ILLINOIS POLLUTION CONTROL
BOARD
November 21, 1984
CITIZENS AGAINST HAMPTON
)
TOWNSHIP LANDFILL,
)
)
Complainant,
)
v
)
PCB 81—155
)
DAVID R. BLEDSOE, DAN LIGINO,
)
STEVE
LIGINO, and UPPER ROCK
)
ISLAND COUNTY LANDFILL, INC.,
)
)
Respondents.
CONCURRING OPINION
(by B. Forcade):
I disagree with the majority
analysis
of Count VII and
believe the majority impermissibly intertwines Agency permitting
and citizen enforcement.
However,
I reach the same conclusions
as the majority and support the Order.
Citizen’s Count VII claims that underground coal mines and
soil permeability make continued operation of the facility a
violation of Section 12(a) and 12(d)
of the Act, which provides
that no
person
shall:
a.
Cause or threaten or allow the discharge of any
contaminants into the environment in any State so as to
cause or tend to cause water pollution in Illinois,
either alone or in combination with matter
from
other
sources,
or so as to violate regulations or standards
adopted by the Pollution Control Board under this Act;
or
*
*
*
d~,
Deposit any contaminants upon the land
in
such place
and manner so as to create a water pollution hazard;
Water pollution is defined to be:
~‘WATERPOLLUTION”
is such alteration of the
phys~ca1,thermal, chemical, biological or
radioactive properties of any waters of the
State, or such discharge of any contaminant
into any waters of the State,
as will or is
likely to create a nuisance or render such
waters harmful or detrimental or injurious
to public health, safety or welfare, or to
domestic, commercial,
industrial, agricultural,
recreational,
or other legitimate uses, or
to livestock, wild animals, birds,
fish,
or
other aquatic life.
61-185
2
Citizens have not argued in Count VII that the landfill
is ~
causing a problem, but that there is a threat of future pollution.
Therefore, Citizens must prove a threat of (U nuisance, or
(2)
rendering underground waters harmful or detrimental to health,
safety, welfare, or other legitimate uses, including wildlife.
After reviewing Illinois case law on this issue,
I conclude that
(1)
and
(2)
above present identical
standards.
The chief case in Illinois on this issue is The Village of
Wilsonville
V.
SCA Services,
Inc. with opinions from the Supreme
Court
(Ill.
426 N.E.
2d 824;
86
Ill.
2d
1;
1981) and Fourth
District Court of Appeals
(Ill,
396 N.E.
2d 552;
77
Ill. App.
3d
618;
1979). Under the Wilsonville theory, Citizens have to prove,
by a preponderance of the evidence, four elements to prevail on
their Count VII cause of action:
i.
the presence of mining under the landfill.
2.
Subsidence due to undermining.
3.
Landfill liner rupture as a consequence of subsidence.
4.
Movement of Leachate into an area where it may cause
harm.
Citizens introduced evidence on these elements, and I believe the
Board should make specific factual findings as to whether Citizens
have proved them by a preponderance of the evidence.
While the evidence
in this case is not sufficient to remove
all doubt on the issues,
I still believe the Board must make factual
findings according to where the greater weight of the evidence lies.
Preponderance of the evidence does not mean that there is no remain-
ing doubt concerning an issue, only that it is more likely true than
not.
1.
“Preponderance of evidence”
is equivalent to “weight of
evidence” and means that the proof on one side of a
cause outweighs the proof on the other.
Cleveland,
C.,
C.
& St.
L.
Ry. Co. v.
Trimell,
75
Ill. App.
585
(1897).
2.
A preponderance of evidence, however slight,
in favor
of plaintiff,
but by no means removing all doubt,
is
sufficient to justify verdict for plaintiff.
Sears
Roebuck & Co.
v. Winchester Repeating Arms Co., 178
Il..
App.
318
(1913).
3.
The phrase “preponderance of the evidence” means the
greater weight of the evidence, that is to say, such
evidence as, when weighed with evidence which is
offered to oppose
it, has more convincing power in
minds of jurors.
Griffy v. Ellis, 168 N.E.
2d 58,
26
Ill. App.
2d 112
(1960).
61-186
3
4.
Proposition proved by a “preponderance of the evidence”
is one that has been found to he more probably true
than not.
Estate
of
Ragen,
34 Iii.
Dec.
523,
398 N.E.
2d 198,
79 Ill. App.~ 3d 8
(1979).
With these standards in mind,
I would make specific factual
findings on the relevant issues,
For clarity,
I have summarized
the relevant facts supporting my opinion in a Table and map.
UNDERMINING
Visual observations of evidence of mining activity were
given by four witnesses who all identified the same structures
and placed them within the same area on the Bledsoe landfill,
These structures are an old fan of the type used in mine airshafts
and a mine opening or airshaft.
One witness saw the mine opening
in 1920, whereas the other three sitings are more recent and
appeared to be an opening or airshaft in a ridge with the fan
protruding from it (See Table
1).
This evidence is corroborated
by information given in Complaintant’s Exhibit
30, pg.
8.
There are historical records of several active mines in the
area of Hampton Township.
Mines #3 and #6 are of the most interest
because they were so near the landfill.
The locations of mines
#3 and #6
(map M3,
M6) were established from Illinois State
Geological Survey information,
Mine
#6 was located near the
northern edge of the north fill and extended toward the south.
Due to the inaccuracy of the records, available maps may be in
error by as much as
¼—½
Section
(R,
122).
An error of this
magnitude could result in placing the Hampton mine #6 directly
under the north fill and extending southwest to the mine opening
on the landfill.
Several maps show that mining took place primarily
in Sections 15 and 16 with very little in Sections
21 and 22
(R.
124, 144,
154—158, 537,
869, 898,
926—27).
The presence of subsidence is a strong indication of past
mining activity.
Subsidence has occurred
in a 1800 arc sur-
rounding the landfill, beginning east of the landfill and con-
tinuing to the northwest.
There are two types of subsidence
present,
pit
and
sag;
pit in the form of sink holes and sag
in
the form of
large
saucer
indentations..
The
diameter
and
depth
vary
and are summarized
in Table
1.
The strongest evidence presented by Bledsoe against mining
was
(1)
statements by experts that undermining was highly unlikely
in view of historical records and geology,
and
(2) the fact that
none of Bledsoe’s 28 borings encountered voids.
The conclusory
statements by the experts that undermining
is highly unlikely can
hardly refute the direct observational testimony.
The fact that
28 borings did not uncover a mine
(one boring per 5 acres) does
not raise a probability that no undermining exists.
The visual observations by four people of evidence of mining
on the landfill property~corroboration by ISGS records (R.l31—136,
4
138—143,
Comp.
Ex. No. 13), and pervasive subsidences
in the im-
mediate vicinity of the fill require a finding that the Bledsoe
fill
is undermined.
SUBSIDENCE
Undermining say lead to subsidence, however,
it is impossible
to predict when it may occur or the area it will cover
(R. 934).
Subsidences near the Bledsoe property occurred as long ago as
50 years and as recently as six years
(R.
200—220).
The presence
of a horse or tractor has caused subsidence
(R. 457).
Subsidence
has occurred
(38) and there is a reasonable probability that
subsidence will occur on the landfill property
in the near
future.
I find that Citizens have established this element.
LEAKAGE
If the undermining causes subsidence on the landfill property
it will rupture the liner.
This would provide a direct route
for leachate spillage through the subsidence feature.
The leachate
could travel into the mines and pool or move out of the area via
the mine tunnels
(R.
556-60).
Any leachate may be contaminated
with Cadmium,
Barium,
Zinc, and Lead
(Comp.
Ex.
37).
Bledsoe’s witnesses stated that the permeability of the soil
is low enough to prevent the escape of contaminants
(R.
901—910).
While this may be true for long term diffusion of leachate, soil
permeability is not an issue in a rupture—leakage situation.
LEACHATE
MOVEMENT
The last link in the chain of facts which Citizens must
prove is the probability of leachate movement away from the site
into an area where it may cause harm.
The proposed mechanism is that the Pennsylvania strata
(principally shale) containing the coal
is very brittle with a
tendency to fracture.
Large linear cracks develop by differential
compaction or earth movement.
These cracks could provide a
route for leachate to move
(R.
563—65).
Citizens did not provide testimony establishing any specific
aquifer near the landfill,
nor did they provide reasonable
testimony that there is a high probability of leachate movement
to any aquifer or nearby private wells.
Bledsoe provided testimony that subsidence takes place at
the
coal
level
beneath
which
there
is
enough
shale
to
protect
any
underlying
limestone
aquifer
(R.
953—55).
Moreover,
this
shale
is very plastic with a high clay content and the mines are sealed
above and below with shale
(R. 883—40).
Therefore, Citizens has not proven by a preponderance of
evidence that leachate would move away from the mine into an
area where it would cause harm.
61-188
5
TABLE
1
SITE
ID
EVENT
INDIVIDUAL
RECORD
V
27’
deep
well;
vertical
tile
Herschel Cook
200-220
1
believed
to
be
mine
drain
V
tile
outlet
draining
east
to
Herschel
Cook
200-220
2
west;
believed
to
come
from
V1
and
3,
mine
airshaft,
old
fan
John
Gerstner
289
V3
mine
opening
Ramon
Cabry
456
mine opening,
fan
Maurice
Wenk
1068
V4
ridge with protruding fan
Herschel Cook
200—220
V5
large hole into a slope
Herschel Cook
218
V6
mine opening into hill sloping
Ramon Cabry
455
NW
S1
subsidences:
appproximate area
Dale Lundbert
82—83
“2
50 year old subsidence
Herschel Cook
200—220
S3
sink hole, 1973
Herschel Cook
200—220
S4
sink hole, 1951
Herschel Cook
200—220
8’—lO’
deep,
S’—l0~
diameter
S5
sink hole
Herschel Cook
200—220
sink hole
Herschel Cook
200—220
10’ deep,
4’ diameter
S7
large saucer subsidence
Herschel Cook
200—220
small sink hole
Herschel Cook
200-220
39
sink hole
Herschel Cook
200—220
S
subsidence
John
Gerstner
293
10
15’
deep,
20’—30’
diameter
S11
sink
hole
15’
deep;
created
Ramon
Cabry
457
by the weight of a horse
S1~
subsidence; created by the
Ramon Cabry
458
weight of a tractor
~i-1S9
6
Section
15
Section
22
53
$6
$7
VI
I
)brth baffer
~*
Section
16
South bitfer aai~
South birr~
Section
21
SCAlE:
jU
~
4751
V:
Visual
d~ervation
S:
S
iz~en~
or
sink bile
w
61-190
7
PERNITTING V. ENFORCEMENT
The majority,
at page
12
of
the
Opinion
states:
As for permeability of the soil at the site,
Citizens has failed to bring forth any
new
evidence as to permeability testing that was
not before the Agency.
It simply disputes the
prior test results,
Citizens has failed to
meet its burden of proof as to this issue.
Other portions of the Opinion consistently reference whether Citizens’
evidence was or was not before the Agency at the time the Agency
decided to permit the Bledsoe fill.
Without explanation, this
implies that Citizens had some burden to supply new evidence not
before the Agency.
In Landfill Inc.
v.
IPCB,
Ill.
387 N.E.
2d
258,
1978,
the
Supreme Court denied citizen appeals of Agency permit grants holding
that the appropriate remedy for citizens aggrieved by Agency permit
grants was to file an enforcement proceeding against the permittee
claiming threatened pollution:
Section 31(b) authorizes citizen complaints
against alleged violators of the Act, any
Board rule or regulation, or Agency permit;
it requires the Board to hold a hearing on
all such complaints which are not “duplicitous
or frivolous”
(Ill.
Rev.
Stat.
1975,
oh 111½,
par. 1031(b)).
At that hearing, the complain-
ant
bears
the
burden
of
showing
actual
or
threatened
pollution
or
actual
or
threatened
violations
of
any provisions of the Act, rules,
regulations,
or
permits.
(Ill.
Rev.
Stat.
1975,
ch.
111½, par. 1031(c).)
The grant of a permit
does not insulate violators of the Act or give
them a license to pollute; however,
a citizen’s
statutory remedy is
a new complaint against
the polluter, not an action before the Board
challenging the Agency’s performance of its
statutory duties
in issuing a permit.
As
the principal draftsman of the Act has
noted,
“One receiving a permit for an activty
that allegedly violates the law can be charged
with causing or threatening to cause such a
violation in a citizen complaint under sec-
tion 31(b), and the regulations expressly
provide that the existence of a permit is no
defense to such a complaint.”
(Emphasis
added.)
Currie, Enforcement Under Illinois
Pollution
Law,
7ONw.U.L.Rev.
889,
478
(1975).
f;~l.1
~i
8
Any
determination
by
this
Board
that
Bledsoe’s
permit
is
some
level of proof that pollution will not occur makes that permit a
partial defense to the Complaint in violation of
~~11L
Inc.
To the extent the majority so holds,
I disagree.
Board Member
I, Dorothy
M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Concurring Opinion was
submitted
on
the
~
day of
-~-~‘
,
1984,
~
~h
Dorothy
M. /Gunn,
Clerk
Illinois Pollution Control Board
61-192