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

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