~1-1~n
Count XI
and 807,314(h).

ILLINOIS POLLUTION CONTROL BOARD

November 21,

1984

CITIZENS

AGAINST

HAMPTON

)

TOWNSHIP

LANDFILL,

)

Complainant,

v.

)

 PCB 81—155

DAVID

 R. BLEDSOE~

DAN

LIGINO,

)

STEVEN LIGINO, and UPPER ROCK

)

ISLAND COUNTY LANDFILL,

 INC.

)

Respondents.

MR. JEFFREY C. FORT AND MS. CAROL

 DORGE OF MARTIN, CRAIG,

CHESTER & SONNENSCHEIN APPEARED ON BEHALF OF THE COMPLAINANT: AND

MR. FRED C. PRILLAMAN OF MOHAN, ALEWELT & PRILLAMAN AND MR.

ROBERT

 J. NOE OF BOZEMAN, NEIGHBOUR, PATTON

 & NOE APPEARED ON

BEHALF OF THE RESPONDENTS.

OPINION AND ORDER OF THE BOARD

(by

3.

 Marlin):

This matter comes before the Board upon a July

13,

1981

complaint brought by Citizens Against Hampton Township Landfill

(Citizens)

 in PCB 81—112.

 On July 23,

 1981,

 the Board entered

art

Order dismissing the complaint in 81—112

 (43 PCB 95).

 On August

10,

 1981, Citizens filed a Motion for Reconsideration of the

Board~sJuly 23,

 1981 Order,

An

objection to that motion was

filed by the Illinois Environmental Protection Agency

 (Agency)

on

August 19,

 1981.

 Citizens filed a Motion for Leave to File an

Amended Complaint and an Amended Complaint on September 25,

 1981.

A Response in Opposition to the Motion for Leave to Amend was

filed

 by the Agency on October 8,

 1981.

The Board entered an Order which granted Citizens? Motion

for Reconsideration and which modified some language of the July

23,

 1981 Order

 (43 PCB 457; October 8,

 1981).

 However,

 since PCB

81-112 had been previously dismissed

 in its entirety, the Boardts

Order of October

8,

 1981 denied Citizens? Motion for Leave to

File an Amended Complaint.

 Instead, the Amended Complaint was

treated as a new case and docketed as PCB 81—155.

On October 22,

 1981,

 the Board entered an Order in PCB 81—155

which granted Citizens? Motion to Consolidate and thereby incorpo-

rated the record in PCB 81—112 into the record of PCB 81—155

(43

PCB

573).

 Since the first six counts of the Complaint in PCB

81-155 were identical

 to the Complaint in PCB 81—112,

 the Board

dismissed Counts

I

through VI of the Complaint in PCB 81—155

while retaining Counts VII and VIII.

 Additionally, because the

61-165

2—

Agency was

not

 alleged to have violated any Board rules or the

Illinois Enviornmental Protection Act (Act), except perhaps in

its permitting capacity which the Board has no authority to

consider,

 the Agency was dismissed as a Respondent~

On November

9,

 1981, Respondent Bledsoe filed

 a Motion for

an Extension of Time in which to plead

 irt this matter.

 The Board

e:~teredan Order which granted Bledsoe~smotion

 (44 PCB 109,

November 19, i981)~

 On November 20,

 1981, Respondent Bledsoc

filed his Answer

 and a Motion to Strike portions of the Amended

Complaint.

 The Board entered an Order denying Respondent Bledsoe’s

Motion

 Strike

 (45 PCB

 185, December

3,

 1981).

After numerous motions were filed and extensive discovery

occurred, the Complainant filed

 a Motion for Leave, to File

a

Second Amended Complaint and a Second Amended Complaint on July

2,

1982.

 On July 13,

 1982, the Respondents

 filed an Objection.

On

July

 15, 1982, the Hearing Officer entered an Order which granted

Citizens leave to file its Second Amended Complaint.

On August ii,

 1982, Respondents Biedsoe and Upper Rock

Island County Landfill, Inc.

 filed their Answer to the Second

Amended Complaint and a Motion to Strike certain specified por-

tions of that Complaint.

 Citizens filed its Response on August

16,

 1982.

Counts

 I through Vi have previously been dismissed by the

Board

(43

PCB 95, July 23,

 1981,

 PCB 8i~1i2); (43 PCB 573, Octo-

ber 22, 198i~PCB 81—155).

 Since these same counts have been

included in the second amended complaint before the Board and the

Respondents have moved that the counts be stricken, the Board

will

 again strike Counts I through VI~ The reasons have been

enunciated by the Illinois Supreme Court in ~

 dfill

 Inc.

 IPCB,

!~i’

74

 ill,

 2d 541,

 387 N,E.2d 258

 (1978).

 The Court stated

that the Board has no authority to hear a third party challenge

to an Agency permit grant.

 Id.,

 slip.

 op. at

8.

 The Court has

held that an enforcement proceeding is the ‘~statutorilyestablished

check upon activities conducted after the Agency has allowed the

permit.”

 Id.I, slip op.

 at 10.

 Herein, Citizens seems to have

misinterpreted Landfill,

 The Court was concerned about Board

usurpation of the Agency permitting function, but also recognized

the right of any person to file an enforcement proceeding alleging

that one has caused,

 threatened or allowed pollution.

 By its

repeated requests to the Board for a ruling on Counts

 I through

 VI, Citizens essentially requests that the Board usurp the Agency

permitting function in this enforcement proceeding.

 The Board

declines to do so.

 The Board notes that alleged violations from

activities conducted before the permit issuance are also not

subject to Board decision

 in this enforcement proceeding because

of a similar threat of usurpation.

 Landfill, slip op. at

10.

The Board denies the above motion regarding Counts VII,

VIII,

ix,

 X, XI, XII,

 XIII,

 and XIV because they are sufficiently

detailed to state an appropriate cause of action.

 The Board will

~1RR

—3—

strike

 the general reference to violations of the Act and Board’s

regulations, but finds that Count VII alleges,

 in effect, violations

of Sections

 12(a)

 and 12(d) of the Act with sufficient specificity

to allow the count. to stand,

Respondent&

 motion to strike the allegations appearing

in

paragraphs

 19 and 20 of Count VIII pertaining to permit condition

violations and “traffic to and from the site disturbs the residen-

tial character of adjacent areas through which vehicles pass”

is

denied.

 The allegations are sufficient to inform the Respondents

as to the violations alleged.

Respondent~~motion to strike

 is granted as to the allega-

tions appearing in paragraph

 23 of Count XI as to “depreciation

in property value” and that third parties are “allowed to cause

noise pollution”.

 The reference to “substantial depreciation

in

property value”

 is not reasonably related to the allegation of

noise pollution.

 The reference to “trucks which are owned by

defendants”

 is proper pleading in alleging noise pollution but

the reference to trucks “which are carrying waste to the site”

is

improper.

 Respondents have no control over noise from trucks of

third parties.

Respondents~motion to strike allegations in paragraph 20 of

Count XII that third parties “have caused culverts to sink and

caused standing water on plaintiffs’ property”

 is granted,

The

principal issue is whether the Respondents, not third parties,

allowed improper surface drainage to cause adverse effects on

adjacent property owners,

 The Respondents have no control over

third party truck

 load limits or road load limits of offsite

roads,

On October 12,

 1982, Citizens filed its Motion for Leave

to

~‘ileits Brief Instanter and its Memorandum of Law and Facts

Adduced at Hearing.

 On November 1,

 1982, the Respondents filed a

Motion

 for Extension of Time in which to file their response

brief,

 subsequently filed on November 15,

 1982.

The Respondents filed a Motion to Supplement the Record,

a

Motion for Assessment of Expenses, and a Summary of Respondents~

Pending Motions on November 19,

 1982.

 Eleven days later Citizens

filed a Motion for Leave

 to File instanter its Response and

Objection to Respondents’ Motion for Assessment of Expenses; its

Response to the Motion to Strike

 (i.e.,

 its Response to numerous

motions

 to strike contained in Respondents’ Brief);

 and its

Response to Respondents’ Motion to Supplement the Record,

On December

6,

 1982, Citizens filed a Motion for Leave to

File its Reply Brief Instanter and the Reply Brief of the

 Corn—

plainants~ On December 27,

 1982, the Respondents’ Response to

Complainant’s Motion for Leave to File Instanter was filed along

with the Respondents’

 Motion for Leave to File their Response

Instanter.

 On December 30,

 1982, Citizens filed an Objection and

Response to the Respondents’ Motion for Leave to File Response

Instanter,

~1-1~n

The

Board

hereby

grants

all

motions

pertaining

slight

delays

fulfilling

the

time

requirements

for

filing

motions,

briefs,

etc.

 that

have

not

already

been

 ruled upon

the

Hearing

Offi~-er

 ~ccordi~q’~’

Llie

~3oa~d

r~E~rebT

arants

Cw~zens’

October

12,

 1982 Motion for Leave to File Instanter its Response;

Citizens’

November 30,

1982

Notion

for

Leave

File

Instanter

its

Re s—

oonse;

 and C:Ltizens~ December

 6, 1982 Motion for Leave

 to file

its Reply

Brief

Instanter.

Similarly,

the

Board

hereby

 grants

the

Respondents’

November

1982

Motion

for

Extension

 of Time

which

file

their

Response

Brief;

and

 Respondents’ December 27,

1982

Motion

for

Leave

file

their

Response

Instanter.

However,

bhe

Respondents’

November

19,

1982

Motion

for

Assessment of Expenses

hereby

denied

inappropriate.

 Respon-

dent failed to timely object to Complainants’ answers

 to its

~eque

ad m

~ur ~utint

 5 ilL

 Mi~ ~od~-~

1??

Old

Rule

314(c),

thereby

waiving

its

ritht

object

and

request

expenses

pursuant

111.

Adm,

Code

107.

~L0i

(Old

Rule

701).

The

Complain—

antis

November

30~ 1982

request

awarded

its

costs

re-

sponding

 that motion is

 al so denied.

On

Page

the

:Respondent~s November

15,

1982

brief,

the

Respondents

moved

strike

from

the

record

the

“opinion

testimony”

of Dr.

Russell

Campbell

pertaining

chemical

concentrations

for

lack of

foundation

and

expertise.

This

motion

was

previously

made

during

the

hearing

and

denied

the

hearing

officer.

The

Board

hereby

affirms

the

hearing

off icer~s

ruling

and

denies

the

motion

strike.

The

Respondents

their

Brief

moved

strike

from

 complain-

ant’s Brief

the

 following references:

1)

 to photographs not

admitted into evidence

 (R,B.

 65—6,

 C.B.

 26);

2)

 “that

 a Polaroid

camera distorts more than does a telescopic lens”

 R.B.

72,

C.B,

18,

 ftn,

 13);

3)

 to depreciation

 property values

 (R,B.

 72—3,

C.B.

 29);

4)

 to the elimination of the

utility

of

 a gate leading

the

Cabry

property

(R.B.

 85, C.B.

 35); and

 5) to the covering

operations at

the

landfill

after

the

hearing

(R.B.

85—6,

C,B.

35).

 The motion to strike

 is granted as to

#1,

and

these

are

references

facts

not

the

 record.

The

Board

its

own

motion

hereby

strikes

the

references

#4

the

 complainant’s

 brief

 (C.R,B.

 25),

~n their Motion to Supplement Record, the Respondents have

attempted to prove their contention that the initiation of this

case by

the

complainants

 may have been

motivated

not

solel

genuine

concern

about

threatened

water

pollution

and

 imply that

these

proceedings

may

have

been

possibly

instigated

another

source such

competitor.

Exhibit

A

consists

portion

of

the

hearing

transcript

(R.

387—9)

pertaining

statement

William

R.

 Glendon.

based

hearsay

and

was

 properly

excluded by the hearing officer.

Exhibit

consists

 of documents

which purportedly

indicate

 the existence of a financial interest

in a competing landfill,

 (See:

 Respondents’ Exhibit No.

for

Identification

and

Exhibit

B).

The

hearing

officer

 correctly

excluded F~hiba~C as an offe~of p~oofat the hearing as without

foundatlot.

e!evan~.

Accotdingiy.

the

Re~pondents’

Novem-

ber

19,

1942

~1ot.on

~u~1enent

Re~oth,

qhich

requested

that

the

Board

9upp~amen~.

Lth

~eco~d

addi~ig nat~~ai

comprising

offers

proof

~a~a~d

Ixiroic

1~ and.

Lxhibit

 hereby

denied.

The

Co~i~p.

i~n~n L~ar

r tt~d a

c~tation

home—

owners,

tena~t~

p~r~y

owro~

anc

othe~ conc~rned citizens

who

arc

.rocatel

near

~hc

tlei~

d~idf

ill

w~ich I .e~ north

20th

Aven~sNct~

near

mpto~

J~ srd

unty,

Illinois,

Reep

ndens

De.a

Ligu..~ a~a

Steven

~w.uto

~re

she

owners

120

sc~ ~

the

~pc~t

question.

The

Liginos

deeded

away

their

fee

~res~

avid

sell

Bledsoe

and

his

wife

Sandra

BI~I

aruary

1°,

1982.

Respondent

R..

~e~s

~o tra-~

reai

estate

developer

qh

 p’~cha-eat e

 or prop ry to develop

it

into

a sanit~y1sndth.~.l

N

•

B

 ~iso~w~sxrr ard r~iseain the

vicinity of tre sub

 .ct pro, ~rty,

Or

u1

i94

Mr

 BI~I~

~~d

 ~r ~opication

 for a

Develo9ment P~r~rt~r~n the

r

C

~

~

 TIrs first

permit application

 ias reje red by the \o~r~y

 v a a letter dated

September

17,

 £980

 C. E~r. 23

 fire

Aqer

y

 in rejecting this

initiai permi

 apothcathon

 rdicated that zn3r~trc~entinforma-

tion pertaini.g

 ~ so~ip~rreabrittvwa.

 subrcrted

.C,

 Exh,

27,

28),

 On Novembe,

25

 1980,

 Aespordsnt B)cdsoe resibmitted the

permit appli

 th a

 tr~. c

 thic

Ln

tn

 ~dS tioral

boriigs had

cc

her

0

ci

,C

.xn

29

A public hear~ngon tie

 nd~ngpermit app ~cation was then

held

 in Moline,

 11 mo

 s on ~elruary

1.1

198

R

 719)

 At that

public hearing,

 37 people testifiec,

 including mci hers of Citizens

who

 subsequently testified at the Pollution Control Board hearings

(R,

 723—4)

 On March

1981

 the Agency issued the development

permit for the cite.

The Respordente’ landfi)1 opened fcr theiness on August

31,

1981, after the development, operatira and a

 I the requisite

supplementa3 permits and special waste permits were obtained,

After opc.ations had begun,

 Mr. bledsoe transferred the property

ownership

 to Respondent Upper Rock Island Countl Lardfill,

 Inc.

(URICL),

 corporation incorporated under the laws of the State

of Illinois cn February 17,

 1982.

Mr

 Bledsor is the President

of URICL

 ar.d owns 50 percert

 of the

 stock while his wife owns

the

 other 38 percent

(R

b58

9

The Respondents’

 landthll operathons are conducted on

32

acres of land in the middle of a 140 acre piece of property.

The

property consrsts of a 48 ac’?

 north buffer zone

 a 15 acre north

trench

 fill area,

 a 17 acre south area fill,

 a 40 acre south

borrow area, ard a 20

clone

 south brffer

 zone.

 The landfill area

—6—

lies north of 20th Avenue North

 (Cook School Road) near Hampton,

Illinois.

 To the north of

the

 landfill is a wooded 48 acre

buffer zone.

 Further north

 is a large public golf course,

 A 15

acre trench area is immediately south of the north buffer zone

and a

 17 acre area fill

 is next to, and immediately south of,

the

15 acre trench fill area,

 To the south is the south buffer and

borrow areas,

 The landfill

 is located in the east half of the

northeast quarter of Section 21 and Lots

 9 and 10

 in the southeast

quarter of Section

 16 of Hampton Township

 (C. Gr, Exh.

7).

Immediately west of the Respondents’

 landfill

 is the City of

East Moline’s sanitary landfill which has been in operation since

1972

 (R. 974),

 1~rcessto both landfills is by way of a common

north—south

acce~cn road,

Immediately east of the

 48 acre north buffer zone and the

north trench area is property belonging to Herschel and Martha

Cook, on which no one

has

 lived since 1972

(R.

 232).

 A 20—foot

wide easement, or right—of—way, is south of the Cook property

in

order

 provide access from 20th Avenue North,

 This

right—of—way

is located on the extreme eastern portion of the 17 acre area

fill and the 40 acre south borrow area, abutting the western edge

of

 the property owned by Nino and Savilla Cabry along the east

section line of Section 21.

The Quad—Cities Downs Racetrack, which cannot be seen by the

naked

 eye from Respondents’ landfill,

 is about one mile southwest

of

 the site,

 Scattered farmland, pastureland, and homes are also

situated in the general vicinity of the property in question

CR.

976—7,

R.

Gr,

 Exh.

24,

 R. Exh.

 25).

COUNTS

The dismissal of Counts

 I through VI was discussed previously.

The

 remaining counts are summarized below,

Count VII alleges that the Respondents

have

caused

threatened

 cause water pollution,

 or that contaminants placed upon the

land by them create a water pollution hazard,

 in violation of

Respondents’ permits and Sections 12(a)

 and 12(d)

 of the Act,

Count VIII alleges that

 (1) landfill operations are not

concealed from public view;

(2)

 a fence surrounding the landfill

site has not been provided;

(3)

 traffic to,

 and from, the site

disturbs the residential character of adjacent areas through

which vehicles pass;

 (4) roads are inadequate to allow orderly

operations within the site;

(5)

 insufficient

depth

 of cover was

placed on the site;

and

(6)

 inadequate measures were taken to

properly

monitor

 arid control leachate, thereby violating certain

conditions

Respondents’

permit

 and 35 Ill.

 Adm,

Code

807.305

and

807.314

(Old

Rules

305

and

 314 of Chapter

7).

61~470

—7—

Count

 IX alleges

permit

 violations by Respondents which

include

(1)

the

lack

daily

 cover on 53 specified

days

between

September

 13, 1981 and June 3,

 1982;

 (2) failure to adequately

cover

 the site and/or covering the site with sludge,

 ash,

 or snow

on some occasions;

(3)

 leaving the working face of the landfill

exposed

 after the cessation of operations;

and

(4)

 failure to

control

dust,

litter,

and

vectors

 in violation of

 35 Ill. Mm.

Code 807.

 302, 807,305 and 807.314

 (Old Rules

 302,

 305, and 314

 of Chapter

7),

Count X alleges that Respondents

 (1) have permitted blowing

refuse to escape from the site and accumulate on adjoining property

on 15 specified dates between November

8,

 1981 and April

10,

1982

and

 (2) have engaged in or allowed open dumping of refuse on

public highways on January

7,

 19 and February 214 ~2, 1982 in

violation of permit

conditions,

 35 Iii. Mm. Code ~O7.302, 807.305

and 807.314

 (Old Rules 302,

 305 and 314 of Chapter 7)

 and Section

21 of the Act,

Count XI alleges that the Respondents violated the operating

permit by not

implementing

 the representations that were made in

the

permit

application

(incorporated

 into the permits).

 This

includes

(a)

failing

 program to shield the site from

view;

(2)

 failing to plant rapidly growing trees and other vegeta-

tion

along

the

east

portion

 of the site;

(3)

 failing to provide

for visual and acoustic barriers for the landfill operation by

not providing berms, vegetation or other sound muffling devices

along the south and east portions of the property,

 in violation

of 35

 Ill, Adm. Code 807.314

 (Old Rule 314 of Chapter 7).

Additionally,

Count

 alleges that the Respondents violated

the

condition

their

operating

 permit, which requires the

minimization of equipment noise impacts on property adjacent

to

the site, by operating noisy equipment and allowing trucks which

are owned by the Respondents, or which are carrying waste

 to the

site,

 to cause noise pollution

and

 unreasonably interfere with

the rights of nearby property owners in violation of

 35 111, Mm,

Code 900.102

 (Old Rule 102 of Chapter

8:

 Noise Regulations) and

Section 24 of the Act,

Count XII alleges that the Respondents violated their oper-

ating permit (permit application is

 incorporated therein), speci-

fically Condition No.

1,

 by allowing improper surface drainage to

cause adverse effects on adjacent property owners due to ponding

on site on June 23,

 1982 and allowed sediments and debris to run

off and to accumulate in roadside ditches on five specified dates

between September

5,

 1982 and April

28,

 1982.

Count XIII alleges that Respondents allowed trucks to deposit

refuse

 at the site after dusk and after operating hours on

9

dates

 between November

18,

 1981 and February

3,

 1982 when the

landfill gate allegedly was improperly left open in violation of

a condition in the Respondent’s supplemental permit and 35 Ill,

Adm. Code

807.302.

—8—

Count XIV alleges that the Respondents failed

install

proper

 monitoring wells

 in order to detect groundwater pollution

and failed to submit any quarterly water monitoring data to the

Agency

 before June,

 1982, despite the fact that some monitoring

wells were

 installed

 as early

 as October,

 1980,

 in violation of

35 III. Mm. Code 807.317

(Old

Rule

 317 of Chapter 7).

Extensive public hearings were held in Rock Island, Illinois

on July

19,

20,

 21 and 22,

 1982 at which 22

witnesses

testified,

numerous

exhibits

were

admitted

 into evidence,

 and many members

of the public and the press were in attendance,

DISCUSSION

To prove a violation under Section 12(a) of the Act complainant

must show by a

 proponderance

 of the evidence that respondent

caused,

 threatened or

allowed

 water pollution, Allaert_Renderin9~

Inc.

 v, IPCB

 and IEPA,

 91 Ill, App,3d 153,

414

N,E,2d

492

(3d

Dist.,

 1980),

The

 same standard

 controls under Section 12(d)

to

show that respondent deposited contaminants upon the land so as

to create a water pollution hazard,

 Respondents

argue

that

an

even

 higher standard

 should

 control because Citizens asks not

only for a permit

 revocation,

 but also for an

injunction

not

only

against

the

Respondents

 but also the Agency,

 This

 is not

a

proper forum for

 attempts to

 enjoin the Agency.

 Requests for

injunctive relief are properly before the circuit court, not

before the Board,

 Ill. Rev. Stat,

 1983,

oh,

 111½, par.

 1043.

Notwithstanding,

 there

is

insufficient

 evidence

 in the record for

even

considering

shutdown

 this facility,

the

permit

 process before

 the Agency,

Respondents

have

already shown that the subject

landfill

is

located,

designed

and

developed

 so as not to

 cause

or

threaten

to

cause

 water pollution.

With the above in

 mind,

 the Board turns to the evidence before

it.

Count

VII

Citizens attempts

to

prove

the

violations

alleged

Count

VII by introducing

 state records

and

 testimony thereon, historical

documents, testimony of four

present

and

 former area landowners,

and the testimony of an expert

 who was qualified

 in coal

 mining

and in

 judging the

 potential

 of water pollutiofl from landfills

(R.

 504).

 These

 attempts to

 prove that the landfill causes or

threatens to

 cause

 water pollution

 revolve around

the

 issues

of

whether

 there is

 mining and/or

 subsidence on the

 landfill site

and in the surrounding area,

 Evidence

showing

 mining and subsid-

ence are

 certainly

 a means of

 Citizens to meet its

 burden to

prove that

the

 landfill causes

 or threatens to cause

 water

 pollu-

tion.

61-172

For

good

understanding

 of the layout of the landfill area,

refer

 to the maps

contained

 Gr, ~h.

 7, page

2;

C.

 Gr, Exh,

page

and

 Exh,

 26, Appendix X.~ The viewer should compare

with

the

maps,

 inter alia, the testimony of the neighbors as to

their observations of subsidence and indicia of mining found in

the record at 80—3,

 198—218,

 291—2,

 455—63, and 1066—68.

Almost

all

the

state

records

 introduced in this proceeding

were considered by the Agency before it issued permits to the

Respondents

 for the landfill.

 There is a gap in mining records

until

1882

(R.

 119),

 None of the records show coal removal

 from

Section 21

(R,

 124—5).

 Mr. Rice of the Illinois Department of

Mines

and

Minerals

(IDMM)

testified

 as to a new exhibit for

Citizens

(C,

 Exh,

 12),

This

 exhibit is a report by a state mine

inspector

from

1874

noting

mine

 location, physical characteristics

and

coal

 production for

Sections

 15 and 16 in Hampton Township,

Rock

Island

County

(R.

118—9),

 Upon cross examination

 Mr. Rice

testified

that

the

small

mines

 in Sections

 15 and

 16 “apparently

did

not

work

into

the

landfill

 site”

 (R. Exh,

1),

 This conclusion

was

based

 Exh.

and

 the mined out coal area map from

the

Illinois

State

Geological

 Survey

 (Survey) as found

in

R,

 Exh,

1,

for

coal

removal,

Exh,

 12 has an entry for Section 16

but

the

document

not

clear

 whether that coal was extracted

solely

from

Section

(R,

124-5).

 The Survey map

 is drafted on

a

scale

one

inch

mile

(R,

 120) and

 is inaccurate for

purposes

herein

(R.

121),

Citizens,

 through Mr. Bauer, an engineering geologist with

the Survey,

 introduced C,

Gr,

 Exh,

 13 into the record,

 This also

is a new exhibit that was not considered by the Agency.

it

is

called

Circular

439

and

pages

 one through seven consist of

surface

field

notes

 from the

early

 1920’s on mines

 in Hampton

Township;

specifically

Section

15,

16,

 21 and

(C,

 Gr, Exh,

13,

133).

Pages

eight

through

 16 consist of underground mine

notes,

not

Hampton

Township,

but

 of the Coal Valley Area eight

miles

south

(Id,,

134—5).

Mr.

Bauer

 testified that the two

areas

have

similar

geological

 conditions,

 Pages 17 through 21

describe

the

borings

taken

 in Sections 15 and

during

the

1970~s (Id,,

138)~

The

rest

 of the document provides a discus-

sion

strippable

coal

reserves

 in Illinois and a description of

the

geology

the

area

(C.

Gr,

Exh,

 13).

 Upon

cross

 examination

and in consultation with the map located in

C,

 Gr, Exh,

 7, page

2,

Mr.

 Bauer testified that there was no coal mined in the south

buffer or north fill areas

(R,

 158—61).

 He was unsure as to the

south borrow area, but testified that a greater possibility

existed as to the south fill area near the northern part of

Section 21

 (Id.).

 As for the 48—acre north buffer zone,

Mr,

Bauer

1/ This is a bulky exhibit.

 Both maps are toward the back,

One

marked

Figure

2;

 the other is marked Drawing

Number

780572.

This

last

map

should

not

allowed

to

confuse

the

viewer

—-

 it is

of the Bledsoe Landfill,

not

the

 neighboring East Moline

Landfill,

6 1-173

testified

 that C,

Gr.

 Exh,

 13, pages

 22—25

 (in consultation with

C.

 Gr, Exh.

7,

p.

2)

 indicate mining

 in the northwest

quarter

the northeast quarter of the southeast quarter of Section 16

(R.

161-2).

 This spot was pinpointed by Bauer as north of borings

B—2 and B—9

 in the 48—acre north buffer zone

(R,

 163,

C.

 Gr, Exh.

7,

p.

2).

 The north buffer zone is not part of the active land-

fill area,

Citizens also introduced historical documents into evidence.

scrapbook

contained

 articles on mines,

#1,

3,

and

6

which

were

located

hollow

 through the Cook property and bordered on the

north

and

 northeast of the permitted landfill area

(C.

Exh,

 16),

map,

Exh,

50,

 shows mines

 #1—7 and two additional mines,

When viewed in conjunction with C.

 Gr, Exh.

7,

p.

 2 mine

 #3 is on

Cook property east of the north fill area, mine #6

 is in the

north buffer zone north of the north fill area, and mine #1 is

east of mine #6.

 The other mines are even further east,

 away

from

the

active

 landfill.

 Another map which attempted to pinpoint

these mines is not helpful

(C.

 Exh.

 51).

Citizens introduced three exhibits that were not before the

Agency in its permitting process

 (C, Exh,

9,

10,

 11).

 These

exhibits were leases dated 1866, 1870, and 1872 for the right to

mine

 coal

 in lots nine and ten of Section 16 and the east half of

the northeast quarter of Section 21

 (Id,,

 A. 109—15),

 The legal

description

 the landfill includes the east half of the northeast

quarter

 of Section 21 and the west thirty acres of lot 9

 in the

southeast

quarter

 Section 16

 (C. Exh.

 26, App.

1).

 It has not

been sufficiently established that coal was removed from Section

Section

1874

(C.

Exh,

12,

124—5).

other

evidence

has

shown

sufficiently

that

coal

was

removed

from

the

active

portions

 of the landfill, Section 16 and 21.

Likewise,

 the historical documents concerning the Happy

Hollow Coal Mine area also fail to add anything significant to

this issue

(C.

 Exh,

 14—8,

20,

 22).

Citizens

relies

 on the testimony of

four

present

or

former

neighbors

 of the area,

 These people testified before the

Agency in the permitting process,

 Mr. Cook

 is an owner and

former

farmer

acres

 of land to the east of the landfill

(R.

198),

 Mr. Cook marked in red on a map where conditions appeared

to him to suggest mining either on his property or on the landfill

 property

 (C. Gr. Exh,

7,

p.

2).

 Numbers 1—5 are subsidences

northeast of the landfill on Mr. Cook’s own property

 (Id.),

Number

is

 a well just northeast of the juncture of the north

and

 south fill areas, on Cook property

 (Id,),

 Mr. Cook testified

that

 twenty seven feet down

 in the well there

 is a tile line

emanating

from

northerly

direction

(R,

 203—4),

 Number

7

 is a

subsidence

 on Cook’s property north of

 #6 and south

#5.

South

which

Mr.

Cook

claims

spring

where

has

seen

red

 sediment

CR.

 212-3,

 215).

 Mr. Cook testified as to the

location of a fan—type construction in the southwest portion of

61-174

—11—

the north fill area which he marked as

#9

 (C, Gr. Exh,

7,

p.

2),

This object was on a small ridge about twenty feet long and six

feet

high

(A.

 215-6)

 (See Mr. Cabry’s description and location,

infra),

 Number

 10 is a large hole going into a slope,

 traveling

in a southerly direction, north of the active landfill

 in the

north buffer zone

(C.

Gr,

 Exh,

7,

p.

2;

R.

 218),

 Number

 11 is a

small

 sinkhole at the northeast corner of the north fill area,

a

few feet from the Cook property line

 (Id.,

R.

 219),

 Another

sinkhole is marked as #12 and

 is located at the eastern edge of

the north buffer zone

 (Id.),

A second Citizens’ witness, Mr. Cabry, owns property east of

Bledsoe’s Landfill and the Cook property.

 He has farmed both his

land and at one time part of the Bledsoe landfill area.

Mr.

Cabry has marked in green on the same map where he feels there

are indications of mining

(C.

 Gr, Exh,

7,

p.

2,

A.

 454),

Mr.

Cabry describes what he calls an airblower that has a pulley and

fan blades

 (See C. Gr, Exh,

 40, #26).

 He claims this object

would be used for ventilation of a mine shaft,

This

marked

IX where the X approximates the location (Id.),

 Mr. Cabry has

located this object at the very southwest corner of the north

 fill area while Mr. Cook located it north of that

spot

(#9

 on C.

Gr. Exh,

7,

p.

2,

 also see above),

 Another witness saw this

same

object but the record is not clear as to where he marked

the

map

(R,

291,

337).

 Number

 2 is

 a depression at the extreme northwest

corner of the north fill

 (C. Gr, Exh,

7,

p.

2),

 Mr. Cabry testi-

fied that a horse and tractor had sunk in land east of the north

buffer

 zone on Cook property

 (Id, #3X or X;

 A. 456-8).

 Mr. Cabry

further

testified

subsidenees

 already marked by Mr. Cook

(A,

459—65)

 and the approximate location of an old railroad

track, which he marked as a green dotted line on Cook property

(Cj,

Gr,

 Exh.

7,

p.

2,

R.

 463).

Another area landowner testified as to subsidences in the

western part of the north buffer zone and circled the general

area

 with a red marker

 (Id.,

R.

 83—4;

 C. Gr, Exh,

 6, portions

stricken).

The fourth landowner to testify was Mr. Wenke, who has

 lived

in the area for over fifty

years

(A.

 1061—2).

 He testified that

fan

and

 ground opening were located in the

southwest

part

of

the

north

fill

area,

which

 had been marked as

1XA

the

map

(C,

Gr.

Exh.

1066—8).

also

testified

that

slope

mine

existed

south

there,

near

boring

 B—13

 (Id,),

Besides

area

landowners,

both

sides

 relied

experts

for

an

opinion

whether

the

landfill

site

caused

threatened

cause

water

pollution.

The

expert

witness

for

Citizens

was

Dr.

Campbell

(C.

Exh,

46).

found

direct

evidence

of

mining

the

Bledsoe

property

(R.

536).

the

end

one

hearing

Dr.

Campbell

stated

 that it

was

 “possible” that the landfill site had been

undermined

(R.

 524), yet the very next day he testified that it

was

 “most probable” that

the

 site had been undermined

(A,

 541;

see 554),

 The direct examination of Dr, Campbell proceeded into

61-175

—22—

a very general hypothetical discussion o’~what would happen if

there

was

 suhaidencr beneath the lar.dfil~. and the resultant

leaehate migration ~x. 545—53~, The

 a’. ~denca presented supports

Dr. Campbell’s first opinion

——

a

 posr~bm~mty

 of undermining at

the

landfill

 site,

The Respondents’

 e’:perts were Mr

 Loiaas and Dr. Anderson.

Mr. Lovaas testified tnat

c

 possibi~ityexthted that the site was

undermined, but that

 ~there is no real nerd evmdence to indicate

that it was done

 ~nl.833~~4)

 Dr. Ande~ontestified that it

is

highly unlikely

 93~). Lovaas te~t~ficdthat if one assumed

that

 the site were

 indermined and that leachate entered the mine

after

 subsidence,

 ne leachate would rot reach the aquifer

 in the

Devonian

 limestone

 It would be contained

r

 the Pennsylvanian

shale

which

 contain~the coal seams and “mc~highly impermeable

type material,

 ~e~y

plo5~

c

 and hi~ n

 m~ clay content,”

The

limestone aquifer th below the shath

A.

 ~~6)

As for permeability of the soil a~- the ante, Citizens has

failed to bring

 forth any new eviderce

rs

1

 cermeability testing

that

 was not bethre the Agency.

It

 s ~npl theputes the prior

test results,

 Citizens has failed to meet

 mi-s burden of proof as

this

issue,

In summary

 the Board finds that C~tLz~nshas failed to

prove

 by a preponderance of the eviderce brat the Respondents

have caused or threatened to cause water pollution (Section

12(a))

 or that contaminants placed upon the land by them create a

water

 pollutIon haza~d(Section 12’d

 C~trens argues that the

insufficiency of evidence of coal mining

 in the landfill area

coupled with subsidences nearby demonstrates a threat of water

pollution

(C.

 Br. 15~. The scarcity of records, the lack of

evidence

 of mines and subsidence

 in the active landfill area, and

the

apparent

 agreement. of all three

expert

 witnesses that there

only

 possibility of undermining at the site have

operated

against

Citizens.

 The scarcity of evidence

does

not

relieve

Citizens

 its burden,

 Citizens has attempted to show that

subsidences

 and other indications of mining

 in surrounding area

are sufficient to meet its burden of proof as to this landfill

site,

However,

 that burden has not been met.

 The Board finds

that Respondents have not violated Sections 12(a)

 or 12(d)

 of the

Act

alleged

 in Count VII.

Count VIII alleges violations of the standard landfill

requirements

 located at 35

 Ill. Adm. Code 807.314

 (Old

Rule

 314),

and

the

cover

 requirements located at 35

 Ill, Adm. Code 807.305.

Citizens

 alleges that the site does not have

adequate

measures

 monito~and control leachate (807,314(e)),

 There

has

been

new

 evidence on this issue presented to the

Board.

The

Agency

has

 already found that the measures are

adequate

and

has

issued

 operating permit based on such finding,

 The Board

finds

that

 Citizens has failed to carry its

burden

and

that

there

 no violation of Section 807,314(e),

Citizens

 alleges that Respondents have failed

provide

adequate

roads

 to allow for orderly operations within

the

landfill

site

(Section

 807,314(b))

 and have failed to

provide

adequate

measures

 control dust and vectors

 (Section 807,314(f)),

Section

 807.314

 (in pertinent part) provides

that

“no

person

shall

 cause or allow the development or

operation

sanitary

landfill

 which does not provide

(b)

 roads

adequate

allow

orderly

 operations within the site;

“

(emphasis

added)

and

 “f) Adequate measures to control dust

and

vectors;

,“

Hamman

 IEPA,

 40 PCB 255

 (January

 8, 1981~

PCB

80—153)

the

Board

 specifically held that “(rule

 314(b)

 relates only to

roads

within

 the site,”

 40 PCB 257.

 The Board subsequently

found

that

consideration

 of the tracking of mud from onsite to

offsite

roads

 was proper since

 it was the result of disorderly

operations

 onsite,

 IEPAv.Wasteland,Inc.,etal,,

 48 PCB 01

(August

26,

 1982; PCB 81—98) aff’d sub nom,

 118 Ill,

App.

3d

1041,

456

N.E.

 2d 964

 (3d Dist., 1983).

 In the Wasteland Board

Opinion,

the

 Board found that excessive mud buildup

and

dust

problems

 roads outside the site aggravated traffic flow by the

landfill,

 There was evidence that roads within

the

 site contrib-

uted

the

 mud and dust problem.

 48 PCB

19.

The

Act,

 the above regulations and precedent dictate that

mud

roads

 offsite, if proven to emanate from the landfill and

within control of the owner or operator or his agents, can be

regulated under Section 807.314(b),

 “Adequate” can mean both

quantity

and

 quality.

 In Wasteland, on—site

roads

were

considered

inadequate

because

 of their muddy and dusty quality

and

therefore

violated

Board

 regulations.

 If substantial

mud

tracking

occurs

from

the

landfill

 to offsite roads, then the on—site roads would

inadequate.

 Regarding

other

problems

offsite

roads,

these

are

matters

 more properly handled by

local

authorities

such

as

road

commissioners,

county

 boards, and

county

highway

departments.

Herein,

Citizens

 has not shown by a

preponderance

the

evidence

either

 that mud and dust deposited on

20th

Avenue

North

was

f~romtrucks

 entering or leaving the

Bledsoe

Landfill

whether

such

activities

were

 under the

control

the

Respondents.

An access road of f 20th Avenue North leads to both

the

Bledsoe

and the East Moline Landfills

(A.

 50—1).

 East Moline’s and

Respondent’s trucks travel on both roads

 (A. 428—9;

 C. Gr.

 Exh,

26,

 App,

 IX),

 As for vectors, testimony in

the

 record shows that

there were

flocks

 of seagulls around the landfill on Easter

Sunday (A.

434).

Mr.

Cabry

states

that

 the rodent population has

increased in the buildings ~onhis property

(A.

469—70).

 Citizens

claims that a photograph depicting a single bird visiting the

landfill on May 30, 1982

(C.

 Gr, Exh,

40,

 #20)

 is evidence of a

vector problem

 (C. Brief 25)~ This

 is insufficient evidence of a

vector problem.

 The Board finds that Respondents did not violate

Section 807.314(b)

and

 (f),

Subsection

~

 of Sectioni 867

 31’

 essentially provides that

a landfill must coniurol access to the s~tewith fencing, gates

other measures.

L

 :erce segeretes ft

 crtl, buffer zone from the

golf course

(A

~

 The east property lines of both the north

buffer

 zone and n~n~tfill area are separated from Cook property

by a heavily brush~’grownold wover

 ‘tire fence

 (Id,),

 The eastern

property

 line o~LI

 ~outh fill are borrow areas has an old

dilapidated

 fence

~I

Id

)

 which ‘.as being replaced by Mr. Bledsoe

at the time of

 tize tha ~ng

A

1~

2’.

 lere

 is a right—of—way

here to allow ing~easa

 o egre.~.to Mr. Cook’s property

(A.

 225),

There is a fence al

r

tI

 east side of this right—of—way (Id,),

A

new

fence

 ha.~beer

 ‘.r

 Iled alorj

 th lye ue North

A.

 1014).

Fences and gates exis~

 the wester

 siae of the landfill

(A.

1013—4),

Mr

 Bledsoe

t

 ~nf~edtha

he

i

 an the process of

upgrading

 ferces

(

ci)

 ?lotograpl

 de~~ctirthe fences are

included

 in C

Gr

~

~6

*

3

3

 Uthough the

 3oard

realizes

Mr.

 bled o~i~

~n

ti

p~

~s

t

 ~adrng the fence~,

it will order In

~d

 dRICL

 o re~ ~r

r

 pl~cethe dilapidated

fences,

 The Boarc

 r’.nis that ~es~cndcn~

Mr

 David Bledsoe and

URICL have violated ~ection 837 a14(

 ~r.ctheir permits by

failure to imp~em~n.the representat

re

 ~n ‘the permit appl~ca—

tion, part

 IV, B

 #~.8m

(C,

Cr,

Fxh

26

 Because of the lapse

of time since the cc~elus~on

 of nearing

~r

 Board realizes that

the upgrading pro~ea may already hav~leer cx~rpleted.

Section

 807.3~4h) provides that uL

1.

 :dfill operation~be

concealed from pub~_cview.

 Citizens pre ented area landow~ers

who testified tha~tley can observe oper~tnorseither from the

front yard

(A,

39

42

 or from an adjacent barr

(A,

 434,

 439—40),

photographs

~7

 aid 68 we~e

 p r y excluded

(C

Cr.

Exh,

 40) by the hearing officer because of the use of a zoom lens

(A.

371—2).

 Evidence entered by Respondents showed that the

landfill

 the whie is very secluded

(A

 Sr. Exh,

 24; R~Exh,

25).

Additionar

 acrerning is necessary as tne landfill

operations

 are v~sablefrom adjacent properties.

 The Board finds

Respondents

Mr.

 David Bledsoe and UAICL have violated Section

807,314(h)

 and th~irpermits by failu~eto implement the representa-

tions

 in the permit application, path IV

B

#28

(C.

Sr.

 Exh.

26),

 The Board realizes that addtiona

 veqatation may have been

planted

since

the

 earng

 to provide

 cc ~eening

Under

Count

 VI~~I

 Citizens additionaUy alleges that Respon-

dents

violated

 the depth of cover requirements

 Section 807,305(a),

(b),

and

(c)

 for daIly,

 intermediate cad dina~cover and asserts

that

the

“cover

 material

 is relatIvely permeable;

 increasing the

likelihood

 of grounlater pollution leachate~ (C.

 2d Am. Cplt.,

15).

for

 permeability

 the cover material,

new

evidence

has been

 presented

 The hearing officer properly excluded Citizens

attempts to dissect the results of the soil boring tests that had

been

 submitted dunin~jthe permitting process.

In summary

 Respondents have not violated

Section

807.314(b),

(e),

and

 (f), or Se~tio~i2~a)and

 (d) of the

Act,

Respondents

David

A.

 Bledsoe am

 3PC3 have violated Sections 807.314(c)

and

Al~

1 7R

(h),

and

their

 permits for the reasons above,

 Section 807.305

will be

 discussed under Count IX,

 No penalty will be imposed for

these

 technical violations since they are de minimus and the

 Respondent

was

 in the process of correcting them,

Count IX

Citizens asserts that cover was inadequate or

nonexistent

fifty days

(C.

 Brief,

 23).

 Mr. Cabry testified

that

marked

X

his

calendar

whenever

 the landfill was not covered at the

end of

the

work

 day (C~Exh,

45,

A.

 437).

 Using

binoculars

(R.

493),

whenever

 he couli see trash or litter he would

mark

(R.

 437).

 Mr. Gerstne~:likewise kept a calendar for similar

purposes

(C,

 Exh,

41;

A.

 275) and also took many

photographs

showing

landfill

 cover conditions

(C.

Sr.

 Exh,

 40, #1—20).

The

Board

notes

 that only photographs #5

 (2/28/82),

6

 (3/29/82),

7

(3/30/82),

8,

and

 9 (3/31/82),

 and possibly 13

 (4/18/82)

 show

cover

 problems.

 One of Dr. Zoller’s photographs appears to show

 a cover

problem

(C.

 Exh.

5,

 3/21/82),

The Respondents introduced evidence that out of six inspec-

tions by the Agency from September,

 1981 through April,

 1982 the

landfill

had

 perfect score

(A.

 Exh,

 11~’16, A.

741).

Testimony

showed

that

Agency

 inspectors must exercise a degree of

reasonable-

ness

 in judging the appropriateness of cover

(A.

 748).

 An Agency

inspection

 on May 28,

 1982 showed two days of no

cover

because

recent

precipitation

 CR. Ext.

 17),

 The site appeared to be in

generally

 good condition

 (Id.).

 Mr. Bledsoe testified

that

the

fill

closed

 at 5:00 p.m.

 and that cover was usually in place

by 6:00—6:30 p.m.

 (A, 980).

 The daily cover practice did vary

with weather conditions

(A,

 981—2),

 He also testified that there

were

only

three

 occasions when cover was not

complete

(Id,),

The

dates

were

May

28,

 1982,

 for which he was

cited,

and

March

and

28,

1982

CR,

 982,

 986—7).

 This testimony, as

buttressed

 by the

Agency

citation

 (above),

rebuts

the

lack

of

cover

allegations

claimed

evidenced

Dr.

Zoller’s

photographs

(C.

Exh.

1-5).

Upon

viewing

 Mr. Gerstner’s

photographs,

Mr.

Bledsoe

opined that ‘#5 was not

representative

conditions

February

28,

1982;

 #6—9 were taken with

zoom

 lens and

before

cover

was

place,

and

 #13 distorted the natural view

because

zoom

lens

was

used.

(R,

991—7)~

Citizens

alleges

that

Respondents

 violated 807.302,

 807.305,

807,314

and

 their permits

 (the

permit

incorporates

the

permit

application) by not only failing to

provide

adequate

cover

(above),

but by using sludge and ash instead of borrow material

(C.

 2d Am~

Cplt.,

 16-7).

 Mr, Cabry claimed that

Respondents

 used sludge and

snow on certain dates

 to cover the active site

(C,

Ext.

45,

A.

442—9).

Specific

dates

for

 the sludge,

 as well as for the no

daily cover allegations above, are alleged in Citizens second

amended complaint

(C.

 2d Am. Cplt.,

 24—5),

 Mn, Cabry claims

photograph 10 portrays sludge and

ash

 as cover

(C.

Gr,

 Exh,

40,

#10;

A.

 433,

 442—6).

1~~fl

The

Respondents

 countered by ~r. bloc soc testifying that

sludge,

ash

 and smw are iot used a~cc~’e4 materials and that

the

time

 of tlere ~llegaUoms

 April

 1)82

 the landfill did not

accept sludge

(1

9

Citizens h~socre

 ~c great lengtth to ~ocument what it

considers

 he lack o~cover at the laraf

11

 However, the

Board is persuaded by

 cc te’timony of Agency inspectors

in

conjunction

 witl

~

•

dl

c•sc~ a

 ex~lanatzon~ The Agency

 lr1spec—

tons consistenUy ~un~

tha

 t’~Ia Jn~

 e icr was adequate

within a reasorao e ~rterprmati

 n of the

 gulations,

 The Board

finds that the Ac

on

 nts have a

 t v~olaed tections 807.302,

807.305,

 and 807. ~

 the~rperrirts,

 r ~ectiors 12(a)

and

 Cd) of

the Act as allegec i~

e

 unt ~X

Citizens

 a~’~c ‘a ttat A ~po~dert’~ aunea or allowed open

dumping at the

and

 and on publ ic

I

 and have caused

or allowed hlow:nc

a

I

tc

 ccur n

 ~trd rc ~ndthe landfill

(15

days,

 see C.

2d

Ar

 ‘nt

 8’~’9

A

 ‘omb Citizens alleges a

violation of Sec’~ioa

36

oth

Ii.

h

7)

 in its brief

(p. 29—30),

 tIn4

 an ea

~

 ~ d~d

rr’

 ~er~tore

 ~t is not

before

the

 Board

 a~ ens introduced ph

 graphs which show

some

papers

 on tIe

 n; (abry

 fence’

 cc om April

4

1982

(C.

Exh,

2,

3).

Mr

 ,~rr

t.

 testified that

 e 1aper did come from

the

Bledsoe

 Larddt

 ore windy day (~

j1

 n fact, the winds

were

 still blowin

tnn

 tine day baf’~rea

 ~ea~ifred to by Mr

Cabry

(R,

441

3

 e a nit o

a

p o

 ~r oh~are introduced

by Citizens in suppor

c:

 the_r allege ion~(3,

 Cr. Exh,

40,

#21—25).

 However~ these five photographs and the testimony

introducing

 them ~aiJ to link

is

 ‘in —bto~ntrash to the land-

fill or to acts or

 ions by the Ae~pondn:nor their agents.

for

the

 opem dumping charges

 Citizens introduced eight

photographs

(C,

Sr

 Exh.

40

 #28—31

33,

34,

3

39,

40)

 showing

debris

dumped

 along the public right—of-way of 20th Avenue North

and

just

 outside the

 rain landfill gate

 (*37 was not admitted,

A.

368).

 Mr. Bledaoe te~tifiedthat he has h~dtrouble with midnight

dumpers

depositing

 dthnis outside the gate before or after hours

(A,

 1004-5).

 He further testified that he polices the area, both

on and off site,

 and picks up litter

(A,

 1006).

 Again Citizens

has

 failed to link the dumping with acts or omissions by the

Respondents or their

 agents.

 Any number of sources could have

been

the

cause’

 unks goina to eithe~area landfill,

 the mid-

night

dumpers

 or others

It

 is unreaso~ableto assume that Mr.

Bledsoe actively encourages or has any control over persons

who

illegally

dump

material

 on roads near the t~olandfills,

 Enforce-

ment

against

 such ,~~c~ons

 can be accomplished by a number of

agencies.

 Likewisa

 itter blowing from trucks can be controlled

local

 or cou’n~1 c; 3inances,

 There is also a law against

littering on stat’

 aighways.

 The Board finds that Respondents

have not

 violated Sections 807.302

 807.305, 807.314, their

permits, or Sectrons 12(a) and ~d’ of the Act as alleged

in

 Count

X.

—17—

Count XI

Citizens

alleges

that

 Respondents have not concealed the

landfill

from

view

(see

 discussion above under Count VIII).

Citizens claimed

 that

 fast—growing trees were not being planted

to shield

the

site

and

 that trees and berms were not being used

to deaden noise

from

the

 site along the south and east portions

 the landfill

(C.

2d

 Am, Cplt.,

 20),

 Mr. Bledaoe testified

that there is a

program

 for planting trees and berming and it is

being implemented

CR.

 665—6, 669—72).

Citizens additionally alleges that the noise emitted not

only from

the

landfill,

 but from the traffic to the landfill,

violates Section

 24 of the

 Act and 35

 Ill. Adm. Code 900.102.

Section 24 providas~,that

~(no

 person

shall

 emit beyond

 the boundaries of his

property

any

noise

that

 unreasonably

 interferes

 with

the enjoyment

of

 life or with any

 lawful

 business

or

activity

so

as

to

 violate any regulation

 or standard

adopted

by the

 Board

 under this Act.”

The evidence

presented

Citizens

 line with its

very

general allegations~

One

 area resident complained of banging

tailgates, bulldozer noise, and truck traffic

noise

(R.

44,

59,

60).

 The hearing

 officer

 properly excluded evidence of offsite

noise pollution

(R.

 268—72,

 390—3 C. Exh. 42,

 44),

 Sections

24

and 900.102 provide for on-site noise regulation.

 Citizens could

not identify

which truck was going to which landfill and even

if

the Board were

to consider the

 evidence excluded

by

the

hearing

officer, the

allegations

 and evidence would be too general to

support a finding

by

the

 Board

that Respondents violated the law.

The factors to be

used in determining an unreasonable interference

are located at

Section 33(c) of the Act, determined

the Illinois

Supreme Court in Incinerator,

 Inc.

v.

IPCB,

et al,

59

 111.

2d

290, 319 N.E. 2d

794

(1974).

 Although this was an enforcement

proceeding pursuant to the air nuisance section

 (S9)

 as defined

by Section 3(b),

 Incinerator is also persuasive where an unreason-

able interference

from noise is alleged pursuant to Section

 24 of

the Act.

~Section 33(c)

 sets

 forth

 four

 categories of factors

which

 bear

upon

the

 question

of

 reasonableness

and

specifically

directs

 that

the

 Board

 ~take into con-

sideration’

 such

 factors

in

 making

its

 orders

and

determinations.”

 Incinerator,

slip op. at 3.

The Board has considered these factors in interpreting an unreason-

able interference

 noise enforcement proceeding.

 James Kaji,

et al.v,

 R. Olson Mfg.

Co.,

Inc.

 41 PCB 245

 (April

16,

 1981; PCB

80—46).

 The Board

finds

 that the health, the general welfare and

the property of

the

 area

residents are not

being

harmed by noise

emitted from

the landfill

or by the appearance of the site; that

properly operated

landfills

are needed by society;

 that the rural

location of

tnis

 landfill

 is suitable~and that emissions

 from

the

landfill

 have nc~meen

shown

need

correction.

 The Board

further

~irtds

~iio

ee~oyxahle interference

and

that

Respondents

have

not

vio~at~: 3eat~on 24,

tll,

Mm.

Code

900.102

their

permits

 aidregu1;ar~~nu unereto as

alleged

 in Count

XI~

Citizens

al

 ~nnokt and on—sic~epording

vioiation~

Respondents.

~&t~nc.n~.

 permit app~icatiunprovides

that

~:t)1~eentir

snaIl

be

graded

and

provided

with

drajx~agc

 ~ppcrhenances to minimize

runoff

Onto

and

over

the

Z11~

 ~reveriterosion of the fill,

 to drain

off

rainwere~.

the

 fll,

inn

to

prevent

the

collection

o~ surface

 watun

(~‘age

10)

Likewise,

pperc*r~mp

p~n.m~ condition

No

 :i ptovides:

~s

its

 su:’

 image

 shall

bE:

 such that

no

adverse

eih’e:.

 encountered

by

 acacent

property

owners.”

~

•~

~

 C. t~xh,

3n,

The owner o~tn ~nc~f

course

testitied

 that

 on—site pon~ing

occ~rx,ed

~n one

tn1A~

2~3, 1922, yet none of the other

 ‘Citiz~ns’

witnesses,

:eVen

rhc~

 m.ing binoculars and telephoto

lenses,

observed a~nyqn’i~h~

 ~ pcmding~ Agency inspectors likewise: did

not

report

any

 pondrn~

 her than water being pumped

out

~uto~

trench;

 ExIn i~,, ~ven after heavy rains

in

late

May,

1982

(R.

792,

R.

Exh~.

~

~gency

inspection

report

for

July

1,

1982 was not

a

 Ip~eh~rto avidence ~R. 794~5’~

There

insuffi-

cient

evi~ence.

 to e~pp~crra finding of pondinq

 violatioi~:‘and

therefore

3o~d

finds

that

 as to on’~sits ponding~

Respondents

have

~not~

~iolatec

~t~eu~

permits.

Th~

evidence

~:l:ieqe& runoff

violations

four

days

consists

si~x~

 photcg~phssubmitte~by Citizens

(C.

 ~xh,

40,

~448,

4~, 50,

t~,

56’o

The

photographs

show

water

offsite

ditches

along

~~Ot’

‘

~enue

North

(id,,

312),

There

evidence

(1)

 of dre:Lnage patterns p~or to

the

operation

the

landfill.~

(~)

that op~rdtioi~

of

the

landfill

 aggrav~atir~ig

the

prior

drair~gepa~term

the

dit.ch~

(3)

 that the

runôffthát

has

occurred

has

 ~not bet~n ,Liiird~ed~

and

~4

that

there

 have been

adverse

 effect~enocumthred

adjacent

property

 owners

There-

fore,

the

Board

fi::~s

 ~hat Respon~ientsh~venot

violated

their

permits

 Iil~Mm,

 Code 807.302.

To

the

extent

that

Citizens

has

•allegeø

 vio~lat~orinof

SectiOn

12(a)

~nd

 12(d),

the

Board

fiBds

Respondents

no:

violation.

Count XIII

There appears

 ~ohe some confusion over

which

landfill

gate

is alleged by

C

i~n~ns~r

 huve been

left

open

by

 Respondents.

The main gate

 to the landfill is located on the north-south

access road

 that leads to both the Bledsoe and the City of East

Moline

 Landfill

(A.

 1011—14; see

C,

Gr,

 Exh.

7,

p,

2;

C,

Gr.

 Exh.

40,

 #31;

A.

 B. 69~70). The gate located at the southern edge

of

the south buffer zone is located on 20th Avenue

North,

 an east—west

road,

Mr.

Bledsoe

 testified that this gate

does

 not lead

to

the

landfill

site

but

 is used by the Army Corps of Engineers when it

conducts its

excavation

project

(Id,,

Gr,

 Exh.

40,

 #51,

 53).

Mrs.

Geretner

 testified for Citizens that “the gate” was left

open five

 times

 (C. Exh.

 44, p.

2;

A.

 394—5),

 This gate is the

Army

 Corps’

 gate, not the main entrance gate

(A.

 422—3).

 There

is

 no evidence

 that

 the main gate was left open and unattended

at

any

 time,

 Mr. Bledsoe denies that the Army Corps’ gate was left

open and

 unattended in November and December of 1981

as

 alleged

by Mrs.

 Gerstner

(A.

 1012—13).

 He testified that on two Sundays

intruders broke in through the Army Corpse

 gate but that the

 next

day he

 closed’ and locked the gate

(P

 101~

 As for Citizens

allegation

 of dumping at the site,

 to theI~xtentthat it involves

dumping at or

 around the main gate, the Board has

 already considered

this under

 Count X and found Aespondents not in violation.

Likewise, the

 Board finds that Respondents have not violated the

supplemental

 permit.

 To the extent that Citizens has alleged

violations

of

 35 111, Adm. Code 807.~302and Sections 12(a)

and

12(d) of

 the Act in this count,

 the Board finds that Respondents

are not

in

 violation.

Citizens alleges that Respondents failed to

submit

ground-

water

samples.

Mr.

 Bledsoe testified that he submitted the re-

quired

 samples to the Agency shortly after the

due

date,

January

15,

1982

(A.

659—60).

As there is no evidence in the record to support this al-

legation,

the

Board

 finds that Respondents have not violated 35

Ill.

Adm.

Code

807.317.

 To the extent that Citizens has alleged

violations of Sections 12(a) and 12(d) of the Act and Section

807.302,

 the Board finds that Respondents are not in violation.

SUMMARY

The Board finds that Respondents David

 A. Bledsoe and Upper

Rock

Island

County

 Landfill,

 Inc.

have

violated

 Sections 807,314(c),

807.314(h)

and

their

 permits

for

 the reasons specified above,

The

Board

 further finds

that

there

are

aggravating

 mitigating

factors

present.

 As no penalty has been

imposed,

the

Board

need

not

discuss

 the Section 33(c)

 factors in

conjunction

with

the

penalty

 issue.

This

 Opinion constitutes the Board’s findings

 of fact

and

conclusions of

 law in this matter,

ORDER

1.

 The Respondents David R.

 Bledsoe and Upper

Rock

Island

County

Landfill,

 Inc. have violated 35

 III, Mm. Code 807.314(c)

and

807,314(h).

2.

 The Respondents David

A.

 Bledsoe

and

Upper

Rock

Island

County Landfill,

 Inc. have violated their permits by failure

to

implement the representations in the permit

application,

part

IV,

B, #28 m and n.

3.

 The Respondents David A. Bledsoe and

Upper

Rock

Island

County Landfill,

 Inc. chall

 replace or repair dilapidated fences

around the perimeter ci the Upper Rock Island County Landfill

(Bledsoe Landfill)

 in accordance with 35

 III, Adm, Code 807.314

(c) by June

1,

 1985.

4.

The

Respondents

 David

A.

 Bledsoe and Upper Rock Island

County Landfill,

 Inc. shall conceal the

sanitary

 landfill opera-

tions from public view by planting rapidly growing vegetation in

accordance

 with 35

 111. Mm. code 807,314(h) by June

1,

 1985.

5,

All

Board

 rulings on motions as set out in

 this Opinion

are hereby

 incorporated as if fully set forth herein,

 To the

extent that any

 motions have

not

been

explicitly

 ruled on, they

are denied,

IT IS

SO

ORDERED,

Board Members Jacob

D,

 Dumelle,

3.

 Theodore Meyer and

Bill Forcade concurred,

Dorothy

 Gunn, Clerk of

the

Illinois

Pollution

Control

Board,

hereby

certify

 that the

above

Opinion

and

Order

was

adopted

the

~~day

of

1984

 by a vote

-___

Dorothy

 MT Gunn,

Clerk

Illinois

Pollution

Control

Board

61~184