ILLINOIS POLLUTION CONTROL BOARD
February
2,
1989
IN THE MATTER OF:
BEECHER DEVELOPMENT COMPANY,
)
AC 88—14,
Docket A and
B
FORMERLY NAMED AS
)
IEPA No.
8842—AC
ARTHUR
A.
DANIELS, PRESIDENT
)
OF JOHN SEXTON CONTRACTORS,
CO.,
)
Respondent.
WILLIAM SELTZER, APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY; AND
NANCY KOLLAR,
WINSTON AND STRAWN,
APPEARED ON BEHALF
OF THE
RESPONDENT,
BEECHER DEVELOPMENT COMPANY.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before the Board on
a Petition
for Review
filed
on March
21,
1988
by Beecher Development Company (Beecher)
to contest an Administrative Citation
(Citation).
Although the
citation originally named Arthur
A.
Daniels
(Daniels)
as the
Respondent
in this matter,
the Agency made
a motion
to amend
the
citation during
the
hearing
to name Beecher Development as the
Respondent.
Beecher
agreed to
this amendment,
the order was
granted and Daniels was removed as the Respondent.
The citation
was served on Daniels
on February 13,
1988 by the Illinois
Environmental Protection Agency (Agency).
(February 13th
Ia
the
presumptive date of service since
the return of service was
signed but undated.)
Hearing was held on September
26,
1988;
one
member of
the public was
in attendance as an observer.
The
Agency filed
a Closing Argument on December
2,
1988.
Beecher
filed
a Closing Argument on December
23,
1988.
The Board
notes
that the Agency filed
its Closing Argument
significantly later
than the deadline ordered by the Hearing
Officer which
in turn delayed
the
filing of Beecher’s Closing
Argument since
it was
to be filed
three weeks after
the
Agency’s.
Although the Board,
on its own motion accepts the
Agency’s Closing Argument,
it
strongly cautions the Agency
to
follow proper procedure
in these matters.
Beecher operates
a sanitary landfill
in Will County,
pursuant
to Agency Operating Permit No.
1971—24-OP.
On January
11,
1988,
Mr. Darren Brumfield,
an Agency representative,
inspected
the landfill site.
On the basis of Mr. Brumfield’s
96—57
—2—
inspection,
the Agency determined
that Beecher had operated the
site in violation of the Act on
the day of inspection and issued
an administrative citation pursuant to Section 31.1(b)
of the
Environmental Protection Act (Act)
Ill.
Rev.
Stat.,
1986 Supp.,
ch.
111 1/2,
par.
1031.1(b). The citation was based on two
alleged violations of the Act
—
Sections 21(p)(5)
and 21(p)(l2).
Section 2l(p)(5) and Section 21(p) (12)
state as follows:
No person shall:
p)
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;
12)
failure
to
collect
and
contain
litter
from
the
site
by
the
end
of
each
operating day.
Ill. ~ev.
Stat.,
1986 Supp.,
Ch.
ill
1/2,
par.
1021(p)(5)
and (p)(12).
Accordingly,
the Agency issued
an Administrative Citation on
February
9,
1988
to Beocher,
including notice that
a
Clvi?
penalty of $500 would be assessed
for each of the two violations,
pursuant.
to Section 42(h)(4)
of
the Act.
Beecher contests the Agency’s determination of
the 2l(p)(S)
violation
for uncovered refuse remaining from
a previous day.
Beecher admits to
a violation of
2l(p)(l2)
for
failure
to collect
litter,
but claims that the violation resulted from
uncontrollable circumstances,
an affirmative defense provided
in
the Act:
if
the
Board
finds
that
the person
appealing
the
citation
has
shown
that
the
violation
resulted
from
uncontrollable
circumstances,
the
Board
shall
adopt
a
final
order
which
makes
no
finding
of
violation
and
which
imposes no penalty.
Ill.
Rev.
Stat.
1986
Supp.,
ch.
Ill
1/2,
par.
1031.1(d) (2).
96—58
—3—
Failure
to Provide Daily Cover
In support of its determination that Beecher failed
to
provide daily cover,
the Agency submits photographs
(Agency
Composite Ex.
1, photos 10—13)
taken by Mr. Brumfield during his
site inspection of January
11,
1988.
These photographs show
various views of the area on the hill above the active area of
the landfill as
it existed on the morning
of January
11,
at times
ranging
from 8:30 a.m.
to 10:30 a.m.
These photographs show
uncovered refuse that contains debris such as paper,
plastics,
tires,
etc.
(Agency Comp.
Ex.
1, photos
10—13).
In contesting
the Agency’s determination, Beecher asserts
in
its Petition for Review that the uncovered refuse shown
in
photographs 10—12
is actually refuse from cleaning out transfer
trailers.
(Pet,
at
3).
Beecher’s site supervisor,
Mr. Tom
Ricciardone,
testified
that
it
is Beecher’s policy to clean out
the
transfer trailers away from
the active area after
they have
dumped
their
load,
before leaving
the site.
(R.
at
62).
Mr.
Ricciardone also
testified that he
thought perhaps ten
to twelve
truck loads
had been dumped
in the hour prior
to the Agency’s
inspection.
(R.
at 63).
The Board assumes that Beecher
is asserting that
the
uncovered refuse shown
in Agency photoaraphs was deposited by
trailers cleaning out on the morning
of the
inspection and not
remaining
from the previous day.
The evidence
in the record does
not support Beeeher~sassertion.
Beecher’s evidence indicates
that there
is
a policy requiring the transfer trailers
to clean
out before they leave
the site
(P.
at
60)
and Mr. Ricciardone
testified that this
is done away
from the face of the active
fill.
(P.
at
62).
The record does not contain evidence however,
that
some trailers did
in fact clean out
in
the area photographed
by the Agency (Agency Ex.
1, photos
10,11
&
12)
on the morning of
the inspection,
January
11,
1988.
Further,
those Agency
photographs
(10,11,12) depict quantities of uncovered refuse
too
great
to
be generated by even the possible ten
to twelve trailers
cleaning out during
the hour prior
to the
inspection.
Thus,
the
Board
is not persuaded by Beecher’s bald assertion that the
uncovered
refuse was “actually refuse from cleaning out transfer
trailers”.
(Pet.
at
3)
At hearing, Beecher made
a new assertion regarding the
2l(p)(5) violation
for uncovered refuse;
this assertion was
mentioned
in the Closing Argument.
Beecher argues that
the
refuse shown
in photographs
13—12
is “wrecking debris
put down by
Beecher pursuant
to permit
for temporary roads and
turn—around
areas at
the site”.
(Closing Argument at
6,
R.
at 79—82).
Beecher points out that its supplemental permit allows
it
to use
asphalt shingles,
roll roofing, broken concrete,
brick
and wooden
pallets as
temporary road building materials and asserts that
those are the materials shown
in photographs
10—12.
(P. at
76;
96—59
—4—
also see Beecher
Ex.
5).
In response
to the Agency’s comment
that there
is substantial debris
in the photographs besides the
alleged permitted
road building materials,
Beecher asserts that
those materials
(e.g., paper,
tires)
“would get picked up”.
(R.
at 81).
The Board
is not persuaded by Beecher’s assertion that the
refuse shown
in photographs
10—12 was solely wrecking debris put
down for
temporary roads
and not
a violation of the daily cover
requirement.
The photographs, as discussed and the testimony of
Mr.
Brurnfield
(P.
at 29—43)
demonstrate
that the daily cover
requirement had
not been met
for
the refuse disposed on at
least
the previous work day.
Photographs
10—12 clearly indicate
substantial uncovered
refuse, apart
from wrecking debris
for
road
building.
Additionally, Beecher’s own witness,
Mr. Ricciardone,
admitted that the refuse shown in photograph 10 had been left
uncovered
since at least
Saturday, January
9,
the previous work
day.
(P.
at
79,80).
Even
if the Board were
to accept Beecher’s
assertion that the materials shown
in the photographs were
intended
for on—site roads,
such materials must consist only of
wrecking debris, wrecking debris must be culled
of any refuse and
the refuse must receive daily cover.
Accordingly,
the Board
finds that the Agency’s determination of violation on the count
of failure
to provide required daily cover was correct,
and
hereby upholds that determination of violation.
Failure to Collect and Contain Litter
In support of its determination that Beecher failed to
collect and contain litter, the Agency submits additional
photographs
(Agency Comp.
Ex.
1,
Photos 7-9)
also
taken by Mr.
Brumfield during
his site inspection of January
11,
1988.
Beecher does not contest
the validity of the Agency’s
determination but argues
that the violation was
a result of
uncontrollable circumstances and should be excused
under Section
31.1(d) (2)
of the Act.
(Pet.
at 3).
Beecher claims that the uncontrollable circumstances which
caused its
failure
to collect and contain litter was the “sub-
zero temperatures on the days immediately preceding the
inspection.”
(Pet,
at
3).
Beecher
further asserts that the cold
temperatures “made
it unsafe
for litter pickers
to be outdoors
for extended periods of time.”
(Pet.
at
3).
Specifically,
Beecher explains
that one of their workers, employed as
a litter
picker, suffered “severe frostbite in both feet” during
the week
before
the inspection.
As
a
result the
site supervisor, Mr.
Ricciardone,
in order
to avoid exposing other workers
to
frostbite instructed
the
litter pickers
to avoid prolonged
exposure
to the cold by coming
inside frequently
to warm up.
(P.
at 85).
96—60
—5—
As evidence of the cold temperatures during the week before
the
inspection,
Beecher relies on
7:00
a.m.
temperature readings
recorded
in the landfill log boos.
Those 7:00 a.m.
temperatures
were:
Tuesday, January 5th,
—10
;
Janua~y6th, _l10; January
7th,
00; January 8th,
10; January 9th,
3U;
January ~0th,,landfill
closed; January 11th,
the day of the
inspection,
17
.
(P.
at
96).
The Board
notes here that inclusion of the afternoon
temperatures recorded by NOAA,
is useful
in completing the
picture.
Thus,
the afte~noon temperatures for t~atweek were:
Tuesday~January 5th, —2°(3:00)~January 6th,
2
(3:00); January
7th, 14°(3:00);
January 8th,
17°
(12:00); January 9th,
70
(12:00).
(Agency
Ex.
3).
Consequently,
the daytime temperatures
during ~he week prior
to the
inspection were
for
the most part
above
0
F.
The Board does not base
a decision
in this case on
any particularly set
temperature reading but finds Beecher’s
claim
regarding the “sub—zero temperatures on the days
immediately preceeding
the
inspection”
(Pet,
at
3)
to be somewhat
misleading.
The Board
has discussed
the
issue of uncontrollable
circumstances as
a defense
to
a citation
in previous cases.
In
Heusinkved,
AC 87—25A,
the Board
held
that the windy conditions
under
the facts
of that case did
not constitute uncontrollable
circumstances
in
the landfill’s failure
to collect and contain
litter.
Specifically,
the Board stated
that
“it
is precisely
because litter control
is at times difficult
that
it
is necessary
for policing of litter
to be carried out on
a regular basis,
so
as
to preclude major dispersement when the ability to contain
litter
is less than optimal”.
(Reusinkved,
AC 87—25A at
6).
ifl
contrast,
the Board did find uncontrollable circumstances
as a defense
for
a violation of
the six inches
of daily cover
requirement
in Rantoul, AC
87—100.
In that case,
the Board
found
that unusual circumstances,
including slope characteristics of
the landfill and
a torrential
rain
of rare occurrence which
resulted
in flash
flooding, constituted
uncontrollable
circumstances pursuant to Section 3l.1(d)(2)
of the Act.
The
Board
finds
that under
the facts
of this case,
the cold
temperatures do not amount
to uncontrollable circumstances such
as the
flash flooding
in Rantoul.
The admittedly below normal
temperatures created
less than optimal conditions
for collecting
and containing
litter,
as
in Heusinkved.
Although
the Board
hardly criticizes Beecher’s instituting protective procedures
for
its employees and does consider frostbite
a serious injury,
the
weather
situation
in this case
was not
an acceptable rationale
for failure
to collect
litter.
During
the coldest month of the
year, Beecher
should expect
low temDecatures and could have
remedied the situation by utilizing other personnel,
hiring more
paper pickers or
by assuring proper equipment.
(Indeed,
the
accident report
for the
frostbitten employees cites “improper
footgear for job.” Beecher
Ex.
6).
96—61
—6—
Although
the Board perceives
that there could
be
a situation
where
the temperature extremes could contribute
to uncontrollable
circumstances,
such is not the case under
these facts.
Not only
is evidence
in the record regarding temperatures incomplete but
evidence as
to
the date of the frostbite injury
is conflicting
and evidence as
to the cause and extent of the injury is unclear.
(R.
at 88,
91 and
92; Beecher
Ex.
6 and
7).
The Board has
addressed the nature of the frostbite injury since Beecher’s
claim
to uncontrollable circumstances rests on a
“warmup” policy
as
a result of that injury.
Thus, evidence regarding that injury
which
is conflicting or unclear severely weakens Beecher’s case.
Although
the temperatures during that week were below normal
(see “NOAA Local Climatological Data”, Agency Ex.
3)
they were
not
so unusual
for January
so as
to constitute uncontrollable
circumstances.*
The Board does
not
consider
it necessary to wait
until
frostbite occurs
in order
to institute
a “warm
up” policy
when
the temperatures are low.
Indeed,
the Board
considers
it
good management practice
to anticipate the need
to protect
workers.
However, protection from frostbite and compliance with
litter collection requirements
are not mutually exclusive.
Because of the added down-time during
the cold weather, Beecher
should have been prepared
to
meet the litter collection
requirements while
still providing worker safety.
Thus,
the Board
finds that Beecher has not borne its burden
of proof of showing that
the failure
to collect and contain
litter
resulted from uncontrollable circumstances as
envisioned
in Section 3l.l(d)(2).
The record
sufficiently shows that litter
could have been and
in
fact was collected
in spite
of
conditions.
Therefore,
the Board
finds that the violation of the
requirement
to collect and contain litter was not due
to
uncontrollable circumstances and hereby upholds
the determination
of violation and the penalty imposed.
PBNA
LT I B
S
Penalties
in Administrative Citation actions of
the
type
here brought are proscribed 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)
*
Neither party agreed that any compounding
factors, such as
wind velocity or heavy snowfall, played
a
role during
the
week
prior
to the inspection.
The Board
notes that winds were
recorded as light to moderate during the working hours from
6
a.m.
to
3 p.m.
(See Beecher
Grp.
Lx.
3;
Agency Ex.
3,
“NOAA
Local Climatogical Data” from O’Hare International Airport).
96—62
—7—
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...
Ill.
Rev.
Stat.,
1986 Supp.,
ch.
111 1/2, par.
1042(b) (4).
Respondent
will therefore be ordered
to pay a civil penalty
of $1000,
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.
Respondent
is also required to pay hearing costs incurred by
the Board
and the Agency.
The
Clerk
of the Board
and the Agency
will therefore be ordered
to each file
a statement of costs,
supported by affidavit, with the Board
and with service upon
Beecher.
Upon receipt and subsequent
to appropriate
review, the
Board will issue
a separate
final order
in which the issue of
costs
is addressed.
Additionally, Docket
B will be opened
to
treat all matters pertinent
to
the issue of costs.
This Opinion constitutes the Board’s findings of fact and
conclusions of law
in this matter.
ORDER
1.
Respondent
is hereby found
to have been
in violation on
January
11,
1988,
of
Ill.
Rev.
Stat.
1986 Supp.,
Ch.
111
1/2, par.
1021(p)(5)
and lO2l(p)(l2).
2.
Within 45 days of
this Order of February
2,
1989,
Respondent shall,
by
certified check or money order, pay
a civil penalty
in the amount of $1000 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,
Illinois
62706
3.
Docket
A
in this matter
is hereby closed.
4.
Within
30 days of this Order of February
2,
1989,
the
Illinois Environmental Protection Agency shall
file
a
statement of its hearing costs, supported by affidavit,
96—63
—8—
with the Board
and with service upon Beecher.
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 Beecher.
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 this Order of
February
2,
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.
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that
the a~pveOpinion and Order was
adopted
on the
~
day of
~
1989,
by a vote
of
_________.
//
/
/
~
‘~•
~Dorothy
M~/~unn,Clerk
Illinois Pollution Control Board
96—64