ILLINOIS POLLUTION CONTROL BOARD
September
13,
1989
COUNTY OF DUPAGE,
)
AC 88-76, Docket A & B
No.
88 CD 278
Complainant,
and
v.
)
AC 88—77, Docket A & B
E
& E HAULING,
INC.
)
No.
88 CD 279
(MALLARD
LAKE LANDFILL),
)
Respondent.
WILLIAM SELTZER APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY;
GRETTA TAMELING APPEARED ON BEHALF OF THE OFFICE OF THE STATE’S
ATTORNEY FOR DUPAGE COUNTY;
RAYMOND T. REOTT AND ROBERT P.
ZAPINSKI, OF JENNER AND BLOCK,
APPEARED ON BEHALF OF E
&
E HAULING,
INC.
OPINION AND ORDER OF THE BOARD
(by J. Anderson):
This matter comes before the Board upon petitions for review
filed in each of the above-captioned cases
by E&E Hauling,
Inc.
(“E&E”) on August
2,
1988.
In each case,
an administrative
citation was served on E&E on July
14,
1988, pursuant
to the
authority vested in the Illinois Environmental Protection Agency
(“Agency”) and delegated
to DuPage County
(“Complainant”).
Ill.
Rev.
Stat.
1987,
Ch.
111
~,
par.
1004(r)
and 1031.1.
The record indicates that the parties had requested
consolidation of these two cases.
However, the record does not
contain any motion to consolidate
filed with the Board.
Since
the parties are identical,
the parties have essentially treated
the cases as consolidated
at hearing and in their briefs, and the
issues are largely similar,
the Board will consolidate these two
cases
for decision solely as a practical matter.
A hearing was held on December
8,
1988
for both cases;
no
members
of the public attended.
The Agency filed a brief
in lieu
of a closing argument on May
8,
1989.
E&E filed a closing brief
on June
19, l989.*
*
The Agency’s closing arguments
is cited as “Agency
ci. arg.”.
E&E’s closing argument is cited as “Resp.
cl.
arg.”.
103—91
—2—
Both administrative citations were issued to E&E as operator
of a sanitary landfill commonly known as Mallard Lake Landfill.
However,
the administrative citations were issued for inspections
occurring on two different days,
May
20, 1988
(AC 88—76) and June
16, 1988
(AC 88—77),
by DuPage County inspectors.
May 20, 1988 Inspection
On May 20,
1988,
Steven K. Dunn of DuPage County, inspected
the Mallard Lake Landfill operated by E&E.
Mr. Dunn conducted
the inspection between 9:45 a.m. and 11:02 a.m. by an on—site
inspection which included walking the site and interviewing
personnel.
(A.C.
88—76)
Based on Mr. Dunn’s observations, Complainant issued an
administrative citation stating that E&E had operated the Mallard
Lake Landfill in a manner which resulted in the following
condition:
The
existence
of
uncovered
refuse
remaining
from
any
previous
operating
day
or
at
the
conclusion
of
any operating
day
in
violation
of
Ill.
Rev.
Stat.
(1987),
Ch.
111
~,
par.
1021
(p)(5).
(A.C.
88—76)
Complainant submitted photographs taken during the
inspection as evidence of the uncovered refuse.
(Comp.
Ex.
1,
photos 8—11).
Complainant further cites testimony by Mallard
Lake Landfill’s manager
in which he stated that the last waste
was deposited
in the area during the last week of April.
(R. at
190).
Complainant subsequently concludes that “the uncovered
refuse discussed and photographed by Inspector Dunn was clearly
refuse from a time previous to the inspection date of May
20,
1988.”
(Agency Cl. arg.
at
2).
E&E responds that the area depicted by Mr. Dunn “was being
used as part of
a road over which heavy equipment was hauling
dirt for use as cover material
in other areas of the landfill.”
(Resp. Cl. arg. at
3,
R.
at
191,
193).
E&E argues that:
the
combination
of
the
wet
weather
when
the
refuse was first deposited at the landfill and
the
subsequent
driving
of
heavy
equipment
loaded
with
dirt
over
the
area
created
instability
in
this
defined
and
limited
area
causing
the
refuse
to
deflect
and
push
up
through the soil cover.
(Resp.
Cl.
arg. at
4,
R.
at 193—195)
E&E further argues that
it would have been “extremely
difficult” and “impractical” to have kept that area
“free of
103—92
—3—
every piece of uncovered refuse.”
(Resp.
Cl. arg. at
4).
E&E
also states that the placement of additional
cover was
“not
justified” due
to the “limited amount” of uncovered refuse and
because the “process would simply repeat itself the next day when
the equipment drove over the area again.”
(Resp.
Cl. arg.
at 4,5;
R. at 205—206).
Finally, E&E argues that the “de minimus”
conditions portrayed in Complainant’s photographs could not have
been prevented and are “inherent in the operation of
the
landfill.”
(Resp.
Cl.
arg. at
6).
Uncovered refuse is indeed apparent from the photcgraphs
submitted by Complainant.
(Comp.
Ex.
1, photos 8—11).
It is
uncontested that the refuse
in the photos was left uncovered from
at least
the previous operating day,
if not longer.
(Agency Cl.
arg. at
2; Resp.
Cl. arg.
at
3;
R.
at
190,
206).
Thus,
the Board
finds that the evidence demonstrates uncovered refuse remained
from a previous operating day at Mallard Lake Landfill
in
violation of Section 2l(p)(S) of the Environmental Protection Act
(“Act”).
Under
the Act,
if the Board finds that the alleged violation
has occurred
it must adopt
an order
so stating and impose the
statutory penalty,
unless
it finds that the violation resulted
from uncontrollable circumstances.
E&E is not claiming that the
uncovered refuse remained from a previous operating day as a
result of uncontrollable circumstances.
Rather,
E&E asserts that
it
is being held to an “unreasonably high standard of
performance.”
(Resp.
Cl.
arg. at 2).
However, during the hearing
E&E’s landfill manager essentially admitted that the refuse was
not properly covered, as he testified on cross examination to the
following:
William
Seltzer
(Agency
Attorney):
As
the
site
manager,
are
you
ever
satisfied
with
a
site
looking
like
that
at
a
day’s
end?
looking
at Comp.
Ex.
1,
photos
8,9,10
Christopher
Peters
(Manager—Mallard
Lake
Landfill):
No.
Seltzer:
No.
What would
you usually
do
if
you
saw
an
area
like
that
at
the end
of
the
day?
Peters:
Apply additional cover.
(R.
at 239,
240).
Based on the photographs
in evidence, Mr.
Dunn’s testimony and testimony by E&E’s witnesses at
the hearing,
the Board finds that E&E violated Section 2l(p)(5) of the Act for
allowing uncovered refuse
to remain from a previous operating day
and that no defense for uncontrollable circumstances has been
made here.
103—93
—4—
June 16,
1988 Inspection
On June 16,
1988,
Steven Dunn, of the County of DuPage,
again inspected the Mallard Lake Landfill operated by E&E.
On
the basis of his inspection, E&E was issued an ad~ninistrative
citation for operating the landfill
in a manner which resulted in
the following conditions:
(1)
The
existence
of
uncovered
refuse
remaining from any previous operating day
or at the conclusion of any operating day
in
violation
of
Ill.
Rev.
Stat.
(1987),
ch.
111
~,
par.
lO2l(p)(5).
(2)
A
failure
to
collect
or
contain
litter
from
the
site
by
the
end
of
each
operating day
in violation
of
Ill.
Rev.
Stat.
(1987),
ch.
ill
~,
par. l021(p)(l2)
and
35
Ill.
Adm.
Code,
Subtitle
G,
Chapter
I,
Section 807.306.
(AC 88—77).
Mr. Dunn conducted his inspection between the hours
of 5:33 a.m. and 6:30 a.m.
Complainant submitted photographs as
evidence of the above alleged violations.
(Comp.
Ex.
2, photos 1—
11).
Uncovered Refuse
In support of its allegation
that E&E allowed uncovered
refuse to remain from a previous operating day, Complainant
refers to photographic evidence depicting such items as a
mattress,
a tire and rolled carpeting.
(Comp.
Ex.
2,
photos 7,9
&
10).
Noting that as of the time of the inspection no refuse
trucks had deposited refuse that day, Complainant argues that
“the uncovered refuse testified to and photographed by Inspector
Dunn must have been from a previous day’s operation.”
(Agency Cl.
arg. at
4;
R. at 76,
79).
E&E responds that the area depicted
in photos
3—8 of
Complainant’s exhibit No.
2 was “part of the turnaround area for
the previous day’s working face.”
(Resp.
Cl. arg.
at
7;
R.
at
267).
E&E explains that the refuse depicted in Complainant’s
photos
is from the refuse—hauling trucks cleaning their truck
beds before leaving the landfill.
(Id.).
E&E further explains
that since the area would again be used as
a turnaround
it “would
have been counterproductive to apply cover
to an area about
to
receive heavy traffic the next day.”
(Resp.
Cl. arg. at
8;
R. at
270—271).
E&E’s statements concerning
the refuse in the turnaround
area amount
to an admission that uncovered refuse remained from
a
previous operating day.
E&E’s explanations that paper pickers
103—94
—5—
could not have been used in that area,
that the refuse has a
tendency to stick to the clay cover material, and that there were
some equipment breakdowns during various times that day do not
amount to uncontrollable circumstances.
Indeed, E&E has not
asserted such a defense.
E&E asserts that there was
“nothing
more which
it could reasonably have done”
under the “unusually
difficult circumstances.”
(Resp.
Cl. arg.
at 8,9).
However,
the
statutory defense for a violation of Section 2l(p)(5)
is not
“unusually difficult” circumstances but
“uncontrollable”
circumstances under Section 3l.l(d)(2).
Uncontrollable circumstances
is an affirmative defense which
must
be proven by the party appealing the citation.
It does not
appear that E&E was attempting to claim that the uncovered refuse
was due
to uncontrollable circumstances but even if E&E is making
that claim, the Board finds that this is not
a situation of
uncontrollable circumstances.
Based on evidence submitted by the
Complainant and E&E’s own admissions,
the Board finds
that E&E
operated Mallard Lake Landfill
in violation of Section 2l(p)(5)
of the Act.
Litter
In support of the allegation that litter from a previous
operating day had not been collected and contained,
the
Complainant submit observations and testimony of Mr. Dunn and
photographic evidence.
(Pet.
Ex.
2,
photos 9,10,11;
R.
at 79—
83).
Mr. Dunn testified at the hearing that much of the debris
in photos 9,10 and 11 was wind blown litter.
He also testified
that the litter was from the previous day’s operation since he
arrived at the site before any trucks had arrived in that
particular area.
(R.
at 80,81).
Complainant proffers two ways to distinguish between litter
and uncovered refuse.
Complainant first describes litter as
“material resting on top of
the soil with an unweathered look or
untrapped,
whereas uncovered
refuse will be commingled with the
covered material.”
(R. at 74).
Next, Complainant suggests that
litter, unlike uncovered refuse,
is that which
“may be removed
from the working area or
transported from the working area.”
(R.
at 120).
Nevertheless, Complainant argues that “the two alleged
violations
(i.e. daily cover and failure
to collect litter) often
go hand
in hand because one of the benefits of applying daily
cover
is to prevent litter
from overnight.”
(Agency Cl.
arg.
at
4).
E&E responds to the Complainant’s allegations by stating
that “it would have been an unsafe practice to employ paper
pickers to collect the refuse
in the areas indicated
in
photographs 9,10 and 11 of Complainant’s Exhibit No.
2, because
that would have required the men to be working
in an area below
the working face.”
(Resp.
Cl.
arg.
at
10).
E&E asserts that
103—95
—6—
paper pickers “could have easily been injured by debris rolling
down the slope from the working face.”
(Id.).
Finally, E&E
argues that “were
a landfill required to operate in a completely
spotless manner, service would have
to. be reduced in terms of the
amount of refuse accepted for dumping so as to allow
the
landfill’s personnel to devote additional time,
effort and
equipment to ‘cleaning’
the landfill.”
(Resp. Cl. arg. at 11).
The Board cannot accept either argument made by E&E.
The
Act requires landfill operators to collect and contain litter
from previous days operations;
it
is E&E’s
responsibility to do
so.
Neither its concern for the safety of its
“paper pickers”
nor its dislike of reduced operating hours amounts
to a claim of
“uncontrollable circumstances” as opposed to ordinary problems
associated with operation of
a landfill.
The Board also cannot accept
the Agency’s argument that
litter
is distinguishable from uncovered refuse by the extent
to
which it
is “weathered”
or
“untrapped”.
It is not just a matter
of how weathered
a piece of refuse may be.
There
is a locational
aspect to an administrative citation alleging
a litter
violation.
The location of the refuse
in question, not its
appearance,
is dispositive as to whether
it constitutes “litter”
within the context of Section 2l(p)(l2) of the Act.
The Board
also notes that refuse may become weathered
in appearance long
before its arrival
at a landfill.
In this instance, Complainant’s photographs and site sketch
indicate the same general area for both the alleged uncovered
refuse and the alleged litter violation of June 16, 1988.
While
the Board agrees with the Complainant that these violations often
go “hand in hand”,
it does not agree that a violation of both can
be imposed
in the same locational setting.
Litter is
a subspecies of refuse;
the Complainant
is
attempting to impose two penalties
for the same offense.
The
arguments here that attempt
to distinguish the means by which
uncovered refuse came to be situated
in the same area
of
disturbed soil are not adequate proof.
Absent an indication that
the refuse has escaped from the general working area and been
allowed to remain uncovered and uncollected at the end of each
operating day, no violation of Section 2l(p)(l2)
has been
shown.
The Board,
therefore, does not uphold the Complainant’s
determination that E&E was
in violation of Section 2l(p)(l2) of
the Act.
CONCLUSION
The Board hereby upholds Complainant’s determinations that
E&E violated Section 2l(p)(S) of the Act on May 20,
1988 and that
E&E violated Section 2l(p)(5)
of the Act on June 16,
1988.
The
103—96
—7—
Board does not uphold the Complainant’s determination that E&E
violated Section 2l(p)(l2)
on June
16,
1988.
PENALTIES
Penalties
in Administrative Citation actions of the type
here brought are prescribed by Section 42(b)(4) of the Act,
to
wit:
In
an
administrative
citation
action
under
Section
31.1 of
this Act, any person found
to
have violated any provision
of
subsection
(p)
or
(q)
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;
except
that
if
a
unit
of
local
government
issued the administrative citation,
50
of the
civil penalty shall
be payable
to the unit
of
local government.
Ill.
Rev.
Stat.,
1987’,
ch.
111
~,
par.
1042(b) (4).
Respondent will therefore be ordered to pay a civil penalty
of $1,000, based on the two violations as herein found.
For
purposes of
review, today’s action (Docket A) constitutes the
Board’s final action on the matter of the civil penalty.
HEARING COSTS
This case presents an issue of how the hearing costs should
be ascertained.
If found to be
in violation of the Act, the
respondent
is required
to pay any hearing costs incurred by the
Board and the Agency.
Ill. Rev.
Stat.
1987,
ch.
111
~,
par.
l042(b)(4).
However,
the Act
is silent as
to hearing costs
incurred by units of
local government when they file the
complaint.
In this case, DuPage County alone filed the citation.
At
hearing,
the Agency appeared
in its own behalf and the DuPage
County State’s Attorney appeared on behalf of DuPage County.
The
respondent and the Agency presented the evidence, conducted the
cross—examination, and filed the only post—hearing briefs.
As
noted above, Section 42(b)(4)
of the Act states in pertinent
part:
103—97
—8—
....
any
person
found
to
have
violated
this Act shall pay a civil penalty of $500 for
each
violation
...
plus
any
hearing
costs
incurred by the Board and the Agency.
Ill. Rev. Stat.
1987,
ch.
ill
~,
par. 1042(b)(4).
Hearing cost
incurred by units of local governments when such local
governments appear as Complainants in administrative citations
are not mentioned.
The only reference to local government
is in
regard to the respondent’s payment of the penalty:
if
a
unit
of
local
government
issued
the
administrative
citation,
50
of
the
civil
penalty shall
be payable
to the unit of local
government.
Id.
The plain meaning of this section of the Act suggests that
the Board
is empowered to order
the payment of costs incurred
only by the state (Board and Agency), not those of the unit of
local government,
in this DuPage County, and regardless of who
files the complaint.
Thus,
the plain meaning of Section 42(b)(4)
suggests that the Agency may recover its hearing costs in this
case but that DuPage County may not.
Such a plain reading of the Act, however, does
not take into
account the Act’s authorization of a delegation agreement between
the Agency and unit of local government,
DuPage County.
Ill.
Rev.
Stat.
1987,
ch.
111
~,
par. 1004(r).
If one interprets the
Act’s allowance of such a delegation agreement as placing DuPage
County in the position of the Agency
in regard to hearing cost
recovery,
then how
is such an interpretation applied in this
case?
(see AC 88—24, AC 88—33).
In any event,
since
it
is unclear whether the Agency
or
DuPage County may recover their hearing costs
in this matter,
the
Board requests that the Agency, DuPage County and E&E brief
this
issue before the Board’s determination in Docket
B.
Specifically,
the Board would like the Agency
to answer:
Whether
the delegation
agreement specifically
provides for the Agency to conduct the hearing
and file post-hearing briefs.
In the Board’s Order following this Opinion,
the Board will
require that both the Agency and the DuPage County submit
affidavits of their hearing costs,
but the Board will determine
whose costs are recoverable
in Docket
B.
The Board will consider
briefs filed by October
16,
1989.
This Opinion constitutes the Board’s findings
of fact and
conclusions of law in this matter.
1fl3—98
—9—
ORDER
1.
Respondent is hereby found to have been in violation on May
20, 1988, of Ill. Rev. Stat.
1987, Ch.
ill
~,
par.
lO2l(p)(5)
and
in violation on June 16,
1988 of Ill.
Rev..
Stat. 1987,
Ch.
ill
~‘,
par. lO2l(p)(5).
2.
Within
45 days of this Order of September
13,
1989,
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
3.
Within 45 days of this Order of September
13,
1989,
Respondent shall,
by certified check
or money order, pay a
civil penalty
in the amount of $500 payable to the County of
DuPage,
Fund 32—206—Solid Waste Systems.
Such payment shall
be sent
to:
County of DuPage
Solid Waste Administrator
414 No. County Farm Road
Wheaton,
IL
60187
4.
Docket A in this matter
is hereby closed.
5.
Within
30 days of this Order of September
13,
1989,
the
Illinois Environmental Protection Agency and the County of
DuPage shall
file
a statement of hearing costs, supported by
affidavit with the Board and with service upon E&E.
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 E&E.
Such filing
shall
be
entered in Docket B of this matter.
6.
Respondent is hereby given leave to file a reply/objection
to
the filings as ordered
in
5)
within 45 days of
this Order
of
September 13,
1989.
Section 41 of
the Environmental Protection Act,
Ill.
Rev.
Stat. 1987 ch.
111 1/2 par.
1041, provides for appeal of Final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish
filing
requirements.
IT IS SO ORDERED.
103—9~
—10—
J.
T. Meyer dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby
cer,t1ify that the ~ov
Opinion and Order was
adopted on the /~~dayof
,,4~
,
1989, by a vote
of
c~,—/
.
A
Dorothy M./G&lnn, Clerk
Illinois P’gilution Control Board
103—100