ILLINOIS POLLUTION CONTROL BOARD

April 27, 1978

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB 77—292

SKAGGS CONSTRUCTION COMPANY,   

)

INC., a Delaware Corporation,

Respondent.

OPINION AND ORDER OF THE BOARD (by Mr. Dumelle):

This case is before the Board 

the November 10, 1977

Complaint filed by the Environmental Protection Agency (Agency)

charging violations of Rule 305(c) of the Pollution Control

Board Rules and Regulations, Chapter 7: Solid Waste, Rule 5.07(b)

of the Department of Public Health, Division of Sanitary Engineering

Rules and Regulations for Refuse Disposal Sites and Facilities, and,

therefore, Section 21(b) of the Illinois Environmental Protection

Act (Act). Rule 5.07(b) as incorporated by Sections 49(b) and 49(c)

of the Act, applies to acts committed prior to July 27, 1974 and

Rule 305(c) applies to acts thereafter. A hearing was held on

January 17, 1978 in Springfield, Illinois.

Respondent owns a 5.4 acre tract near Bunn Park in the south-

east portion of Springfield. The site is bisected by a small stream;

the northern half of the lot is approximately 30-40 feet higher than

the southern half. Since 1967 the Respondent used the site to dispose

of asphalt, brick, sand, dirt, and other related materials in con-

junction with highway construction projects it had in the Springfield

area. This activity was carried on pursuant to an operating permit

(Permit No. 1970—15-34; April 8, 1970) issued by the Department of

Public Health, the predecessor to the Agency, in the supervision of

solid waste management.

Although testimony presented is 

conflicting on this

point, it

appears that Respondent’s active use of the disposal site ended in

1970 (R.45, R.47). Rule 5.07(b) and Rule 305(c) are substantially

the same as applied to the instant case. Both require the placement

of a compacted layer of at least two (2) feet of final cover material

after active dumping of refuse ends at the site. Agency inspections

of the site on October 28, 1970, May 14, 1973, and June 22, 1973

showed that only part of the southern half of the property had been

covered. After each inspection, Respondent was notified by letter

of the site conditions. Nicholas Skaggs, owner of controlling

interest in Skaggs Construction Company accompanied the Agency

inspector on a July 18, 1973 tour. A similar inspection was made

30— 105

on August 2, 1973 

and later

crt

Apr.~ 20, 1977. Another inspection

was made on December

1977 at ~  

~r. Skaggs and his son, who

along with Skaggs’ grandson manages I~espondent’sdaily operations,

were present. During this poriod, no 

changes in

the site were

made. A final inspection on Janu~try 6, 1978, at which Mr. Skaggs

and his grandson were present, showeu 

that

some leveling of the

dump site had occurred and fill had been applied to parts of the

north side.

The Board finds the Respondent in clear violation of Rule

5.07(b) 

No violation of Rule 3C5(c) ~an be found because Respondent

ceased operation before the effective date of the Board’s Solid

Waste Regulations. Respondent’s 

conduct

is actionable through the

saving clause of Section 49(c) of the Act. Tnere can be no violation

of Section 21(b) in this instance because Respondent did not violate

any regulation “adopted by the Boar~,

The latest effort to grade and cover the site, initiated by

Skaggs’ son and grandson, shows present good intentions. This does

not, however, excuse the fact that lItti~or no effort was made to

cover the. site during the six-year ii ~rva1 since active use ended.

While Complainant must establisu the elements of the offense,

Respondent has. the burden of provi.vj hat compliance would be

unreasonable under Section 33(c) of the Ac~ At the hearing,

Mr. Skaggs expressed the desire ti; ultimately use 

this site for

residential or commercial purposes. i~espondent contended that

because two sewer easements traverse ~:1i~property, 

filling may

be

technically infeasible. Respone~uL s contenL~on 

is based on pro-

viding roughly

25 feet of fill tv ~voi tue site and not the 2 feet

necessary to comply with the Board’s 1egk;lations. The Board finds

no convincing evidence that undue hardsh1p ~zil1 result from requiring

compliance with the standard in Rule 5.07(b).

Considerable evidence was offered c3ncerning the use of the

site by adjacent property owners as a disposal site for household

refuse. The Board has previously held that an individual can be

held liable for the dumping conducted

by others as a Section 21(b)

vi~1~it~iori.

EPA v. Vii 

J~ej~

iKdr~nd:, 7’L—3~3  

f     1~Ji 

13 (M~irch 6,

.1.97 ~)

llowevcr

such e violation wan not 

ejod in t:he ComplainL

nor did the 

Agency

amend its Coi~ipluliit. i.)urnu~1nt~to Board 

Procedural

Rule 328... Such evidence is therefore not considered in determining

the extent of the alleged violation or the penalty 

imposed.

Because the materials placed into the dump were not 

putrescible,

the penaity for faIlure to cover will be set at $200. The respo~ident

is given 120 days in which to complete the installation of final

cover.

30—106

—3—

This opinion constitutes the findings of fact and conclusions

of law of the Board in this matter.

ORDE i~

IT IS THE ORDER of the Pollution Control Board that:

Respondent Skaggs Construction Company, Inc., is found to

have violated Rule 5.07(b) of the

Department of 

Public Health

Rules and Regulations for Refuse Disposal Sites and Facilities

for failure to apply final cover to its solid waste management

site, from the period of six months after terminating operations

until July 27, 1974.

2.  Respondent shall pay as a penalty the sume of $200., payment

to be made within 45 days of the date of this 

order, by certified

check or money order to:

State of Illinois

Fiscal Services Division

Environmental Protection

Agency

2200 Churchill Road

Springfield,

Illinois

62706

Respondent shall apply final cover

pursuant to Rule 5.07(b)

within one hundred twenty (120) days of the adoption of this

order, and shall post a performance bond

of $5,000 to assure

correction of the violation alleged within the time prescribed.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Contr~i Board, hereby certify the

above Opinion and Order were

adopted on the

day of ~   

_____

,l978 by a

vote of

______________.

Christan L. Mof~ Clerk

Illinois

Polluti

ontrol Board

30-107