ILLINOIS POLLUTION CONTROL BOARD
September
22,
1988
IN THE MATTER OF:
VILLAGE OF RANTOUL,
)
AC 87—100
)
IEPA No.
8577—AC
Respondent.
OPINION AND ORDER OF THE BOARD (by J. Anderson):
This matter comes before the Board
on a Petition for Review
filed on October
15,
1987 by the Village of
Rantoul (Rantoul)
to
contest an Administrative Citation
(Citation).
The citation was
served on Rantoul on September
14,
1987 by the Illinois
Environmental Protection Agency
(Agency).
Hearing was held on
April
20, 1988 and post—hearing briefs were filed by the Agency
on June 23,
1988,
and by Rantoul on July 20, 1988.
The Administrative Citation was issued pursuant
to Section
31.1(b) of the Environmental Protection Act
(Act)
and was based
on an alleged violation of Section 21(p)(S)
of the Act.
Section
2l(p)(S)
states 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;
The
Agency
inspector
more
specifically
t~tified at
hearing that:
“The
cover
requirement
is
at
the
end
of
each
operating
day,
six
inches
of
cover
over
refuse,
and
that
is
the
violation
that
I
alleged
in my report”.
(R.23)
The special procedures
for notice
and conduct of hearing,
and Board determinations concerning appeals of Administrative
Citations,
are contained in Section 3l.1(d)(2)
of
the Act as
f01lows:
“If
a petition
for
review
is filed
before
the
Board
to
contest
an
administrative
citation
issued
under
subsection
(b)
of
this
Section,
the Agency or unit
of local government shall
92—539
—2—
appear
as
a
complainant
at
a
hearing
before
the
Board
to
be
conducted
pursuant
to
Section
32
of
this
Act
at
a
time
not
less
than
21
days
after
notice
of
such hearing has been sent
by
the
Board
to
the
Agency
or
unit
of
local
government
and
the
person
named
in
the
citation.
In
such
hearings,
the
burden
of
proof shall
be on the Agency
or unit
of local
government.
If,
based
on
the
record,
the
Board
finds
that
the
alleged
violation
occurred,
it
shall
adopt
a
final
order
which
shall
include
the administrative citation and
findings
of
violation
as
alleged
in
the
citation,
and
shall
impose
the
penalty
specified
in
subdivision
(b)(4)
of
Section
42.
However,
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.*
*
An issue arose about an Agency “Compliance Inquiry Letter”.
In its Petition
for Review,
Rantoul stated:
“The Village
is particularly disturbed
by the fact
that
it
received
a
certified
letter,
called
a
Compliance Inquiry Letter dated August 31,
1987,
on
or
about
September
1,
1987,
from Glenn
D.
Savage,
Manager,
Field
Operations
Section,
Illinois
Environmental
Protection
Agency,
and
before
the
fifteen days were
up
for our
response,
this action
was
initiated
on
September
11,
1987”
(cdpies
attached).
(Rantoul Pet.
p.
2)
Rantoul’s Mayor had responded
to the Agency’s Compliance Inquiry
letter by letter dated September
15, 1987.
However,
as noted
above,
the Agency did not wait for
a timely response before
initiating the citation.
The Board appreciates Rantoul’s distress and itself
is uncertain
about what relationship,
if any,
the Compliance Inquiry letter
has
to the administrative citation process.
Section 31(d)
of the
Act
requires the Agency
to notify a person of
its intent
to file
a
formal complaint,
including the charges alleged,
and
to offer
the
person an opportunity
to meet within
30 days with Agency
personnel.
However,
the Administrative Citation procedures
in
Section 31.1 of the Act contain no provision
for
Agency/respondent interaction prior
to filing
an administrative
citation.
Additionally,
the Agency’s “Compliance Inquiry Letter”
(Petition, Attach.)
sent
to Rantoul makes no mention of intent
to
tile,
or any other reference
to,
an
administrative citation.
92—540
—3—
Facts Presented
Rantoul has owned
and operated
a permitted landfill
located
northwest of Rantoul
in Champaign County
for
several years.
It
is not disputed that
there was some uncovered refuse
before
the landfill opened at 6:00 on
the morning of July
30,
1987.
It
is also not disputed that cover had been placed on the
refuse
the day before, July 29,
1987.
What
is disputed
is
whether six inches cover had been placed and whether
or not the
refuse found exposed resulted from uncontrollable circumstances,
i.e.
a five inch rainfall that started
at about
3:30 a.m.
on the
morning of July 30,
1987.
The Agency inspection on the morning of July 30,
1987 was
not routine.
The day before,
the Agency had sent an
inspector
from its Division of Water Pollution Control
in Champaign—because
it had no Division of Land Pollution inspectors stationed
in
Champaign—to check on
a complaint of a “white material” being
discharged into
a stream
to the west
of the landfill.
(R.l4).
The next day,
an inspector from the Agency’s Division
of Land
Pollution Control drove
to the landfill site from Springfield.
However,
the Agency did not assert that
the discharge came from
the landfill nor did the Agency rebut testimony of the landfill
operator
that he had been told about
the inspection only by
Rantoul’s comptroller
and that the discharge had nothing
to do
with the landfill.
Also, the Agency
never filed any complaints
concerning
the discharge.
(R.77).
Since
the Agency did not
testify or present evidence
from the July 29,
1988 visit
concerning any daily cover
issue,
and,
since both parties agreed
that no rain fell
on July 29 when cover was applied,
the July 29
Agency inspection
is
irrelevant
to the issues raised
in this
proceeding
(R.l9,20).
Mr. William Zierath,
the Agency inspector who visited the
site on the morning of July 30,
1988,
testified as
follows:
He
was at
the site from about
5:45 a.m.
until 7:45
a.iii.
leaving by
8:00 a.m.~he took photos at the start
of his inspection at 6:10
a.m.
(R.34);
northwest of the equipment shed there was
“a fairly
extensive area with scattered refuse apparent through cover
material;
it was apparent that some cover material had been
applied
to the refuse because there were no large expanses of
totally uncovered refuse with
no dirt”.
(R.22);
if six inches
of
cover had been applied,
so much refuse would not have been
exposed,
both in amount and degree of protrusion,
some protuding
as much as one foot (R.28);
it had rained
from “fairly hard
to
fairly gentle” during
the entire time of his inspection,
and was
still raining when he left
(R.27,34);
the erosion patterns,
particularly the absence of gully-like channels,
indicate that
the amount of refuse exposed was
not because of erosion caused by
the rain,
but,
rather,
lack of sufficient daily cover,
although
some cover might have settled
in the refuse
(R.3l,43).
Mr.
92—541
—4—
Zierath noted
that tracks from the bulldozer were still visible
in one picture northeast from the east area of the site
(Roll
#124,
#13),
(R.46).
Mr.
Zierath also testified that when he
reached Champaign at about 5:00 a.m.,
25 miles
from Rantoul
it
started
raining quite hard and that
the same stream west of
the
landfill involving the day earlier discharge complaint had
overrun the road,
forcing him to take
a back
route to get
to the
landfill.
(R.37,40).
Finally,
Mr.
Zierath, who had inspected about 500 non—
hazardous landfills
in the six years
in his present position,
testified that in his experience:
“In
as
much
as
approximately
1
1/2
feet
of
soil
would
have
had
to
erode
away
and
since
the only precipitation that would have
eroded
the
cover material
had
to have fallen
on
that
area with
the
exposed
refuse,
it
isn’t
at
the
bottom
of
a
hill
or
anything
and
there
isn’t
water
running
onto
that
from
any place
else,
no,
it could not have eroded
a foot and
a half
of soil away, that amount of
rain.”
(R.35)
The Agency submitted
a number
of photographs
of the site,
both panoramic and of specific objects.
(Agency Group
Ex.
#1).
The Agency also introduced
a U.S. Weather Bureau report from
a
station at the Rantoul Power
Plant,
about one and 1/2 miles from
the landfill (R.54).
(Agency Group Ex.
#2).
The report
indicates
that the rain,
totalling 5.05 inches began about
2:30 am.
on
July 30,
and ended about 7:30,
and that no rain had fallen
the
prior two days.
Mr.
Zierath’s inspection report contained
a notation that he
had been told the rain started about
4:00 a.m.,
that by 7:30 a.m.
at least
4 inches had fallen,
that refuse was exposed over
an
area of
75
x
85 yds.,
and that erosion exposed about
2
x 10 yds.
in the western part
of landfill.
Rantoul’s Mayor, Katy Podagrosi,
testified that:
at 5:00
a.m.
on July 30, her husband found an unprecedented amount,
four
feet,
of water
in
their basement;
she patrolled
the area with the
police chief starting at 6:00 a.m.;
people
in town were out
in
boats;
crossties that “people had used
in their flower beds had
floated out into the street”,
(R.53); after
6:00 a.m.
not enough
rain was falling
to “pay any attention to”
(R.53);
the flooding
occurred prior
to 6:00 a.m.;
and,
while she patrolled
the
streets,
she did not go check
the landfill.(R.49—53).
The
Rantoul Press
also reported about flash floods
in the area
(Village Ex.).
Rantoul’s Superintendent of the Landfill Department,
Mr.
Albert Warner, who has held
that position
for
20 years,
and who
92—542
—5—
ta~ces an active
role in the operation of
the landfill, testified
that he and his equipment operators had been closely inspecting
daily cover “every day or every
few days”
because of
trouble with
the Agency over this issue.(R.57—58).
On the
day before the
rain, July
29,
1987, he was present when covering started
at
about
12:30 or
1:00 p.m.
but had
to leave
about
2:30.
The cover
operation,
routinely,
was not completed until
about 4:00 p.m.,
an
hour
after the site closed.(R.74,75).
He firmly believed that
sufficient
cover was applied.
(R.57,69)
Mr. Warner further testified that:
the active area at issue
was about
50’
by 75’ wide and 150’
deep,
and was on
a
45 degree
slope;
the active area was below
a large,
more flat, area about
400 feet by 300 feet that,
because of
its contour,
would have
sent about 35
of
its water flowing over
the active area;
the
active area was above
the original ground
level, was
47’ to
50’
above
the bottom of the original trench and thus above
10
to
15
layers of refuse and cover placed earlier;
and
the tractor marks
noted
by the inspector were made while
the tractor was
travelling
from the shed to the active
area.
(R.58,60,67,68,7l)
Mr. Warner
testified also that
in any operating day refuse
is compacted by
a crawler
type tractor,
but the cover dirt is put
on loose;
compaction of the dirt occurs on the next day when
succeeding layers of
refuse are placed
on
top;
and
that loose
dirt will erode more quickly.
(R.66,67).
On the morning of
the rain,
Mr. Warner testified that he
awakened at 3:00 a.m.
and drove through heavy rainfall and
reached the landfill at 5:55 a.m.
The rain gauge
at the landfill
had
“a good four inches”
at 6:00 and by 8:00 or 8:30
it had run
over its five
inch capacity
(R.64,65).
After
the Agency
inspector
left,
Mr. Warner personally looked at the problem
area.
Mr. Warner saw a large amount of
topsoil, especially fine
dirt,
that had eroded
to the toe
of the slope.
He stated that at
the toe
of the slope
“we would have like
a
trench
or
a place
for
water
to
run,
and they would come down the s1o~eand go thto like
a flattened area or waterway type of
thing.”
(R.65,66).
Mr.
Warner
stated that in his 20 years
as superintendent
there had
been maybe “three or four of these storms”
and, with dry soils,
there
is high erosion, and
the refuse will carry.
In addition,
there is some settlement.
(R.63,64)
Finally, Mr. Joe Pisula,
a member
of an engineering firm
that does consulting work for Rantoul, testified
that
a rainfall
of at least
four inches
in
a two—and one—half
to three hour
period was over and above
a
100 year storm, based on Illinois
State Water Survey records and commonly accepted engineering
practices.
He stated
that culverts and storm sewers are designed
for 1.9
inches
in one hour and that regarding
the four inches
92—543
—6—
falling prior
to the inspection,
“It
is an anomaly, obviously”.
(R.80).
Board Discussion:
The Board
notes that Section 2l(p)(5)
of the Act does not
expressly articulate
the six—inch daily cover requirement at
issue here;
the daily cover
requirement of six inches
is found
in
the Board’s
regulations at 35
Ill.
Adm. Code 807.305.
Both the statute and the regulation require the refuse
to be
covered daily unless otherwise
allowed by permit.
There was no
such exception
in the permit.
Although this question was not argued by the parties,
for
purposes
of determining whether
a Section 2l(p)(S) violation may
have occurred,
the Board holds that Section 2l(p)(S) requires
that six inches of daily cover
be applied.
As the Board stated
in
a prior opinion:
The
nexus
between
these
regulations
and
the
Administrative
Citation
procedure
of
the
Act
is
that
the Administrative
Citation procedure
was
designed
to
expedite
the
regular
enforcement process
by identifying
a subset of
the
larger
waste
disposal
regulations
which
may
be
prosecuted
through
the
Administrative
Citation
procedure.
Dan
Heusinkved,
County
Clerk,
County
of Whiteside,
State of
Illinois
AC87—25, Docket
A, January
21,
1988.
The Board will continue
to construe the language
in Section
21(p)
in conjunction with related Board regulations.
The Agency inspector and the Rantoul witnesses were in
disagreement
as
to whether the bulk
of
the five
inch rain had
fallen before
the inspection and whether
it was of~anint~ensity
to have caused,
in effect,
a
“washout” at the landfill sufficient
to explain the scattered refuse
found exposed.
The inspector
first hit the rain at 5:00 a.m.
in Champaign,
25 miles away.
At that time,
the mayor had four feet of water in
her basement
in Rantoul,
a mile and one—half away.
The mayor
testified
that most all
of the rain and severe flooding had
occurred
by 6:00
a.rn.
Rantoul’s landfill superintendent agreed,
from his own observations, and having
looked at the landfill’s
rain gauge, which showed four inches at 6:00.
The inspector’s
report was imprecise.
The weather
station, about one and one—
half miles
away, recorded only the duration and ultimate amount
of the
rainfall.
The Board
is
persuaded that at
least four
inches
of rain fell
in
a two and one—half
to three hour period
before the inspection,
and that
it was over and above
a
100 year
92—544
—7—
frequency,
as
testified to by Rantoul’s engineering consultant.
The Board is also persuaded that even more water drained over the
active slope
from the rain falling on the flat top of the mound.
Regarding the effects of the rainfall on the cover
in the
active area, both the Agency inspector and Rantoul’s landfill
superintendent inspected the site and both gave conflicting
observations and explanations.
In reviewing the Agency
inspectors’ photographs, they generally show severe flooding,
gullys, mud,
refuse on the side of the hill and some floating
in
or surrounded by water;
a few show lumps of dirt with little
erosion.
While a number show exposed refuse,
it
is not clear
whether the refuse was dislodged by the torrent or
not.
The Agency acknowledged
that there were no large expanses of
uncovered refuse, but emphasized that in some places the refuse
protuded about a foot above
the soil surface,
thus
1
1/2
feet
would have to have eroded if six additional
inches of
soil
is
added.
The gully—like erosion channels that cut into cover
material
in stabilized slopes over time at landfills were not
significantly present,
nor was cover material at the bottom of
the hill,
nor was water running from any other place.
The Rantoul argues that over
a four
inch rain fell
in
a
short period, over and above
a
100 year
storm, causing flash
floods,
and that such a rain, plus the added runoff, was capable
of carrying refuse and washing away sufficient top soil cover to
expose the rubbish.
Rantoul buttresses
its position by noting
the special characteristics of the active area
in use on July 29—
30,
1987,
i.e.
an area 50’
by 75’ wide and 150’
deep, on
a 45
degree slope, below a large area that created
additional run-
offs,
and 47’
to 50’
above the bottom of the original trench and
on top of
10
to 15 layers of refuse and cover deposited
earlier.
The Village argues that as
a matter of common sense,
a
filled and sloping area of this type
is porous and will quickly
settle and erode
top soil down the slope
in such a rainfall.
The testimony of the Mayor
and the Landfill superintendent
generally agreed on when most of the rain fell.
The Weather
Bureau Station’s records, which recorded only the duration and
total amount of
the, rain does not contradict their testimony.
The Board
is persuaded that the pattern and intensity of the rain
prior
to the inspection at the landfill and
in Rantoul were not
dissimilar.
This conclusion
is buttressed by the inspector’s
having
to get
to the landfill by a different route because of the
flooding.
The Board concludes that the Agency inspector was not fully
aware of the extent,
the intensity,
and the consequences of the
prior rainfall when inspecting
the site and thus did not take
this into account when assessing
the situation.
Nor did he
perceive the potential
for further damage on
an unstable,
45
92—545
—8—
degree slope landfill caused by the additional water
flowing from
the top of the landfill.
Settling could occur
and soil and
refuse could
be dislodged under
such circumstances, the latter
being another reason why
a piece of refuse would protrude one
foot.
And the pattern of erosion on an uneven surface would
indeed be different and explain why some chunks of dirt would
remain relatively unscathed.
The pictures also tend on balance
to buttress the landfill
operator’s view of the situation.
The Board recognizes that both
the inspector and
landfill superintendent, both experienced,
might genuinely make
a different judgment as to what occurred.
A
key difference
is that the
inspector did
not appreciate that the
storm was
a rare event; the unprecedented four feet of water
in
the Mayor’s basement and Rantoul’s engineering consultant’s
testimony certainly also indicated this.
The Board
is also
persuaded that,
because Rantoul was highly sensitive to the daily
cover
issue earlier
raised by the Agency, the Landfill
Superintendent’s firm belief that care had been taken
to properly
cover
the refuse must be given some weight.
According
to Section 31.l(d)(2)
of the Act, the Agency has
the burden of proving the violation.
There was no dispute that
on the morning
of July 30,
1988, not all refuse had six inches of
daily cover;
indeed,
some of
it was exposed.
Rantoul then must
show that the violation was due
to uncontrollable circumstances.
Given
the unusual circumstances
—
the slope characteristics,
the torrential rain of rare occurrence,
the flash flooding in
town and at the landfill, evident both in the testimony and
in
the pictures, and
as experienced
by the
inspector trying
to reach
the site,
the Board finds that Rantoul has shown that the
uncontrollable circumstances envisioned
in Section 31.1(d)
(2)
apply
in this case.
This Opinion constitutes the Board’s findings of facts and
conclusions of law in this matter.
ORDER
In accordance with Section 3l.l(d)(2)
of the Act,
since
the
violation resulted from uncontrollable circumstances,
the Board
makes no finding of violation and imposes no penalty.
The case
is dismissed.
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.
9 2—546
—9—
I,
Dorothy M.
Gunn, Clerk of
the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted
on
the~’~~ day
of
~,
,
1988,
by
a
vote
of
7—c3
.
Dorothy
M.
unn, Clerk
Illinois Pollution Control Board
92—547
