ILLINOIS POLLUTION CONTROL BOARD
August
26, 1982
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
Complainant,
)
V.
)
PCB 81—98
~qASTELAND,INC., an Illinois
Corporation, VERNON LAMOREAUX,
)
DENNIS LAMOREAUX, ROGER PEMBLE,
)
and WASTE RESOURCES CORPORATION,
an Illinois Corporation,
)
Respondents.
MR. GERHARDT BRAECKEL, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF
OF THE ENVIRONMENTAL PROTECTION AGENCY;
MR. BRIAN O’HARA,
ARNOLD AND KADJAN, APPEARED ON BEHALF OF RESPONDENTS WASTELAND,
VERNON LAMOREAUX AND ROGER PEMBLE.
OPINION AND ORDER OF THE BOARD (by J.D. Dumelle):
This matter comes before the Board upon a complaint filed
on June 12, 1981 by the Illinois Environmental Protection Agency
(Agency)
as amended on November 17, 1981.
Thirteen days of
hearing were held commencing on January 6 and ending on March
9,
1982 at which the parties, other than Vernon Lamoreaux and Waste
Resources Corporation, and several members of the public were
present.
The Agency filed its closing brief on June
11,
1982.
Respondents filed their closing brief on July 22,
1982 and the
Agency filed its reply brief on July 30, 1982 along with a motion
for expedited decision, which motion is hereby granted.
This case involves the operation of a landfill
(Permit No.
1976—13--DE and OP:
hereinafter “the landfill”) which is not
allowed to accept putrescible, combustible or flammable general
refuse, and a cardboard and paper “recycling0 operation (herein-
after “the paper site”) located near the landfill
in Will County
near Lockport,
Illinois,
for which application for permit was
made and denied,
Both sites are bordered to the west by railroad
tracks and to the east by Route 171 and are separated by a dis-
tance of approximately 1000 feet (see Compi.
Ex. 124).
The complaint is divided into eleven counts alleging both
permit and operating requirement violations.
These counts are
summarized below:
Count
I:
Operation without a permit from June
1,
1980
through October 19,
1980 in violation of Rule 202(a)
of Chapter
7:
Solid Waste, and Section 21(d) of the Environmental Protection
Act
(Act);
48-01
—2—
Count II:
Acceptance and disposal of unpermitted refuse
from October 20, 1980 and continuing through the date of final
hearing in violation of Solid Waste RuleS 210,
301 and 302 and
Section 21(d) of the Act;
Count III:
Volume violations during the same period and
in violation of the same Rules and Section of the Act as Count II,
above;
Count IV:
Daily cover violations during the same period
in violation of Rules
210*,
301,
302 and 305(a) and Sections
21(a)
and
(d) of the Act;
Count V:
Modification of the landfill without a permit from
February 27,
1981 through the date of hearing in violation of
Rules 210,
301 and 302 and Section 21(d) of the
Act;
Count VI:
Leachate discharge from October 20,
1980 through
the final date of hearing in
violation
of Rules 210,
301,
302,
313,
314(e) and 315 and Section 21(d) of the Act;
Count VII:
Scavenging at both sites during the same period
of time in violation of Ruie3 210,
301,
302,
307 and 308 and
Sections 21(a)
and
(d) of the Act;
Count VIII:
Roads and dust control during the same period
in violation of Rules 301,
314(b),
(f) and
(g) and Section 21(d)
of the Act;
Count IX:
Disposal at the Paper Recovery Site from November
1,
1980 until the date of final hearing in violation of Rules 210,
301 and 302 and Section
21(d)
of the Act;
Count X:
Disposal of fire debris from May
4,
1981 through
the date of final hearing in violation of Rules 210,
301 and 302
and Sections 21(a),
(d) and
(e) of the Act;
and
Count XI:
Open burning from November
1,
1980 through the
date of final hearing in violation of Rule 502(a) of Chapter 2:
Air Pollution,
Rules
210,
301, 302 and 311 and Sections 9(a)
and
(c) and 21(a) and
(d) of the Act.
PRELIMINARY MATTERS
In its closing argument the Agency moved to dismiss Dennis
Lamoreaux (due to its inability to complete service upon him
prior to hearing) and to strike and dismiss Count X.
There
being no objection to those motions, they are granted and Dennis
Lamoreaux and Count X are hereby dismissed without prejudice.
*All Rules cited refer to Chapter
7:
Solid Waste, unless othei~Ise
indicated.
48-02
—3—
Waste Resources Corporation,
though properly served,
failed
to appear at hearing and is hereby held in default pursuant to
Section 103.220 of the Board’s Procedural
Rules.
A motion to dismiss Vernon Lamoreaux was made orally at hear-
ing on July 6,
1982
(R. 6-8),
and shortly thereafter was filed
with the Board.
By Order of July 21, 1982, that motion was denied.
However,
he continues to argue that he is not an owner of the sub-
ject properties and, therefore, cannot be held liable
for any of
the alleged violations.
Lamoreaux contends that if he were an owner that he would
also have appeared as lessor for the landfill and the paper site
but that his son,
Dennis Lamoreaux appears as lessor of the land-
fill
(Compl.
Ex.
3) and the Bank of Lyons as Trustee under Trust
Number 2478 appears as lessor for the paper site
(Compi.
Ex.
30).
He contends further that he has no legally vested interest in the
title to either property in that his son owns the entire beneficial
interest (Compl.
Ex.
3).
Finally, he has visited the property only
twice since Wasteland,
Inc.
leased it, and he argues,
therefore,
that he had no control over the other respondents
(Compl.
Ex.
167,
pp.
31 and 39).
On the other hand, the Agency contends that Vernon Lamoreaux
is either the owner in fact or is estopped from denying his owner-
ship.
Roger Pemble, the operator of both sites, was under the
impression that Vernon Lamoreaux was the owner
(Reg. to Admit,
#6), he is listed as landowner in the original application for
permit
(First Am. Compi.
Ex.
F,
p.
2), has been named as one of
the permit holders since the permit was issued (First Am. Compi.
Ex’s.
A—E),
requested and obtained a transfer of the permit to
Roger Pemble while purporting to be the landowner
(First Am.
Compl.
Ex.
E and Compi.
Ex.
167,
p.
34), has received one half
the rent for the landfill and all of the rent for the paper
site (Compl. Ex.
167, pp.
18—19
and R.
1483—1485).
Under all the facts of this case,
the Board
finds that
Vernon Lamoreaux does stand in such a relationship to the sub-
ject properties that “it is reasonable to expect him to exercise
control to prevent pollution”
(EPA v.
James McHugh Construction
Company,
PCB 71—29, May 17, 1972,
4 PCB 511).
Vernon Lamoreaux
held himself out as owner of both properties to both Roger
Pernble
and the Agency and will be treated as such.
In addition to the evidence cited by the Agency, he testi-
fied that he had discussions with Pemble about the landfill site
in July of 1981
(Compl.
Ex.
167, pp.
40—41).
He “told him he
better go according to Hoyle or...he’d
get
his
double barrel”
(Compl.
Ex. 167, pp. 41-42).
He also discussed operations with
his son and told him “to check it out for me”
(Compi.
Ex.
167,
pp. 42).
Finally, regarding the ownership of the land he stated
“It’s always been in my possession,
I guess,
until
I put it
in a
trust.
But
I still
leased out the land and whatever I wanted to
do with it.
I don’t think Roger even knew I had it in
a trust,..
I’ve always done this before.
I guess I’ve always had it in a
trust.”
(Compi.
Ex.
167, p.45).
48-03
—4—
COUNT
I
Count
I charges Roger Pemble and Wasteland,
Inc. with operat-
ing the landfill without a permit prior to October 20,
1980 when
the Agency granted a transfer of Permit No.
1976-13—OP to Roger
Pemble.
Vernon Lamoreaux is charged with allowing Roger Pemble
and Wasteland,
Inc. to operate the landfill before the permit
was transferred.
It is not disputed that the transfer of the landfill oper-
ating permit was not granted until October 20,
1980
(Admission
No.4, First An. Compi.
Ex,
E).
However,
Roger Pemble leased the
landfill on May 27,
1980
(Compi.
Ex,
3).
According to Respondents
Answer to Interrogatory No.
7,
a clean-up operation of the land-
fill
site began May of 1980 and refuse collection and acceptance
did not begin until August of 1980.
However, Jeff Stofferahn,
an Agency field inspector, first inspected the landfill site on
July 18, 1980 (Compi.
Ex.
11, pp. 369—370) where he met with
Ed Kanive, secretary-treasurer of the landfill, who told him
that Wasteland was cleaning up the old operation and accepting
a few loads of demolition waste and landscape refuse.
Stofferahn
informed Kanive that they could not accept refuse at the site
until the permit was transferred to Wasteland.
During an inspection of the landfill on August 11,
1980
(371,
375, CX12), Stofferahn spoke with Roger Pemble who identified him-
self as the manager,
Ed Kanive as one of the owners of Wasteland,
and Vernon Lamoreaux as the owner of the land (Compi.
Ex.
12, pp.
371 and 375),
Stofferahn observed little change
in the site, but
Pemble said they were cleaning it up and currently were receiving
only a few loads of demolition refuse per day.
The early cash receipts records kept by Ed Kanive show that
Wasteland received at least $20,000 for the refuse dumped in the
landfill before October 20,
1980 the day the permit transfer was
granted
(Compi.
Ex.
162,
pp. 1472—1473),
Also between August 22,
1980 and October 19, 1980, Wasteland, without a permit (Resps.
Adm.
No.
13) accepted or disposed of refuse at the landfill on
a daily basis
(Compl,
Ex.
5, Interrog.
No.
31).
The site was also in operation September 16,
1980
(Compl.
Ex,
13),
at which time Stofferahn observed a large pile of exposed
film,
cardboard and paper from Kodak at the filiface
(661,
CX13)
which he had not observed on previous inspections
(Compl.
Ex.
16
and R.
661).
He did not observe the Kodak material itself being
covered
(R. 663), but did observe a bulldozer spreading and
compacting refuse at the fill face
(Compl.
Ex.
13).
Respondents argue that they acted in good faith in that
operations prior to permit transference were largely clean—up
operations, that they were unaware that a permit transfer was
needed and that they applied for one as soon as they were informed
one was needed
(R.
1647, Compl,
Ex, 12 and 162),
However, these
facts, even if proven
do not rebut the violation,
48-04
—5—
The Board, therefore,
finds that Respondents operated the
landfill without a permit from June
1,
1980 through October
19,
1980 in violation of Rule 202(a) and Section
21(d) of the Act.
COUNT
II
This Count II charges that Roger Pemble and Wasteland,
Inc.,
accepted and disposed of putrescrible, combustible or
flammable refuse at the landfill in violation of the restrictions
of Permit No,
1976—13-OP and that Vernon Lamoreaux allowed it.
The text of the permit letter itself states as follows:
Permit is hereby granted...to operate a solid waste
disposal site consisting of 9.26 acres.. ,to handle brick,
concrete, pavement,
glass, clay, tile, ceramics,
cement and other non—putrescible, non—combustible
solid waste, excluding all flammable general refuse,
all liquids and hazardous waste, unless otherwise
authorized by supplemental permit... (First Am.
Compl.
Ex.
D).
Thomas Cavanaugh, Manager of the Residuals Management
Section of the Agency’s Division of Land and Noise Pollution
Control, testified that organic materials and materials capable
of supporting combustion were excluded from the site by the
permit.
Among the prohibited wastes were paper, cardboard,
garbage, plastic and landscape wastes,
(R.
1026), and Pemble
was aware of that
(R.
1709).
“Disposal” as defined in relevant part by Section 3(e)
of the Act is:
the discharge, deposit,
injection,
dumping,
spilling,
leaking or placing of any waste into or on any land
or water so that such waste may enter the environment
or be emitted into the air or discharged into any
waters including ground waters.
The disposal of Pielet material at the landfill
is not
really disputed.
Large quantities of Pielet material were
disposed of on the landfill between October, 1980 and July,
1981.
The Pielet material was composed of commonly known combustible
materials.
Thomas Barnett, who hauled in the Pielet material
for three months, testified that it was shredded auto interiors
(11—12).
Pemble told the Will County inspectors, Vollmer
(R.
945
and Glasgow (1296), that the Pielet material was non—ferric auto
waste,
and he explained to Glasgow that Pielet Bros. crushed
and shredded automobiles and then separated the ferric parts
from
the non—ferric
(R.
1296),
Stofferahn described the Pielet
material as consisting of ground up pieces of foam rubber and
cloth-like material such as would be found in auto seats and
pieces of rubber and plastic such as rubber hoses
found in autos
(R. 551).
Barnett said some of the rubber heater hoses had
metal wire inside them
(R.
11—12),
Glasgow also recognized spark
plug wires and radiator hoses
(R.
1296).
—6—
Moreover Pemble admitted that the landfill was not allowed
to take combustible materials such as the Pielet material, during
a compliance conference held by the Will County Health Department
on July 1, 1981
(R.
1300—1301),
Also on July 15,
1981 Glasgow observed smoke coming from an
area where the Pielet material was piled up and he noted that
the smoke smelled “like the smell you would get if you are burning
something like Pielet Bros. material,
like plastics or rubber
(R.
1336—1442).
The issue of disposal of paper and cardboard is
disputed.
Pemble claimed that all of the paper and cardboard
dumped at the landfill was removed and taken to the paper erco—
very site
(R. 1652—1654 and 1735—1736).
Even the person in
charge of applying cover to the landfill since July 1981,
Tom
Barnett, who is also Roger Pemble’s brother-in—law, testified
that paper and cardboard were the predominant types of refuse
which were regularly buried on the site
(R.. 20_38*).
Moreover,
Stofferahn and Glasgow visited the landfill site frequently and
at various times of the day and yet never observed any machinery
loading paper or cardboard into drop boxes
(R.
1001,
1314—13—16).
The following is a summary of observations made of materials
accepted at the landfill.
Date
Citations
Observations
10/23/80
Compl.
Ex.
14
Refuse at fill/face primarily
R.
412-414
cardboard paper,
scrap wood,
Gypsum board.
Pielet material
used as cover.
11/26/80
R. 825—830,
Paper, cardboard and wood
936—938
observed on landfill.
12/1/80
R.
830—833,
Paper and cardboard being
938—940 and
compacted and covered.
-
Fill
Compl. Ex.
15.
face of 80x35 yd. consists
mostly of wood, paper, and
cardboard and being covered
by Pielet material.
12/2/80
R.
834
Paper and cardboard being
accepted.
12/23/80
R.
840—847,
Cardboard and loose papers
943—946 and
being covered with Pielet
Compl.
Ex.
72
material.
1/5/81
Compl.
Ex.
16
Same as 12/23/80
*
The transcript of the second day of hearing begins on page
1.
Thereafter all transcripts are numbered consecutively.
Unless
otherwise noted, transcript numbers will ~refer to Volumes II-XIII.
48-06
—7—
1/21/81
R.
851—857 and
Paper,
cardboard, wood, plastic
Compl.
Ex, 73—78
bags,
and household refuse
on site.
2/3/81
R.
415—416 and
Six or
seven
loads of paper and
Compl.
Ex.
17
cardboard spread and covered
with Pielet material.
2/5/81
R,
864—867
& Compi. Cardboard,
paper,
plastic and
Exs.
82-86
fiberboard barrels, wood and
two 55-gallon metal drums.
3/5/81
R. 878—879 and
Cardboard,
paper, plastic,
Compi.
Exs,
87—89
tire, plastic bags, cardboard
tubes and a semi—liquid material.
3/11/81
R.
420 and Compl.
Nearly all of fill face composed
Ex. 18
of unpermitted material;
30 yds.
x 20 yds~x
1 foot
compacted,
15 yds.
x 30 yds.
x
2
ft. uncompacted.
3/27/81
Compl.
Ex,
19
684 cubic yds~accepted
(excluding Pielet material)
nearly all paper, cardboard,
wood and cellophane.
4/9/81
R.
487—489
Pielet material,
paper, tar
paper.
4/28/81
R.
422—423 and
Fill face mostly paper, card—
Compl.
Ex.
21
board,
landscape refuse and
tires.
5/15/81
Compi.
Ex.
23
Cardboard,
paper and wood
deposited at fill face.
5/22/81
Compi.
Ex.
24
Same as 5/15/81 plus plastic
and metal.
6/2/81
R.
424—425 and
Covering plastic, paper,
Compi.
Ex.
25
cardboard and wood; other
unpermitted refuse visible.
6/18/81
R.
427—432 and
Wood,
landscape waste,
card—
Compi.
Ex,
31
board, paper, household refuse,
fly ash appearing substance,
Pielet material, dead dog.
7/1/81
R.
1288—1297 and
Paper,
cardboard, wood, plastic
1396—1400,
Compl.
barrel partially covered with
Exs.
127—130
Pielet material, some clay
cover,
Pielet refuse covered
area of 125—150 yds.
48-07
—8-
7/10/81
R.
436
and
Vocà
La’t&t.
r
nf’ase,
tires
Compl.
~.
32
and
qarbtge
wxad
~n6
partially
buri,d
7/23/81
R.
437—438
Tile,
eacTho:ta,
Landscape
refuse,
p.abt..l’
and
wood
being cc*pacced.
8/12/81
R. 438—449 and
Wood,
paper, -;ariboard,
Campl. Ex.
34
plastic., landscape waste
and
Pielet uc.terial both being
ccmpactM
~,,
cenerally strewn
over area.
8/21/81
R. 452—453
and
Asphalt rcofisq
wood,
tires,
Compl. Ex. 35
plastic
and
paper was majority
of refuse being
dumped.
Card-
board
and
carpeting exposed.
8/21/81
R.
890—891
and
Smoke
troa
uaA~rground
fire.
965—973
9/1/81
R. 455—457 and
Domestic garbage, paper,
Compl. Ix.
36
cardboard,
landscape waste
and tires.
9/9/81
Compi. Ix. 37
Most refuse being dumped was
paper,
cardboard, wood,
plastic and tires.
9/15/81
R. 458 and Compi.
60
of fil!
face visible and
Ix. 38
none .,onsisted
0±
permitted
material.
Plastic,
wood
and
cardboard.
9/16/81
R. 491—496
and
Much of fill face
cardboard,
Compl. Ix. 39
paper, domestic refuse,
garbage, plastic,
some
fibrous material.
10/7/81
R. 459—460 and
625 cubic yds. of cardboard,
campl. Ix. 40
paper, ‘tad, garbage, various
metal and plastic items,
some ink-shredded paper mix.
10/15/81
R. 1311—1314 and
Bales of paper
and
garbage
Camp. Exs.
131—133
broken up and compacted.
Paper and cardboard partially
covered.
10/21/81
R. 466—469 and
Fill face 65
paper
and
cardboard,
compi. Ix.
41
15
plastic, 15
wood, 5
tires,
4848
—9.-
munic:~p~3.
Cc~:~
raper
and
ink
mix.
~
~
280
oub~~c
yd:~
~
~1eihle.
other
slrrL
1. ~
cc
on
site
plus
ca~
~oi
like.
material
11/3/81
R.
474—475 and
Fill
face
1~”i~uper
~nd
card—
Compl.
Ex.
42
board,
4Th
munio~p:L
refuse,
20
wood,
n:~r~
c~o~
Total
of 1800
c~’nio
‘d~
Refuse
exposed
t~ ~Y~h
cc”?er,
Similar observations were made on
NovemheI
~
1’~8i(Compl.
Ex.
43); December
18
and
15,
1981
(R.
i323~~1332~d
~o!Ppl.
Exs,
135,
136, 141 and 142); January 2,
1982
(R.
~
~69~970
and Compl.
Exs. 106~’ii0);February 10,
1i~ a.ric’~32
~R.
922—
924);
and February 15 and 17,
1982
(R.
1348~~
~
1429
and Compi.
Exs. 144,
145, and 157—160),
On
~ebrnary
2L
1982
a black, watery,
sludge-like material
was
being
dumped
on
part
of the western slope of the landfill and the
~1ope.
condition
remained unchanged through March
2, 1982
(R.
i3~5~1~E~
1369
and
Compl.
Ex.
144).
Respondents contend that the allegations
of
thIs
Count
remain unproven,
that
observation
reports
should
not
have
been
admitted
as
evidence,
that
Pielet
material
has
not
teen
shown
to
be
combustible
and
that
paper
and
cardhoarö
~oi o
~eparated
out
from
other
materials,
However,
none
of
theso
urguments
are
meritorious.
First,
the
observation reports were properly admitted.
They were established
to
be
business records7 the persons most
responsible for their preparation were
avail~’,hio et
hearing,
and there is considerable testimony aside from t~iereports
themselves which establish the same facts.
Secciio, Plelet
material is composed of
material
commonly
known to
he
combus-
tible and has been found by the Board to he
~‘easi:iy
ianitahie~
(IEPA v. Pielet Bros. Trading, PCB 80-185~
44
PCB
22.
~)ccember17,
1981).
Third, while the respondents argue thot ~i rercent of
the
cardboard and paper is separated out, even accep~irigthat
figure,
20 percent remains,
Further,
as
noted
earlier~Barnett, who
worked the site
testified
that
cardboard
and paper were the pre-
dominant waste
buried
in
the
cells
(R.
38).
Finaliy~
Respondents
do
not
even
attempt
to argue that unpermitted wastes other
than
Pielet material, paper and cardboard were not buried on the site.
Therefore,
the
Board
finds
that
the
Agency
has
proven
that
Respondents
Wasteland,
Inc.,
Vernon
Lamoreaux and Roger Pemble
violated Rules 210,
301 and 302 and Section 21(d~of the Act
by accepting and disposing
of
unpermitted
wastes
48-09
—10—
COUNT III
In Count III Complainant alleges that Respondents accepted
more than the permitted volume of refuse at the landfill.
Com-
plainant argues that the landfill could not lawfully accept more
than 500 cubic
yards per day, 3,000 cubic yards per week or
156,000 cubic yards per year.
Those figures are based on the
response to Part V—A, No.
30 of the 1976 application which asks
for the estimated quantity to be handled.
Volume is normally
to be estimated by the number of trucks received.
Where
an estimated number is requested in a permit applica-
tion,
and where it is not otherwise made clear that such an
estimated number will be binding as a legally enforceable
limitation,
the
Board
will not find a violation absent proof of
a gross exceedence of the estimate.
In
this
case
there
is
proof,
by
way
of
admissions
and
esti-
mated
volumes
at
the
fill
face,
of
up
to
600 cubic
yards per day
received
(R.
922—924 and Compi.
Exs.
16,
18,
19 and 40).
However,
the Board does not find these to be gross exceedences and will
not find a violation based upon them.
On the other hand,
in
response to Interrogatory 52, Respondents admitted to weekly
receipts averaging over 10,000 cubic yards for the period of
July 13,
1981 to October 17,
1982 which is more than three times
that allowed
(Compi.
Ex.
5).
The least amount accepted during
that period was 8,672 cubic
yards per week and the maximum was
12,267.
While Respondents argue that much of this was sent to
Waste Resources for recycling, that is irrelevant to finding a
violation in that such material must, at least, be considered
to have been handled in some way,
Therefore,
the Board finds that Respondents have violated
Rules 210,
301 and 302 and Section 21(d)
of the Act from July 13
to October
17, 1981.
COUNT IV
Count IV alleges that Respondents Roger Pemble and Waste—
land1lnc.
failed to provide adequate daily cover.
Rule 305(A)
requi.res at least
6 inches of suitable material to be placed on
all exposed refuse at the end of the operating day.
The purpose
of this is to prevent the transmission of water and, when com-
bustible materials are present, to minimize the possibility of
fire.
Although argued by Respondents it is not generally
necessary to measure the depth of the cover:
clearly,
if refuse
can be seen exposed through the cover,
the cover is inadequate
to fulfill its function.
The following summarizes evidence relating to inadequate
cover:
48-10
—11—
Date
Citation
Observations
10/23/80
Compl.
Ex.
14
Most of northern half of site
covered with Pielet material.
11/26/80
R.
825—830 and
Uncovered fill
face.
Problems
936—938
with equipment.
12/1/80 and
R.
669—671,
No cover except for Pielet
12/2/80
830—834,
and
material,
Equipment not
Compl.
Ex.
15
working.
Inspection early
on the first,
late on the second.
2/26/81
Compl.
Exs.
63
Large quantities
of exposed
and 64
refuse prior to opening and
on Sunday.
3/11/81
R.
418 and Compl.
60 x
25 yd.
area covered with
Ex.
18
Pjelet material at 10:40 a.m.
3/27/81
R.
418—422,
741,
Almost entire site covered
Compl.
Exs.
17
with Pielet material.
and 19
4/9/81
R.
487—489 and
After permitted hours,
Pielet
Compl.
Ex.
20
material, paper and tar paper
uncovered.
4/28/81
Compl.
Ex.
21
Half of filled area covered
with Pielet material,
5/13/81
Compl.
Ex,
23
Refuse exposed through clay
cover on southern portion of
site.
‘Remainder covered with Pielet
material.
5/22/81
Compi.
Ex.
24
Same as 5/13/81.
6/2/81
R.
426 and Compl.
Refuse exposed thorugh cover
Ex.
25
on 40 x 20 yd.
area covered with
Pielet material.
Exposed
refuse on northwestern edge.
6/18/81
R.
430—431 and
Refuse exposed through day on
Ex.
31
northwestern portion of site
(fill face southern portion).
Pielet material uncovered
in western area;
large exposed
areas.
7/1/81
R.
1289—1293,
Northern half clay covered.
1396—1398,
Compl.
Southern half covered with
Exs.
128 and 130
Pielet material,
48-11
—12—
8/12/81
R.
440—449 and
Inadequate cover
in non—
Compl.
Ex.
34
working areas deposited
previous day.
8/24/81
R.
453 and Compl.
Refuse protruding
through
Ex.
35
cover.
9/1/81
R. 456—457,
Covering refuse from previous
760—753 and
day.
Compl.
Ex.
36
10/21/81
R.
469
and
Compl.
Uncovered
refuse
in
non-
Ex.
41
working
area,
11/3/81
R.
474, 475,
1800 cubic yd.
fill
face.
Compl.
Ex.
42
Previous
day
slope
admitted
uncovered.
35
x
15
yd.
area
previously deposited uncovered
prior to beginning operation.
Refuse observed through cover
over 70 x 140 yd. area.
11/24/81
Compl.
Ex.
43
Pemble admitted unable to
cover previous night.
Entire
east half of site showed
exposed refuse.
12/14,
15/81
R.
1323—1332,
Area uncovered at 4:30 p.m.,
Compi.
Ex. 135,
midnight and 8:00 a.m.
136,
141 and 142
Inadequately covered at 2:00 p.m.
2/10—12/82
R. 922—924
Mound
3 x 15 yds. running
length of site not completely
covered over
3 day period.
2/17/82
R.
1350—1354,
Western slope uncovered for
Compi.
Exs. 144,
3 or
4 weeks.
145 and 160
Respondents rebut this testimony by arguing that the cited
inspection reports fail to show that Pielet Bros. material was
used as cover,
apparently because of the timing of the observa-
tions.
The assumption required to reach that conclusion is that
at some time after the inspection and before ceasing operations,
the Pielet material was covered with clay.
However,
the reports
contain admissions as to failure to cover,
show that specified
areas remained uncovered for longer than a day, covered large
areas of the site which could not have been covered in a timely
fashion and show other evidence which can only be discounted
if irrational assumptions are made about the operation of the
site.
Therefore,
the Board finds that Respondents have violated
Rules 210,
301,
302 and 305(A)
and Sections 21(a)
and
(d)
of
the Act.
48-12
—13—
COUNT V
In Count V the Agency alleges that Respondents modified the
operation of the landfill without a supplemental permit by includ-
ing recycling and salvage operations which had been specifically
excluded from Permit 1976—13—OP
(see First ML. Compi.
Ex,
F,
p.6, Compi.
Exs.
29 and 123).
On November 1,
1980 Wasteland,
Inc.
leased a piece of property
(the paper site) from Bank of Lyons Trust No. 2478
(Compl.
Ex.
5,
Interrog.
6 and Compl.
Ex.
30) which is about one thousand feet
south of the landfill,
The operators of the landfill constructed
a building for paper recovery on the site and collected
materials at the landfill for deposit at the paper site from
about February 5, 1981 through at least June 12, 1981
(see Admis-
sions
28,
30 and 34),
Neither the property nor the building
were permitted (Mm.
25 and 26).
Roger Pemble testified that beginning in September or October
of 1980 he had begun recycling paper and cardboard which he
originally took to another company and then later took to the paper
site
(R. 1648—1650).
When a truck came to the landfill, if it
was composed mostly of paper and cardboard it would be sent
directly to the paper site.
If not, it would be dumped at the
landfill and the cardboard would supposedly be separated and sent
to the paper site
(R.
1652).
Wasteland would charge all trucks
for delivery whether they were directed to the paper site or
they dumped at the landfill, thus charging for disposal and
profiting on recycling
(R.
1654—1655),
On February 27,
1981 Waste Resources Corp. was formed by
Roger Peinbie and Ed Kanive
(R.
100 and Compl,
Ex. 10).
Pemble
became the general manager of both the landfill and the paper site,
received a salary from Wasteland only and paid for the paper site
building with his own funds with
art agreement that Wasteland or
Waste Resources would reimburse him.
Waste Resources does not pay
Wasteland for cardboard received, Wasteland has paid some of Waste
Resource’s bills, and the baler at the paper site is owned by
Wasteland
(R. 1490, 1505 and 1548).
However, Waste Resources does
have separate account records and has paid separate rent for its
property
(R. 1482—1484),
Regardless of the corporate interrelationship of Wasteland
and Waste Resources, Wasteland has clearly altered its operation
from that which was permitted.
Its acceptance of paper and card-
board, whether or not directed to Waste Resources, was improper
under its permit.
Since no supplemental permit was obtained,
Respondents have been shown to have violated Rules 210, 301 and
302 and Section 21(d) of the Act.
COUNT VI
Count VI concerns causing, threatening or allowing the
discharge of contaminants into the environment so as to cause
48-13
—14—
pollution.
By its terms the landfill was to be operated in
accordance with
the
application
which included a berm and ditch
system surrounding the landfill
(First Am. Compi.
Exs.
D and F).
Observations
by
Jeffry
Stofferahn,
an Agency inspector
are
summarized
below~
Date
Citation
Observations
6/2/81
R.
425,
743~
Leachate
pond
between
RR
746 and Compi.
tracks and western edge of
Ex,
25
landfill,
6/18/81
R.
431~~434,752—
Exposed refuse on western
& 7/10/81
753, Compl.
part of landfill near ponded
Exs.
31
and
32
water and leachate.
Refuse
in
pond
south
of
landfill.
Sewage odor,
7/23/81
Compl.
Ex,
33
Some clay placed over western
leachate
but
emerging
in
low
spots.
Refuse
in
southern
pond and leachate entering.
7/31/81
Compl.
Ex.
34
Southern
pond
water
draining
slowly
under
RR
tracks
toward
I and M canal.
Leachate and
refuse
in northern
part
of
pond.
8/12/81
R.
440~~452,
Southern pond still draining.
757~~759and
Compl.
Ex.
34
9/1/81
Compl.
Ex.
37
Refuse
along
pond being covered
with
clay
but
not
removed,
9/15/81
Compl,
Ex,
38
Pemble admits some refuse in
pond
due
to
landfill,
Stofferahn
says
most
was.
10/21/81
Comp..
Ex.
41
Refuse
still in pond
with
leachate.
Leachate is defined by Rule 104(1) as ~iiquid containing
materials
removed
from
solid
waste,~’
Materials
such
as
paper,
cardboard
and
garbage
will
cause
leachate
formation
(R.
1027-1028),
whereas non—putrescible
and
non—combustible
wastes
will
generally
not
cause leachate problems
(R. 1080~1081),
Since the landfill was not
allowed to handle leachate forming wastes,
its permit did
not
require measures to prevent such formation or to monitor for it,
such as clay liners and monitoring wells
(R.. 1053~1054).
Clearly, Respondents have not taken steps to protect against
leachate formation.
The permit plans do not indicate the placement
of any clay liner to contain leachate and
the
visible
layering
48-14
—15—
of the western slope of the landfill shows that no liner exists
there
(Compi.
Exs.
31, 35 and 42).
Further, as noted above,
seepage has been observed from the western
and southern sides
of the landfill which would not occur if an effective liner were
in place.
As Cavanagh pointed out, in order to c9ntrol leachate a ten
foot thick liner with a permeability of 10
cm/second or less
should be placed on the bottom or around
the
sides of the landfill
(R.
1028—1030).
He stated that “by having soils of sufficient low
permeability and sufficient thickness
you can
have proper clay con-
tent, and
you
can mitigate the problem of leachate flow”
(R
1029—
1030).
Instead of this, materials at the landfill were simply
depos-
ited without any protective barriers.
Even worse, the landfill
is
located in an area of exposed bedrock, and the limestone barriers
clearly indicate that there is little of no natural barrier to
leachate transmission (see
R.
409—410, 1394—1395, Compl.
Exs,
13,
29 and 123).
Leachate observations were also made at the paper site:
Date
Citation
Observations
8/17/81.
R.
521,
and
Bales
of paper and cardboard
Compl.
Ex.
46
in or near standing water.
Leachate in NW corner.
8/24/81
R. 539 and Compl.
Leachate on southside of
Ex.
47
site.
9/1/81
Compi. Ex.
49
Leachate on northern part of
site.
Bales in standing water.
9/9/81
R. 557—559 and
Leachate at five places.
Compi.
Ex. 50
Bales in standing water.
9/22/81
R.
570—573 and
Slight leakage from barrels.
Coinpl.
Ex.
53
10/7/81
Compi.
Ex.
54
Leachate at several spots.
Bales in ponded water.
10/28/81
Compi.
Ex. 55
Bales and leachate in ponded
water.
11/24/81
R. 578—579 and
Orangish and greenish water.
Compl.
Ex.
56
12/17/81
R. 581 and
Greenish water.
Pielet
805—806
material in contact with
water.
48-15
—16--
Respondents argue that rules 313, 314(e) and 315 do not apply
to either site and that no leachate problem has been proven.
If the definition of Section 3 of the Act is read literally,
Respondents would be correct in their assertion that neither site
is a sanitary landfill, since both have created a nuisance and
nuisances are excluded from the definition of sanitary landfills.
However, the alternative would be for the sites to be considered
open dumps.
Certainly both sites “consolidate refuse from one or
more sources” and “deposit” it “into or on land”
(see Section
3
of the Act,
definitions of
“Open
Dumping,” “Refuse,” “Disposal”
and “Site”).
Despite the literal
language of the cited rules, the Board
has often held that the sanitary landfill rules are applicable
to sites which should be operated in conformity with those rules
in order to avoid pollution problems.
Thus, even if a facility
is unpermitted it may be held subject to those rules, and if
it
creates a nuisance, there is even greater reason to
subject it
to those requirements.
Respondents further argue that the paper site is exempt from
such requirements in that no permit is required for recycling.
However, even
if
a site is involved in recycling,
if it
also
carries on disposal operations,
a permit is necessary.
As
will
be shown in the discussion of Count IX, disposal operations have
been carried on at the paper site and the site, therefore,
requires a permit.
Finally,
Respondents argue that the Agency “clearly failed
to establish any leachate problem.”
This argument is apparently
premised upon the
failure to establish any environmental harm
or that the substances described as leachate in the evidence were
in fact leachate.
They point to the testimony of Michael Rapps
that leachate cannot always be determined by visual observation
and that its presence will not necessarily cause environmental
harm
(R.
1603).
This argument overlooks the fact that the alleged violations
can be proven by operations which threaten to cause environmental
harm.
Regardless of whether leachate has actually been generated
and discharged to the waters of the State, the types of refuse
accepted
(see Counts II and IX discussions), the placement of
that refuse and the failure to take sufficient steps to confine
any leachate clearly establish that such harm is threatened.
The
Board, therefore,
finds that the allegations of Count VI
have
been
proven.
COUNT VII
Count VII charges all Respondents with causing or allowing
scavenging at both sites.
According to Pemble the usual practice
48-18
—17—
was for trucks to dump their loads at the fill face and for the
marketable cardboard to be separated out,
loaded
onto roll—off
boxes and taken to
the paper recovery site and eventually resold
(R.
122,
1648—9, 1651—3, 1729).
~y
salvaging operation conducted at the
fill
face
violates
Rule 307(b) which requires use of an area remote from the fill
face for the receipt,
separation, storage and removal of sal-
vageable materials,
Instead they conducted their salvage operation
at the fill face
(R. 25—6).
The salvaging operations at the landfill
site
interfered with
the operations of spreading, compacting and covering
refuse which
was delayed
until
salvaging was completed.
Pemble testified that
covering would be delayed
until after the salvaging was completed
(R.
53).
Evidence
was presented showing that
the conditions on the
landfill site
were often unsanitary because of scattered litter and
refuse that was left uncovered even over the weekend,
(Compi.
Exs.
64,
67,
73, 143—5,
154—5, and 160).
There was similar evidence
showing that conditions on the paper site were also unsanitary
because the paper was dumped onto the ground and left exposed
(Compi.
Exs. 105 and 146—7).
Paper litter from the Respondents’ operation was observed
along the highway and on neighboring property on several occasions
(R. 46—49, 53—56,
73,
1159 and 1337).
Voilmer testified that the
Will County Health Department received complaints of rats at the
landfill.
He followed up the complaint and observed one or two
rats
at the landfill
site
on two
occasions
(R.
912).
On one of
those
occasions he observed what appeared to be a rat burrow
(R.
962
and
970).
Volimer observed a large number of black birds at the land-
fill on February 10,
11,
12,
1982 which were the same days on which
he observed the large uncovered mounds of refuse
(R.
924) and rats
were observed crossing the road from the Respondents operation by
Dominic Santarelli who lives across the Street from the landfill.
Re also testified about the problems the rats caused him
(R. 56—60).
Elliott testified he had to buy more rat poison in the last year
than in the last 20 years together
(R. 1157 and 1209).
Respondents
again
contend
that
the alleged violations are
inapplicable to these sites in that they are not sanitary land-
fills.
For the same reasons as discussed in Count VII, the Board
rejects this argument.
Second,
Respondents contend that the salvaging operation did
not
delay
daily
cover
because
cover
was
always
placed
at
the
end
of the operating day.
However,
the Board has found in Count IV
that
that
is
not
in
fact
true,
Third, Respondents contend that paper litter cannot be
unsanitary, but that is also incorrect.
When
paper blows off the
site and across a highway and when it is stacked in bales for long
periods of time with gaps between bales to allow for harborage
of rats, it becomes a nuisance.
—18—
Therefore,
the Board finds that the allegations of this
count have also
been
proven.
COUNT
VIII
Count VIII
charges
Roger
Pemble,
Wasteland,
Inc.
and
Vernon
Lamoreaux with failure
to
provide adequate roads and dust control
measures at
the
landfill in violation of
the
Standard
Requirements
set out in Rule 314(b)
and
(f),
The muddy and dusty
condition
of
the
Lockport Road (Route
171) and its effect on people who travel
by
the
landfill
and who live nearby and the inadequacy of the
street sweeping has been established by the testimony of several
people.
The Wasteland mobile—trailer office located just south
of the landfill gate,
and
the
condition
of
Lockport
Road
(Route
171) on three different days
can
be
seen
in
Complainant’s
Exhibits
68,
69 and 71
(R. 1i46~~1and
1207),
These photos were taken by
Ray Elliott, who lives
about
400 to 600 feet northeast of the
landfill gate (R~ 1121, i167)~
Nathaniel Chandler~who lives about two blocks north of the
landfill,
testified
th~itmud tracked out of the landfill onto the
highway created dusty conditions which interfered with visibility,
made
more
frequent car washing necessary,
arid was particularly
dangerous
in freezing temperatures.
A sweeping machine used by
the landfill did not take care of the problem
(R.
37—41:
Vol.
I).
Mazree Williams testified that driving through the mud made her
car slide and rewash:Lngs necessary (R.
46—7:
Vol.
I).
Cornelius
Craig
frequently
drove
by the landfill and observed the sweepers
on the
highway
hut
thought. the sweeping caused a danger of colli-
sions on the busy highway
(R. 70—73~
Vol.
I).
Gordon McCiusky, the City Administrator of the City of Lock—
port,
testified that mud dumped on
the
east side of Lockport Road
in the northbound lanes by trucks leaving the landfill is traveled
into the corporate limits of Lockport a distance of six to eight
blocks
(R,
63:
VoL
1).
When the mud is wet
it
is
slick
and
a
hazard to
traffic,
The
city is concerned that the catch-basins
and/or sewer inlets will he clogged due to the quantity of mud
left by the trucks
(R.
64:
Vol.
1),
The homes outside the
corporate limits, closer to the entrance of the landfill, are
particularly affected by dust and there are dust clouds on the
highway
(R.
65:
Vol.
1).
Ed Urbanek, an Illinois Department of Transportation highway
maintenance technician, testified that in October
.1981,
eleven
curb inlets along Route 171 near the landfill were clogged.
The
clogged inlets and debris around the grates caused flooding in the
area and on several occasions the Department was called to clean
up debris and accumulations of dirt along the shoulder of the
road and gutter
(R.
75—79:
Vol.
1).
Trooper Robert Rogers, of the Illinois State Police testified
that he had observed the highway conditions near the landfill
entrance many times
and
has observed mud and rock in the roadway
48-18
mainly in front of the entrance a~.
t
~
c
rid’
ix
th
north-
bound lanes and has ob’erve c~
‘;~r~
v si
~ioas to
avoid the mud on the h ?I~~
tro~pex
himself at times had
id
take
v~s~t
.r
and
ct.
t~eshad
to recover from a fishtail cf~ec’ ~.h~
o.
r
~rererainy
(R.
1245—6)~
Ray
Elliott, whc
11
a~o.t
4(’0 t.~6
f~
ortheast of the
landfill gate,
frequent y ha
~bse~v ci
I
c road cor~ditionsin front
of
the
landfill gate and norti of the gate ~~ndhas observed mud,
rocks
and
debris on the tiahwa’,
tIe
ccci
IC
~void Street cleaning
equipment which boked
tr~ ~
~ee
i
I tI~reed to drive through
mud at his driveway ~.itr&ice
(H
1
24
1190~ md 1215)
He testi-
fied that he sometiire
observed
iud as ~iigha~si
~.
to eight
inches
on the highway near She entrance to the landfill and that a high
percentage of the truck3
~it rg fro~th
landfill head north
(R. 1126),
He stated ~h I
e
road
~
r bad condition
because
of
the
mud
between one
.Jrcs
r ~lalf of
‘he ~ir~
(H.
1130).
Elliott
was also bthere1
oy the ~ust that resulted from the
dried up mud on the highway.
e lad
I
lose his windows and use
his
air
conditioner
(H.
i131)
La~ suirmer he had to use his
air
conditioner 30 or 40 tin~sm~hi e
ii
previous summers he used the
air
conditioner
only sev n
5
t~mtimes
(H.
1132,.
The dust also
made keeping the house
tan
ff cu
(H
113
and 1196—7),
More rocks and mud haTe I
.ie
p1’
d ur
before he could mow the
grass in his yard since the andL
opened
CR.
i134 and 1199).
Glasgow
testified
~.t ~
~le roid inside th
landfill was
usually
muddy if
it
v
~a
y
m~
~t
~r and dusty if dry (H
1307),
On May 1,
1981, h~ b~e.v~’d
II
I I c
amd~il was so muddy that
it took
two
tractors to lelp a truck stuck ir
the mud get up the
hill to the gate
(R.
1306),
Pemble
testified haS if
truck :~anoff of Ue landfill
road
it wou~,dpiaJ~up ,~udtc
ha du~
i ,whe.e~aa~dthat the, r~oad.ai~ogets
muddy
(R.
113).
Respondents contend that the testimony only proves that the
citizens of the area ha e made thc landfill a scapegoat for their
problems and that the e ideice tail~hr
m~that the condition
of the on site roads at She
laicifill
cau..ed them.
They cite
Pemble’s
testimony
that a sweepirg machine was used daily to
clean
up any mud on the high~~ay~ud ch~ 2300 cubic
yards of stone and
gravel
were purchased for u~eon the interior roads
(H.
1205,
1657—1662,
Resps.
Er.
4,
and 6).
However, the testimony clearly establishes that mud often
covered the highway, was mostly rear and to the north of the land-
fill entrance (which is the direction that most trucks headed
from
the
landfill),
that the street sweeper was ineffective,
and
that
the road was not muddy prior to Wasteland’s commencement
of operation
(H.
1125 and 1180),
The Board, therefore,
finds that the allegations of Count
VIII
have
been proven.
In Count
IX
I
or
allowed open dum
disposal
operatic
~
site.
Responde
I.
recycling open.
From befor~
to
June 12, 1981
~,.
the consolidati
site;
that is,
34),
Also Waste F~
~.
on
February 27,
1
(R.
266
and Comp
r c
I
The operation
ri
1980 to about Peb
m~
and cardboard on
a
Ex,
30).
The or
si~
house a paper bale
wI
and
had
been using a
1474—1477,
1490
mci
After that
a
conducted
utilizir~.
i~
p
m
About
50
of an
ii’
sorted
out
and
)
r
good material w ul
that was left su
~‘buriedrigid’
n
40 or
50
loads
whici
~
11),
Pemble tes iti~d hat
covered three or
fo’~z
‘r
site
(R,
268 ard
Cl-. d
Stofferahn rise v
i
i
loose paper and csrdb
rc~ i~f
.x
ci
north
and.
east of tt~’
a
It
(R.
518—521 and ~o p1
and
Compi.
Er.
47
£
OU
t
‘~,
Ex,
48); September
1
1
.1
September
9,
1981
H.
7,
1981
(H.
573
5
6
(R.
578—580 and Co p
.
o
t
Ex,
58),
Although sore ~a
stacked south of
he on
e
& A Landfill, the ai,e~
r~’
buildin9 were never rem
c
H
00
These piles which are
0cc
building
and
designat~d
or
to 5700 cubic yards of ref
Since then Stofferahn ob.,ervcd tie
cardboard to thote areas
rrt”l
f
t,
1012),
haie caused
U
refuse
~cpermitted
~t
east up
‘~
or allowed
~ae paper
\drmission
cir~oration
or
~
~
aper site
october
(
npmng paper
2,
6
~-i650and Compl.
‘a
~ehruary1981 to
~.a -toben 1980
U
260—262,
~I~4)
4tad ov0r baled
and
tIe
c ~ -ated both
-1
~ij
~
U,
‘981
528—533
0 md Compl
ci CoccI,
E
.
49);
~x
50);
c’rober
s~~r
..4, 1981
ce U
7,
1981
(Compl.
Ub
rro whom
mad been
p w~ rrovei
rd taken to C
c ,~t sideof the
and Co p1.
Er, 55),
czth
of the on site
-n
‘e diagram amounted
~°
I
(
omol.
Er,
46).
1dUion of more paper and
lu..~ina (~L1010 and
ue5
ii
U
3
‘~
~s~~tion
was
U, “ho site,
Ii. iwas
t
a dboard the
l1”e material
a
ice was
ecU for about
1. 1,.rd
11
(H.
1710—
1
t
I sou’d not be sold
ci
t
i’
on the paper
oil
—21—
Leachate
and paper and cardboard in standing water have been
observed
and
photographed
(See
Count
VI,
above).
High
piles
of mixed together paper, cardboard, plastics and Pielet refuse
have been observed and photographed (Compl.
Ex,
92-96 and 98),
On January
31, 1981,
the on site building burned down.
Vollmer
observed a truck unloading paper even after the baler and the baler
building had burned down
(H.
898-903, Compl.
Exs,
100 and 102).
Compl,
Ex,
105
shows
the
bluff
on the east side of the site.
The area north of the former on site building was covered with
haled
and unbaled cardboard,
plastic, paper
and
shredded
paper
(R. 904 and Compl.
Exs,
104—105).
Pemble
admitted that for all practical purposes the baler was
useless
(R.
1731—34), but Respondents continued to accumulate
more and more
paper
and
cardboard
on
the
site after the fire
(R.
134-5).
On October 29,
1981 Glasgow photographed the paper
site
(R.
1417—19 and Compl.
Exs,
134—5).
On subsequent visits
he did not see any indication that the bales north of the on
site building had been removed
CR.
1317-19).
In fact he observed
shredded paper
bales
located
in
the
same places on subsequent
visits
(R.
1317—18),
The amount of paper on site at the time of
the hearing can be seen from the aerial photographs taken by
McCluskey
on
February
15,
1982
CR.
1274 and Compl.
Exs. 146—147).
Based on these
facts,
the
Board
finds
that refuse was
disposed of on the paper
site
and
that open dumping occurred
there since no permit was ever obtained for the site,
While
Respondents argue
that
no permit is needed for a recycling opera-
tion, the facts show that both recycling and disposal took place.
The Agency
anticipated
an
argument
which
was
not
argued
by
Respondents,
that being that Section 21(d) might exempt the paper
site from the permit requirement in that it exempts on site dis-
posal of materials which are generated by the activities
on
the
site,
However, that exemption is inapplicable under the facts of
this case in that Respondents’
activities which might invoke the
exemption consist solely of segregation of materials into those
which are saleable and those which are not,
The wastes, therefore,
are not ‘~generate&on the site, but rather are accepted by and
disposed of at the site.
The Board finds that
the
allegations
of
Count
IX
have
been
proven.
COUNT
XI
In Count XI the Agency alleges that Respondents caused
or
threatened or allowed open burning and caused or threatened or
allowed the discharge of contaminants into the environment
so
as
to
cause
air pollution.
Respondents admit in Admission No.
37
that a fire was started on February 5,
1981
by
a
malfunctioning
tractor that sparked and ignited cardboard
(see also Compl,
Ex.
5,
Interrog.
No,
39),
Respondents also presented no evidence to
rebut
testimony demonstrating that a second fire occurred on
December
31,
1981.
They contend, however, that Waste Resources
is solely responsible.
48-21
Pemble testified that the malfunctioning Caterpillar was
working or traveling over or near paper and cardboard that was
in
such
a
condition
that it ignited from just a spank thrown
from the tractor and quickly spread out of control
(H. 277—283
and 304),
Stofferahn observed a fire at the paper site on February
5,
1982.
Mainly paper and cardboard were burned but he also observed
some
barrels
in the center of the burning area,
The smoke was
visible on the highway as he drove
to the site,
The fire lasted
at
least three or four hours
(H. 475—483 and Compl.
Er.
44), and
was
observed
and photographed by Mike Vollrnen
CR.
868-876, and
Compl.
Er.
80 and 81),
Ray Elliot also took a photograph of the effects of the fire
on the neghborhood of the paper site showing smoky conditions
caused by the fine, paper ash that floated into the yards of
homes on Route 171 and the fine itself
(Compl.
Er,
60 and 61),
On
December
31,
1981,
just a few days before
the
hearing
began,
there was another major fire in which the on site building
and bales were burned up as well as some surrounding paper and
cardboard
(H.
256—258,
894—905, and Compl.
Er,
100—105).
The
fire also caused smoky conditions on the highway
(H.
1218-19),
The conditions at the paper site as previously discussed
under Counts VI, VIII and IX are clearly such that fires should
not be unexpected and that once a fire started, it would quickly
spread.
Further, to place the responsibility upon Waste Resources,
which had not yet been incorporated, is unfounded.
As discussed
earlier,
Lamoreaux stood
in such a relationship to the property
that he
should
have exerted some control, Pemble was managing
the site and Wasteland controlled the site at the time of the
first fire and thereafter was so intertwined with Waste Resources
that it should have exerted control to avoid such conditions.
The Agency has pointed out that the recent Third District
Appellate Court ease of
~
JolietRailwaCornan,
et al,,
No.
81—352
(July
8,
1982) may impact the open burning allegation,
That case cites ~p~,~re
v. PCB (1972),
8
Ill, App,
3d 1026 for
the proposition that “the intent to institute open burning for the
purpose of disposing of refuse must be shown before any statutory
violation can be proved,”
However, the Board does not find that case to be controlling
here where non—permitted, combustible materials were present in
large quantities and so placed as to be exposed to possible sparks
from the equipment working there,
While there
is no proof that
the fires were intentionally set, Respondents’
gross negligence
in allowing a situation to develop where the potential for fire
was
so great that it overcomes the necessity of showing intent,
However,
since
up to $15,000 of possible marketable materials
were lost and the
baler
was
burned,
Respondents have been suffi-
ciently
penalized
and no further penalty is necessary to aid in
48~22
—23—
the enforcement of the Act in this regard.
Therefore,
the Board finds that the allegations of Count XI
have
been
proven.
PENALTY
In
determining whether a penalty should be assessed, and
if
so,
how
much that penalty should be, the Board has considered
the factors
of Section 33(c) of the Act.
The people who live in the
neighborhood
of
the
landfill
have been
exposed to the health dangers and annoyance associated
with
rats;
their lawns have been littered with papers blowing
from the
landfill; they have been subjected to blowing ashes
and smoke from the paper recovery site during the fires, and
have been subjected to dust which interefered with their use
and enjoyment of their homes and yards.
Motorists who use
Route 171 have been subjected to driving hazards from mud tracked
out of the landfill and have had to take evasive driving actions.
The potential
for
future
injury
or interference also exists.
Fires, both above and underground, can occur as a result of the
storage and landfilling of combustible and putrescible materials
and are difficult to put out,
Combustible refuse has been
observed spread over wide areas of the landfill.
Gas formation and migration is also a potential danger.
Refuse can decompose and form carbon dioxide and methane gas
which can migrate and, under certain conditions, could explode.
Odor is also sometimes produced by such a landfill
(R.
1032-34).
Leachate production and migration is also a potential danger
to ground and surface water.
Leachate has already been observed
at the site and certainly will be produced in the future by the
decomposition and percolation of water through the refuse unless
action is taken to avoid
it,
To date,
few such precautions have
been taken,
Considering the wastes which were buried on the sites,
a hydrogeological survey should have
been
performed, clay liners
should have been put in place, cover should have been applied
in a
timely and conscientious fashion and should certainly have been non—
combustible and more impermeable than Pielet material,
Also, proper
steps should have been taken to monitor the safety of the site.
The landfill and paper site could have had economic and social
value if properly managed.
Instead they have become a detriment
to the neighbors,
the City of Lockport, the Department of Trans-
portation and the Park Board, and were economically valuable only
to the owners and
operators.
Pemble told Cavanagh they did not want to pay
to
do the site
evaluation and development work necessary to legally receive paper
and cardboard, but they took in and disposed of those
items anyway.
This puts other landfills who do obey the law at a disadvantage
48-23
—24—
because they have to pay for the study, design work and installa-
tion of preventive measures and monitoring.
The
Illinois
State
Geological
Survey
report
and
the
Agency
denial of the permit application show that it was not an appro-
priate site for a landfill which disposes of putrescible, combus-
tible and flammable general refuse,
The site was appropriate for
the purpose for which
it was permitted and may have been appro-
priate for recycling,
but was inappropriate as operated.
At the paper site it would have been technologically
practicable and economically reasonable for Respondents to
have removed the material which was not marketable and dis-
posed of it in a permitted landfill.
They did this with some
of the material which was located south of the on site building
in October,
1981,
Stacking bales up off the ground and out of the water,
covering them with plastic, and policing the litter
in the area,
rather than piling up loose and baled papers on the ground
exposed to the wind and weather would not have been unreasonably
difficult or expensive, nor would obtaining a permit.
At the landfill Respondents should have turned away non-
permitted materials at the gate or obtained the necessary supple-
mental permits,
It
also
would
not
have
been unreasonable for the Respondents
to have operated the landfill in accord with the operating require-
ments of the Pollution Control Board and the permit.
Other land-
fills do it,
The problem of mud on the road could have been reduced
with a better on site road layout, cover material, and operating
procedures.
In the application for permit submitted for the paper
site
another
entrance
with
a
much
longer
road
was
proposed,
The
lengthening
of
the
approach
to
the
landfill
itself
combined
with
a good surface and maintenance also could have reduced the problem.
The operation of the landfill and paper sites has been in
blatant disregard of Board Rules, the Act and environmental
safety.
The evidence indicates that most of the refuse collected
at the landfill was unpermitted.
Most of
it was putrescible and
combustible and yet few of the necessary precautions for disposal
of such material were taken,
The same is true of materials
disposed of at the paper site, except that none of those materials
were permitted.
These sites continued to be operated improperly even after
repeated notifications of improprieties were given by State and
local officials,
On numerous occasions Pemble was informed of
violations
at
the sites.
He
generally responded that he would
remedy the problems, hut action toward such remedies was either
slow
or non—existent.
After
repeatedly being warned of accept-
ance of
unpermitted wastes, he filed an application for a supple-
mental permit
while
he
continued
accepting
such
waste.
After
48-24
—25—
the
supplemental permit was denied, he still continued to accept
it,
His attitude,
as expressed to Glasgow, was that “he couldn’t
make a profit if
,..
(he
just accept(ed
the permitted material”
(B.
1301),
When he finally agreed to stop accepting Pielet
material
(which
he knew to be unpermitted) at the landfill,
large
volumes
of
it coincidentally began appearing at the
paper
site
(B.
1300—1303),
This attitude of doing whatever has to be done to make the
biggest personal economic gain is at the heart of environmental
regulations.
For years pollution problems were left off the
ledgers of business,
industry and some governmental entities
only to appear as
a societal
liability.
Fortunately for society, regulations have been written to
place the costs of environmental protection upon those who might
otherwise pollute.
A permitting system has been devised to insure
that
a given landfill site is appropriate for the wastes it will
receive,
The greaten the potential harm of those wastes, the
greater must be the protections built into the landfill, and as a
result,
the greater the costs of handling those wastes.
That is
as
it
should
be,
That, however,
is not how these sites were operated.
A
site which was determined to be suitable for a particular purpose
was used for another.
If nothing could be done to remedy that
problem an environmental hazard would continue for untold years
causing untold harm,
Due to Respondents’
avoidance of the permit-
ting system the State has been left unaware of exactly how much
of
what sort of materials are buried on the sites, how much
leachate
has
been,
or
can
be
expected
to be, produced or where
it
will
go
once
it
is
produced.
If
proper
permitting
procedures
were
followed
all
of
these
facets
of the sites would at least have been fully
considered,
But
there
is
a
rei~edy.
The State has set up the Agency
to
enforce
against
violat~sof the Act,
and the Board to determine
what
should
be done,
~n this case, the Board has determined
that
the
operating
permit for the site should be
revoked,
that
remedial
measures
should
be ordered, that
a
bond
or
other
like
security
should
be
taken, and that
a
substantial
penalty
should
be
levied
to
insure
that the owners
and
operators
of
the
site
do
not
profit
from their wrong—doing.
The Agency has
gone
to
great
lengths
to
establish
cost
savings to Wasteland and Waste Resources and argues that any
penalty imposed by the Board should be greater than those cost
savings.
This, the Agency argues,
is necessary to assure a
disincentive to those covered by the Act to violate environmental
standards,
48-25
—26—
Such an argument has great, though somewhat simplistic,
appeal:
if a given action is to be discouraged, make sure that
the cost is greater than the savings.
The problem, of course,
becomes how to determine the cost and the savings.
The cost is
not simply the penalty, but must also include the expense of
remedial measures, and in some cases a penalty may be appropriate
even though no savings have been realized.
On the other hand,
if
savings are realized through inadvertence, a large penalty may do
little or nothing to aid in the enforcement of the Act,
The Board declines the Agency’s invitation to explicitly
declare its policy in this regard, for effective penalties are not
subject to definable formulas.
They should, rather, be based upon
the facts as
a whole,
The Agency asks the Board to “explicitly
declare that it can,
and in appropriate cases, will impose fines
to remove the economic incentive to disregard the Act.”
Certainly,
the Board may do so
in appropriate cases:
i.e. where such an
action will aid in the enforcement of the Act.
In many cases the
Board attempts to do so,
However, economic incentive is not the
sole motivation
for behavior and is not always readily determined.
On the other hand, evidence concerning savings, profits,
costs and other economic measures are clearly relevant, and are
often a major factor in determining a penalty.
In this case the Agency has determined savings of a minimum
of $17,000 to $25,500 by burying unpermitted paper and cardboard
and other refuse
in
the landfill, $6,555 at the paper site
(covered by Pielet material) and another $38,900 in materials
“disposed of” at
the
paper site,
Thus, total savings are a
minimum of $62,445 to $70,955
(Agency Br,
100—103).
The figures
are, however, very rough.
While they are stated as a minimum,
they appear to be more related to the costs of removal
(since
cover
material
is not substracted) than savings.
On the other
hand, they do not include the total operating period and could
be much too low,
Other factors that the Board has taken into consideration are
the continuance of the improper conduct, the lack of responsiveness
of Pemble, the assets of Wasteland and Waste Resources, and the
potential for environmental harm.
Remedial actions were taken
belatedly,
if at all, despite Pemble’s continued assurances that
such steps would be taken.
At hearing Pemble’s testimony was
effectively impeached and the hearing officer noted his “somewhat
expansive answers” showing “a need to justify”.
Further, there is
testimony that $100,000 to $150,000 worth of marketable paper and
cardboard are on the paper site.
Based upon these considerations,
the Board will impose a
penalty of $75,000 against Wasteland, Waste Resources and Roger
Pemble, who are found to be jointly and severally liable.
The same considerations do not apply to Vernon Lamoreaux,
48-26
—27—
however.
He
did not actively participate
in the violations,
rather his error lies in inaction,
He also has not shared in the
savings or the profits of the operations.
His only profits are
rent from the land,
In aggravation, however,
the Board notes that
this
is the second time that landfill problems have arisen on the
landfill site under his ownership
CR.
1091—1093),
The Board will,
therefore,
impose
a
fine
of
$2,000
against
him.
OTHER REMEDIAL ACTIONS
The need
for
a
performance bond or other security is clear.
Respondents have
demonstrated
an inability to conform
thei.r conduct
to
legal
requirements.
The Agency has recommended a bond of
$38,900 for the
paper
recovery
site
and
$50,000 for the landfill,
although
the
reasoning
for
that particular amount is obscure, and
is
apparently
based
upon
some
remedies which the Board will
not
order.
What
the Board will order is that the site be closed and
covered,
that a hydrogeologic survey be completed and that monitor-
ing wells be installed.
Since there is, apparently,
$100,000 to $150,000 in
available
assets from marketable paper,
and since the penalty
has
been
set at $70,000, up to $80,000 should be available for
bond or security from that asset alone,
The Agency’s $50,000
estimate
is reasonable for closure of the sites, but the survey
and
placement
of monitoring wells may well require another $50,000.
Therefore,
a performance bond or other satisfactory security in
the amount
of
$100,000 will be
ordered.
Revocation
of the
current
permit
also
appears
necessary.
Respondents
have
not
conformed
their
conduct
to
its
requirements
and appear
unwilling
to
do
so,
Of
course,
a new permit will be
required
to
make
the
ordered
modifications to the site.
The Board will not order that the material presently buried
on site be
exhumed
or
that
the
site
be
retrofitted in that the
record does not establish sufficiently severe,
imminent environ-
mental hazards.
While operations of the site have been highly
improper, the wastes buried there have not been proven highly
hazardous,
However, that possibility still exists and more information
is necessary before final actions are taken concerning
the
site.
Completion
of a hydrogeologic survey and installation of monitoring
wells
in
a manner acceptable to the Agency should provide that
information.
The Board will therefore retain jurisdictior~until
the
lack
of
environmental
harm
is demonstrated or the Board
orders
final action.
This Opinion constitutes the finding
of
facts
and
conclusions
of
law
of
the
Board in this matter.
48-27
1.
Responden”s have
307,
308,
313.
314(b),
,e
Solid
Waste,
Rule s02
ci)
of
Sections
9(a)
and
(c)
and
Protection
Act,
2,
Respond Us
toll
these rules and eec’ ~om
U
accepting any re
u
U
Resources paper nec
en
3,
Respoiden
‘Ia,,
Pemble
shall,
within U
‘ii
penalty of $75,00
r
m
liable;
4.
Rssporden
$2,000 within 45 day
i
1 ted Ru as
01
301
302,
305(a),
(V
aid
(o) and 315 of ~haater 7:
~‘IpCer
2.
fir
ollution;
and
,
(I
,
and
Ce)
of the Environmental
-e”s”~a d de
i~t
from violations of
‘It
“
t
and sha
cease and desist
W ~
aid
Inc.
lamdfill on
the
Waste
aS,
Inc., Waste Resources and Roger
of ti-c d te of this Order pay a
I’~js.all
be jointly and severally
r
a
coo ~aux ~,hal1pa~a penalty of
f
t”~
1,ae
of this Order;
5,
The penal
~
x
y
(3
a”id
(4) above, shall he
paid
by certifiec chec~
n
~one
onuer payable to the State of
Illinois
an.
san’
:c,
ILLINO”S
EN’
HO l’ENIA
“ROTECTION AGENCY
Fiscal Cer~ice,,D
is’or
2200
Cl” n.hi
Road
Springf
e
I
:L
6
Respordmmt’~
‘1
s
md
a
macto Usources and Roger
Pemble,
shall obtaum a p~rfonrimncebond or other acceptable
security
within
45 days of the dal’e of I is Order in the amount of
$100,000
to
insure compliance
wit)” tI’s Ond~r
7,
Operating
Pe’irr’t No
19
6—”
—OP is hereby revoked except
that Respondents sh”ll
reaiain subject to and shall comply
with
those
provisior~pertairung to closure of the site;
8.
Respondent shall a~a1
,
‘hur
90
aye of the date of
this Order,
for a suppli
ert”ml dcvUopmcnt permit from the Agency
for the permanent duaposal
at the
andfill site of putrescible,
combustible,
and flamm’m It g~rra1 refuse and shall obtain such
permit
within
18
ay~of the date of this Order and complete
the necessary
reme~,.,ua’ measur.,,.s to
ti-c site opecified in the
permit
and
this Order
quthun one year from the date of this
Order,
including
hut
rot limited to.
a)
in”tal atron
f an adequate system of
leachate monitoring well- and monitoring program;
b)
installation of adequate gas vents and
flares
and an olequate monitoring system; and
—29—
c)
appropriate
~
‘
“‘
t.’
‘1.
‘~ ‘~
co~”~ai
-i
combustible
refuse
so
a
‘,a’i~~it
th ~ spi:a~rU ‘of
fires,
9,
Within 30 dais ,~f~
~t~
of ~‘h~oOrder R~aspondents,
Wasteland,
Inc.
Nasoe
Pee
uroe~~,’and
lIege;
Peiable,
shall
have
applied
two
feet
of
eor~’actU
~
e~~er to
the
landfill;
and
10.
Within ~30do,’a
o2
,,he date of
t2ii~,
Orden9
Respondents
Wasteland,
Inc
,
,
Nasto do~eu~,
,on~ aud
R~,oiea ~‘omL1e
,
si-all
have
a)
como~,ateda
to~:u,’~~eoloqicol su.r’aoy of the
site
performe.
i-a
‘acJJ a ;etad
engineer,
eii’~ineering
firm,
or
other’
quaIl fIc~0piafeselonal;
b)
shall
i-rn’—.
iii
I.”’..
~‘
‘ny of
Li-c study with
‘the
Agency;
c)
the stu~’~yri-aLl
~
~.
conducted
in
substantial
conformance with the
~qE
nay
Instructions
and
Application
for
Permit Form;
d)
the
oc~dvsi-a
I I
nd ,roted in accord with
applicable Pales and ,~a~ar
~&t~cea ana
awe;
and
11,
The Boara
sI~o1
net ala i,unisdict~onin this matter.
IT IS SO ORIJIiRIi-
Board Member
I,
~o~ornru
~onc”rrod
Board
Member N, Werner abstained.
I, Christen L,
Mo’Efett,
C,eri-
cf the Illinois Pollution
Control Board, hereby certify
ri-ca
ti-c, above Opinucn and Order
was adopted
pa
the
9~:’~~ da~ of
~
1982
by
a vote ~
9
1
Illinois
Po:~lution
Board
