ILLINOIS POLLUTION CONTROL BOARD
June
22,
1979
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 78—153
JACK CARLSTROM, d/b/a LOCKPORT
)
TRUCKING COMPANY,
)
Respondent.
MS.
ANNE K,MARKEY AND MS. SUSAN N.
SEKULER, ASSISTANT ATTORNEYS
GENERAL,
APPEARED ON BEHALF OF THE COMPLAINANT.
MR.
THEODORE
J.
JARZ, ATTORNEY AT LAW, APPEARED ON BEHALF OF THE
RESPONDENT,
OPINION
AND
ORDER OF THE BOARD
(by Dr. Satchell):
This matter comes before the Board upon a complaint and
amended complaint filed May 25,
1978 and
August
18, 1978 by
Complainant Environmental
Protection Agency
(Agency)
against
Respondent Jack Carlstrom, d/b/a Lockport Trucking Company
(Caristrom
or Respondent).
Respondent operates
a permitted
landfill
near Joliet,
The complaints allege violations on
various dates since March 13,
1975,
of Sections
12 and
21
of
the Environmental Protection Act
(Act)
and various Board Rules
contained in Chapter
7:
Solid Waste.
The following
is a summary
of the allegations of the complaints:
Count
Act/Rule
Gravamen
I,
Section 21(e),
(f)
Accepted hazardous and/or liquid
VII
Rule 310(b)
wastes or sludges without a permit.
II
Section 12(a),
Allowed deposit of contaminants
Rule
313,
314(e)
upon the land
.
.
.
so as to create
a
water pollution hazard in
the
form of contamination of private
wells on adjacent property.
III,
Section
21(b),
Failed to place compacted layer of
VIII
Rule
305(a)
at least six inches of suitable
material on all exposed refuse.
IV
Section 21(b)
Failed to place compacted layer of
Rule 305(b)
twelve inches of suitable material
on all surfaces
of the site where
no additional refuse will be
deposited within sixty days.
34—47
—2—
V
Section 21(b)
Failed to deposit refuse into the
Rule
303(a)
toe of the fill or bottom of the
trench
VI
Section
21
Failed to operate within the limits
Rule
302
specified by permit with regard to
liquid wastes, hazardous wastes and
other nonconforming substances and
has allowed waste material to
migrate from the site.
The landfill in question is located on a 9.2 acre site near
the intersection of 1—80 and Illinois Route
7 near Joliet.
It
is an abandoned limestone quarry near the Des Plaines River.
The
quarry was at one time filled with water to a depth of about
two
hundred feet, but since has been nearly filled with refuse
(R.
629),
Carlstrom acquired it around 1960
(R,
604),
Prior to
that time the land was used for unregulated dumping of various
materials,
including industrial waste, for a fee
CR.
606).
Carl-
strom began dumping waste
automobile insulation from the GAF
factory immediately after
purchasing
the site
CR.
607,
609).
Open sewers ran into the quarry at that time, but these
were
eliminated when houses were demolished to build 1—80
CR.
608).
Four storm tiles were laid to carry runoff from an 1—80 inter-
change area into the quarry
(R.
616,
618,
666),
The site as it now exists has
a wall of exposed rock which
appears to be about thirty feet high on the north and east sides
(Cornp,
Ex.
19).
The sIte is more or less level
or slopes upward
toward the rock as it is approached from the south or west
(R.
558,
585).
Before 1960,
trucks dumped refuse off the rock into
standing water
(R.
606).
Carlstrom, however, filled from the
south and west by dumping or pushing refuse into the water until
the operation reached the rock
wall and there was no more water
(R~
620,
629),
In 1973 Carlstrom acquired
a
permit from the
Agency when the Solid Waste Rules became applicable.
At this
time there was still standing water
on
the site
CR.
555;
Comp.
Ms.
Jean Larsen,
a geologist employed by the Illinois State
Geological Survey, testified for the Agency about the landfill
site,
She is an expert on Will and Lake Counties and her duties
include evaluating potential landfill
sites for the
Agency
(R.
393,
398,
431).
She had seen the Caristrom site from
the highway
and had read survey documents concerning the site, but had not
actually visited it
CR.
434,
438).
This area
near the Des
Plaines
River
is described as
exposed bedrock,
less than two feet of soil
covering fractured dolomite
(R.
407,
427,
443),
Water moves much
faster through fractured dolomite than clay
(R.
411).
There are
many sites
in northeast Illinois
which are covered with clay which
is so tight that leachate
will not migrate
into the ground water
(R.
407),
Impurities
may also be filtered out as water percolates
34—48
—4—
This was
dismissed
by
Order of
the
Board on August 24,
1978,
because the Board does not accept third party complaints
(32 PCB
149).
Apparently the state took
the drainage easement by eminent
domain or some other legal process
(R.
668),
The Board has no
jurisdiction to consider claims against the state for damages to
Respondent~sproperty or business.
The following is
a summary of the permits issued to Carlstrom
for the operation of the site:
73-1
Permitted to operate
a solid waste disposal site
(Comp. Ex.
1)
to handle antherlite and automobile insulation,
Jan.
1,
1973
all in accordance with application and plans.
73-6
Permitted to accept FCC Catalyst Fines, a fine
(Comp. Ex.
2)
sand consisting of silica, alumina and carbon,
Feb.
8,
1973
and hot lime sludge containing a large number
of
miscellaneous impurities.
Materials to be
mixed together, mixed with earth, dried and
used as daily cover.
74-70
Permitted to accept calcium sulfate dried sludge.
(Comp.
Ex.
3)
Permitted to use asphalt strips for road material.
May 20,
1974
Strips are to be hauled to site only when required
and not to be stockpiled.
75-4
Permitted to deposit up to six truck loads
of
(Comp. Ex.
4)
refuse before spreading and compacting.
Per-
Jan.
8, 1975
mission denied for use of fly ash as cover.
Permitted
to use fly ash on roads to prevent
icing, permitted to stockpile forty cubic yards
during winter months;
all additional fly ash
subject to rules and regulations for refuse.
78-1092
Permitted change in direction of fill operation,
(Comp. Ex.
27)
construction of drainage channel.
June
16,
1978
Four hearings were held
in Joliet.
On November 30,
1978
and December 14, 1978 Agency inspectors testified.
On December
15, 1978 the Agency presented expert testimony on laboratory
procedures and hydrogeology,
Respondent~switnesses testified
on December 18,
1978.
HAZARDOUS OR LIQUID WASTES
Count I charges that Respondent accepted hazardous or liquid
wastes or sludges without a permit between June 24,
1977 and
May 25,
1978
in violation of Section
21(e)
and
(f)
and Rule 310(b).
Agency inspector Mr. Henry Cobo testified that on June 24, 1977
he inspected the site in response to a complaint received the
34—49
_3..
through soil, but to a lesser extent through rock fractures
(H.
413,
414).
The fractured dolomite of Will County
is the
least desirable place to site a landfill
(R,
407).
However,
there is evidence from well
pumping rates that the dolomite
immediately adjacent to Carlstrom’s site
is not as highly
fractured as some
(R.
442),
In view of this,
the Agency argues
that the original permit should never have been issued
(Brief,
p.
15).
However,
this
question is not placed before the Board
by the pleadings.
The original permit was
issued in 1973 and allowed Respondent
to accept amberlite and automobile insulation,
It
was granted
“all in accordance with the application and plans” prepared by
GeoTech,
Inc.
This application was introduced into evidence as
part of Comp1ainant~s
Exhibit
1, but is not in the exhibits or
Complainant~slist of exhibits filed
March 19, 1979
(R.
585).
However, a copy is attached
to the complaint.
Mr. James Douglas
Andrews testified
for Respondent concerning the application
(R.
550).
Mr. Andrews
was with the Permit Section of the Agency at
the time the permit was
issued but is now employed by Respondent
through GeoTech as
a
consulting engineer
CR.
553).
Carlstrom
was permitted to dump into standing water because of the inert
nature of the amberlite
and automobile insulation
(R,
556).
The
application contained plans
to
build watercourses to carry the
stormwater across
the
site
(R.
557).
Paragraph 28.a reads
in part:
The cell construction will be
In a
north to south
direction and the first level of cells will vary in
thickness
so that the surface of the cells will slope
approximately
two feet from north to south,
This will
allow for unrestricted flow across the site
for all the
storm water that
drains into the site.
This
is important
since there are four existing
highway culverts that drain
into the north end of the site.
Drainage swales around the
perimeter of the site
will also be constructed as the site
is developed to convey the storm water runoff to the existing
drainage at the south end
of
the site.
Whenever the weather
conditions are such that cell construction within the
drainage swale is difficult
an alternate cell will be used.
The drainage
paths were not
in
fact constructed prior to the
filing of the complaint
in
1978.
Mr. Jack Carlstrom,
Jr.
testified
that it was impossible to build the drainage paths until the fill
reached a certain level,
which apparently was not reached until
1978
(H.
621,
646,
669),
The Agency contends
that there was
a
deliberate misrepresentation in the application.
However, this
is
not charged in the complaint.
Carlstrom
argues that all his
operating problems
stem from the highway drains,
He
attempted to
file in this action a
third party complaint against the state.
34—50
—5—
previous
day
(R.
152).
After
an initial tour of the site, Mr.
Cobo walked
south from the site
to the Corps of Engineers office
which
had
made the complaint.
After speaking with a Mr. Kavato,
he returned to
the landfill to reexamine a certain area which had
been
pointed out to
him.
He found a partially buried barrel
filled
with what appeared to
be oil containing metal fines
(R.
153;
Comp.
Ex.
l9A and l9B),
Respondent concedes that this
violation
occurred,
but contends it was an isolated,
unintentional violation
(Closing
Arg.
19;
R.
635),
The
Agency does not have to prove
in-
tent to establish
a
violation of landfill operating rules.
Re-
spondent
was not permitted to
accept refuse in general, but is
restricted to
certain specified industrial waste on account of the
danger
of groundwater pollution
at the site.
It is very unlikely
that no
one
noticed the barrel
In loading, dumping,
spreading and
covering.
The Board finds Respondent in violation of Section 21(e)
and
(f)
and
Rule 310(b)
as
charged.
Count
VII
of the amended complaint alleges that Carlstrom
accepted
hazardous and/or liquid
wastes on or about August 18,
1978.
Mr.
Cobo testified for the Agency concerning inspections
made on
August 16, 1978 and September 26, l978~(R.
192,
206).
The
Agency presented no evidence concerning August 18, 1978,
and did
not
seek to
amend
its pleading to conform to the proof.
Under
Procedural Rule 326 proof may depart from the pleadings
so long as
undue
surprise does not result.
Respondent did not object to the
testimony concerning August
18, 1978 and points to no surprise or
prejudicial
result.
The Board therefore finds that the pleading
adequately
informed Respondent of the charges.
Complainant contends that chemical
analysis of sludge samples
taken from the site demonstrates that unpermitted
liquid or
hazard-
ous wastes or sludges have been dumped at the site
(Brief,
p.
13).
Respondent is permitted to accept
hot lime sludge
(Comp.
Ex.
2).
A typical analysis of the sludge is included with the permit appli-
cation.
An Agency inspector collected a sample of sludgefrom
the
site
on August 16,
1978,
The sample was subjected to
a leachate
test
CR, 203; Comp.
Ex.
26).
The Agency offers no expert testimony
to the
effect that the analysis of this sample demonstrates that
unpermitted
materials had been dumped.
Comparison of the permit
application
with the sample from the site does reveal differences.
The
leachate sample analysis reveals high values for boron,
fluoride,
mercury and R.
0.
E.
Although the leachate test cannot be directly
compared to the sludge analysis, there are unexplained differences.
However,
these are
insufficient to justify a finding that unpermitted
materials
had been dumped.
Count VII
is therefore dismissed.
34—51
—6—
WATER POLLUTION
Count
II alleges that on various dates since July
16,
1975,
including May 11,
1977 and June 24,
1977, Respondent allowed
deposit of contaminants upon the land “in such place and manner
so as to create a water pollution
hazard in
the form of
con-
tamination of private wells on
adjacent property
in violation
of Rule 313 of the Solid Waste Rules and
.
.
Section 12(d)
of the Act.”
Agency Inspector Charles
T.
Grigalauski took samples
from two wells and ponded water on the site on May
11, 1977
(R.
79-92; Ex.
15,
16, 17).
The Hearing Officer admitted the
tests
for the limited
purpose of showing
delivery, but not
validity
(R,
92).
However, James Dougherty, Unit Manager, Agency
Laboratory,
subsequently testified to the procedures followed in
the tests
(R.
322),
On June
24, 1977 Agency Inspector Cobo also
took samples
of ponded water
(R,
149, 158,
161; Comp.
Ex.
20),
PARTIAL ANALYSIS OF PONDED WATER
Exhibit 17
Exhibit 20
May 11,
1977
June 24, 1977
Boron
24.x mg/l
17.5 mg/l
COD
3360
*
Chloride
*
1100
Cyanide
.21
,00x
Fluoride
*
2.4
Iron
*
1.4
Phenolics
0.000
.380
R,O.E,
14,000
1160
(sic)
Sodium
*
2000,x
Sulfate
230
*
*Not analyzed.
Mr. Cobo followed a trail
of water from one of the
1-80 culverts
across the site
CR.
150;
Ex. 19,
20),
The water was relatively
clear and odor free when it
entered the site from the culvert
but became more discolored
as
it flowed across the site.
Exhibit
20 was taken from a
pooi along this trail.
The well samples were
taken from property
adjacent to the site and to the west,
These
are referred
to as the Lopez well and the Aggazzi well.
Both
wells show ammonia, boron,
COD,
R.O.E, and sulfate
CR,
79,
83,
92; Comp.
Ex.
15,
16),
The boron and sulfate
could be especially
indicative of pollution from the site,
Ms. Jean Larsen
of
the Illinois State
Geological Survey
testified
for the Agency
as an expert
on hydrogeology
CR.
392).
Her expertise, experience in evaluating landfill sites and
34—52
—7—
testimony concerning the water permeability of the surrounding
dolomite is
discussed above
(R.
398, 427—443).
Ms. Larsen
testified that
chemicals
in solution in surface ponds such
as
found
in
Exhibits
17 and
20 could enter into the groundwater
and show
up in the wells
(H,
457,
461).
She testified that it
was possible that pollutants from the landfill could enter the
pumping
cone of the Aggazzi well
(R.
467).
She had no direct
knowledge
of the direction of flow of groundwater through the
site,
but testified at several points
as to the general south-
east flow
at
right angles to and toward the Des Plaines River
(R,
410,
430, 441,
443,
445,
463,
467).
On cross—examination
she drew
arrows showing the direction of flow on an aerial
photograph
CR.
475,
477; Resp.
Ex.
2).
Mr. Jack
Carlstrom,
Jr.,
Respondent’s son, testified that
the Aggazzi well
was not
even on the aerial photograph, but was
off to the
southwest somewhere
CR.
651;
Resp. Ex.
2).
The Aggazzi
well appears
to be located about
a
mile southwest of the site and
the Lopez
well nearly one and one—half miles southwest on the
Agency’s sketch map of the location of the site and wells
(Comp.
Ex.
11).
These distances are almost at right angles to the
southeasterly flow of groundwater.
The Board therefore finds
that the
Carlstrom site has not been shown to be a source of
contamination to these wells.
Rule 313 proscribes “water pollution hazards” rather than
actual
pollution.
However, the complaint alleges a “hazard in
the form
of contamination
of private wells
on adjacent property.”
There
is
no evidence in the record of any wells between the site
and the
Des Plaines River,
in the direction of groundwater flow.
There is
therefore no hazard,
The Agency in its brief points out
that the
evidence indicates that Respondent’s leachate is pollut-
ing the
River
(Brief,
p.
14),
However, this
is not alleged in
Count II.
The evidence also establishes that on August 25, 1977
water was flowing across Respondent’s property, picking up pollut-
ants and exiting the property into
a drainage ditch along the
south boundary line
CR,
173;
Comp.
Ex.
22 F and G).
This again
is a violation of Rule
313, but it is not charged in the complaint.
The
Board will order Respondent to take actions
to remedy the
situation,
COVER
Counts III and VIII of the complaint allege that on various
dates
Respondent failed to place a compacted layer of at least
six inches
of suitable material on all exposed refuse in violation
of Section
21(b)
of the Act and Rule 305(a).
Count
IV alleges
34—53
—8—
that on various dates Respondent failed to place at least twelve
inches of suitable material on all surfaces of the site where no
additional refuse will be deposited within sixty days in violation
of Section 21(b)
and Rule 305(b).
Mr. Robert Wengrow testified
for the Agency concerning an inspection of the site on March 13,
1975
(H.
16, 22,
24),
He testified that there were areas of the
site in need of daily cover.
Respondent’s objection to this
conclusion was sustained
CR.
19),
No other evidence of the need
for cover on this date appears in the record.
The Board finds
the evidence inadequate on this date,
Mr. Grigalauski testified for the Agency concerning an in-
spection of the site on April 15, 1976
CR.
34,
98; Comp.
Ex,
5).
The inspection was made in the afternoon hours
CR,
99),
He
testified that the method of determining when the materials were
desposited was by visual observation of the amount of exposed
refuse
(H,
36).
More than one acre was uncovered, but he could
not estimate the depth
(H.
38,
40),
In the opinion of the wit-
ness, there was more than one day’s worth of uncovered material
at the site
CR.
37).
He did not know how much area an ordinary
day~soperation would involve
CR.
103).
One crawler tractor was
operating at the site
(R,
38).
He did not know how much it
could spread in one day
CR.
103),
Mr. Grigalauski again inspect-
ed the site on May 11,
1977
in response to a complaint
(R.
72;
Comp.
Ex.
10),
There was one acre of exposed refuse and one to
two acres with less than six inches cover
CR.
73).
The Agency has not shown lack of adequate daily cover by
any of the following methods:
the presence of uncovered refuse
when the site opened in
the morning; more than one day’s volume
uncovered;
or, more refuse present than the available equipment
could cover in one day.
Although the witness testified that
there was more than one day’s refuse,
he was unable to give any
specifics that would be necessary to form this opinion.
In
addition, his ability to estimate
areas
is in doubt.
Het~Ufied that
more than an acre was not covered.
On cross—examination he said
the area was three hundred yards square
(R.
38, 98),
Three
hundred square yards
is less than one tenth of an acre and three
hundred yards square is about nineteen acres.
Either way,
it
impeaches his ability to judge an acre.
The Board cannot base
a
finding of lack of daily cover on this evidence.
Mr. Cobo testified for the Agency concerning
an inspection
of the site made in the afternoon on June
24, 1977
CR,
137,
252;
Comp.
Ex.
19).
There was
a thirty by fifty foot area of automobile
insulation, tarpaper and wood covered with less than six inches of
fly ash
(H,
148).
The area was fifty to sixty feet from the fill
face and there was a large depression where water would flow through
34—54
—9—
between the area and fill face
CR.
149).
On December
4,
1974,
Respondent requested a permit to use fly ash as cover material
(Comp.
Ex.
4).
This request was denied, although Respondent was permitted
to store up
to forty cubic yards of fly ash on the site
during
winter months for use on roads to prevent icing.
On cross—examin-
ation, the witness described the
fly ash as spread out with tractor
marks
in it
(H.
253),
Mr. Jack Carlstrom,
Jr. testified for Re-
spondent that fly ash was, rarely, used on the fill face in winter-
time when equipment got stuck
CR.
645).
He also testified that the
site operated only one fill face at a time
(R.
622,
671)
Rule 305(a)
requires that
a compacted layer of at least six
inches of suitable material be placed on all exposed refuse at the
end of each day of operation.
Because of the distance from the
fill face, the Board is satisfied that the material was deposited
more than twenty—four
hours before the inspection and was in need
of daily cover,
In addition, the Board finds that Respondent
deliberately covered the refuse with fly ash since the material
was spread out over an area with equipment.
The Board rejects Mr.
Carlstrom’s explanation that it was used for deicing by noting
that the inspection took place in June, months after any need for
deicing.
The Board therefore finds Respondent in violation of
Section 21(b)
and Rule 305(a)
on June
24,
1977
as charged in
Count III of the complaint.
Count IV charges that Respondent failed to apply twelve inches
of suitable cover material to surfaces where no additional refuse
is to be deposited within sixty days
in violation of Section 21(b)
and Rule 305 (b).
One violation is alleged to have occurred on
June
24, 1977, based on the same event as the use of fly ash for
daily cover.
Mr.
Cobo testified that in his opinion the filling
operation would not return to the area for more than sixty days
CR,
147).
Respondent’s objection to this was sustained.
The
record before the Board is inadequate to establish a violation of
the intermediate
cover rule as of this date,
Intermediate cover
is also alleged to be lacking on April
15,
1976, July 13, August
25, and December 13,
1977.
No evidence
of these violations
appears
in the record,
Therefore, Count IV is dismissed,
Mr. Cobo testified for the Agency concerning an inspection of
the site in the afternoon on July
13, 1977
CR.
164,
263,
274;
Comp.
Ex,
21),
There was a large volume of refuse including a
ten by twenty foot area of
hot lime sludge which was cool enough
to cover
(H,
167),
Respondent
is permitted to accept hot lime
sludge and to use it as cover material mixed with catalyst sand
and dirt
(R,
637;
Comp.
Ex.
2).
Mixing and cooling is to take
place in a berm area in the north
(northeast)
end of the site
34—55
~l0—
CR.
275).
The sludge in question was piled in the northwest
corner, near the fill face and away from the berm
(R.
165,
275).
It is clear that the permit contemplated
that
the
sludge should
remain uncovered for a period of time, but whether this
is hours,
days or weeks
is not clear,
Respondent was permitted
to stock-
pile the coo’ mixed sludge for use as cover.
The Agency did not
establish that the sludge in question had not been prepared for
use as cover.
The Board cannot
therefore find
a violation of
the daily cover requirement.
Respondent is permitted to accept up to six loads before
spreading and compacting
(Comp.
Ex.
4),
Rule 303(b) would other-
wise require spreading and compacting as rapidly as refuse is
deposited on the fill face.
The Agency granted this supplemental
permit to enable Respondent to operate more efficiently
in face
of a small volume of non—putrescible refuse that arrived at
irregular intervals,
The
equipment operator hauls until there
are six loads to spread and compact
(H,
519).
Much of the
test-
imony concerns whether there were more or less
than six loads
present on July
13,
1977,
However, the complaint does not
allege
violation of permit conditions by failing to spread and compact.
The record is inadequate to establish the need for daily cover on
the refuse of July
13, 1977.
Mr. Cobo testified concerning an inspection of the site in
the afternoon on August 25,
1977
(R. 171,
276;
Comp.
Ex.
22),
The filling operation was proceeding
in the extreme northwest
end of the site,
There was a large quantity of asphalt and
concrete material
in
the extreme southwest or southeast portion
of the site,
in the state the trucks had deposited
it
CR.
172,
175; Comp.
Ex.
22 A-D),
Respondent is not permitted to accept
such material for disposal.
Respondent was permitted
to use
asphalt tar strips
as road building material, but was not
per-
mitted to store them on the site
(Comp, Ex.
3).
Respondent
attempted to establish on cross-examination that the material
in question was the tar strips
CR.
276).
Mr. Cobo testified that
the tar strips were a waste product from the manufacture of roof-
ing shingles and distinct from the asphalt material observed,
Review of the testimony of Respondent~switnesses discloses that
the material may have been stockpiled for construction of the
drainage way
CR.
647).
However,
this relates
to mitigation
under Section 33Cc).
The Board finds that the asphalt and
concrete were in
need
of
daily cover, based on the quantity
present,
its distance from the landfill and the manner
in which
it was dumped.
Mr. Cobo testified concerning
an inspection of the site
in
the afternoon of December 13,
1977
CR.
177,
287; Comp.
Ex.
23).
Snow had fallen on the previous day but not on that day
(H,
179,
242),
The witness observed
a fifty
by twenty-five foot area of
34—56
—11--
snow covered
asphalt, shingle roofing, automobile insulation,
etc,
(H,
180).
To the north equipment was
in operation spreading
and compacting similar material
(H,
181),
He observed two large
trucks depositing fly ash on top of the refuse
CR.
181,
183;
Comp.
Ex,
23 C).
The ash was spread to
a depth of several inches
and was more than needed to prevent icing
(R.
183).
Mr. Cobo
observed the operation for over one hour
(R.
287)
,
and saw at
least two loads of fly ash dumped
(H.
181; Comp.
Ex.
23 A,
B).
Mr. Cobo testified that the fly ash was being used for cover and
not deicing
CR,
183).
The trucks were driving over a level area
to the west of the fill face and dumping five to ten feet off an
abrupt drop to where the spreading and compacting was occurring
(H.
182).
The trucks were not operating over the area where the
fly ash was being used,
The Board therefore
finds that Respond-
ent used an unsuitable material,
fly ash,
for daily cover on
December
13,
1977
in violation of Rule 305(a)
as alleged
in Count
III.
Mr.
Cobo also observed snow covered refuse to the south of
the active fill face on the afternoon
of December 13, 1977
(H.
179, 287;
Comp. Ex.
23).
It
had snowed the previous day but not
on that day
CR.
179),
There
is no testimony about what time of
day it snowed.
Respondent contends that the evidence is inadequate
to establish the need for daily cover because he operates a twenty-
four hour dump
(H,
521,
610,
666).
He contends that Rule 305(a)
requires only that refuse
not go more than twenty—four hours un-
covered
in the case of a twenty—four hour operation.
The Board
accepts
this interpretation of Rule 305(a)
for purposes of argu-
ment only.
Mr. Cobo was not
aware that the site was operating on a
twenty-four
hour schedule although he had inspected the site many
times
CR.
234).
Respondent has offered no evidence that the site
on this occasion operated
all night.
Mr.
Barz, Respondentvs
equipment
operator, testified without exception that his day
started
at 6:00 in the morning and ended at 4:30 in the afternoon
(R.
519,
541).
However, he agreed that there was a twenty—four
hour operation.
Mr. Jack Carlstrom,
Jr., could not give specifics
on how many people would ordinarily be
on the site all night
CR,
665),
It was not true that the
only time the site operated after
4:30 p.m. was on special request from a waste generator
(R.
666).
The reason the site operated in the evening hours was
“if we had
an operational problem during the day which would necessitate us
34—57
—12—
to stay that evening”
(R.
666).
Mr. Carlstrom could not state
how many times per week the
site operated in the evening
CR.
666).
The Board concludes that
this evidence is inadequate to establish
that there was twenty—four
hour operation.
In addition, Respond-
ent
is estopped to
assert twenty—four hour operation because of
the representations
found
in the original permit application
(Comp.
Ex.
1,
Complaint,
Ex. A).
It says in paragraph 28.b that
trucks will unload
from 8:00 a.m.
to 4:30 p.m. and that daily
cover will be
applied after the last truck for the day has unloaded.
The Board therefore
finds that there was refuse in need of daily
cover on the site
on December 13, 1977.
Count VIII of the amended
complaint charges daily cover
violations on and since
June 28,
1978.
Mr. Cobo inspected the
site in the morning on August
16,
1978
(H,
192,
243,
298;
Comp.
Ex.
25),
The Agency has
not sought
to amend
the complaint to
conform to the
proof.
However, Respondent did not
object to
Mr. Cobo’s
testimony
and raises no objection in
the closing
argument.
The
Board therefore finds that the pleadings
adequate-
ly informed
Respondent of the violation alleged
on August
16,
1978.
Mr. Cobo testified
that
the landfill had recently changed
its direction
of operation in
accordance with the supplemental
permit
(H,
193;
Comp.
Ex,
27).
The operation had been proceeding
from the north
to south but was
now operating from west to east,
The former working
face was in
the extreme north end of the site,
The new was in the extreme northwest.
There appear to be at least
two errors
in directions
in either the testimony or the transcript
(R~194,
195).
The Agency seems to be attempting to establish the
need for cover by demonstrating
that the operations had proceeded
sufficiently past a certain point without covering.
However, the
record is insufficient to
find
lack of cover on this basis.
Mr. Cobo testified that it had
not rained on that day
(H,
198).
He observed four categories
of refuse
(H.
193—195):
I.
Spread, compacted
and
covered;
2.
Spread, compacted,
uncovered
and
wet;
3,
Unspread, uncovered and wet;
4.
Unspread, uncovered and
dry.
Trucks were dumping dry refuse.
On direct examination, Mr. Cobo
testified that the
equipment operator was spreading and compacting.
However, on cross—examination
he retracted this testimony
(R.
301),
It is the Agency’s contention that the presence of wet refuse
demonstrates the need for daily cover.
The inspection seems
to
have occurred at 9:15-9:30
in
the morning
(Comp.
Ex.
25).
There
is
no direct testimony to
this effect, hut the time of day is filled
in on the photographs.
Mr.
Cobo was permitted to testify over
34—58
-13—
Respondent’s objection that it had not rained that day
(H.
198).
On cross—examination he could not recall whether he had been in
Joliet overnight
CR.
243),
However,
it appears that he was in
the general vicinity
(H,
239),
Respondent offers no evidence
that it had rained immediately before the early morning inspection.
The
photographs disclose generally blue skies with scattered clouds
but overcast toward the east
(Comnp.
Ex. 25),
However, Respondent
asserts that Mr.
Cobo had no idea how the material got wet
(H,
244).
Mr. Cobo testified that Mr. Caristrom,
Sr. and Mr. Carlstrom, Jr.
informed him at the time that it had rained the day before
(H,
245),
The site was covered
with several inches of water, indicating rain
CR.
196,
247),
On cross—examination,
Mr. Cobo stated that although
there was water that had come from the direction of the culverts,
there was no water draining out of the culverts
(H.
246),
Mr.
Carlstrom,
Jr. testified
that even a slight rain can flood the
entire site and that, when It rains and the culverts operate, it iE
like a high
pressure fire hose
(R.
618,
628),
Considering all of
the above,
the Board concludes that the material was wet because
it
had been out in the rain either the day before or overnight.
Respondent offers two further arguments.
The first is that the
material may have been left out
overnight in trucks
(Closing Ar-
gument
6).
Mr. Jack Carlstrom, Jr. did testify that on occasion
trucks are left at
the GAF factory to be loaded overnight
(H.
613).
However, there
is no evidence that this happened on this occasion.
Respondent’s second argument is that since he has a twenty—four
hour operation,
the daily cover
rule only requires that the refuse
not go more than t~enty-fourhours uncovered
(Resp.
Arg.
4).
The
Agency’s
evidence is insufficient to establish that it had not
rained in the twenty-four hour period preceding the inspection.
However, the
Board rejects Respondent’s contention that he is
running a twenty—four hour operation,
for the reasons discussed
above in connection with the violation found on December
13,
1977.
Respondent only rarely operates twenty—four hours and there is no
evidence that he did on this occasion.
The Board therefore finds
that on August 16,
1978 there was refuse uncovered on the site
which was
in need of daily cover,
in violation of Section 21(b)
and Rule 305(a)
as charged in Count VIII of the complaint,
Respondent devotes
four
pages of his closing argument to a
discussion of Mr. Cobo’s testimony
(Closing Argument 8—12),
On
direct examination Mr. Cobo testified that the bulldozer was
spreading and compacting
CR.
196)
.
However, when confronted with
his testimony on deposition,
he retracted this statement
(H.
301).
It does not make any difference whether the bulldozer was operating
or not to establish the
violation.
However, it does raise some
question about Mr. Coho’s
memory.
The Hearing Officer found all
the witnesses
to
be credible except in so far as disclosed in the
34—59
—14—
record.
The Board finds that the
difference in
testimony here
is slight and on a
collateral matter and that the witness’s
testimony
is otherwise credible.
TOE OF FILL
Count V charges that
Carlstrom failed to deposit refuse
into the toe of the fill or
bottom of the trench in violation
of Section
21(b)
of the
Act and Rule 303(a)
since April
15,
1976
and in particular on July
13, 1977
and August
25,
1977.
Mr.
Grigalauski testified for
the Agency that on April
15, 1976 he
observed refuse being spread
and
compacted downhill or from the
top of the slope and that
this was
in violation of the accepted
procedure
(H.
35, 111; Comp.
Ex.
5
A).
Mr. Cobo testified for
the Agency concerning
inspection made on July 13 and August
25,
1977, but the
record contains no
clear reference to whether
refuse was being deposited in the toe on these dates
(H.
164,
171),
Mr. Jack Carlstrom,
Jr.
testified for Respondent concerning
Exhibit 5 A
(H,
633,
634),
He confirmed that the bulldozer was
spreading and
compacting
downhill.
He explained that this was
done when the
site was too wet for the trucks to dump at the toe
of the fill.
The
operator had to either dump at the top of the
fill,
on top
of the last cell,
or
dump at the gate, which would
involve bulldozing
the
refuse
a
considerable distance to the
fill area,
He adjudged dumping
at the top of the fill to be the
more reasonable alternative,
Reasonableness
may
be a defense under Section 33(c).
How-
ever,
Respondent is operating a permitted landfill,
Rules and
permit conditions
would be meaningless if they could be violated
routinely because it was reasonable to do so.
Mr. Carlstrom does
not testify that the change in
operating procedure was brought
about by an extraordinary
rainfall,
The record is
full of
evi-
dence suggesting that standing water
was
a
chronic problem at the
site.
Mr. Carlstrom testified that a
normal rainfall will cause
problems.
The original permit
application
provided in paragraph
26 that an alternate cell would
be used whenever weather conditions
were difficult
CComp.
Ex.
1; Complaint,
Ex,
A),
Respondent has
applied for four
supplemental permits for various reasons since the
original permit was issued.
It would not have been an undue burden
to require him to have applied
for
a permit to fill from the top
in wet weather,
The Board therefore
finds that Respondent
is
in
violation as charged
in
Count
V
and rejects
the
Section 33(c)
defense,
However, these same factors will be considered in
mitigation in
assessing
a
penalty.
34—60
—15—
PERMIT
CONDITIONS
Count VI charges that since March
14, 1975 and in partic-
ular on May 11, 1977, Respondent has failed to operate within
the limits set by the permit by accepting liquid wastes, hazard-
ous wastes and other nonconforming substances and by allowing
waste to migrate from the site.
Respondent has exceeded the
permit limits by accepting the barrel of oil with metal fines
as found in Count
I,
However, this is really the same violation
found
in Count
I and it is unnecessary to find another violation
based on
the same facts,
Evidence of nonconforming liquids or
sludges
was
considered and rejected with the discussion of Count
I.
On June 24, 1977 and August 16, 1978, the Agency inspectors
testified that
there were wooden pallets present near the fill
face
(H,
144,
194; Comp.
Ex.
19 J, K and 25 E).
Respondent is
not permitted
to accept wooden pallets.
Count VI also alleges violation of permit conditions by
permitting waste to
migrate from the site,
The Agency has shown
that
on August 25,
1977 water having unnatural color and oily
film was allowed to pond on the site and to drain off of the
site
toward the Des Plaines River
(H.
173; Comp.
Ex.
22 F and G).
Not
permitting waste to
migrate from the site is not an express
condition of the original permit.
However,
that permit was
granted “all according to the application and
plans,” which in-
cluded the provision for drainage quoted at length above.
This
contains a
representation that all construction would provide
for unrestricted flow across the site and eventually for drainage
swales
around
the site.
Even
if,
as Respondent argues,
it was
impossible to construct the swales prior to 1978, the permit
contained express provision for unrestricted flow across the site.
Respondent instead allowed the water to pond in areas
of inade-
quately covered refuse,
to pick up contaminants and to flow out
of the
site,
The
Board therefore finds that Respondent has
violated
conditions of his permit
as alleged in Count VI.
PENALTY
The
Board will consider Section 33(c)
in assessing a penalty
for these
violations.
There are
a
number
of recurring Section
33(c)
issues which will
be discussed together before the individual
violations,
The unsuitability of the site is discussed above at
length
with the description of the site and in connection with
Count II,
It is assumed that the supplemental permits allowing
chemical wastes and alternative cover material were issued because
of
Carlstrom’s assurances that good operating procedures would be
used and that the materials were innocuous.
The chemical analyses
34—61
—16—
raise serious questions
as to whether the materials are really
innocuous
and the
record as
a
whole reveals careless operating
procedures,
There are mitigating
factors
in connection with the suita-
bility
of the
site,
The abandoned quarry was at one time a public
nuisance
(H.
502).
Carlstrom’s operation has eliminated this.
The site appears
to be fairly isolated in
an industrial section,
bounded by the Des Plaines River and 1—80.
However,
there appear
to be residential buildings in
the background of some of the
photographs
CComp. Ex.
22
B; Resp.
Ex.
2).
There
is
no question that the site has social and economic
value,
However,
it has
not been shown essential
to Joliet’s
economy.
There are other
sites
in northeast Illinois which could
accept this waste and
which would be more suitable
(H.
407).
Re-
spondent has offered
no evidence that he is not financially able
to carry out an
Order of the Board.
It appears that Lockport
Trucking Company is
a
well-established business and that the
landfill is only a part
of its operations
(R,
660).
The original
and supplemental
permit applications contain plans and represent-
ations which
would have resulted
in disposal of the waste without
creating
an undue public hazard.
Presumably these representations
were economically
reasonable and technically practicable.
The
Board recognizes
that operation of
a
landfill in compliance with
its rules
is more expensive than operation out of compliance.
However, compliance
is necessary to protect the public health.
It is
unfair to Carlstrom’s
competitors to allow him greater
profits
by operating out of
compliance.
In Count
I Respondent
was
found to have accepted without a
permit a barrel
apparently containing oil with metal
fines.
The
Board
finds that
it is technically practicable and economically
reasonable
to require an operator holding a limited permit to
monitor the waste
he receives to assure that obviously unpermitted
materials are not dumped.
In Count II
Respondent was
found to have deposited contami-
nants
upon the land so as to
create a water pollution hazard,
Since the complaint alleged
only contamination of particular wells
and the Agency failed
to establish this contamination,
no penalty
will be assessed.
However,
the evidence clearly
established
a
water pollution hazard.
Therefore, remedial measures will be
ordered,
Much of
the water pollution hazard will be eliminated
when the
drainage has
been redirected.
Respondent will be ordered
to
complete this,
The parties
spent much of the hearing discussing
—17—
whether it was possible to build the ditch.
Since no penalty
is assessed for past violations, the Board will not consider
whether or not it was possible.
It is possible now and there is
testimony that construction of the drainage path has already be-
gun
(R,
561,
646; Comp.
Ex.
27).
Supplemental permits
#73-6,
#74-70 and #75-4 will be revoked
In so far as they permit Carlstrom to accept or use FCC catalyst
fines, hot lime sludge, calcium sulfate sludge and fly ash.
Per-
mits for these materials should not be reissued by the Agency
until Respondent has made an adequate showing that the drainage
situation is under control and that the materials can be disposed
of without posing any danger to the public.
Respondent will be
permitted to continue to accept automobile insulation and other
permitted innocuous material.
In Count III Respondent was fcund to have had broken concrete
and asphalt on the site which was in need of cover on August 25,
1977,
Broken concrete and asphalt provides habitat for rats and
other disease vectors and therefore requires cover.
However,
from the manner in which
it was dumped and the testimony, Respond-
ent was stockpiling for a specific, immediate use.
There is
social and economic value in reusing waste.
Therefore,
no penalty
will be assessed for this violation.
In Count III Respondent was found to have used fly ash as a
cover material on June
24, 1977 and December 13,
1977.
There
is
a large potential for injury to the public from the use of fly
ash as
a cover material.
Daily cover is intended, among other
things, to separate refuse cells with a layer which water will
not
penetrate.
This should help prevent the formation of leach-
ate
in the future.
Respondent has special
need for cover because
of the chemical waste he is burying and the unsuitability of the
site with its large inflow of surface water and danger of ground-
water pollution moving into the permeable, fractured dolomite,
Clay is the cover material of choice,
fly ash is one of the worst.
The Board notes that fly ash produces leachates,
including boron
which
is
toxic to plants and found in water on the Carlstrom site.
The Board has considered the problems associated with fly ash in
the boron exception for Illinois Power,
30 PCB 351.
Respondent
appears to have a chronic problem with finding cover material.
He is using hot lime sludge mixed with FCC catalyst fines and
dirt for cover.
He has also applied to use road shoulder repair
material and fly ash for cover
(Comp.
Ex.
2,
3,
4,
27).
Ms. Larsen
testified that there is less than two feet of soil over bedrock in
the area
(H.
428).
Respondent has no doubt received a considerable
economic benefit through noncompliance.
He charges for disposing
of the fly ash and does not have to obtain and transport suitable
cover material.
34—63
—18—
Respondent’s request for a supplemental permit to use fly
ash for daily
cover
was denied on January
8, 1975
(Comp.
Ex.
4).
He
was given written notice not to use fly ash for daily cover
on May
25,
1977
(Comp.
Ex.
18).
He therefore had ample notice
that he was
in violation prior to the June
24,
1977 inspection.
Witnesses,
including
Mr. Carlstrom,
Jr., testified that the
Agency practice was to discuss violations with the operators
during the inspection and to subsequently write a letter notify-
ing the operator of the violations found
(H,
14,
667).
Although
such
a letter was not introduced into evidence, the Board con-
cludes from the Agency practice that the inspection of June 24,
1977 provided Carlstrom with additional notice that the use of
fly ash for
cover was forbidden.
The second fly ash violation
of December
13,
1977 therefore indicates a serious disregard for
the necessity of
not using fly ash for cover.
In Count III Respondent was found to have had uncovered
refuse
present on the site on December 13,
1977 and August
15,
1978.
The mitigating factors are largely the same as for the
fly ash violations with the exception of the character and degree
of injury to the health and welfare
It is questionable whether
it is
better to cover with fly ash or not to cover at all,
Fly
ash creates harmful leachates and thus fails one of the purposes
of cover, to prevent leachate.
On the other hand,
it does fill
the voids
in the refuse, which aids in compaction and prevents
use
as vector habitat,
It probably also helps prevent litter,
although there is a possibility that the fly ash itself could
blow,
On the balance, the Board concludes that failure
to cover
does not pose such a severe harm to the public
as covering with
fly ash, although there
is still
a substantial risk of public
harm.
Carlstrom received written notice that uncovered refuse was
found on the
site on August 20, 1976 and May 25, 1977
(Comp. Ex.
9,
18).
He
thus
had ample notice that he was in violation prior
to
the inspection of December 13,
1977.
From the Agency practice,
the Board concludes that the inspection itself served as additional
notice prior
to the second violation of August 16,
1978,
although
there
is
no direct evidence of this in the record
(R.
14,
667).
In
addition, this second violation occurred about two and one—half
months after
the original complaint was filed,
That complaint also
charged cover violations and served as additional notice to Re-
spondent of the need for daily cover,
In Count V Respondent was found to have filled from the top
of the fill rather than the toe in violation of Rule 303(a),
Failure
to deposit refuse into the toe increases the danger of
groundwater pollution,
Refuse is supposed to be spread and com-
pacted into cells not more than two feet thick with six inches of
~.mpermeablecover between cells.
If this
is properly done, sur-
34—64
—19—
face water should not penetrate cells to produce leachate.
Mr.
Jack Caristrom,
Jr. confirmed that operation of equipment over
previously filled areas breaks up the cover
(H.
670).
The
failure to fill from the toe thus aggravates the already serious
danger of groundwater pollution from the site.
In Count VI Respondent was found to be in violation of permit
conditions by accepting wooden pallets.
These will rot in time.
The action of anaerobic bacteria on putrescible material in the
completed
fill may result in gas and leachate discharge and pose
a danger to public health.
Carlstrom was granted the permit for
the site only to accept innocuous, nonputrescible waste,
Re-
spondent also
violated permit conditions by permitting waste to
migrate from the site in the form of water carrying contaminants
and flowing across the site into a drainage ditch at the south
boundary of the site
CR.
173; Comp.
Ex.
22 F and G).
This water
had unnatural color and floating oil and posed
an immediate danger
to public welfare.
This could have been prevented by construction
of the drainage ways
as outlined in the original application.
Even granting that the ditch outlined may have proved impossible
to build, Respondent should have applied for a supplemental permit
after realizing this.
Maintenance of proper cover and utilization
of proper operating procedures would have reduced the danger to
the public health,
Respondent will be ordered to take steps to
correct this situation,
Having considered Section 33(c),
the
Board concludes that a penalty of $1500
is necessary to aid
enforcement of the Act.
This Opinion constitutes the Board’s
findings of fact and
conclusions of law in this matter.
ORDER
It is the Order of the Pollution Control Board that:
1.
Respondent Jack Carlstrom d/b/a Lockport Trucking Co.,
is
in violation of Section 21(b),
(e),
(f)
of the Act
and Board Rules ~303(a),305(a)
and 310(b)
of Chapter
7:
Solid Waste,
2.
Respondent shall cease and desist from further
violations of the Act and Board Rules.
3.
Respondent shall do any and all acts reasonably
necessary to control the conduit of influent water
to prevent pondlng of water on the site.
34-65
—20—
4,
Respondent shall install and operate leachate
monitoring wells around the site with the approval
of the Agency.
5.
Thirty days from the date of this Order the Agency
is directed to revoke Respondent’s permits #73—6,
#74-70 and #75-4 in so far as they permit Respondent
to accept FCC catalyst fines, hot lime sludge, calcium
sulfate dried sludge and fly ash and thereafter Re-
spondent shall not accept at the site the materials
listed above until such time as the Agency shall
issue supplemental permits covering the materials,
6.
Within thirty-five days of the date of this Order,
Respondent shall, by certified check or money order
payable to the State of Illinois, pay a civil penalty
of $1500 which is to be sent to:
State of Illinois
Fiscal Services Division
Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois
62706
I, Christan L. Moffett,
Clerk of the Illinois Pollution
Control Board, herq~ycerti:
the above Opinion and Ord r were
adopted on the~~
day of
1979 by a vote of
~
Illinois Polluti
trol Board
34—66
