ILLINOIS POLLUTION CONTROL BOARD
April 27, 1989
KENNETH K. GETTY,
)
Complainant,
)
and
EDWIN and SUE KOZOYED, ET AL.,
)
Intervenors,
v.
)
PCB 86—181
VILLAGE OF RIVERSIDE,
)
Respondent.
OPINION AND ORDER OF THE BOARD (by B. Forcade):
This matter is before the Board on the October 17, 1986
formal complaint of Kenneth R. Getty (“Getty”) against the
Village of Riverside (“Riverside”). The complaint alleged vio-
lations of the Environmental Protection Act (“Act”), Ill. Rev.
Stat. ch. 111 1/2, pars. 1001—1052. A January 4, 1988 amendment
to the complaint made by 25 intervenors represented by counsel
(“Intervenors”) added alleged violations of other sections of the
Act, as well as alleged violations of various Board rules. In
sum, the unnumbered allegations fall into four basic categories:
(1) Riverside caused or allowed the open
dumping of wastes on 10.8 acres of
land
Riverside owns in the Riverside Lawn
community (alleged Section 21(a) viola-
tion);
(2) Riverside abandoned, dumped, or deposited
wastes on this land, which was not an
approved landfill (alleged Section 21(b)
violation);
(3) Riverside deposited wastes on this
property in a manner that created hazard
of polluting the underlying groundwater
and t~ie adjacent DesPlaines River
(alleged Section 12(d) violation); and
(4) Riverside conducted an unpermitted, non-
complying waste disposal operation or a
sanitary landfill operation on this site.
98—201
—2—
(alleged Section 12(d), 21(p), and 35
Ill. Adm. Code 807 violations).
Six days of public hearings occurred between September 2,
1987 and September 11, 1988. Numerous members of the public
attended. The hearing officer granted 46 individuals
intervenors’ status on September 2, 1987. R. 5—8. On January 4,
1988, he allowed the motion to amend the complaint filed by the
Intervenors.
The parties have fully briefed the issues involved. Getty
filed a post—hearing Closing Argument on September 22, 1988. The
Intervenors filed a Post—Hearing Brief on the same day.
Riverside filed its Response Brief on November 10, 1988. The
Intervenors filed their Reply Brief instanter on December 13,
1988.
The parties have raised a number of issues by numerous
motions filed during the briefing. The Intervenors filed a
December 6, 1988 motion to strike an exhibit attached to
Riverside’s Response Brief, and a Board Order of December 15
granted this motion. The Intervenors’ Reply Brief contained
certain evidentiary motions. Riverside filed a motion to strike
those evidentiary motions on December 16, 1988, and the
Intervenors responded on December 23, 1988. The Board granted
Riverside’s motion to strike in part and denied it in part on
January 19. 1989. The Board did not address the Intervenors’
evidentiary motions.
DISCUSSION
This proceeding involves a 10.8 acre parcel owned by
Riverside, which is bounded by the Des Plaines River on one side
and is in close proximity to the unincorporated Riverside Lawn
community on the other. Riversi~ie acquired the property and
annexed it in 1941. Riverside Post-Hearing Brief at 2. It is
located in the floodway of the Des Plaines River. Joint Ex. 1.
The site operated as a landfill until about 1967. Riverside
Brief at 4; Intervenors’ Ex. 36. Getty, an owner of adjacent
land in the Riverside Lawn area, commenced this action, and
numerous Riverside Lawn residents intervened. The complaining
parties allege violations of Sections 12(d), 21(a), 21(b), 21(d),
and 21(o) of the Act and various provisions of 35 Ill. Adrn. Code
807. They primarily seek two alternative forms of relief (in
lieu of any penalties): total removal of all deposited wastes or
certain closure/post—closure care measures in conjunction with
certain additional measures.
Elaborate discussion of all of the facts and allegations
involved in this matter is unnecessary. So also is consideration
of the evidentiary issues raised by the Intervenors. Neither
Getty nor the Intervenors seek the imposition of a penalty
98—202
—3—
Rather, they request remedial actions by Riverside. See
Complaint; Intervenors’ Motion to Amend Complaint; Getty Closing
Argument; Intervenors’ Post—Hearing Brief at 37; Intervenors’
Reply Brief at 21—24. This posture obviates detailed findings of
violations; a single finding of violation would authorize the
Board to consider the requested relief. Further, none of the
contested evidence (Riverside Ex. 3; Kendzior Ex. 1, 4, 7, 8, 10,
12, 14, 16, 17 & 19; Intervenors’ Ex. 6Aiii; Getty Ex. 1—8; R.
868—72 & 879—906) is essential to either the findings of
violation made today or the remedial action imposed on Riverside.
Liability
Section 21 of the Act includes the following prohibitions:
No person shall:
a. Cause or allow the open dumping of any
waste.
b. Abandon, dump, or deposit any waste upon
the public highways or other public
property, except in a sanitary landfill
approved by the Agency pursuant to
regulations adopted by the Board.
Ill. Rev. Stat. ch. 111 1/2, par. 1021 (1989)
Riverside violated both subsections (a) and (b) of Section 21 of
the Act.
With regard to the first category of alleged violations,
Riverside’s alleged causing or allowing open dumping on its
property (in violation of Section 21(a) of the Act), Riverside
admits that it allowed open dumping on the subject property.
Riverside’s Response Brief includes the following admissions:
From testimony and evidence submitted during
this proceeding it appears that dumping
activities within the area, including the
Respondent’s site, took place following the
adoption of the Environmental Protection Act
following the closing by Respondent of its
site to further landfill uses.
Response at 5.
Respondent’s site as well as adjacent Forest
Preserve District and private property were
subjects of unauthorized random dumping of
garbage, abandoned vehicles, concrete
materials and household items.
98—203
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Id. at 11.
(The Respondent admits
...
that the subject
property had been the situs for much random
and fly dumping by unauthorized persons
Respondent
...
acknowledges its responsibility
for allowing its property to be used for
nuisance dumping.
Riverside’s site security measures were not
adequate to prevent unauthorized persons from
using Respondent’s site and the surrounding
area for dumping
Id. at 16—17.
Respondent concedes that unauthorized and
random dumping has occurred on Respondent’s
property, and to the extent that Respondent
has suffered or otherwise put up with such
dumping, it has “allowed” the same to occur.
Id. at 18.
Riverside’s only assertion that it was not guilty of
allowing open dumping in contravention of Section 21(a) is as
follows:
Accordingly, while Respondent could be held to
have “allowed” random dumping on its property
as a result of not taking measures to secure
the area from such activities, it must be
pointed out that Respondent did not allow such
debris to remain on its property as a perma-
nent disposal, and Respondent thus did not
allow its property to be a permanent disposal
site.... Respondent’s acts in allowing its
property to become subject to open dumping by
random and fly dumpers
...
ended on August 25,
1986 when it received notice by the Agency)
to cease using its property for the disposal
of waste, and it embarked on procedures for
cleaning up, securing and closing its site
from further dumping. Respondent was not
guilty of allowing such open dumping to occur
on the date, that the subject complaint was
filed in October of 1986, nor has any such
open dumping occurred following receipt by
Respondent of the August 22, 1986 Agency
letter.
98—204
—
5—
Id. at 21—22
Thus, Riverside’s defense focuses on its cleanup efforts under-
taken after August 25, 1986.
The Board finds that Riverside allowed open dumping on the
subject site in violation of Section 21(a) of the Act, at least
until August 25, 1986. In reaching this conclusion, the Board
does not consider the effect of cleanup and enhanced site secur-
ity measures undertaken by Riverside after that date.
With regard to the second category of alleged violations,
Riverside’s alleged abandonment, dumping, or depositing wastes on
its property (in violation of Section 21(b) of the Act),
Riverside’s Response Brief includes several factual admissions.
The following is representative:
With respect to causing open dumping by its
own actions, the Village Manager and Director
of the Public Works Department of Respondent
have both testified that they used the subject
property on and off during the past several
years (until receipt of the August 22, 1986
Agency) letter requesting that such use be
prohibited) as a site for the temporary dispo-
sal of construction materials from water main
and similar repairs undertaken by Respondent’s
Public Works Department and for Street sweep-
ings and landscape materials from the Respon-
dent’s park system, including trees that had
been blown down during storms or other emer-
gency weather conditions. Landscape materials
were mulched and subsequently returned with
wood chips to the Village park system for corn—
posting. The remaining construction materials
were removed, together with any random or fly
dumping deposits, to an approved landfill site
at such times as Respondent’s six man Public
Works crew was available
to undertake these
removal and hauling activities.
**
*
*
None of these materials were intentionally
deposited by Respondent to serve as permanent
disposal, but were instead deposited on a
temporary basis for ultimate transfer either
to
an approved landfill site or,
in
the in-
stance of wood chips and mulching landscape
materials,
to be returned to the public park
system for use in forming chip beds for the
park trees to protect the trees from grass
9S-~t05
—6—
mowers, or for composting purposes for trees
and shrubbery within the park system....
When, on August 22, 1986, the Agency
notified Respondent’s Village Manager by
letter that such temporary deposit practices
were improper, these deposits immediately
ceased. At the time this complaint was filed
in October of 1986, the Village had discon-
tinued causing such open dumping and was in
the process of cleaning up the site in accor-
dance with requirements of the Agency. The
Respondent was therefore not causing open
dumping of any waste on its property at the
time that the subject complaint was filed, but
was instead involved in preparations to remove
past deposits therefrom....
Accordingly, while the Respondent prior to
August 25, 1986 did use its own property to
temporarily deposit landscape and public works
repair construction materials from its own
park and street system, such practice, or
violation, terminated on August 25, 1986, in
accordance with an Agency notice as previ-
ously stated in this Response.
Riverside Response Brief at 22—25 & 27 (record
citations omitted); see Id. at 10—12 & 16; R.
982—85, 995, 1004, 1124, 1132, 1143—44, 1151—
53, 1180, 1347, 1349, 1371—72 & 1381—83.
Thus, Riverside admits that it placed or caused the deposition of
waste materials on the site.
However, Riverside claims these
activities constituted temporary waste storage, and that it
did
not “abandon, dump, or deposit” these wastes on the site.
See
Act, Section 21(b).
Key facts in the record indicate otherwise.
The Intervenors’ witness, r4r. Kania, a professional
cartographer, compared topographic contour maps of a portion of
the site. The Illinois Department of Transportation, Division of
Water Resources plotted the first map from existing data on March
1974. Intervenors’ Ex. 15. Riverside’s consulting engineers,
Consoer, Townsend & Associates, prepared the second map in
November 1987.
Joint Ex. I. This comparison revealed that
various areas of the site increased and decreased by varying
degrees between 1974 and 1987. The net changes in elevation
disclose that the site has increased by about 59,000 cubic f~L
since 1974.
R. 367—439; Ex. 16 & 17.
This evidence indicates
that more deposition of wastes occurred at the site than removal.
Eyewitness testimony supports a conclusion that Riverside
98—206
—7—
deposited or caused to be deposited more wastes than it removed,
at least until August 1986. This includes testimony as to
changes in physical features on the site since the early 1970s.
It also includes testimony of Riverside’s activities at the site.
Area residents observed an increase in site elevation since
the early 1970s. Mr. Getty, an area resident,. testified that
“there was a lot less material in 1973 than there is in 1987.”
R. 55; cf. R. 34—36 (testimony including a much broader time
frame). Mr. Richard West, a Riverside Lawn resident, observed
that debris now covers several feet of the trunk of a large tree
in which his son played in about 1972. P. 319—20, 332—33 & 337—
39. Robert Halac, another resident of Riverside Lawn noted that
a former “berm” on which he played as a boy in about 1970 has now
disappeared. R. 457—58 & 463—65. Thus, eyewitness testimony as
to changes in physical features on the site corroborates the fact
that waste deposition has occurred.
Several more witnesses’ testimonies further corroborate this
changes since the early 1970s. Mr. Getty saw Riverside vehicles
deposit wood chips, street sweeper refuse, parts of trees and
trimmings, street repair debris, and black top on the site. He
even spoke with uniformed Riverside employees on one such occa-
sion. He saw such vehicles come in full and leave empty, but saw
none come in empty and leave full. P. 36, 138—40 & 174—75; see
Getty Ex. 1E—3E & 1F—3F (photographs). Riverside Lawn residents
similarly saw vehicles of waste materials entering full and
leaving empty, but did not see full vehicles leaving the site.
R. 72, 75—77 & 313—15 (R. West); P. 91 (F. Grittanni);
R. 96, 99—
100 & 103 (D. Taylor); P. 445—46 & 456—57 (R. Halac); see also R.
982—85, 995, 1004, 1132, 1143—44, 1151—53 & 1180 (C. Kendzior,
Riverside Village Manager); R.
1347, 1349, 1371—72 & 1381—83 (K.
Van Dyke, Riverside Sup’t Public Works). Other residents simply
saw the new appearance of wastes during this time. P. 204, 295—
96 & 219—20 (S. Kozoyed); R. 343—44 & 347—78 CM. West).
Residents also saw bulldozers operating on the site to spread
wastes, but never saw any equipment on the site capable of
loading wastes. R. 313, 316—17 & 328 (R. West); R. 346 (M.
West): r. 449 & 458 (R. Halac).
Therefore, the record supports a conclusion that Riverside’s
“temporary storage” activities
actually resulted in the deposit
of wastes on the subject site.
On this basis, the Board finds
that Riverside “abandoned, durnped, or depositfed” wastes on
its Riverside Lawn property in violation of Section 21(b) of the
Act. Any changes in the character
of Riverside’s activities on
the site that occurred after August 1986 do not affect this con-
clusion as it relates to activities that occurred prior to that
d ate.
Having found that Riverside contravened statutory provisions
in the first two categories of allegations, Sections 21(a) and
98-207
—8—
21(b) of the Act,
the Board will not address the other two cate-
gories of alleged violations (that Riverside deposited wastes on
land in a manner that threatens water pollution and that River-
side conducted an unpermitted, non—complying waste disposal or
sanitary landfill operation on its property). The Board has also
not considered the status of Riverside’s post—1986 activities on
the site. As mentioned earlier, the only necessary predicate to
the Board’s consideration of an appropriate remedy (when monetary
penalties are not requested) is a single finding of violation.
Thus, a finding of a violation of either Section 21(a) or 21(b)
is sufficient to
evoke the Board’s remedial powers, and such a
finding would obviate additional consideration of the alleged
violations of Sections 12(d), 21(d), and 21(p)
of the Act and
Part 807
of the Board’s rules. The Board’s decision today does
not
address the issue of whether Section 2l(p) would apply to an
unpermitted waste disposal activity or facility.
In making its orders and determinations,
the Board must
consider the criteria set forth in Section 33(c). In this
instance, absent civil penalty considerations,
the Section 33(c)
factors are not primary considerations.
Riverside’s activities on its land constituted a significant
“interference with the protection of the health, general welfare
and physical property of the people” residing in the Riverside
Lawn community.
See Act, Section 33(c)(l).
Whereas the site may
have some “social and economic value” to
Riverside for the waste
activities that
it conducted there, any such value is far out-
weighed by the “unsuitability of Riverside’s waste activities
to the area in which it is located.” Further, waste management
activities are inherently of greater social and economic value
when conducted at a permitted facility in compliance with law.
See Sections 33(c)(2)
& 33(c)(3).
(The record further indicates
that neighboring residences predate Riverside’s waste activities,
but this is immaterial where those activities are concededly
conducted at a site without a valid permit.) Riverside’s manage-
ment of its wastes at a permitted facility in compliance with the
Act and Board regulations was both “technically practicablel arid
economictally reasonable.” See Section 33(c)(4). Finally,
“economic benefits accrued” to Riverside through its non—compli-
ance to the extent that Riverside did not incur the costs of
proper waste management at an approved landfill. See Section
33(c) (5).
The Board will now consider an appropriate remedy. As part
of such consideration, Riverside’s post—1986 activities and the
totality of the circu~stances at the site become relevant.
98—208
—9—
Remedy
The Act authorizes the Board to enter a final order as the
Board deems appropriate under the circumstances. See Ill. Rev.
Stat. ch. ill 1/2, par. 1033(a) (1989).
Such order may include a direction to cease
and desist from violations of the Act or of
the Board’s rules and regulations or of any
permit or term or condition thereof
Section 1033(b).
The record indicates that varied materials accumulated on
the site and that, although much cleanup work has occurred, some
materials remain there. The wastes that accumulated on the site
included aggregate and earthen materials from road re—construc-
tion and repairs, such as concrete curbing, concrete light posts,
asphalt, concrete blocks and bricks, and earth; street sweepings;
sandbags from flood control; landscaping wastes; miscellaneous
metal, wood, and plastic materials; and a small number of
discarded tires. Riverside had removed much of the superficial
materials prior to the date ot the last public hearing, in July
1988. However, some superficial waste deposits remain on the
site, R. 258—91 & 922—75; Village Ex. 5, 6, 14—16, 19—21, 23—29,
33 & 36—40, and the undisturbed internal contents of the accumu-
lated mound are unknown as indicated by this record. These facts
raise serious questions relating to the nature of the wastes left
in place on the site.
The record does not indicate the potential impact of the
accumulated wastes on the groundwater and environment. The
record indicates that some Riverside Lawn wells are contaminated
with low levels of industrial volatile solvents and their degra-
dation products. R. 570—624 & 867—68; Intervenors Ex. 20—23.
However, there is no basis for concluding whether or not this
contamination is attributable to the site. On the one hand, the
record does not indicate that anyone disposed of solvents on the
site, and there are other possible present and former potential
sources for the contamination that are in closer proximity to the
contaminated wells than is the Riverside property. P. 966—69,
1330—40, 1363—64 & 1434—65; Village Ex. 41 & 42. On the other
hand, the known materials on the site have an unknown impact on
the groundwater, R. 550 & 555, and the site hydrogeology is
uncertain. R. 479—85, 507—08 & 541—46; Intervenors Ex. 19. This
breeds other serious questions concerning the impact of the
remaining wastes.
In light of the fact that wastes of unknown nature and
environmental impact have accumulated and remain on the site, the
Board believes that a remedy is appropriate. Such site operation
warrants future compliance with the Act and Board regulations.
98—209
—10—
Finally, and probably most importantly, Riverside has engaged in
remedial work directed toward closing and securing the site
against further waste depositions.
As of July 1988, Riverside had begun the process of removing
superficial debris from its property, had fenced the elevated
portions of the site, arid had installed groundwater monitoring
wells around the perimeter of the fenced mound. Riverside’s
remedial work to date is directed toward the removal of superfi-
cial debris, the installation of a final cover, securing the
site, and monitoring the groundwater for contamination. The
thrust of this work is directed toward the in situ disposition of
the remaining wastes. Although the Agency has actively inspected
this site in recent years, and Riverside has actively sought
Agency cooperation in closing the site, R. 656—84, 789—856, 1002—
83, 1221—82 & 1424—28; Intervenors Ex. 25—28 & 30, this closure
activity makes it all the more important that the Board impose
some restrictions
by way of a remedial order.
Such an order
would assure that Riverside will close the site in a manner that
is consistent with the Act and Board regulations, and which
protects human health and the environment.
Each of the parties has suggested some form of relief as
appropriate. Getty seeks a closure and monitoring of the site as
sufficient. Getty did not request that the Board impose a
penalty. The Intervenors want the Board to order the removal of
the entire waste mound. In the alternative, the Intervenors
desire the complete characterization of the waste mound, waste
containment on the site, and site closure and post—closure
care. They also request that Riverside provide Riverside Lawn
residents with an alternative source of drinking water. The
Intervenors also do not want the Board to impose a penalty.
Intervenors’ Post—Hearing Brief at 36—37. Riverside requests
that the Board allow it to continue the
cover and final closure
of the site it has begun in cooperation with the Agency since
1986.
Initially,
the Board will issue a cease and desist order
requiring Riverside to secure the site against open dumping and
to refrain from future waste storage, treatment, or disposal on
the site in violation of the Act and Board regulations. The
Board will follow the Intervenors’ suggestion and not impose a
monetary penalty. The Board will not
order Riverside to provide
an alternative source of drinking water to the Riverside Lawn
residents. Such an order is unwarranted by the record. The
remaining issue relates to the appropriate disposition of the
remaining wastes on the site.
Tlie Board has found that the Riverside site
was used to
dispose of waste. Under
normal circumstances, a facility used
for disposal of waste would be required to be designed and
operated
in accordance with regulations at
35 Ill. Adm.
Code
98—210
—11—
807. While that was not the case here, the Board believes that a
site closure that references the regulatory standards that apply
to these facilities would assure that no future violation of the
Act and Board regulations would remain undetected. Such a
closure would also protect the area groundwater from unabated
contamination, and it would adequately protect human health and
the environment from any remaining waste mound.
The Board’s solid waste regulations are drawn for site
management in accordance with permits issued by the Agency.
Therefore, the Board’s determination that Riverside must close
the waste disposal site as a landfill will require Riverside to
approach the Agency for a permit to close the site under the Part
807 rules. To assure that adequate information is developed to
allow an informed Agency decision, the Board will require
Riverside to characterize the groundwater flow and quality of
groundwater around and under the site. Also, Riverside must
characterize the nature of material presently remaining on the
site.
For the foregoing reasons, the Board will require Riverside
to submit a permit application to the Agency for the closure and
post—closure care of its waste management site under the
applicable provisions of 35 Ill. Adm. Code 807.
Given the circumstances of this case, the Agency may allow
in situ closure or require closure by removal in its permit
decision. In so saying, the Board is not inferring that the
Agency is limited in its remedies to those normally applicable to
a sanitary landfill. The Board will require Riverside to submit
this closure and post—closure care permit application to the
Agency prior to August 1, 1989. The Board will require Riverside
to complete all closure activities in accordance with the permit
conditions within one year of the date on which the permit
issues, and to fulfill all post—closure care conditions so long
as they remain effective.
The foregoing constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby finds that Riverside has violated Sections 21(a)
and 21(b) of the Act, and orders the Village of Riverside to do
as follows:
I. The Viljage of Riverside shall immediate-
ly cease and desist from authorizing any
person to engage in open dumping of
wastes on its Riverside Lawn property.
98—2 11
—12—
2.
The Village of Riverside shall immediate-
ly cease and desist from any and all
treatment, storage, or disposal of new
wastes on its Riverside Lawn property.
3. The Village of Riverside shall immediate—
ly secure its Riverside Lawn property to
prevent any and all persons from engaging
in
the
unauthorized
open dumping of
wastes on that land.
4. The Village of Riverside shall, prior to
August 1, 1989, submit an application to
the Agency for a permit for the closure
of its Riverside
Lawn waste management
site under the applicable provisions of
35 Ill. Adm. Code 807.
That application,
at a minimum, shall characterize
groundwater flow and quality around the
site, and characterize the waste
materials presently remaining at the
site.
5. The Village of Riverside shall complete
all waste management site closure activ-
ities in accordance with the conditions
of the permit for site closure and within
one year oE the date on which the permit
for site closure issues. The Agency may
requite closure by removal as a permit
condition.
6. The Village of Riverside shall fulfill
all conditions included in the permit for
site closure pertaining
to post—closure
care of the site throughout the entire
period they remain effective by permit
condition, Board regulation, or statute.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985, 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.
98—2 12
—13—
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opjnion and Order was
adopted on the
~‘77Z
day of ______________________, 1989, by a
vote of
__7—o
.
or
Illino
lution Control Board
98—2 13
.
.
.
