ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 78—33
FRED LEHMKUHL, CHARLES BRATVOGEL,
)
RICHARD JACKSON, CITY OF EAST ST.
)
LOUIS, a Municipal Corporation,
CHARLES GREEN,
and ARNOLD SPIRTAS,
)
Respondents.
MR. PATRICK J. CHESLEY, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF THE COMPLAINANT,
RICE, DURSO & RICE, ATTORNEYS AT LAW
(MR. CARMEN S. DURSO, OF
COUNSEL), APPEARED ON BEHALF OF RESPONDENTS FRED LEHMKUHL,
CHARLES GREEN, AND ARNOLD SPIRTAS.
McROBERTS, SHEPPARD, McROBERTS
& WIMMER, ATTORNEYS AT LAW
(MR. WILLIAM
L. WIMMER, OF COUNSEL) APPEARED ON BEHALF OF
RESPONDENT CHARLES BRATVOGEL.
RIPPLINGER
& RANSOM, ATTORNEYS AT LAW
(MR. SCOTT DIXON, OF COUNSEL)
APPEARED ON BEHALF OF RESPONDENT CITY OF EAST ST. LOUIS.
OPINION AND ORDER OF THE BOARD
(by D.
Satchell):
This matter comes before the Board on the February
6,
1978
Complaint brought by the Illinois Environmental Protection Agency
(“Agency”).
On August
18,
1978,
the Agency filed a Motion to Amend
the Complaint and Add Parties,
On August
24,
1978, the Board
entered an Order which granted the Agency’s motion.
The Amended Complaint added Charles Green (“Green”) and Arnold
Spirtas
(“Spirtas”)
as parties to this case.
Count
I
of
the Amended
Complaint alleged that,
from December
1,
1975 until April
1,
1976,
Respondents Fred Lehmkuhl
(“Lehmkuhl”), Charles Bratvogel
(“Bratvogel”),
Richard Jackson (“Jackson”),
City of East St. Louis
(the “City”),
Green,
and Spirtas operated a solid waste disposal site
(“site”)
located to the rear of the Bi—State Warehouse at 650 North Front
Street in the City of East St.
Louis, St. Clair County,
Illinois
without an Operating Permit from the Agency in violation of
Rule 202(a)
of Chapter
7:
Solid Waste Regulations
(“Chapter 7”)
40—17 1
Count It of the
Amended
Complaint alleged that, after refuse
disposal operations ceased on April 1,
1976, the Respondents failed
to place the requisite final cover on the site in violation of
Rules 301 and 305(c) of Chapter 7
and
Section 21(b) of the Act.
The
first hearing in this case was held on August 9,
1978.
After
numerous
discovery
motions were filed, the Board entered an
Order on
January
10, 1980 which attempted to expedite the proceedings
(i.e., a hearing was ordered to be held within 60 days).
Further
hearings were
subsequently
held
on
February
21,
1980
and
March
5,
1980,
during
which settlements were presented.
On
March
3,
1980,
a
Statement
of
Stipulated
Settlement between
the
Agency
and Respondents
Lehmkuhl,
Green,
Spirtas
and
the
City
of
Mast
St.
Louis
was
filed.
At the March
5,
1980
hearing,
a
proposed, but unsigned, settlement between the Agency and Respondent
flratvogel was presented, because the Respondent
lived
and
worked
in
another
state.
On
November
10,
1980, the Statement of Stipulated
Settlement
between
the
Agency
and
Respondent
Bratvogel
was
filed
•
*
Although
the
remaining
Respondent,
Mr.
Richard
Jackson,
received
a
cow
of
the
Amended Complaint and was personally
served
on April 19,
1978 with a Request to Admit Facts, he did not reply to the Agency’s
Request to
Admit
Facts and apparently did not choose to participate
in these proceedings.
(See:
Comp.
ExIt. 1—2).
At the hearing on March 5, 1980, the Assistant Attorney General
asked that the Board:
(1) deem that the facts delineated in the
Agency’ s
Request
to
Admit
Facts be considered as admitted proof of
all the material allegations against Respondent Jackson;
(2) impose
a $1,000.00 fine against Jackson;
(3) order Jackson “to place
final cover on the site so that he, in addition to the other parties,
will be liable for the placement of the final
cover
on the site”;
and (4) state
that
Jackson’s “liability be joint and severable from
the other Respondents”.
(R.
31—32).
Accordingly, under the Board’s Procedural Rule 314(c), each
of
the
matters
of
fact
of
which
admission
was
requested
is
hereby
deemed
to
be
admitted
because
of
Respondent
Jackson’s
failure
to
reply
to
the
Agency’s
Request
to
Admit Facts.
Additionally,
in
accordance
with
the
Board’s Procedural Rule 327 on default, the
Board
believes
it
appropriate
to
find
that
Respondent
Richard
Jackson
has
violated
Rules
202(a),
301,
and
305(c)
of
Chapter
7:
Solid Waste Regulations and Sections 21(b) and 21(e) of the Illinois
*Although
the
settlement
was
not
signed
at
the
time
of
the
hearing,
the
substance
of
the Stipulation filed on November 10, 1980 was
presented.
The
Board
finds
that
Procedural
Rule
331 has
been
substantially
complied
with.
40—172
Environmental Protection Act,
Respondent Jackson is hereby ordered
to
cease and desist from further violations and pay a penalty of
$1,500.00
The Statement of Stipulated Settlement between the Agency and
Respondent Bratvoge.
indicates that Mr. Charles Bratvogel subleased
the property in question to the other Respondents for the purpose
of operating a solid waste disposal
site.
Mr. Bratvogel had an
agreement with Respondents Lehmkuhl, Spirtas,
Green,
and Jackson
“that he would receive one dollar for every truck load o~refuse
dumped at the site.”
Refuse disposal operations were conducted
from December
1,
1975 until April
1,
1976.
It
is stipulated that
none of the Respondents had obtained
an
Operating Permit
from the
Agency for the site and that they failed to place the requisite
final cover on the site,
Thus,
the proposed settlement agreement
between the Agency and Bratvogel provides that Bratvogel shall:
(1) cease and desist from using
and/or
operating a landfill on this
site until a proper permit is obtained
from
the Agency;
(2) pcomptly
pay a one—fifth share of the cost
(but in no event more
than
$1,000.00)
of placing the necessary final cover on the site; and
(3) pay a stipulated penalty of $250.00
The Statement of Stipulated Settlement between the Agency and
Respondents Lehmkuhl, City of
East
St.
Louis, Green, and Spirtas
provides that the Respondents agree to:
(1) cease and desist from
using and/or operating a landfill on the site until
a proper permit
is obtained from the Agency;
(2) pay a penalty of $250.00 each;
and
(3) promptly place suitable
final cover over
the entire surface
where refuse was deposited
at the landfill site
(i.e.,
“suitable
cover material consists of any naturally occurring soil or earthy
material which is free
from
refuse
and large rocks” and “does not
include cinders, pot ash,
bricks,
concrete,
demolition wastes,
and
gob or other mining waste products”).
Additionally, the Stipulation
provides that “the method of application of
the
final cover and the
source of machinery
and labor
shall be determined by the Respondents,
Fred Lehmkuhl, Charles Green,
and Arnold Spirtas” who “agree to keeo
detailed records concerning the cost associated with applying such
final cover.”
Moreover,
the City of
East St. Louis has agreed
“to
pay a one—fifth share of the cost for the placement of final cover
on the site.”
In evaluating this
enforcement
action and the proposed settle-
ment agreements, 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 these stipulated
agreements acceptable under Procedural Rule 331 and Section 33(c)
of the Act.
Respondents Lehmkuhl, Bratvogel, City of East St.
Louis, Green,
and Spirtas are hereby ordered to cease and desist from further
violations, pay stipulated penalties of $250.00 each,
and follow
the agreed—upon measures
for placing suitable final cover on the
site
in accord with their respective proposed settlement agreements.
40—173
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.
Respondent
Richard Jackson
has violated Rules
202(a),
301,
and 305(c) of Chapter
7:
Solid Waste Regulations and Sections
21(b)
and 21(e)
of the
Illinois
Environmental Protection Act.
2.
Respondent Richard Jackson shall cease and desist from
further violations.
3.
Within 60 days of the date of this Order, Respondent
Richard Jackson shall, by certified check
or money order payable
to the State of
Illinois,
pay a penalty of $1,500.00 which
is to
be sent to:
Illinois Environmental Protection
Agency
Fiscal Services Division
2200
Churchill Road
Springfield,
Illinois
62706
4.
Respondents
Fred Lehmkuhl, Charles Green,
Arnold Spirtas
and the City
of East
St. Louis
shall comply with all the terms and
conditions of the Statement
of Stipulated Settlement filed March
3,
1980, which
is incorporated
by
reference as
if fully set forth
herein.
5.
Respondent Charles Bratvogel
shall comply with all the
terms and conditions of
the Statement of Stipulated Settlement
filed
November 10,
1980,
which
is incorporated by reference as
if fully
set forth herein,
6.
Within 60 days of the date of this Order, Respondents
Fred Lehmkuhl, Charles
Bratvogel,
City of East St.
Louis, Charles
Green, and Arnold Spirtas
shall, by certified check or money order
payable to the
State
of
Illinois, pay the stipulated penalties of
$250.00 each, which are to be sent to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
Illinois
62706
Mr. Werner
dissented.
Chairman Dumelle concurred.
I,
Christan L.
Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify
that the
above Opinion and Order were adopted
on the
~ct-.t&~
day of
~
1980 by
a
vote of
___
~tanL.Moffetlrk
Illinois Pollution
Control Board
40—174