ILLINOIS POLLUTION CONTROL BOARD
February 4, 1988
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Petitioner,
v.
)
PCB 85—136
NAVEM PATEL, ERIC OTTEN,
)
CLARENCE MITCHELL and
J.B. JOHNSON,
Respondents.
MR. CAREY COSENTINO AND MS. DIANE ROSENFELD LOPATA, ATTORNEYS-AT-
LAW, APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY;
MR. PATRICK O’BYRNE, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF
RESPONDENT, NAVEM PATEL;
MR. KENNETH G. ANSPACH, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF
RESPONDENT, ERIC OTTEN;
MR. DOUGLAS G. SHREFFLER, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF
RESPONDENT, CLARENCE MITCHELL; and
MR. J.B. JOHNSON, APPEARED PRO SE.
OPINION OF THE BOARD (by B. Forcade):
This matter comes to the Board on a September 3, 1985,
complaint filed by the Illinois Environmental Protection Agency
(“Agency”) against Navem Patel (“Patel”), Eric Otten (“Otten”),
Clarence Mitchell (“Mitchell”) and J.B. Johnson (“Johnson”). The
respondents’ conduct is alleged to be in violation of various
provisions of the Illinois Environmental Protection Act (“Act”)
and Board regulations governing the proper disposal of solid and
hazardous waste. In essence, the complaint alleges Patel was the
owner/operator of an electropolishing business at 330 North
Harding, Chicago, Cook County, Illinois (“Harding Site”) from
approximately the time Patel entered into a sales contract to
purchase the land, July 9, 1980, until the time he was evicted,
approximately April 8, 1982. It is alleged that Patel left
behind numerous fifty—five gallon drums containing wastes which
were ultimately dumped at an empty lot near Interstate 55 at 34th
Street and Kedzie Avenue in Chicago, Cook County, Illinois
(“Kedzie Site”) by the actions of Otten, Mitchell and Johnson.
Hearings were held November 26, 1986; December 23, 1986; and
January 21, 1987. Complainant’s brief was filed March 23, 1987.
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PRELIMINARY MATTERS
I. Plaintiff’s Request To Admit Facts
In addition to the facts adduced at hearing, the Board must
consider the effect of plaintiff’s first request for admission of
facts (“RA I”), filed November 19, 1985, and plaintiff’s second
request for admission of facts (“RA II”), filed October 14,
1986. At 35 Ill. Adm. Code 103.162, the Board has provided for
filing of requests for admission of facts. This provision allows
the parties to narrow the scope of disputed factual material
which must be addressed at hearing. The regulation particularly
states the effect of failing to respond to a request for
admission of facts at 35 Ill. Adm. Code 103.162(c):
“c. Admission in the Absence of Denial. Each
of the matters of fact and the genuine-
ness of each document of which admission
is requested is admitted unless, within
20 days after service thereof, the party
to whom the request is directed serves
upon the party requesting the admission
either a sworn statement denying speci-
fically the matters of which admission is
requested or setting forth in detail the
reasons why he cannot truthfully admit or
deny those matters on written objections
on the ground that some or all of the
requested admissions are privileged or
irrelevant or that the request is
otherwise improper in whole or in
part...”
A. Patel
The Agency’s first request to admit facts was filed November
19, 1985. No response was filed by Patel until December 4, 1986,
over one year later and after the first hearing had been held on
November 24, 1986. The Agency’s second request to admit facts
was filed October 14, 1986. Patel never responded. Consequent-
ly, the Board finds the facts stated in the first and second
request are admitted for failure to timely reply.
The second reason for not admitting respondents’ December 4,
1986, response to request to admit is the unfairness to the
plaintiffs and the Board. It is inequitable to the plaintiffs to
allow Patel’s reply after the plaintiff had prepared its case
from November, 1985, to the first hearing in November, 1986,
justifiably relying on the admissions brought about by failure to
reply. Allowing respondents’ pleadings is also inequitable to
the Board in that it disrupts the flow of cases to admit
pleadings one year later than required by the procedural rules.
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B. Otten, Mitchell and Johnson
These respondents never answered either of plaintiff’s
request to admit, hence, the Board finds that pursuant to 35 Ill.
Adm. Code Section 103.162(c), the facts stated in both requests
are admitted.
II. Otten’s Motion to Dismiss
By Order dated December 18, 1986, the Board granted Otten
leave to file a motion to dismiss, but reserved its ruling until
the conclusion of the proceedings. The motion’s arguments are as
follows.
The admission into evidence of special analysis forms,
complainant’s exhibits 2 through 5, and the reading of the
reports by Lynn Givello are objected to as hearsay because no
person that conducted the alleged tests was available for cross—
examination. This Board finds the evidence is admissible
pursuant to procedural rules at 35 Ill. Admin. Code Part 103
Section 103.208 Admission of Business Records
in Evidence
Any writing or record, whether in the form of
any entry in a book or otherwise made as a
memorandum or record of any act, transaction,
occurrence, or event, shall be admissible as
evidence of the act, transaction, occurrence,
or event. To be admissible the writing or
record shall have been made in the regular
course of any business, provided it was the
regular course of the business to make such a
memorandum or record at the time of such an
act, transaction, occurrence, or event or
within a reasonable time thereafter. All
other circumstances of the making of the
writing or record, including lack of personal
knowledge by the entrant or maker, may be
shown to affect its weight, but shall not
affect its admissibility.
The term
“business”, as used in this rule, includes
business, profession, occupation, and calling
of every kind.
Section 103.204 Admissible Evidence
a) The Hearing officer shall receive
evidence which is admissible under the
rules of evidence as applied in the
Courts of Illinois pertaining to civil
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actions except as these rules otherwise
provide. The Hearing Officer may receive
evidence which is material, relevant, and
would be relied upon by reasonably
prudent persons in the conduct of serious
affairs provided that the rules relating
to privileged communications and
privileged topics shall be observed.
These rules were applied in IEPA v. Bittle, PCB 83—163, to admit
laboratory results into evidence. Moreover, the practice of
characterizing Agency reports as “business records” and admitting
them into the record of a Board proceeding on that basis has been
upheld by the appellate court. City of Highland v. Pollution
Control Board, 66 Ill.App.3d 143, 383 N.E.2d 692 (5th Dist.
1978). Therefore, the inspection reports and laboratory analyses
offered by the Agency were correctly admitted into evidence by
the Hearing Officer.
However, as demonstrated under the Hazardous Waste Liability
portion of this opinion, the contents of the reports do not
establish that any waste from the Harding site was hazardous.
Thus, all allegations against Otten based on the evidence of
hazardous waste are dismissed.
The motion to dismiss also asserts no competent evidence
exists that any waste whatsoever was transported from the Harding
site to the Kedzie site because the only evidence linking
material between the two sites is Sergeant Schlossberg’s police
report which is inadmissible hearsay. This argument fails
because the evidence is material, relevant and would be relied
upon by reasonably prudent persons in the conduct of serious
affairs. Therefore, the Sergeant’s testimony and the report are
admitted.
Judging Schlossberg’s testimony, report and all other
evidence in this case by the preponderance of evidence standard,
there is a sufficient nexus for the Board to reasonably conclude
waste which originated from the Harding site was the same waste
found at the Kedzie site. Section 3 of the Act defines several
pertinent words to establishing the nexus:
(gg) “WASTE” means any garbage, sludge from a
waste treatment plant, water supply
treatment plant, or air pollution control
facility or other discarded material,
including solid, liquid, semi—solid, or
contained gaseous material resulting from
industrial, commercial, mining and
agricultural operations, and from
community activities, but does not
include solid or dissolved material in
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domestic sewage, or solid or dissolved
materials in irrigation return flows or
industrial discharges which are point
sources subject to permits under Section
402 of the Clean Water Act or source,
special nuclear, or by—product materials
as defined by the Atomic Energy Act of
1954, as amended (68 Stat. 921) or any
solid or dissolved material from any
facility subject to the Federal Surface
Mining Control and Reclamation Act of
1977 (P.L. 95—87) or the rules and
regulations thereunder or any law or rule
or regulations adopted by the State of
Illinois pursuant thereto.
(n) “OPEN DUMPING” means the consolidation of
refuse from one or more sources at a
disposal site that does not fulfill the
requirements of a sanitary landfill.
(s) “REFUSE” means waste.
Ill.Rev.Stat. 1985, ch. 111—1/2, par. 1003.
Based on the definition of waste, not only can the contents
of the drums be defined as waste, but the drums themselves
constitute waste. However, to become a waste, a substance must
be discarded. In Safety—Kleen Corp. v. EPA,PCB 80—12 (July 10,
1980), the issue before the Board was whether flammable solvents
distributed as part of a rental degreasing system were “waste”.
The Board found that the solvents, while flammable and possibly
hazardous to public safety, were not a waste because they were
not discarded. The Appellate Court affirmed the Board’s decision
without an opinion, in Environmental Protection Agency v.
Pollution Control Board, 427 N.E.2d 1053 (1981). Therefore, to
establish a violation of any open dumping of waste, in this case,
it must only be shown by the preponderance of the evidence that
one drum from the Harding site was discarded at the Kedzie site.
Sergeant Schlossberg testified that “E—M” drum and a “Rin”
drum found at the Kedzie site came from Harding Electropolishing
(T.l, p. 179).The fact that either of these two drums may have
been empty is not a bar to establishing a nexus between the drums
of the two sites because the drums themselves are waste.
Sergeant Schlossberg’s testimony plus all the unrefuted logical
inferences that can be made from the evidence leads the Board to
conclude the drums found at the Harding site were the same drums
found at the Kedzie site, thus, establishing a violation of the
sections of the Act in question.
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Hazardous Waste Liability
All the defendants are charged with violating Section 21(f)
of the Act. Section 21(f) of the Act provides, in per.tinent
part, that:
No person shall:
Conduct any hazardous waste—storage, hazardous
waste—treatment or hazardous waste—disposal
operation:
1. Without a RCRA permit for the site issued
by the Agency under subsection (d) of
Section 39 of this Act, or in violation
of any condition imposed by such permit,
including periodic reports and full
access to adequate records and the
inspection of facilities, as may be
necessary to assure compliance with this
Act and with regulations and standards
adopted thereunder; or
2. In violation of any regulations or
standards adopted by the Board under this
Act; or
3. In violation of any RCRA permit filing
requirement established under standards
adopted by the Board under this Act;
4. In violation of any order adopted by the
Board under this Act.
Notwithstanding the above, no RCRA permit
shall be required under this subsection or
subsection (d) of Section 39 of this Act for
any person engaged in agricultural activity
who is disposing of a substance which has been
identified as a hazardous waste, and which has
been designated by Board regulations as being
subject to this exception, if the substance
was acquired for use by that person on his own
property and the substance is disposed of on
his own property in accordance with
regulations or standards adopted by the Board
Section 3.15 of the Act states:
“HAZARDOUS WASTE” means a waste, or combina-
tion of wastes, which because of its quantity,
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concentration, or physical, chemical, or in-
fectious characteristics may cause or signifi-
cantly contribute to an increase in mortality
or an increase in serious, irreversible, or
incapacitating reversible, illness; or pose a
substantial present or potential hazard to
human health or the environment when improper-
ly treated, stored, transported, or disposed
of, or otherwise managed, and which has been
identified, by characteristics or listing, as
hazardous pursuant to Section 3001 of the
Resource Conservation and Recovery Act of
1976, P.L. 94—580, or pursuant to Board
regulations.
Board regulations provide, in part, a waste is hazardous if a
representative sample is corrosive. A waste is corrosive if it
is aqueous and has a pH less than or equal to 2, or greater than
or equal to 12.5. 35 Ill. Mm. Code 72l.122(a)(l).
Here, a total of seven 8 oz. samples were taken from the
Kedzie site (T.l, p. 108). One system used to determine which
drum to sample was looking for a drum which represented a type of
waste to be in many drums, such as a green solid and green
liquids (T. 1, pp. 82—84). All the samples, although taken on
three separate dates, were processed in the same manner. The
samples were marked and transported immediately to an IEPA lab in
Chicago to be analyzed. The results of the March 10, 1983,
samples showed that three—fourths of the samples were hazardous
according to their p11 (T. 1, p. 55, 59—61).
However, the record is insufficient to support a finding
that Patel was the source of any of the hazardous waste. Of the
two drums positively identified at the Kedzie site to have
originated from the Harding Electropolishing Company, one drum
was tested. The sample number for that drum was xlll, which had
a p11 of 4.8. This was the only one of the four samples tested
March 10, 1986 that did not have a “hazardous” pH (T.l, pp. 180—
184). Nor was it shown hazardous by its cadmium content of .4
parts per million, barium content of 0 parts per million, lead
content of .1 part per million nor chrome content of .13
according to 35 Ill. Adm. Code 721 (T.l, p. 60). Therefore, the
only tested drum positively identified at the Kedzie site as
coming from the Harding Electropolishing Company was not a
hazardous waste. No link has been shown between the drums which
contained hazardous waste and the Harding site. Consequently,
every charge of violating Section 21(1) of the Act by any
defendant must be dismissed.
Count II alleges respondents, Otten, Mitchell and Johnson,
violated Section 21(g) of the Act (Ill.Rev.Stat. 1985, ch. 111-
1/2, par. 1021(g)). It provides in part:
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No person shall:
g. Conduct any hazardous waste transportation
operation.
l. Without a permit issued by the Agency in
violation of any conditions imposed by
such permit, including periodic reports
and full access to adequate record and
the inspection of facilities, as may be
necessary to assure compliance with this
Act and with regulations or standards
adopted thereunder; or
2. In violation of any standards adopted by
the Board under this Act.
The record’s failure to support a finding that the waste was
hazardous is fatal to establishing a violation by either Otten,
Mitchell or Johnson.
LIABILITY OF NAVEM PATEL
Count I of the complaint claims that Patel’s actions
violated Section 21(a) of the Act, which provides:
No person shall:
a. Cause or allow the open dumping of any
waste.
The Board has previously evaluated the “cause or allow”
language in IEPA v. Bittle, et al. (“Bittle”), PCB 83—163 (1987)
and IEPA v. James McHugh Construction Company (“McHugh”), PCB 71-
291, 4 P03 511, 513 (1972) and EPA v. Dobbekke (“Dobbekke”), PCB
72—130, 5 PCB 219.
In Bittle, two issues focused on the cause or allow language
as stated in Section 12 of the Act. The Board found the
respondents’ actions of causing the deepening of a slurry pond
and constructing a sedimentation pond and two holding ponds
caused or allowed contaminants from a carbon recovery process to
be discharged into a river. Specifically, the respondents were
held to have caused the deepening and construction of the ponds
because, pursuant to lease terms, these lessees controlled the
Operations to the extent that it was reasonable for them to have
taken action to prevent the pollution. Also, they actually
authorized the construction of, and repair work for the ponds.
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In McHugh, guided by prior decisions, the Board interpreted
the statutory language of “cause or allow” pollution as going
beyond the common law to impose an affirmative duty on persons in
a position of potential control to take action to prevent
pollution. Based on this interpretation, the question was
whether the respondent, the City of Chicago, was in a
relationship to the transaction that it was reasonable to expect
it to exercise control to prevent pollution. The transaction in
question was discharging wastewater containing suspended solids,
iron and lead from a city project into a river. The City’s
relationship to the transaction was the City contract required
contractors to build a settling basin which allowed wastewater to
settle before being discharged into the river. A city engineer
was on the site at all times.
The Board recognized that situations exist where a person
who receives economic benefits from a transaction so lacks the
capacity to control whether or not pollution occurs that it would
be unreasonable to hold him responsible, but the Board determined
the City’s relationship was different. The City was in an
excellent position to oversee the operation to prevent
pollution. The contract provision requiring a settling basin
and action taken pursuant to it, supports the City’s recognition
of this position. Thus, its capacity for control put the City in
a position to prevent pollution which it disregarded when it
allowed polluted water to enter the river.
In Dobbekke, the Board held that “allow” includes inaction
On the part of~?helandowner.
Illinois appellate courts have held the Act is malum
~rohibitum no proof of guilty knowledge or mens rea is necessary
in order to support a finding of violation. Paul Hindman v.
Pollution Control Board, 42 Ill.App.3d 766, 769 (5th DiSt.,
1976); Meadowlark Farms, Inc. v. Pollution Control Board, 17
Ill.App.3d 851, 861 (5th Dist., 1974); Bath, Inc. v. Pollution
Control Board, 10 Ill.App.3d 507 (4th Dist., 1973). These
standards must be applied to the facts of the instant case.
The preceding cases demonstrate that the test to be used to
see if Patel caused or allowed pollution is a test of
reasonableness: a person is liable if it was reasonable for him
to have exercised control to prevent pollution.
The facts pertinent to this “cause or allow” charge are as
follows: in July, 1980, Patel purchased the land and, thus,
Owned/operated the Harding Electropolishing Company (RA II, par.
C). Patel stored waste from his company in drums (T. 1, p.
259). He conducted weekly inspections of the areas where the
drums were stored (T. 2, p. 263). On April 8, 1982, Patel was
evicted from the Harding Site by a forcible detainer action
initiated by Felbringer Realty on behalf of Ralph Gunderson (the
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U-
prior owner) (RA II, par. E). When Patel vacated the building,
he abandoned numerous fifty—five gallon drums of waste (RA II,
par. F). Mr. Otten, an agent for Feibringer Realty, saw drums on
the premises when he inspected the property (T. 2, p. 290).
Otten testified he saw drums standing in greenish colored water
(T.2, p. 291). It was those drums which he paid respondent
Mitchell to clean up (T. 2, p. 294). Two of those drums were
positively identified at the Kedzie Site as coming from the
Harding plant site by an Illinois State Police sergeant (T. 1, p.
180). These two drums were among approximately sixty drums that
appeared to have been dumped from the top of the hill and left to
roll down (T. 1, p. 26). When discovered, some of the drums had
broken open, some of them had corroded through and some remained
intact (T. 1, p. 27). Some drums had leaked green substance onto
the ground (T. 1, p. 117). The Board concludes that it was
reasonable for Patel to have exercised control over the drums to
prevent pollution and that he failed to do so, thus, he caused or
allowed open dumping in violation of Section 21(a) of the Act.
Count I next claims Patel’s actions violated Section 21(e)
of the Act by abandoning and/or storing hazardous waste at the
Harding site when that site did not meet the requirements of the
Act and regulations. Section 21(e) of the Act states:
No person shall:
e. Dispose, treat, store or abandon any
waste or transport any waste into this
State for disposal, treatment, storage or
abandonment; except at a site or facility
which meets the requirements of this Act
and of regulations and standards
thereunder.
Since this provision is not limited to hazardous waste, the
record’s failure to support a finding that the waste from the
Harding site was hazardous is not fatal to establishing
violations.
The pertinent facts to this charge are Patel operated the
electropolishing company during which time he stored company
wastes in drums (T.l, p. 259). After eviction, Patel vacated the
building and abandoned numerous drums (RA II, par. E, F). When
Mr. Otten inspected the empty building, he found drums standing
in greenish—colored water (T. 2, p. 291). These facts lead the
Board to logically conclude Patel abandoned the waste in
violation of Section 21(e) of the Act.
LIABILITY OF ERIC OTTEN
Respondent Otten is charged with violating Section 21(a) of
the Act by causing or allowing open dumping of waste. He was a
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real estate broker for Felbringer Realty (T.2, p. 287). Mr.
Gunderson, the owner of the Harding property, listed the property
for sale with Felbringer Realty. Otten knew Patel operated an
electropolishing company by seeing the operation in action (T. 2,
p. 303). After Patel vacated the property, Otten observed drums
there. Otten found a purchaser to buy the Harding site on the
condition the site was cleaned up. Subsequently, Felbringer
Realty instructed Otten to get somebody to clean up the building,
which Mr. Gunderson would pay for. Otten contr~ctedwith
Clarence Mitchell to clean the site for $1,800 (T.2, p. 298)
There was no discussion with Mitchell specifically regarding the
removal of drums (T. 1, pp. 293—297). Otten received a 10
percent commission for the sale of the building, totaling $2,800.
The Board finds Mr. Otten violated Section 21(a) because he
was in the a position to take responsible precautions to prevent
improper disposal by being given the authority to determine the
method of disposal. His directions to Mitchell to just “clean
up” the place is insufficient to satisfy his affirmative duty to
take precautions to insure its proper disposal. See, IEPA v.
McHugh Construction Co., PCB 71—291, 4 PCB 511, 513. Even if he
did not directly cause the dumping, he, at least, allowed it,
thus, violating Section 21(a) of the Act. However, Otten’s lack
of prior knowledge of the dumping and lack of direct physical
involvement in the act does affect the amount of civil penalty
the Board will assess.
LIABILITY OF CLARENCE MITCHELL
Respondent Mitchell is first charged with violating Section
21(a) of the Act. The relevant facts are Mitchell testified he
contracted with Otten to “clean up’’ the Harding site (T. 2, p.
311). Upon inspection, he saw approximately 40—50 drums at the
site and green “paint” on the floor (T. 2, 312). He went to
C.I.D., the local landfill, to see if it would accept the drums
and it said “no”. Mitchell knew C.I.D. took drums normally and
it accepted all the other refuse from disposal at the Harding
site (T. 2, pp. 315—316). Before telling Otten of
the
problem,
he contracted with respondent Johnson to dispose of them for $250
when Johnson said he knew of a place where anything could be
disposed of (T. 2, p. 318). Mitchell did not know at the time of
contracting where Johnson intended to dispose of the drums (T.2,
p. 449). When Johnson came to pick up the drums, Mitchell had
some of his men help Johnson load the drums onto Jchnson’s
truck. Mitchell stated that he “was kind of instructing the
job...” (T. 2, p. 326).
The Board finds Mitchell violated Section 21(a) of the Act
by causing or allowing the open dumping of wastes. Specifically,
he was given general directions to clean up the drums, thus, he
could determine the method of disposal. He had reason to know
the drums contained something unusual by C.I.D.’s refusal to
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accept them. However, even if he did not have reason to know of
the contents, there is still a violation of the Act because the
Act is malum prohibitum. Hindman v. Pollution Control Board, 42
Ill.App.3d 766, 769 (1976). lIe then subcontracted for another to
dispose of
the
drums despite the fact Johnson might possibly do
the disposal in an irresponsible manner. Finally, Mitchell
assisted Johnson by directing his employees to help Johnson load
the truck.
Respondent Mitchell is also charged with violating Section
21(e) of the Act by abandoning the drums at the Kedzie site. As
discussed, Mitchell did not personally transport the drums to the
Kedzie site, rather he subcontracted with Johnson to complete the
work. He was in such a position to the transaction to control
whether or not Johnson abandoned
the
waste, it is logical to
conclude Mitchell violated Section 21(e). The Board bases this
conclusion on the policy considerations stated in Section 33(c)
of the Act.
LIABILITY OF J.B. JOHNSON
Johnson is first charged with violating Section 21(a) of the
Act by causing or allowing the open dumping of waste. As
determined in the preliminary matters of this opinion, the
unanswered second request for admissions admits the facts stated
therein as true. 35 Ill. Adm. Code 103.162. The admission
proves that J.B. Johnson subcontracted with Mitchell to remove
drums from
the
Harding site. Johnson removed the drums from the
Harding site
and
dumped the drums at the Kedzie site. In
addition, testimony shows Johnson knew Mitchell could not dispose
of the drums at the landfill and then offered to Lake the drums
to a place where “anything can be dumped” (T.2, pp. 318 & 447).
He then
transported the drums from the larding site to the Kedzie
site. Johnson never disputed these facts.
The Board concludes Johnson violated Section 21(a). Mr.
Johnson was in a position to take responsible precautions to
prevent any pollution from improper disposal by being given the
contractual authority to dispose of the drums.
Johnson is also charged with violating Section 21(e) of the
Act for abandoning waste. The evidence above demonstrates
Johnson transported the waste from the larding site to the Kedzie
site and left the drums there. This is sufficient to demonstrate
Johnson abandoned the drums within the meaning of the Section
because he discarded the drums without retaining control. EPA v.
Pollution Control Board, 427 N.E.2d 1053 (1981). Therefore,
Johnson violated Section 21(e) of the Act.
The Board’s has considered the criteria set forth at Section
33(c) of the Act. Specifically, the Board finds that the open
dumping and abandonment of waste from an electropolishing process
8 6—24
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presents a threat of injury to, or interference with the
protection of the health, general welfare and physical property
of the people. The Board also finds the social and economic
value of an electropolishing business is non—existant where that
business illegally discards its waste at an unpermitted
facility. The Board finds there are technically practical and
economically reasonable methods of reducing discharges resulting
from the process, by transporting them to approved treatment or
disposal facilities..
The Agency requests this Board Order each respondent to pay
a civil penalty up to ten thousand dollars ($10,000) for each
violation of the Act and issue an order requiring the respondents
to pay for the clean—up costs at the Kedzie site pursuant to
Section 22.2(f) of the Act. Since the Board has not found a
hazardous waste violation, the cost recovery provisions of
Section 22.2(f) are not operable. This Opinion constitutes the
Board’s findings of fact and conclusions of law. The Board has
today adopted separate Orders governing the individual
respondents.
IT IS SO ORDERED.
Chairman J.D. Dumelle and Board Member J. Anderson concurred
in part and dissented in part. Board Member J. Theodore Meyer
concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, her~~~certify that ~e above Opinion was adopted on
the
_____________
day ~
,
1988 by a vote
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
86—25
