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3ecc~te’
1,80
ILLItIOIS
EMVIRON’ITNT’t
1R9C
‘1
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3
Ji
inc
t
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)
v.
P03
78—158
)
STREATOR
DISPOSAL
5’i~VICk, tir
‘taspondet.
PATRICK
J.
CHEL.’FY
‘ltRy
TWFfl
-
An
,
t
ZEMAN,
ASSISTkN~
ATTORNEYS
GENERAL,
AE’E~REDC
3flhiLF
OU
COui~”..AINANT.
JOHN
R.
FIELDt~G, ;nLSH
A’1
flr’I1’
~?°C.’CD
ON
BEHALF
OF
RCSPONDENT.
OPINION
AND
O”DEat
01’
TIt
OA.
Iv
3.
nctc
sot)
This
‘tatter
co
e~before
th..
B
-
ct
n
he
‘n.ne—count
Complaint
of
the
Illinois
Fnv.rnne
t~
Prot
ctjO
7g.~icy
(Agency),
filed
June
5,
1978,
cc
anen,lej
D.c
er
3±
l
The
Respondent,
Streator
Disposal
Scrvsce
Inc.
5-...cc
-
)
cpa~el)
was
charged
with
multiple
anY
contai~.
~
vicatt’
i
of
the
Environmental
Protection
Act
(Act
~
-
•
•
I
haite
(Chapter
7),
in
connection
wit4
oparc..
t
of
it°
sa
•r~
1ant~f
ill.
C~tizen
testimony,
as
welt
.
-
a.
t
pa
/
v
ac.1
ass
received
at
the
four
hearings
~
c
errs.
t
1~
Streator
Di3~. sl
a
oll~
-
a
sr
in1’
of
Theta
Systems,
oper:tes
a
garbaje
ui3p
~..
°ontary
La
if
ill
(R.
425
8,
4068).
‘he
lar~
s
t~
b
cr
13c4:ed
since
at
least
1972
in
the
rorth
sectiot
o
t-n
ston
Coanty,
approximately
one
half
mile
outsid’
the
litJti
f
~-
c
(.11-’
of
S’reator,
LaSalle
County,
Illinois
L
a
~
ct~
2
ac-.e
sit’
is
within
150
feet
if
the
Vet n~l or
•
artdf ill
accnpts
wastes
fron
Streator
Disposal
th..
~i’~
‘
t
e t~
oi~ ‘~st
about
every-
thing
in
Streitor
*
0/’
‘S
.48)
The
Agency’s
P
rdc
oapla.nt
ctargea
Ztrcator
Disposal
with
the
follovirsg
off’-
-es
d5ai.
,t
the
Act
an?’
Chapter
7:
Count
I.
No
cpesatiLg
pernLt,
since
July
24,
1974.
Violation
of
§21(e)
and
Ru
e
202(o)
1).
-
*Transcripts
of
t~e rearings
hcll
o’i
Pay
27,
1980
and
June
24,
1980
are
both
nemberel
a~beginn.ng
at
pages
385.
The
May
27
transcript
pages
wil.~
‘e
retert
ret’
as
~
385*
et
seq.,
and
the
June
24
pages
as
R385B
fl
seq
13—J3
Count II.
Deposit of refuse at top
of
fill
or
trench,
since
February
2, 1974
(14 specific dates alleged).
Violation of §21(b).
and Rules 303(a) and 301.
Count III.
Improper spreading and compacting of refuse,
since January 8, 1974
(17 dates).
Violation of §21(b) and Rules
303(a) and 301.
Count IV.
Inadequate daily cover
(6 inches), intermittently
since August 30,
1973
(36 dates).
Violation of §21(b) and Rules
305(a) and 301.
Count V.
Inadequate intermediate cover
(12 inches where no
new deposits within 60 days), since August 30, 1973
(26 dates).
Violation of §21(b) and Rules 305(b) and 301.
Count VI.
Inadequate final cover
(2 feet 60 days after final
deposit), since August,
1973
(19 dates).
Violation of §21(b) and
Rules 305(c) and 301.
Count VII.
Open burning,
intermittently since July 11,
1974
(2 dates).
Violation of §9(c), Rules 311 and 301, and Rule 502 of
Chapter
2:
Air Pollution.
Count VIII.
Inadequate employee facilities, inadequate dust
vector control
(e.g. insects and rodents), intermittently since
May 21, 1976
(2 dates).
Violation of §21(a) and Rules 314(a),
(f) and 301.
Count IX.
Inadequate litter control, since July 27, 1973
(11 dates).
Violation of §21(a) and Rule 306.
Two of these violations were specifically admitted.
Arthur
Allen, Branch Manager of Streator Disposal since 1976 and an
employee since 1972, admitted that open burning occurred at the
site on four unspecified occasions (Count VII)
(R.
58).
The major
admission, made even prior to hearing, was that Streator Disposal
had never obtained an operating permit (Count I)
(e.g. Comp.
Ex.
1).
However, as this permit issue is tied to the operational de-
ficiencies, some discussion of the permitting process is pertinent.
In order to obtain an operating permit, a landfill owner must
first apply for and receive a developmental permit, which may
specify, for example, the number and location of berms necessary
for proper maintenance of the site.
The site must then be brought
into compliance with the conditions of the developmental permit,
and if already operational, into total compliance with the Board’s
solid waste regulations.
When the applicant feels that the site
is properly developed and is properly operating, a written request
for a permit is made to the Agency.
The Agency advises the appli-
cant that a pre—operational inspection will be made to determine
whether developmental and operational compliance has been achieved.
A landfill which passes this inspection is issued a permit.
If
40—14
deficiencies are noted, the applicant may, of course, make any
necessary corrections and arrange for another pre-operational
inspection, or appeal the permit denial
(R.
490—492A).
The record is silent as to when Streator Disposal received
a developmental permit.
While there is an indication that it ‘nay
have applied for an operating permit in 1976 and 1977, but not
before, it was definitely established that application was made in
July of 1978, after the filing of this action
(R. 416-4178).
The
permit was denied following Agency inspection because of develop-
mental permit non—compliance involving berm construction, and
failure to seal a field drain tile which was discharging leachate
into the Vermilion River.
This permit denial was not appealed.
Streator Disposal had made no further application for a permit as
of June 24, 1980, the date of the last hearing
(R. 493—494A, 413B,
Comp.
Ex. 26).
Correspondence spanning the years 1974 to 1980 between
Streator Disposal and the Agency was introduced as Complainant’s
Exhibit 2.
The Board notes that Streator Disposal had received
specific,
individual notice of the permit requirement at least
as early as 1974.
This correspondence also indicates that since
1974 Streator Disposal had repeatedly received notice of operational
violations, and in early 1976 had even executed a compliance agree-
ment regarding these violations.
However, a further compliance
conference was held in March,
1977 following Agency issuance of an
enforcement notice detailing specific 1976 violations.
Correspondence
between 1977 and 1980 shows that the Agency had continued to notify
Streator Disposal of operational violations.
Proof of operational violations in this action was made
through the testimony of four Agency inspectors who had observed
and photographed conditions at the landfill on 24 specific dates
between and through May
2,
1978 and May 5,
1980.
As Complainant’s
Group Exhibit 2 was offered and received into evidence solely for
the purpose of providing notice of violation,
and not to prove the
truth of the information contained therein
(R.
51—52), the Board
must dismiss Counts II through VI, VIII and IX insofar as they
relate to allegations of violations occurring before May 2,
1978.
Since the amended Complaint alleges violations only through its
filing date, December 13,
1979, the Board can consider evidence
beyond that date only as evidence of aggravating or mitigating
factors.
Evidence concerning the violations alleged in Counts II
through IX (excludiüg admitted VII) was presented as follows:
Count II.
Three inspectors actually observed Streator’s
employees depositing refuse at the top, rather than the toe of
the fill on various dates between May 2, 1978 and March 11
1980
(R.
74,
76,
231,
235,
244,
251,
319—)20,
353).
PhotographIc
evidence was also introduced
(see Comp. Ex. 9A,
12C,
12D,
iSA,
18M).
Count III.
Again, three inspectors observed and introduced
photographs concerning failure to properly spread and compact
40—15
refuse.
This evidence relates to specific dates between May
2,
1978
through
September
17,
1979
(P.
73,
76,
191,
231,
238,
242—
243,
250,
Comp.
Ex.
7A,
10,
111,
13,
D,
F,
C,
I,
J,
K,
121).
Count
IV,
V,
Vi,
The Agency~s photographic exhibi~.swere
particularly effective tools
for the demonstration of violations.
Violations
of the daily cover requirements were noted concerninq
each inspection date,
and photographs taken on “back
to back”
inspections made at the end of one operating day and at the begin-
ning of the following day so illustrate,
(e.g.
Comp.
Ex,
4—5).
Violations
of several months duration were also proven
in this
matter.
For instance, a pile
of uncovered and uncompacted refuse,
including an old wooden fence and a blue—green metal object,
was
photographed on October 17,
1979
(Comp.
Ex.
13C),
This same
refuse pile appeared in photographs taken in January, April, and
May of 1980
(Comp. Ex.
17R,
24S,
and 25K),
Further testimony and
photographs of intermediate cover violations from May,
1978
tthrouqh
May,
1980 was introduced
(e.g.
P.73,
233 and Comp.
Ex.
913,
356 and
Comp.
Ex.
24E—F,
371).
No clear evidence was introduced concerninq
failure to finally cover
an area identified as
a final
lift.
How-
ever,
Mr. Allen’s testimony concerning 1978 and 1980 efforts
to
put “some
final cover” in place before the pre—operation (permit
application)
inspection is an admission of
such violation
(P.
411-
41213).
Citizen witness’
testimony was also
introduced in support
of the alleged cover violations
(P.
24,
28,
31).
Count Vil—IX.
Alice Jaegle and Barbara Kidder,
the citizen
witnesses,
presented the most graphic testimony
on the respective
vector control and litter control allegations.
Alice Jaeqle has
lived approximately two blocks from the landfill for the past 26
years and Barbara Kidder has
lived across the road from it for
~he past
7 or
8 years
(P.
26,
28),
Both testified that serious
problems with flies, rats and other rodents, and windblown
litter
began after the beginning of the landfill’s operation
(P.
22—26,
39,
42).
Agency inspectors observed excessive numbers
of flies
on two occasions
in 1979
(P.
22,
25,
4431),
as well
as windblown
litter on most inspection dates,
including
“hack to back” ones
(e.q.
Comp.
Ex.
14H,
15A,
D,
F,
G,
H,
17R,
24E—H).
No clear
evidence was presented concerning the lack of employee facilities
portion of Count VII.
Respondent did not deny any of the allegations of the Complaint
at the hearings.
It was, however,
offered that some of the refuse
depositing and cover violations were attributable to wet weather
conditions which made operation of equipment more difficult,
and
that some equipment breakdowns occurred
(e.g.
420),
The primary
thrust of Respondent’s cross—questioning at hearing and of its
final argument were that the Agency’s inspectors received little
formal training, that no specific,
written guidelines exist
for
some items on the Agency inspection report,
and that the Agency’s
“standards...are
so inconsistent and contradictory that
literal
compliance
is an impossibility”
(Resp. Brief
6—7).
Finally, much
of the hearing “testimony”
of Respondent’s counsel relates
to the
propriety of the 1978 permit denial,
and whether the presence of
40—16
leachate within a site—not a matter formally at issue
here,
although
it is
a sign of poor operation—can he
determined without
a chemical analysis.
The Board is aware that wet weather can cause operational
difficulties.
The Board finds no merit in Respondent’s other
contentions.
Gerald Steele, an Agency inspector who has performed
approximately 500
inspections,
testified at some
length concerning
the meaning, interpretation,
and completion of the Agency’s in-
spection reports
(generally, 390—419A,
425—426A),
While an inspector
has discretion
in some inspectional areas, Mr. Steele’s testimony
indicates that it is an informed,
limited discretion.
Although the
other testifying inspectors were less experienced than Mr. Steele,
Respondent’s own
witness,
site manager
Allen,
testified that
inspections were made in a “fairly consistent” manner
(R.
410—4113).
The permit denial arguments should have been made in an appeal,
as
the Agency noted, and were irrelevant to this action.
Considering all of the evidence presented, the Board finds
that Streator Disposal has operated
without a permit since July 24,
1974
(Count I)
and has caused open burning
as alleged in Count VII
of the Complaint.
The Board further finds that, intermittently
from May
2,
1978 to December 31,
1979,
Respondent has committed
the violations alleged in Counts II,
III, IV, V, VII, VIII,
and
IX.
The Count VII Rule 314(a) allegation is dismissed.
The Agency has suggested that the
landfill be shut down until
it is brought into compliance and a penalty of $10,000 be imposed.
Respondent made no alternative recommendations
as to penalty amount,
stating that should the Board fail to dismiss the complaint, impo-
sition of a fine would divert funds better spent in upgrading its
operation.
In addition to reviewing Respondent~sactions, the Board must
review the totality of the circumstances of a pollution source as
required by Section
33(c) of the Act.
Mayor Theodore Bakalar
testified that the
closing of the site would impose economic hard-
ship on the City of Streator.
Streator Disposal
is located one
half mile from Streator.
The closest neighboring
landfills are
located in Peru,
26 miles northwest;
Pontiac,
30 miles southeast;
and Ottawa,
16 miles and 23.5 miles.
The City pays an annual
disposal
fee to Streator of $24,000,
The Mayor estimates that
use of the Peru disposal site would add $185,000 annually to the
City’s disposal costs.
This figure is exactly half of the current
budget of the City’s Sanitation Department.
He also stated that
Streator is federally categorized as a distressed city, and has
an unemployment rate of 15.
Thus, these additional out of pocket
costs are ill afforded, and lack of an in-~towndisposal site
is
perceived
to be a disincentive to existing and potential
industry
(R.
539—541A,
552—554A).
However, Mayor Bakalar also testified that
if the Board
should find the site
in violation of its rules,
that he believed
that
Respondent should be
ordered to bring
it into
compliance.
40—17
While the Mayor believed that immediate closure of the site would
create ‘economic chaos’ in the City, he agreed that a
new
site
will shortly be necessary in
any
event, since the site is nearly
filled,
and that
he believed adequate sites for landfill development
existed in the area
(R.
559, 561—563A).
The
Board
acknowledges that the site was judged to be
considerably
improved
as of June 18,
1980, when the operational
violationswere confined to daily cover
(R. 399-4003, Resp.
Ex. 9-
15).
Proof regarding expenditures for hauling and applying cover
($30,000 in 1978,
$15,000 plus in 1980)
and
for equipment ($50,000
in 1980)
(R. 411—412, 432—4333) is hardly mitigatory, as such
expenses are ordinary expenses of operation of a landfill. Indeed,
this proof tends to show
how
Respondent
has
financially benefitted
from its violations.
Although mitigatory evidence is scant, this well documented
record, which includes numerous color photographs, is replete
with evidence of Respondent’s blatant,
long term disregard of the
requirements of the Act and Chapter 7.
This noncompliance cannot
be viewed as the result of understandable, if inexcusable, ignorance.
Streator Disposal continued
both
to operate without a permit and
to operate improperly after receiving repeated notices of violation,
participating in
two
compliance conferences and executing one
compliance agreement.
In light of the nature and duration of the
violations proven, a penalty of $5,000 is hereby assessed as a
necessary aid to enforcement of the Act.
The Board sees little benefit in ordering the immediate
closure of this site, despite Respondent’s long history of non-
compliance.
The Respondent is ordered to cease
and
desist from
violating the Act and Rules, and to
make
application for an
operating permit.
Any
corrective steps necessitated by acceptance
of special wastes such as the soda ash observed November 16, 1979
shall also be immediately
taken.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this
matter.
ORDER
1.
Respondent, Streator Disposal Service, Inc. is found to
have violated Sections 9(c), and 21(b)
and
(e) of the Environmental
Protection Act,
and
Rules 202(a)(1),
301,
303(a, b), 305(a, b,
c),
306,
311, and 314(f) of Chapter 7:
Solid Waste, and Rule 502
of Chapter 2:
Air Pollution.
2.
Respondent shall immediately cease and desist from
violating the Act and above Rules (except 202(a)(1)), and shall
immediately take any corrective steps necessitated by its earlier
acceptance of special waste.
40—18
4.
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