ILLINOIS POLLUTION CONTROL BOARD
August
9,
1979
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 77—60
CECIL
£4.
COMMAN3, Individually,
JOANNE COMMANS, Individually,
FLOYD HAYNES, Individually and
dlbla
HAYNES CONSTRUCTION
& CONCRETE CO.,
)
and
DLI
PAGE COUNTY FOREST PRESERVE
DISTRICT,
a municipal
corporation,
Respondents.
ARTHUR
B. MUIR, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
OF COMPLAINANT;
A.E. BOTTI AND DOUGLAS DRENK APPEARED ON BEHALF OF RESPONDENT
HAYNES;
STEPHEN
0.
HELM, MADELHOFFER, HENNESSY, DOMMERMUTH
AND
BRESTAL,
APPEARED
ON
BEHALF
OF
RESPONDENTS
DO
PAGE
COUNTY
FOREST
PRESERVE
DISTRICT
AND
PAUL
£4.
MITCHELL.
OPINION AND ORDER OF
THE
BOARD
(by
Mr.
Goodman):
A Complaint in this matter was filed on December 24, 1976
and amended on May 10,
1977 and June 30,
1977,
on behalf of
the Illinois Environmental Protection Agency
(Agency) alleging
that Respondents Floyd Haynes
(Haynes),
and Cecil and Joanne
Commans
(Commans),
together with the Du Page County Forest Pre-
serve District
(District),
violated Sections 12(a) and 3(n) of
the Environmental Protection Act
(Act) and Rule 203(a)
of the
Board’s Chapter
3:
Water Pollution Rules and Regulations.
In
addition,
Respondents Commanses and the District are alleged
to have violated Rules
201 and 202 of the Board’s Chapter
7:
Solid Waste Regulations and Section 21(e)
of the Act.
Four
days of hearings were held in this matter.
On August
4,
1977,
the
Board accepted Complainant’s second amended complaint,
noting that pago
5 was missing.
The Board ordered Complain-
ant
to submit
page
5 which continued part of Count II, and
stated that the District’s motion to dismiss Count II would
be
considered
at
the
time
that
page
5
was
received.
The
District’s motion to dismiss Count
II
is hereby denied.
35—159
—2—
The basis of the allegations by the Agency is that Haynes,
in his capacity as a construction contractor, deposited pieces
of broken concrete and asphalt on the banks of Salt Creek,
originally with the permission
of the Commanses
(Haynes’ mother
and stepfather),
and later with the permission
of the District
after it had condemned and taken control of the property.
Haynes contends that he dumped only black dirt on the property
and
that
it was dumped in an area some distance from Salt Creek.
The District alleges
that no dumping has occurred since the
time it took control of the property and,
in any event, that
the material dumped on the edge of Salt Creek poses no environ-
mental problem when
the polluted nature of Salt Creek itself
is considered.
Respondent Joanne Commans did not appear at any of the
hearings and Respondent Cecil Commans appeared only during the
first
two
days
of
hearings.
Pursuant to a call from an employee of Respondent District
in September,
1976,
an Agency employee inspected an area of the
land around Salt Creek.
There she saw deposits of concrete and
asphalt
(R.28).
This material was situated approximately 100
feet from the home
of the Commanses and is
shown in the photo-
graphs contained
in Exhibit
3.
The Agency employee,
Ms.
Staton,
further testified that she contacted two persons
at
the residence who identified themselves
as Mr. and Mrs.
Corn—
mans.
Subsequently, Ms. Staton made phone calls
in an attempt
to contact Floyd Haynes.
She succeeded in talking with a man
who identified
himself
as Mr. Haynes,
and who stated that he
had indeed dumped asphalt and concrete on the Commanses’ proper-
ty, but that he
no longer intended to do so.
A construction
company supervisor testified that he saw Floyd Haynes dumping
a
load of concrete near the bank of Salt Creek and that Haynes
had indicated to him that he had been dumping material
in that
area for about a year
(R.243).
The supervisor, Reinhardt, fur-
ther stated that he had seen Haynes dumping on a site at a
later date,
and had seen Haynes’
truck at the site
a number of
other times.
A surveyor,
Robert Hamilton, testified that he
had seen a dump truck on the site a number of times, that he
had seen the truck driver dump material, and that Floyd
Haynes
was the driver
(R.315).
Hamilton testified further that
enough material had been dumped on the east bank of Salt Creek
to narrow the creek channel and that the quantity of material
on the bank was approximately 9,000 cubic
feet.
Haynes
testified that he had dumped the material on the
Commanses’
property,
but that
it had consisted wholly of black
dirt.
lie also testified that many of his concrete contracting
lobs
included the removal and disposal
of asphalt and concrete,
hut
‘no
maint:a.ined
that
all
this
material
had
been
dumped
at
licensed
dumps
in
the
area,
although
he
could not remember
when
and where such
dumping
occurred.
In
addition,
Haynes
testified
that
Exhibit
1
is
a
picture
of
his
truck
parked
on
35—1.60
—3—
the Commanses’ property,
and that the Commanses are his mother
and stepfather
(R.813).
After careful consideration of the evidence in the record,
the Board concludes that Haynes did deposit broken concrete
and asphalt on the Commanses’ property during the years 1975
and 1976,
with the Cornrnanses’ permission.
The Board finds
that Haynes and the Commanses violated Sections 3(n),
12(a)
and 21(e)
of the Act and Rules 201,
202 and 203(a) of the
Board’s Water Pollution Control Regulations.
The record
is much less clear with respect to dumping at
the site subsequent
to September 16,
1976,
the
time
at
which
the
District
took
control
of
the
property.
None of the Agency
witnesses
testified
concerning dumping at the site occurring
subsequent
to
the September 16, 1976 date,
and Haynes testi-
fied that he had not dumped anything on the site since Septem-
ber 15,
1976,
nor had he received any permission from the
District
to do so
(R.917—8).
The Board finds
that the District did not allow dumping
at the site and
is therefore
not
in violation of Section 12(a)
and 3(n)
of the Act as the Agency alleges.
In addition,
the
Board finds that the District neither owned nor operated a
solid waste management site and
is therefore not in violation
of Rules 201 and 202 of
the Regulations and Section 21(e)
of
the Act.
However, under the General Standards Regulation, Rule
203(a),
all waters of
the State must meet standards designed
to
preserve
the
State’s
water
for
various
uses,
and
to
enhance
the
aesthetic quality
of the
State’s
aquatic
environment.
Included as one standard
is “freedom from unnatural sludge or
bottom deposits”.
Notwithstanding
the arguments concerning
whether the concrete and asphalt deposits
in Salt Creek con-
stitute a potentially harmful situation with regard to
human,
animal, plant and aquatic
life,
there can be no question that
they constitute
unnatural bottom deposits that do not enhance
the aesthetic quality of the State’s aquatic environment.
The
Board must therefore find the District
in technical violation
of Rule
203(a) in that the property under its ownership and
control contains the aforementioned deposits.
The Board is
cognizant of the District’s intent to improve the environment
by the purchase of the Commanses’
property and acknowleges
the environmental good done by the District
in the past.
On
the other hand, property owners must recognize their duty to
conform to State
laws and regulations, and must realize that
when one purchases a piece of property one takes the respon-
sibility for any problem that may be associated with that
property at the time of purchase.
The Board finds that both Haynes and the Commanses bear
responsibility for the dumping situation that occurred, Haynes
35—161
—4—
by the actual dumping of the material, and Commanses by their
consent.
A penalty
is necessary in this case to help further
the intent of the Act by discouraging future dumping situa-
tions
by the Respondents and by others.
Although it
is clear
that
there
is no gross damage to the environment in this case,
(lumping of this type can lead to such dumping by others,
which
in turn would present a real danger to even so polluted a
stream as Salt Creek.
The Board therefore assesses
a penalty
of $500 against Resondent Haynes,
and a penalty of $300 against
Respondents Commanses for the violations noted herein.
Con-
sidering the technical nature of the District’s violation,
the Board will
not assess a penalty for the violation of
203(a).
In assessing the problem of who is responsible for cor-
recting the situation as it now exists,
the Board concludes
that the most equitable resolution
is to hold Haynes,
the
Commanses and the District all jointly and severally liable
for the removal and/or cover
of the material dumped on the
Commanses’ property.
Considering the long—term plans of the
District for the property, the Board will allow an amount of
time to accomplish correction of the problem.
However, the
District must,
in addition, take whatever measures are neces-
sary to insure that no further dumping occurs on the property
prior
to correction of the existing problem.
This
Opinion constitutes
the findings
of fact and conclu-
sions of
law of the Board
in this matter.
ORDER
It
is the Order of the Pollution Control Board that:
1)
Cecil
£4.
Commans, Joanne Commans, and Floyd Haynes are
found to have violated Sections 3(n),
12(a)
and 21(e)
of
the Illinois Environmental Protection Act, and Rules
201
and 202 of the Board’s Water Pollution Control Regula-
tions
in that they deposited or allowed the deposit of
refuse adjacent to and/or in Salt Creek.
2)
Cecil
£4.
Commans, Joanne Commans, Floyd Haynes,
and the
Du Page County Forest Preserve District are found to
have violated Rule 203(a)
of the Board’s Water Pollution
Control Regulations.
3)
The Complaint alleging violation of Sections 3(n)
and
12(a) and 21(e)
of the Environmental Protection Act and
Rules 201 and 202 of the Board’s Water Pollution Control
Regulations by the Du Page County Forest Preserve Dis-
trict
is hereby dismissed.
4)
Cecil
M.
Commans and Joanne Commans shall pay a penalty
of $300 for the violations found in paragraphs
1 and 2,
35—162
—5—
~p~ra,
said penalty payable within 30 days of the date
of
this Order by certified check or money order to the
St~ite
ol
Illinois
and
sent
to
the
Environmental
Protec—
tLOfl
Agency,
2200 Churchill Road,
Springfield,
Illinois
62706.
5)
Floyd Flaynes shall pay a penalty of $500 for the viola-
tions found in paragraphs
1 and 2,
supra,
said penalty
payable within 30 days of the date of this Order by cer-
tified check or money order to the State of Illinois at
the address given in paragraph
4 above.
6)
Cecil
NI.
Cornmans, Joanne Commans,
Floyd Haynes and the
Du Page County Forest Preserve District shall be jointly
and severally liable for the removal and/or cover of the
material dumped on the Commanses’
property,
such work to
be completed within eighteen months of the date of this
Order.
7)
The Du Page County Forest Preserve District shall take
whatever measures are necessary
to insure that no fur-
ther dumping occurs on the property prior to the execu-
tion of pragraph
6, ~ra.
I,
Christen L.
Moffett, Clerk of the Illinois Pollution
Control Board, herhy
certify
the above Opinion and Order were
adopted on the
day of
__________
____
,
1979 by a
vote
of
~
Illinois
Pollution
trol
Board
35—163