ILLINOIS POLLUTION CONTROL BOARD

April

27,

1978

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB

77—291

DONALD BREWER, d/b/a BREWER

AUTO SALES AND SALVAGE, and

)

WILSON SHERFY,

)

Respondents.

OPINION AND ORDER OF THE BOARD

 (by Mr. Dumelle):

This matter comes before the Board on

 a November

9,

1977

Environmental Protection Agency Complaint charging Respondent

Brewer with violations of Rule 202(a)

 of Chapter

7:

 Solid

Waste Regulations and Section 21(e)

 of the Illinois Environ-

mental Protection Act

 (Act).

He

 is also charged with violatton

of Section

 4(d)

 of the Act for refusing access to his property

to Agency representatives.

 Respondent Sherfy

 is charged with

violating Section

 21(f)

 of the Act by transporting refuse

to

the site owned by Brewer.

 Hearings were i~~:I~I

 in Gillespie,

Illinois on January

10,

 1978;

 and Februari

 I~i,

1978.

Respondent Brewer owns and operates an auto salvage

 facility

near

 the City of Staunton in Macoupin County.

 Respondent Sherfy

is employed as a General Foreman at the Owens—Illinois Corporation

 in Mt.

 Olive.

The

Owens—I Ilinois

facility

uses

pri

nti

ink

t:he

 manu~

facture

 of cardboard boxes.

 The liquid ink wastes are evaporated

and the remaining sludge is put into 55 gallon drums.

 These

drums are stored on the Owens premises.

 When the storage faci-

lity become full,

Mr.

 Sherfy, who had a hauling contract with

Owens, would be contacted to remove the barrels.

 Generally •the

drums were hauled to a

 landfill site

 in Staunton for disposal.

30—101

—2—

On Sunday, July 17, 1977, Sherfy picked

up a load of approxi-

mately 35—40 barrels at the Owens plant.

 Removal on weekends was

not unusual because normally he could obtain the key to the land-

fill site from the operators.

 On this occasion he

was

 unable to

do

 so and therefore proceeded to Respondent Brewer’s salvage facil-

ity.

 Brewer agreed to take these barrels as a favor to Sherfy

and the record shows that it was intended to be a temporary

measure.

 Aithouth some evidence indicates that Sherfy was going

to sell the barrels,

 it appears more probable from the record

that the barrels were to be removed to the Staunton landfill when

 it opened again.

Upon a complaint, Agency representatives went to Brewer’s

salvage yard on August

 11, 1977.

 With the permission of an

employee of Brewer,

 they were allowed to inspect the site.

The

barrels were found at the north side of the property near the

head of a temporary creek.

 Some of the barrels were on wooden

pallets;

 about 15 had been knocked over.

 There was a purplish

stain on the ground near these barrels.

 Some of the barrels con-

tained dried ink sludge and rags.

 The Agency representatives

went back to Brewer’s office.

 At this time, Brewer refused to

let them go back to the lot to take samples or photographs since

the representatives refused to name the complaining party.

On August 12,

 1977 Agency representatives returned to Brewer’s

site with a Macoupin County Deputy Sheriff.

 The Agency repre-

sentatives attempted to explain Section

 4(d) of the Act which

grants the Agency the right to conduct reasonable investigation

on private property.

 Brewer refused access unless the Agency

obtained a court order.

 The representatives left and on that

afternoon the Attorney General obtained a Temporary Restraining

Order

 (TRO)

 against Brewer.

 The representatives returned with

the TRO that evening.

 After discussing the TRO with Brewer,

he allowed them access to the back of the lot.

 There Sherfy was

 removing the barrels.

 He had been asked to do so by Owens—

Illinois, which had received a call from the Agency during that

afternoon.

 The barrels were returned to the storage area at

the Mt. Olive plant.

Operation of

 a new solid waste management site without a

permi.t

 the basis of

a

202

(a)

 violation.

Mr.

I3rewer contends

that

 he did not operate such a site because the barrels were

there only for temporary storage and that this was a one-time

occurrence.

 The permit system is designed to assure the proper

disposal of refuse so as to prevent injury to the public and the

environment.

 To allow unsupervised disposal would undermine both

the permit system and the intent of the Act.

 This policy is

reflected in a broad definition of solid waste management that

includes not only the disposal of solid wastes but their storage,

30-102

—3—

Chapter

7,

 Rule 104(u).

 In reviewing the facts of th6 case, the

Board finds that Respondent Brewer

did

 violate Rule 202(a)

by

storing these barrels without an Aqency permit.

The

Board has

long found the operation of a solid waste mana.qement site without

a permit to be a violation of

 21(e)

of

 the Act and

 so concludes

in this case.

 In considering a penalty for these violations, the

Board has considered those

factors contained

 in Section 33(c)

of

the Act.

 In weighing the violation of

 the Act against the un-

likelihood of a future occurrence and the fact that the situation

has been corrected, the Board

feels that no fine

is

appropriate.

In considering the allegation of a

Section

 4(d)

 violation,

the Board must analyze the authority

granted

by

the Act to con-

duct inspections against the constitutional restraints imposed.

Inspection in this case was conducted at a reasonable time and

the Agency representatives first secured the permission of an

employee who had apparent authority

to permit an inspection.

 When

Mr. Brewer later refused further inspection,

the

Agency represen-

tatives had ascertained that there was

probable

cause to suspect

a violation of the Act.

 Legislation by

the

states carries a pre-

sumption of constitutional validity and Respondent has presented

nothing that overcomes this presumption.

Respondent Sherfy is charged with a violation of Section

21(f)

 of the Act for disposing of refuse

at

a site which did not

meet the requirements of the Act.

 Mr. Sherfy knew that lawful

disposal should be at a site other than Brewer’s.

 He has pre-

sented no reason other than his own

convenience

for leaving the

barrels at Brewer’s nor has he explained the reason for leaving

them there for almost a month when he

knew the

landfill site

where disposal would be permitted would have

been

open the next

day.

 For these reasons the Board finds

Respondent

Sherfy in

violation of Section 21(f)

 of the Act.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORI)EI~

It is the Order of the Pollution Control Board

 that:

1.

 Respondent Donald Brewer

 is found in violation of

Rule 202(a) of Chapter

 7 and,

 therefore,

 in vio-

lation of Section 21(e)

 of the Act.

 No penalty

is assessed.

2.

 Respondent Donald Brewer

 is found in violation of

Section 4(d)

 of the Act for failure to allow reason-

able investigation of his property by Agency repre-

sentatives. A penalty of

 $100.00

 is assessed.

30-

103

3.

 Respondent Wilson Sherfy is found in violation of

 Section 21(f)

 of the Act by transporting and dis-

posing of refuse at a site which does not meet

the requirements of

this Act,

 A penalty of $100.00

is assessed.

4.

 Within

 35 days of the date of this Order Respondents

shall pay as penalties the sum

 of $100.00 each, payment

to be made by certified check or money order 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, hereby certify the above Opinion and Order

were adopted on the

~74.

day

 1978 by a vote

~dJktL

Christan L. Mof~

 Clerk

Illinois Pollution Control Board

30—IOL~