ILLINOIS POLLUTION CONTROL BOARD
    December
    4, 1980
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Complainant,
    )
    v.
    )
    PCB 79—20
    THE WIGGINS FERRY COMPANY,
    an
    )
    Illinois Corporation,
    ROBERT
    )
    STORMAN, C.B,C.,
    INC.,
    a Missouri
    )
    Corporation, COLONIAL BRICK COMPANY,)
    INC.,
    an Illinois Corporation,
    and
    )
    FRED LEHMKUHL
    d/b/a
    L. AND L.
    )
    HAULING,
    Respondents.
    MR. PATRICK J. CHESLEY, ASSISTANT ATTORNEY GENERAL, APPEARED ON
    BEHALF OF THE COMPLAINANT.
    GUNDLACH, LEE, EGGMANN, BOYLE
    & ROESSLER, ATTORNEYS
    AT
    LAW
    (MR. TERRY
    N, BROWN, OF COUNSEL), APPEARED ON BEHALF OF RESPONDENT WIGGINS
    FERRY COMPANY.
    RICE, DURSO
    & RICE, ATTORNEYS AT LAW
    (MR. CARMEN S. DURSO, OF
    COUNSEL), APPEARED ON BEHALF OF RESPONDENTS FRED LEHMKUHL
    d/b/a
    L, AND
    L.
    HAULING; COLONIAL BRICK, INC.; AND C.B.C.,
    INC.
    MR. ROBERT STORMAN APPEARED PRO SE.
    OPINION AND ORDER OF THE BOARD
    (by N.E.Werner):
    This matter comes before the Board on the January
    30,
    1979
    Complaint brought by the Illinois Environmental Protection Agency
    (“Agency”).
    Count
    I
    of the Complaint alleged that the Respondents,
    the Wiggins Ferry Company
    (“Wiggins”); Mr.
    Robert Storman (“Storman”);
    Colonial Brick Company,
    Inc.
    (“Colonial”), and Mr. Fred Lehmkuhl d/b/a
    L.
    and
    L.
    Hauling
    (“Lehmkuhl”), from October of 1977 to August 23,
    1978,
    caused or allowed the operation of a solid
    waste management
    site (“site”)
    on a tract of
    land in an unincorporated area of
    St. Clair County,
    Illinois, west of National City,
    Illinois along
    Illinois Route
    #3
    without an Operating Permit from the Agency in
    violation of Rule
    202(a)
    of Chapter
    7:
    Solid Waste Regulations
    (“Chapter
    7”),
    40—35

    Count
    I also alleged that:
    (1) Wiggins owned the tract of
    land;
    (2) Wiggins leased the site to Storman;
    (3) Wiggins and
    Storman permitted Colonial and Lehmkuhl to deposit refuse upon the
    site;
    (4) Colonial deposited refuse upon the site and agreed to
    cover such refuse; and
    (5) Lehmkuhl deposited refuse upon the site.
    Count II alleged that,
    from May
    12,
    1978 until June 15,
    1978,
    Respondents Wiggins,
    Storman, and Colonial failed to place the
    appropriate daily cover on the site in violation of Rules 301 and
    305(a) of Chapter
    7 and Section 21(b)
    of the Illinois Environmental
    Protection Act
    (“Act”).
    Count III alleged that the Respondents failed to place final
    cover on the site in violation of Rules 301 and 305(c)
    of Chapter
    7
    and Section 21(b)
    of the Act,
    Count IV alleged that Colonial and Lehmkuhl disposed of refuse
    at an unpermitted site in violation of Section 21(f) of the Act.
    On February 13,
    1979, Respondent Lehmkuhl filed a Motion to
    Dismiss or in the Alternative to Make the Complaint More Definite
    and Certain.
    On February 23,
    1979,
    the Agency filed
    its Response
    to Lehmkuhl’s motion.
    On March
    1,
    1979, the Board entered an Order
    denying Lehmkuhl’s motion.
    After numerous discovery motions were
    filed,
    a hearing was held on May 23,
    1979.
    Additional hearings
    were held on January 24, 1980 and July 2,
    1980.
    On July 14,
    1980,
    the Agency filed a Motion to Amend the Complaint,
    Amended Complaint,
    and Certificate of Service.
    The Amended Complaint substituted
    C.B.C., Inc.,
    a Missouri corporation,
    in place of Colonial Brick
    Compan~i,Inc., an Illinois corporation, as a Respondent (because,
    according
    to testimony at the hearings, C.B,C.,
    Inc. was the legal
    entity which conducted the actual operation of the site during the
    relevant time period),
    After the hearing of May
    23, 1979,
    a Statement of Stipulated
    Settlement dated May
    11,
    1979
    (i.e., Joint Exhibit 1) between the
    Agency and the Wiggins Ferry Company was filed with the Board.
    On
    July
    25,
    1980,
    a Statement of Stipulated Settlement between the
    Agency and Robert Storman was filed with the Board,
    On September 17,
    1980,
    a Statement of Stipulated Settlement between the Agency and
    Respondents Colonial Brick Company,
    Inc., C.B.C., Inc.
    and Fred
    Lehmkuhl d/b/a
    L.
    and L. Hauling was filed with the Board.
    The proposed settlement agreement between the Agency and the
    Wiggins Ferry Company provides that:
    (1) Wiggins owns the tract
    of land in St. Clair County which is the site in question;
    (2) Wiggins leased this site to Mr. Robert Storman (from approxi-
    mately October of
    1977 until August
    23,
    1978);
    (3)
    Storrnan
    allowed others to deposit refuse on the site
    (unknown to Wiggins);
    (4)
    ~When Wiggins learned of the dumping on the site,
    it ordered
    Robert Storman to have the dumping stopped and to have the refuse
    covered”; and
    (5) Wiggins agrees to allow access by any party
    designated by the Agency; at the sole risk of said party, to bring
    40—36

    —3—
    the site into compliance with the Board~sSolid Waste Regulations
    and the Act.
    The parties have stipulated that, because of Wiggins’
    lack of involvement in the operation of the site as a landfill,
    they believe that no penalty ought to be assessed against Wiggins.
    The Statement of Stipulated Settlement between the Agency and
    Mr.
    Robert Storman provides that:
    (1) During the relevant time
    period between October of 1977 and August
    23, 1978,
    Storman allowed
    Mr.
    Phil
    Mumford,
    d/b/a Colonial Brick,
    Inc.,
    and Mr.
    Fred Lehmkuhl
    “to deposit
    off—site refuse” on the property owned by Wiggins
    and
    leased to Storman;
    (2) Neither Storman,
    Colonial Brick,
    Inc.,
    nor
    Fred Lehmkuhl had an Operating Permit for the site;
    (3) Daily cover
    was not placed on refuse from May 12,
    1978 through June 15,
    1978;
    (4) Appropriate final cover was not placed on the site;
    (5)
    Storman
    was not paid any money by Colonial or Lehmkuhl to allow them to
    deposit refuse on the property
    (although Storman “did derive a
    slight benefit because a low area on the site was filled”);
    (6) Storman had no knowledge of the requirements of the Board’s
    Solid Waste Regulations or the Act;
    (7) Storman agrees not to
    allow any further refuse disposal on the site unless the require-
    ments of Chapter
    7 and the Act are complied with;
    (8) Storman shall
    cease and desist from further violations of Rule 202(a),
    301,
    305(a),
    and 305(c)
    of Chapter
    7 and Section 21(b) of the Act;
    and
    (9)
    no
    penalty against Storman is necessary to aid in the enforcement of
    the Act.
    The proposed settlement agreement between the Agency and
    Lehmkuhl provides that Lehmkuhl:
    (1)
    admits the allegations against
    him
    in Count IV of the Amended Complaint
    (i.e., that he disposed of
    refuse at an unpermitted site from November of 1977 through March
    6,
    1978 in violation of Section
    21(f)
    of the Act)
    and
    (2) agrees
    to
    pay a stipulated penalty of $500.00
    .
    Additionally, the Agency has
    agreed that the allegations in Count
    I of the Amended Complaint
    against Lehmkuhl should be dismissed.
    The proposed settlement agreement between the Agency and
    Respondent Colonial Brick Company,
    Inc.
    and Respondent C.B.C.,
    Inc.
    indicates that:
    (1) Mr. Phil Mumford (who is President of both
    Colonial Brick Company,
    Inc. and C.B.C.,
    Inc.)
    “has testified
    under
    oath that C.B.C., Inc. was the entity which operated the solid
    waste management site alleged in the Complaint”;
    (2) C,B.C.,
    Inc.
    admits the violations alleged in Counts
    I,
    II,
    III and IV of the
    Complaint in that it
    (a) operated the site without an Operating
    Permit from the Agency;
    (b) failed to apply the requisite daily
    and final cover; and
    (c) disposed of refuse at an unpermitted site
    in violation of Section 21(f) of the Act;
    (3)
    “C.B.C., Inc.
    agrees
    not to conduct any more refuse disposal operations at the site
    in
    the future~unless an Operating Permit from the Agency is first
    obtained;
    (4)
    C.B,CO,
    Inc. agrees to promptly place the necessary
    final cover on a specified area of the property which is about
    60’
    X
    75’
    (most of the site has already been covered with the
    required final cover); and
    (5) C.B.C., Inc. agrees to pay a
    stipulated penalty of $3,000.00 within 30 days of the date
    of the
    Board Order in this case
    (Mr. Phil Mumford has agreed to personally
    guarantee this payment).
    40—37

    In evaluating this enforcement action and the proposed settle-
    ment agreements between the Agency and the various Respondents
    involved
    in this case, the Board has taken into consideration all
    the facts and circumstances in light of the specific criteria
    delineated in Section 33(c)
    of
    the
    Act,
    The Board finds
    all of
    the
    settlement agreements acceptable under Procedural Rule 331 and
    Section 33(c)
    of the Act,
    The Board hereby:
    (1) grants the Agency~sMotion
    to
    Amend
    the
    Complaint (thereby substituting C,B,C~, Inc.
    for Colonial Brick
    Company,
    Inc.
    as
    a Respondent in this case);
    (2) dismisses
    Colonial Brick Company,
    Inc. as a Respondent in this case;
    (3)
    finds
    that C,B.C.,
    Inc. has violated Rules 202(a),
    301,
    305(a)
    and 305(c)
    of Chapter
    7 and Section 21(f) of the Act;
    (4) orders C.B.C.,
    Inc.
    to
    expeditiously place the appropriate
    final cover
    on the specified
    uncovered area of the site (which is approximately
    60 feet X 75 feet),
    subject to the requirements detailed
    in the proposed settlement
    agreement between C.B.C.,
    Inc. and the Agency;
    (5) orders
    C.B.C.,
    Inc.
    not to conduct any more refuse disposal operations at the site
    in the
    Euture unless a permit
    is issued by the Agency
    for
    such
    operation;
    (6) assesses a $3,000.00 stipulated penalty against
    C.13,C.,
    Inc.;
    (7)
    dismisses the allegations
    in Count
    I of the
    Amended Complaint against Fred Lehmkuhl d/b/a L. and L.
    Hauling;
    (8)
    finds that Lehmkuhl has violated Section 21(f) of the Act;
    (9)
    assesses a $500.00 stipulated penalty against Lehmkuhl;
    (10)
    orders Mr.
    Robert Storman to cease and desist from further
    violations of Rules 202(a),
    301,
    305(a), and 305(c) of Chapter
    7
    and Section 21(b)
    of the Act;
    (11) assesses
    no
    penalty against
    Storman;
    (12) orders the Wiggins Ferry Company to allow access by
    any party designated by the Agency,
    at the sole risk of said
    party;
    to bring the site into compliance with Chapter
    7
    and the Act;
    and
    (13) assesses no penalty against Wiggins.
    This Opinion constitutes
    the Board~s
    findings of fact and
    conclusions of law
    in
    this matter.
    ORDER
    It is the Order
    of the
    Illinois Pollution Control Board that:
    1,
    The
    Complainant~sMotion to Amend the Complaint (thereby
    substituting C.B,C,,
    Inc.
    for Colonial
    Brick Company,
    Inc. as a
    Respondent in this case)
    is hereby granted.
    2.
    Colonial Brick Company,
    Inc.
    is hereby dismissed as a
    Respondent in this case.
    3.
    The Respondent, C.B.C., Inc., has violated Rules
    202(a),
    301,
    305(a) and 305(c)
    of Chapter
    7:
    Solid Waste Regulations and
    Section 21(f)
    of the Illinois Environmental Protection Act.
    4..
    C.B.C.,
    Inc. shall expeditiously place the appropriate
    final cover on the specified uncovered area of the site (which
    is
    40~38

    approximately 60’
    X 75~)subject to the requirements detailed in
    the Statement
    of Stipulated Settlement between C.B.C,,
    Inc.
    and
    the
    Illinois Environmental Protection Agency which
    was filed on
    September 17,
    1980.
    5.
    C,B.C.,
    Inc.
    shall not conduct any more refuse disposal
    operations at
    the site in the future unless a permit
    is issued by
    the Agency for such
    operation.
    6.
    Within
    30 days of the date of this Order,
    C.B.C.,
    Inc.
    shall,
    by certified check or money order payable to the State of
    Illinois, pay the stipulated penalty of $3,000.00 which
    is to be
    sent to:
    Illinois Environmental Protection
    Agency
    Fiscal
    Services Division
    2200 Churchill Road
    Springfield,
    Illinois
    62706
    7.
    The allegations
    in Count
    I of the Amended Complaint
    against
    Fred Lehmkuhl d/h/a
    L.
    and
    L,
    Hauling are hereby dismissed.
    8.
    The Respondent,
    Fred Lehmkuhl d/b/a
    L. and L.
    Hauling, has
    violated Section 21(f) of the Illinois Environmental Protection Act
    by
    disposing of refuse at the unpermitted site alleged in the
    Amended Complaint from approximately November,
    1977
    through
    March
    6,
    1978.
    9.
    Within 30 days of the date of this Order, Fred Lehmkuhl
    d/b/a
    L.
    and L.
    Hauling shall, by certified check or money order
    payable to the State of Illinois, pay the stipulated penalty
    of
    $500.00 which is to be sent to:
    Illinois Environmental Protection Agency
    Fiscal Services Division
    2200 Churchill Road
    Springfield,
    Illinois
    62706
    10.
    The
    Respondent,
    Robert Storman,
    shall cease
    and desist from
    further violations of Rules
    202(a),
    301,
    305(c) of Chapter
    7:
    Solid
    Waste Regulations
    and
    Section 21(b) of the Illinois Environmental
    Protection Act.
    11.
    No penalty shall
    he assessed against Robert Storman.
    12,
    The Wiggins Ferry Company shall allow access by
    any party
    designated by the Illinois Environmental Protection Agency
    at the
    sole risk of said party; to bring the site into compliance with the
    Board’s Solid Waste Regulations and the Illinois Environmental
    Protection Act.
    13.
    No penalty shall be assessed against the Wiggins Ferry
    Company.
    40~39

    —6—
    14.
    The Respondents shall individually comply with all the
    terms and conditions of each of their executed Statements of
    Stipulated Settlement, which are all incorporated by reference as
    if fully set forth herein.
    I, Christan
    L, Moffett, Clerk of the Illinois Pollution Control
    Board, hereby certify
    t. at the above Opinion and Order were adopted
    on the
    ~
    day of
    _____
    ,
    1980 by a vote of
    ‘1-o.
    Christan
    L.
    Moff~~,
    Clerk
    Illinois Poliuti~f~
    Control Board
    40—40

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