cover material from
Area
II
to the active
area)
were not functional.
(Tr.
at
109,
153.)
One of the scrapers needed a rear differential which was on
order and the other scraper had blown a tire on the morning of May
1st.
(Tr.
at 97-99.)
Foulks further testified that, even
if the
112—48
3
scrapers had been working, additional cover material could not be
removed from the borrow area to
the active area because
“it was
too wet.”
(Tr.
at 104,
109.)
According to Foulks,
it had rained
heavily on May 1st,
the day before the inspection.
(Tr.
at
102,
105.)
Regarding the ponded area,
Foulks stated that the area was
not “ponded”
until
it rained,
causing the berm
of
the creek
to
collapse.
(Tr.
at 113-14.)
On cross—examination, Foulks testified that he was not present
at the facility on May 1st or 2nd, having gone home to Rock Island.
(Tr.
at 133—34.)
Cross-examination revealed that any information
Foulks had as to the weather and soil conditions
on May
1st,
as
well as information relating to any attempt to provide daily cover
came from Dennis Hudson,
ESG’s supervisor, who was present at the
site on May 1st and
2nd.
(Tr.
at
136.)
According
to
Foulks,
Hudson told him that,
on May 1st,
there was an attempt to apply
cover with whatever dirt was stockpiled,
but there was not enough
stockpiled dirt to completely cover the refuse.
(Tr.
at
147—48,
151—52.)
DISCUSSION
ESG contends that
it
established
that
its failure
to apply
daily cover was due to uncontrollable circumstances.
ESG asserts
that,
even
if
its equipment had been working properly,
wet soil
conditions prevented ESG from being able to excavate soil from the
borrow area and transport it to
the active area to apply cover.
Contrary to Lanharn’s testimony that he did not view standing water
in the borrow area, IEPA Ex.
14
(which is also ESG’s Ex.
2) clearly
shows puddles of water in that area.
While IEPA Ex.
16 shows that
little to no rainfall occurred in Springfield on the day before the
inspection, this does not conclusively establish that there was no
precipitation at ESG’s facility three miles
away.
However,
the
fact that ESG’s sole witness was not present at the site when the
rain allegedly occurred, but rather testified from what he was told
by one of ESG’s employees,
does not strengthen ESG’s defense.
Based upon Foulks’ testimony, on the day before the inspection
ESG was able to apply whatever dirt was stockpiled at the foot of
the
active
area.
Therefore,
even
accepting
that
wet
soil
conditions prevented ESG from excavating and transporting soil from
the removal area on Nay 1st, the Board must decide whether ESG’s
failure to stockpile enough dirt in the event that soil conditions
barred
access
to
the borrow
area
resulted
from
“uncontrollable
circumstances.”
Here,
the two
pieces
of
equipment
(i.e.,
the
scrapers)
that could move
the dirt
from the borrow area
to
the
active area were not working; one scraper broke down at least three
days prior to the inspection and the other had a flat tire on May
1st, the day before the inspection on May 2nd.
Consequently, one
scraper was working
until two days before the inspection.
It
appears that ESG waited too long to stockpile more dirt even though
its supply of dirt in the active area was running low.
Here,
the
112—!i~
4
weather conditions did not prevent the application of daily cover,
but
rather
prevented
ESG
from
carrying
out
its
system
of
stockpiling.
While recognizing that weather conditions can lead
to
a valid claim
of
uncontrollable circumstances
in relation
to
violations
of section 2l(p)(5),
ESG has not adequately persuaded
the
Board
that
such
uncontrollabe
circumstances
were
the
main
factor preventing ESG from complying with the Act.
The use of poor
judgment
in
the amount
of
dirt needed
to
be
stockpiled
is not
tantamount to an “uncontrollable circumstances” as contemplated by
the Act.
Based
upon
the
foregoing,
the
Board
finds
that
ESG
has
violated section 2l(p)(5)
of the Act on May 2,
1989 by failing to
provide daily cover.
Furthermore, the Board rejects ESG’s claim
that the violation resulted from uncontrollable circumstances.
Pursuant to
section 42(b)(4)
of
the Act,
the
Board hereby
imposes a $500 penalty upon ESG for violating section 21(p)
of the
Act.
For
purposes
of
review,
today’s
action
constitutes
the
Board’s final action on the matter of the civil penalty.
DOCKET B
Pursuant to section 42(b)(4) of the Act, any person found to
have violated section 21(p)
of the Act is required to pay hearing
costs incurred by the Board and by the Agency.
The Clerk of the
Board and the Agency are therefore ordered to file
a statement of
costs, supported by affidavit, with the Board and with service upon
ESG.
Upon receipt and subsequent to appropriate review, the Board
will issue a separate final order addressing the issue of costs.
This
opinion
constitutes
the
Board’s
findings
of
fact and
conclusions of law in this matter.
ORDER
1.)
The
Board
finds
that respondent
ESG Watts,
Inc.
has
violated section 21(p) (5)
of the Act
as alleged
in the
complaint and respondent
is therefore ordered
to pay
a
statutory penalty of $500.
2.)
Within 45 days of the date of this order of June
7,
1990,
respondent shall, by certified check or money order, pay
a
civil
penalty
in the amount
of
$500
payable
to
the
Illinois
Environmental
Protection
Trust
Fund.
Such
payment
shall be sent to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
Il.
62706
112—50
5
3.)
Docket A is hereby closed.
4.)
Within 30 days of the date of this order, the Agency and
the Clerk of the Board shall file a statement of costs,
supported by affidavit, and with service upon respondent.
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 4.) within
45 days of the date of this order of June
7,
1990.
6.)
Section 41 of the Environmental Protection Act (ill. Rev.
Stat.
1987,
ch. 111 1/2,
par.
1041)
provides for appeal
of final order of the Board within
35 days.
The Rules
of
the
Supreme
Court
of
Illinois
establish
filing
requirements.
IT IS SO ORDERED.
J.
Dumelle dissents.
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board, here~ycertify t
t the above Opinion and Order was adopted
on
the
7w—’
day of
__________
,
1990,
by a vote of
________
Dorothy M.,~7Gunn, Clerk
Illinois ~ôllution
Control Board
112—51