ILLINOIS POLLUTION CONTROL BOARD
September
3,
1981
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
Complainant,
v.
)
PCB 81—19
CITY OF MARION, An Illinois
)
Municipal Corporation,
)
JACK PARKS AND EARL KING,
)
Respondents.
PATRICK
J. CHESLEY, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF THE COMPLAINANT.
WILLIAM J. NOVICK, FOWLER AND NOVICK, APPEARED ON BEHALF OF
THE RESPONDENTS.
OPINION AND ORDER OF THE BOARD (by J.D. Dumelle):
On February
5,
1981 the Illinois Environmental Protection
Agency (Agency)
filed a complaint alleging that the City of
Marion, Jack Parks and Earl King violated various sections
of the Environmental Protection Act
(Act)
and various rules
in Chapter
7:
Solid Waste.
Hearing was held on March 14,
1981, at which the parties and members of the press were present.
The Agency alleges in Count
1 that beginning June 10,
1980 and continuing through the date of the filing of the
complaint that Marion, Parks, and King have violated Rule
2C2(a)
of Chapter
7:
Solid Waste,
and Section 21(e) of the
Act by causing or allowing the operation of a solid waste
management site and refuse disposal operation at the site
without an operating permit.
In Counts Il—V the Agency alleges that during that same
time period, the respondents failed to place refuse in the
toe of the fill in violation of Rules
301 and 303(a)
and Sections
21(a)
and
(b) of the Act; that the refuse was not spread and
compacted as required in violation of Rules 301 and 303(b)
and Sections 21(a) and
(b)
of the Act;
that required daily
cover was not placed over the refuse in violation of Rules
301 and 305(a) and Sections 21(a) and
(b) of the Act; and that
a water pollution problem was created by allowing refuse to
be deposited in standing water at the site in violation of
Rules 301 and 313 and Section 21(a) and
(b)
of the Act.
43—281
—2—
Jack Parks and Earl King own land located approximately
one mile north of Marion and 1/8 of a mile east of Illinois
Route
37 located on the south side of Spillerton Road
(Comp.
Exs.
2 and
3, para.
1).
Parks and King lease this site to
Marion for garbage and refuse disposal
(Comp.
Ex.
2,
para.
4
and Comp.
Ex.
3, para.
3).
Neither Parks nor King has been
issued a permit by the Agency to allow the operation of a
solid waste management site,
despite knowing that
a permit
is
required for the development of the site
(Comp.
Ex.
2,
paras.
8 and
9;
Comp.
Ex.
3, paras.
7 and 8).
The testimony of Henry Burgess
(Commissioner for Marion),
Keith Ice
(former operator of the landfill),
Raymond Walker
(present operator), and Robert Butler (Mayor of Marion)
establishes
that Marion has operated a landfill at the site since about
the beginning of June,
1980
(R.14,
19—20,
22—23, and 24—25).
Marion admits that it did not have a permit issued by the Agency
for the site, despite knowing that it was required
(Cotnp.
Ex.
1,
paras.
5 and 6).
Respondents contend that “it would appear that the permit
should have issued automatically”
(Resp. Brief,
p.
1) due
to a failure by the Agency to act within the required 90-day
period.
Such an argument cannot overcome the admission that
the site was unpermitted.
Furthermore, as the Agency quite
correctly points out, there is inadequate proof in the record
to support such a claim
(see Comp.
Reply, pp.
1-2).
Perry Mann, an environmental protection specialist for
the Agency, testified that on June 10,
1980,
and again on
June
19,
1980 he observed refuse being deposited in areas other
than the toe of the fill
(R.
46-7 and 52).
Pictures taken
at those times corroborate this
(Comp.
Exs.
5—7).
His testimony
is not refuted.
He also testified that on his June 19 inspection of the
site that some of the refuse had not been spread and compacted
(R.52—3).
Again, this testimony is corroborated by photographs
(Comp,
Exs.
6 and 7)
and is unrebutted.
Mr.
Mann’s testimony also supports a finding that the
respondents failed to place at least
6 inches of cover
ifiaterial.
over all exposed refuse at the end of each day of operation.
He observed this on July 10, July 24 and August 13 of 1980
as well as January 5,
1981
(R.
56—8,
61—3,
69, and 77).
Again, photographs of the site confirm this
(Comp.
Exs.
8—10,
12-13, and 16—17).
Furthermore, he was told by Mr. Ice on
all three of the 1980 dates that
the refuse had been there
for more than a day
(R.
57—8,
62—3,
69—70 and 77).
No rebuttal
testimony was presented.
Finally, Mr. Mann testified as to having observed refuse
deposited in standing water on June 10,
July 24 and August
13,
1980
(R.
46,
62 and 69).
Photographs support this as well
(Comp.
Exs.
5,
9,
13 and 16).
This testimony is also unrebutted.
43—282
—3—
Respondents’
case is largely a fulfillment of the old
saying (to paraphrase)
that if the law is against you, argue
the facts;
if the facts are against you, argue the law;
and if
both are against you, argue due process.
Respondents argue
that the Agency had a “vendetta attitude” toward them in this
‘natter
(Resp.
Brief,
p.
2).
They attempt to establish that a
permit was unreasonably denied by the Agency.
While Marion’s attempts to obtain a permit are relevant
with respect to mitigation,
as discussed below,
the Agency’s
actions regarding that permit,
aside from reaching a decision
within the 90-day statutory period, are generally not relevant
in an enforcement proceeding.
Such matters should be dealt
with through a permit appeal.
However,
no such appeal was
made in this case.
The Agency requests that all such testimony he stricken
from the record.
The Board declines to do so since
it finds
that there has been no material prejudice.
Further, fashioning
an order to neatly excise such testimony would he nearly
impossible and line—by—line excision would be unduly cumbersome.
However, the Board does note that such evidence should be
greatly limited, if not barred, by the hearing officer.
The Board also notes,
in response to Respondents’ allegation
that a permit appeal would have caused greater delay in
obtaining
a permit, that ongoing negotiations with the Agency
can continue during the pendency of a permit appeal such
that delay can be avoided.
Given that there is no competent testimony to rebut
Mr. Mann’s testimony and no meritorious defense has been
presented, the Board finds that Respondents have violated all
Rules and Sections of the Act cited in the complaint during
the times alleged.
An examination of the factors listed in Section 33(c)
of the Act demonstrates that a penalty should he assessed.
In examining the degree of injury, there are two differnet
considerations.
The operational violations
(Counts II—IV)
have resulted in minor present injury to the environment.
Nowhere in the record
is there any testimony as to serious
harm,
or even measured harm.
The Agency’s photographic exhibits
disclose a site with some problems, but not a neglected or
abused site.
On the other hand,
the threat of possible future
harm is substantial.
The failure to provide adequate daily cover
and the deposition of refuse in standing water
is magnified by the
uncertain suitability of the site.
Such actions can and do
cause leachate.
However, if the leachate is adequately confined,
the environmental harm is minimized.
Here, the Board cannot
find that it is adequately confined.
Certainly, there is a social and economic value to a
properly permitted and operated site, hut that value
is greatly
diminished when the siting, development,
and operation are not
proper.
43—283
—4—
The suitability
of the site to
its location is seriously
questionable.
That,
in
fact, appears to have been the major
reason for repeated denials of permit applications
(B.
37,
127,
147,—151,
157—158,
172—182),
This testimony relates to
possible difficulties with a permeable layer of sandstone along
the face of the strip pit.
If not adequately
lined with clay or
some other relatively impermeable
layer, the leachate could
become a serious hazard,
especially considering that the
si.t.e
is
located only about an eighth of
a mile from the nearest
residence and about half a mile from
a group of homes.
Furthermore, the former strip pit is located
in the recharge zone
for
the
regional
watershed
(B.
127).
While it may be true that
a
liner
is
now
in
place,
neither
Agency
personnel
nor
even
the
City
engineer
were
present
during
installation,
and
an
after—
the—f act
determination
of
its
placement,
depth
and
permeability
is
quite
difficult.
Had
proper
permitting
procedures
been
followed
by
Marion,
these
problems
could,
in all likelihood,
have
been
avoided.
Finally,
there
is
no
serious
contention
that
it
is
economic~11.y
unreasonable
or
technically
infeasible
for
Marion
to
operate
a
properly
permitted
site,
The
permitting
process
itself
can rar.~iy
result
in
economic
unreasonableness
or technical infeasihilty.
While Marion has had a difficult time obtaining a permit,
the process may well have been much less time consuming had
the permit been sought in
a timely fashion and had proper
procedures been followed.
No reason is given for this having
not been done.
There is no showing of any unusual occurrence
which caused the previously permitted site to be closed pre-
maturely.
Rather,
it must he assumed that Marion simply did
not properly plan for the closure of one site and the opening
of another.
As a result, both Marion and the Agency have been
forced
to
expend
more
time
and
effort
than
should
have
been
necessary
for
the
permitting
of
the
site,
and
Marion
has
caused
a
serious
threat
of
pollution.
Parks
and
King,
the
owners
of
the
land,
could
also
have
been
instrumental
in
avoiding
these
problems
had
they
executed
their responsibilities as
landowners to insure that the land
was being used properly.
It
is for this reason that the Act
and Board rules hold owners liable for such violations
(EPA
v. Maney, et al,,
PCB 79—262,
39
PCB
363,
August
21,
1980).
In determining the size of the penalty to be assessed,
the Board takes official notice of two prior proceedings against
Marion for operating an unpermitted landfill.
On May 23,
1973
the Board fined Marion $500 for various operating violations
and for failure
to obtain
a permit (EPA v. Marion, PCB
72—510,
8
PCB 139).
Again,
on February
1,
1979 Marion was ordered to
pay a stipulated penalty of $3,000 for similar violations
(EPA v.
Marion, PCB 77—312,
32 PCB 471).
Three permit violations
in ten years is
a clear indication that Marion has a substantial
disregard for the state’s permitting process.
Apparently,
—5—
a
substantial
penalty
is
necessary
to
encourage
compliance
with the Act and Board regulations.
The Board will impose
the following penalties:
City of Marion
Count
I
$5,000
Counts
Il-V
$
500
.Jack Parks
Count
I
$
50
Counts Il-V
$
50
Earl King
Count
I
$
50
Counts
Il—V
$
50
This
Opinion
constitutes
the
Board’s
findings
of
fact
and
conclusions of law in this matter.
ORDER
1.
Respondents have violated Sections 21(a),
(h), and
(e) of
the
Illinois
Environmental
Protection
Act
and
Rules
202(a),
301,
303(a) and
(b),
305(a) and 313 of Chapter
7:
Solid
Waste.
2.
It
is
hereby
ordered
that
Respondents
shall cease and desist:
within 120 days of the date of this Order from any and all
violations
as
listed
in
(1),
above;
and
3.
Respondent,
City of Marion shall pay a penalty of $5,500,
and Respondents Jack Parks and Earl King shall each pay
a penalty of $100 within 30 days of the date of this
Order,
payment to be made by certified check or money
order to:
State
of Illinois
Fiscal
Services
Division
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois
62706
IT IS SO ORDERED.
Mr.
I.
Goodman concurred.
I,
Christan L.
Moffett, Clerk of the Illinois Pollution
Control Board, hereby~~ertifythat the above Opinion and Order
was adopted on the ~
~‘
day of
~tL
,
1981
by
a
vote
of-s
L
Ctiristan
L.
Moffett~~ferk
Illinois
Pollution
C
trol
Board