ILLINOIS

POLLUTION

CONTROL BOARD

December

17,

1981

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

PCB

80—185

PIELET BROS.

TRADING, INC.,

Respondents.

CHRISTINE

ZEMAN,

ASSISTANT

ATTORNEY CEtIhAL

1PT~LARED

ON

BEHALF

OF

COMPLAINANT,

AND

A.J.

NESTER

(CHURCHILL,

)~NESTER,

AND McDONYELL~ APPEARED

ON

BEHALF

OF

RESPONDENT.

OPINION

AND

ORDER

OF

THE

BOARD

(by

CT.

Anderson)

This

matter

comes

before

the

Board

on the

six—count

complaint

filed

October

6,

1980

by

the

Illinois

Environmental

Protection

Agency

(Agency)

against Pielet Bros.

Trading,

Inc.

(Pielet).

pielet is charged with various

violations

of the Act

and the

Chapter

7:

Solid Waste

(Chapter

/)

regulations

arising

from its

operation of an 80—acre site for

the

disposal of

auto

shredding

waste, located at an address commonly

known as 1500

North First

Avenue;

National City,

in

Ofl

UflL:~~j;~~

area

of

St. Clair

County.

Hearing was held on April

29,

1981~

At hearing,

Counts

II,

III,

and IV of the complaint

were

amended for correction

and to

include allegations subsequent

to October

6,

:1980.

The

Board

finds this amendment propev

pursuant to Procedural

Rule

326.

On November 18,

1981, the

Agency moved the Board

to

expedite

decision in this matter.

In so

doing,

the Boerd enpresses no

opinion concerning the pending

permit

appliceo:Lon

t:o

which

the

motion refers.

Count

I of the Complaint

charges

that betheen

November

1,

1975 and October 26,

1979,

Pielet

operated a :Landfiui

for

refuse

generated by other than its own

on—site activities

without

an

operating

permit,

in violation

of Rule

202(a) of

Chapter

7 and

Section 21(e) of the Act.

Count

II alleges that on

various

dates from August 1~1976 to

November 18,

1980,

Pie.et

violated

conditions of a 1976 development

permit,

a

1977

supplemental

permit and a 1979 operating

permit concerning

construction

and

44—219

---

use of trenches,

in violation of

Pu

and Sections 21(a-b)

of the Acts

C

dates

from January 1, 1978 to

I

the

daily

cover

requirements o~

Chapter

7,

and

Sections 2I(a~b ot

e

on various dates

between August

Pielet failed to properly epreac mc

o

of Rules 301 and 303(b) of Chap e.

e~

Act.

Count

V charges that het’~eer

~‘

1980 Pielet

failed to provide adeqm~

violation

of Rules

301 and 314

b)

-

b) of the Act,

Finally, Count VI ~ ic~.

between March

1, 1978 and

)ctober

2

allowed open burning on the sIte

of Chapter

7,

Rule 502 of Chapter

2

?~

9(c) and 21(a-~b)

of the Act.

The

evidence

in this action

is

instead concerns two questions of

~

required

for the Pielet site,

arii

)

c

of limitations bars introduction of

e

October

6,

1978.

A review of the evid

consideration of these issues,

Pielet Bros.

Trading,

Inc

-~

1975 as St.

Louis Auto Shreddirg

under the “St.

Louis”

name, even erve

~

became the official corporate name.

T~c

is immediately adjacent to, but separmF

from a

Pielet

operated metal recovery

the

waste

disposed

of at the site

discarded appliances, and the like

Mailer mill, which grinds or crushe~

separated from the other crushed m to

plastic, padding) magnetically, by

or by hand picking.

While these o~-~e~

metal from the waste “fluff,” the

I

of metal,

such as insulated copper

Pielet has operated the fluff

drc~1

1975.

On May 21,

1976 Pielet rec~~

the site.

The permit spe~itiei, ~

-

were to be dug, that certain ct

ie~~e

in depth, that if sand len’~es crc crc

were to be “overexcavat~a”err~r~

clay,

that monitoring wells be a~ini’

(Ex.

A to Ex.

1).

On December

,,

19

was issued modifying the 1976 permit

trenches was decreased from 40 to

8

1

and

daily cover

conditions were tepee ~i

October

26,

1979

Pielet received a pe a~

#3, which was not to exceed eight feet

i

to other new and repeated conditions,

C

3 of Chapter

7,

e

tlat on

various

clet

violated

~ 305th)

of

IV

alleges

that

B~’:~

18,

1980,

e

r violation

2~a b)

of

the

~tc

October

6,

he site

in

chions 21(a—

iri us dates

~

301 and

311

o

erd Sections

he dispute

ermit is

‘~rstatute

~n~v’prior to

ue

prior to

ed April

2,

,,

business

~‘

,

when

“Pielet”

~

te

in

question

~id

track,

nerates

‘~

lot

autos,

igh a

~ls are

~i

glass,

-tnt settling,

of the

-.

amounts

~45).

~

‘vember,

~

~ei1it

for

a

L,renches

~

3 feet

cging

they

~Iacted

v~r~pplied

~rnit

uruer of

sand lens

,,~.i,

On

~ only Trench

n

addition

:~eted that

44~220

---

3

standing water was to be removed before refuse was deposited

in the trench

(Ex.

C to Ex.

1).

Between

January

1,

1976 and

January 11,

1980,

the Agency sent Pielet

6 letters detailing

various

deficiencies

noted during inspection of the site and on

March

29, 1979 sent an “enforcement notice” explaining that an

enforcement action would be filed if immediate correction action

was not taken

(Ex. D—H,

J,

K to Ex.

1).

At

hearing,

the

Agency

presented

the

evidence

of

four

employees who had variously inspected the site on 13 separate

dates between August 27,

1976 and November 18,

1980, taking

photographs on a number of occasions.

Pielet received its first operating permit on October 26,

1979,

but had engaged in disposal operations

prior

to

that

time.

This is evidenced by testimony and photographs concerning

inspections made August 27, September 22 and November 8,

1976

(R.

16—31,

Ex.

3),

March 9,

1977

(R.

31—37,

Ex,

5), March 31,

June 27,

August

2, and December 28,

1978

(R.

119-129,

49-54,

Ex.

9,

10), and March 13 and June 19, 1979

(R.

54—61,

82—94,

Ex.

6,

8).

During this period, refuse was observed above—grade

(R.

52,

87—88,

118,

123,

Ex.

8,

9).

After receipt of the permit

to operate Trench

#3

only, Agency inspections on December 28,

1979 and April

2,

and November 18,

1980 showed that Pielet was

not placing waste in Trench

#3

only, as authorized, but was

depositing the waste

on sizeable areas of the site’s surface

(R.

123—131,

133,

64,

Ex.

7,

11,

12).

Other violations of the various permits were also observed.

In November, 1976,

a violation of the permit’s requirements for

trench depth and clay packing of sand layers was noted.

A

6 foot

trench had been dug (permitted only to a

3 foot depth) which was

filled

with

water

because

of its sand layer bottom

(R.

30,

45).

Monitoring wells were destroyed or damaged by on—site

fires

in

November,

1976 and August 1978

(R.

29—30,

126),

and were surrounded

by waste fluff and ponded water on 5 dates between 1978 and 1980

(R.

59,

64,

127,

130,

135,

Ex. 6—7,

11—12).

The cover requirements of all permits and Rule 305(a) were

consistently violated,

as graphically depicted in the photo

exhibits.

Fluff was unloaded from

the trucks and spread upon the

ground on

a five to 10 acre area of the site,

and

was

inadequately

spread

or

compacted,

if

at

all,

in

addition

to

being

uncovered

(e.g.

R.

23,

32,

35,

49—57,

62,

122—123,

126,

130,

133—135,

Ex.

5,

7,

10,

12).

At some times, due to the fact that the in—site

roads

were

made

of

dirt

rather

than

an

all

weather

surface,

roads

were too muddy for operational equipment to operate

(R.

19—20,

24,

57,

129).

However, Pielet often had no equipment available for

cover or other purposes

(R.

86,

87), and did not insure its

continuous

availability

until

January,

1981

(R.

143).

Lack

of

cover

and

equipment

has

contributed

to

repeated

and

uncontrollable

on—site

fires.

The Pielet site is easily

accessible to trespassing scavengers in search of reclaimable

44—22 1

---

insulated copper wire.

In burning the insulation from the wire,

scavengers have started

fires.

Fires

have

also

been

presumably

caused by railroad fuses

(flares)

tossed by trainmen from the

adjoining railroad track

(R. 145—153).

The Agency witnesses

testified

to

fires

during

their

visits

on

five

dates

in

1978

and

1979

(R.

117—119,

124,

129,

56,

83—84,

Ex.

9,

10,

6,

8), an Agency

employee

further

noted that he often saw smoke rising from the

site as he drove to work during the summer of 1979

(R.

93), and

Pielet’s

site

manager Bowler admitted that fires have occurred

since he

began managing the site in January,

1981

(R.

144).

Pushing or mulling the trash around has controlled

the

fire

on

some occasions, although

necessary

equipment

has

not

always

been

available

(R.

117,

86—87).

However, the combination of wind and

the expanse of the uncovered waste has sometimes insured that fire

continued despite such efforts, for as long as an entire weekend

(R.

119, 122).

Pielet did not begin to attempt to control access

to the site,

or to make sure that necessary equipment was on hand

to control fires,

prior to Mr.

Bowler’s employment as site manager

in Jaunary, 1981

(R.

143,

148, 153).

Pielet presented no explanation or mitigation for its

actions, except as related to the cause of fires and Mr. Bowler’s

efforts in 1981.

It argues only that

it

needs no permit for this

site,

based on Section 21(d)

of the Act which states in pertinent

part

“No person shall.... clonduct

any refuse—collection

or refuse—disposal operations,

except for refuse

generated by the operator’s

own

activities, without

a permit granted by the Agency...

The Board finds that this exemption does not apply to the

Pielet site.

In 1975,

the Board held that the exception “only

exempts minor amounts of refuse which could be disposed of without

environmental harm upon the site where it was generated”

IEPA v.

City of Pontiac,

PCB 74—396,

18 PCB 303

(August 7,

1975).

This

rationale has withstood appellate challenge in R.E. Joos Excavating

V.

IEPA,

58 Ill.

App.

3d 309,

374 N.E.2d 486

(1978), and has been

recently reaffirmed by the Board in Reynolds Metals Co.

v.

IEPA,

PCB 79—81

(August 20,

1981 and November 19, 1981).

Pielet operates

a large site

(80 acres) and according to its

permit applications anticipates depositing as much as 250 cubic

yards of waste on the site daily.

It has been proven that this

waste fluff is easily ignitable,

and that numerous on—site fires

have occurred.

The waste additionally has some metallic content,

with a resulting potential for leachate when deposited in water,

as

it has been.

Here,

the Board need not speculate as to whether

unpermitted disposal of this waste has a potential for environ-

mental harm.

Air pollution by open burning has been proven.

In

addition,

lack of concern about water pollution has been demon-

strated by Pielet’s casual disregard of requirements to create

secure trenches and to maintain monitoring wells.

The Pielet site

44—222

---

has been sloppily

run

oven

unc~.

~3~-t~

c~i~vnj

‘.

txl~ough

the

permit program.

Piel”t cannel

r r

redib~ymrg’v Lh~twithout

such oversight

the site

wait

be r~oaged

n

a

er\tronmentally

responsible

fashion.

Pielet

next

argues

that

the

otatit?

of

liv:

~otions

contained

in Ill.Rev.Stat.

Ch.

83,

Sec.

it

brs

i

t~ituct,~or

of

evidence

concerning events

prtor

to

Ocholer

2

13Th

he

h

ard

has

pre-

viously decided

that

tiLt 1iLttaU~n :s an

iti’~be to

actions

brought before

the

Board

aLter

the

Aoc

i1”B~’

~mcotç~~,

PCB

81—27,

(April

16,

1981).

As the

Agency

Cdditicr,aThJ notes

a)

the

Act does not

expressly

limit

any individual’s ~ausc of action

to

enforce the

right

to a clean environment,

and o) Section

15

does

not expressly

limit

the

rignt of a ~,,tatcgn~ to virdicate a

public right Clarev

BeLl,

318 Lii.

278

3

N ~.2d

812

(1941).

Accordingly,

the

Board

Iind~.t1~atadmiss:oi

I ~c’1978

evidence

was proper.

Based on

this

recocd, th

Bo rd fjodc

Pie~et in

violation of

the Act and the

Board’s

rules

s charaed

T~

igency seeks

entry

of a cease and

desist

order ant

thpc~itinrit a ~

030 penalty.

In making

its

deter.airitLn

p

t~ ThcL

to 33(c)

of

the Act, the Board

finds

rc ev,~dencc~haL

It

~os

technically

impracticable or

economically

un~easonabio

t~a

e~ot

to

achieve

compliance.

The

social

and c-

~:r

r:v:c

lit

,t

s

metal

recovery operation

is

out”~ei,,htd1v~

“the

caitr

~ ~rjury to

and

interference

with

tue er’rccrr,~’-~,t~’~

‘a

Pielet’s

site

has

been

operated

‘~‘rtr

m

a.

‘~.

it

-

the

Act,

Board regulations,

and

perrain

t5Oitr”tiCfl~

~

‘o’~”

finds

that

entry

of

a

cease

and deits”

‘J-:a

U

of

$7,500

are

necessary

aids

to

cnforce:t~’~nt

“a.

-

This Opinion

corsaiti~a.

conclusions

of law of the Board in

thit n~te~

1,

Respondent,

PieJer d:os

-it ~

i’

‘jiolated

Rules

202(a),

301,

302,

3(3 U

/

~‘

a

of

Chapter

7:

Solid

Waste,

2a1~. Ia’

2

-,

it,

llution

and Sections

9(c)

and 2Lla,

b,

-I

“na ~r-Ur’~ ~ta’

Protection

Act.

2.

Respondent

shall

~

‘--

~a.

iiolations.

3.

Within

45

dayc of

:~e ~oao ‘it

:-~

3~3~”a,~

Respondent

shall,

by

certified

check

or aener order payablc to the

State

of

Illinois,

pay

a

penalty

of $7~500wn,uch as

‘-e it sent to~

ILLINOIS

ENVIRONMENTAl

PACTEClION AGBt’CY

Fiscal

Services

Drvisicr.

2200

Churchill

Road

Springfield,

IL

6271’5

---

IT

IS

SO

ORDERED

Board

Member

D

&rd:c&on

.rr,.urred

I, christan

L

YaZLct’.

C.x.erk or t?e

fllric~~s

Pollution

control Board, her~ycer4iry tnqç.

he at

~gf

OpinLcn and Order was

adopted oq the

/1

—

Jay Oi

—

—

,

1981 by a

vote of ~t

Ctad..

~i

.~4anL.

Illinois

Pcd.

:‘.ac

Board