ILLINOIS POLLUTION CONTROL BOARD

April 27, 1978

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

V.

)

PCB 77—294

MERLE BUERKETT AND HAROLD CLINE,

Respondents.

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

This matter comes before the Board on a November 10, 1977

Complaint alleging failure to apply final cover at a solid

waste management site in violation of Rules 301 and 305(c)

of Chapter 7: Solid Waste Rules and Regulations and Section

21(b) of the Act. Because active use of the site terminated

in 1970, the Complaint also alleges a violation of Rule 5.07

(b) of the Department of Public Health Rules and Regulations

for Refuse Disposal Sites and Facilities and therefore Section

49(c) of the Act.

The site in question is located on approximately 20 acres

in an unincorporated area of Sangamon County near Springfield.

The site is southwest of the Sangamon River and across from

Carpenter Park; Sugar Creek flows by the southwestern boundary

of the site.

The site was operated as a refuse disposal facility

from approximately 1967 to 1970 by Respondent Buerkett.

An agency inspection on August 4, 1971 showed that the

site was not operating, that one of two entrances to the

property had been closed, and that 10 to 15 acres had been

used to 

dispose 

of concrete, wood ties, and misceIaneous

rt: Cl

~)~ fl(l1)fl(’(l

r;dIuI 

ruck~

r~’ 

~() Ofl

he site. 

The ope r~iLo r of the siLo

did not 

secure an A&

bOIICY

permit or a Department of Public Health permit

prior 

operatirs~

the site.

A disproportionate

part of the record was devoted to

consideration of the ownership of the site. This consideration

was complicated by the fact that a circle drawn on the plat

sheet included territory greater than the landfill site. The

Board, after considering the evidence, concludes that a sub-

stantial portion, if not all, of the site was owned by Respondent

30-109

dine during the period

of active ueration. he spondent Cline

admitted he owned the bite

giving an oral 

description of the

property to Agency representatives. 

He accompanied Agency

representatives on their inspect;.oas of June 1, 

1973, June 26,

1973 and July 12, 1973 and

admitted on June 1, 1973 to Agency

representatives that he 

had

allowed dumping at the 

site by persons

other than Buerkett. Though mindful of the hearsay aspects of

this evidence, the Board feels that it has been satisfactorily

established that Cline was the owner of the disposal site.

Agency representatives made insr~ections during 1971

on August 4th and 8th, during 1972 on July 6th and 10th,

and repeatedly during 1973. On July 12, 1973 dine was in-

formed of the cover requirements and a July 17, 1973 inspection

shows that some cover had been placed on the northern part

of the property. At a March 14, 1974 inspection, it appeared

that more fill had been placed and uompacted on the north

side of the property and some cover had been placed in the

southeastern section. At an August 16, 1973 meeting with

Buerkett, he admitted to Agency representatives that he had

done some filling. An August 23, 1975 inspection shows that a

double wide trailer had been placed on the southwest area

of the site; an August 2, 1976 inspection showed that a second

trailer had been moved to the West c~ntr~Tcportion of the site.

The record shows that residents of one of triese trailers pur-

chased a portion of the landfill ~ta requllinq cover.

It appears from the record that while some of the area

has been covered, no area on the si::o has a full two feet of

compacted cover and one area has eo cover. Soil 

borings conducted

by the Agency on August 2, 1976 and Auqu~c: 3, 1977 show samples

ranging from no cover to approximately one and a half feet of

cover. The record shows that there is some cc~nrmaterial

at the site but it. is probably not adequate t~ 

meet

the re-

quirements of Rule 5.07(b).

The Board finds that the failure of Resoondents to apply

final cover is in cTear vriolation of ~ule 5.07(h) of the

Department of Public ilealto rules, The respoe:;ibiiity for

compliance with the to ulations applies to both the owner

of the landfill site and the operator. In considering a penalty

for this violation of the Act, the Board concludes that a

$500 fine to be paid ~jointly and severally by the Respondents is

reasonable since no mitigating factors have been presented by

them to excuse the undue delay in complying with final cover

regulations. The Board also orders that Respondents finish

installation of final cover within 2() days of the date of this

Order.

—3—

In determining whether Respondents 

have also violated

Section 21(b) of the Act, a violation of a regulation adopted

by the Board must be plead and proven. Since Rule 305(c) was

adopted by the 

Board after Respondents ceased operation,

no

violation of that Rule can be found. Since Rule 507(b) was never

adopted by the Board, a violation of that rule cannot constitute

a violation of Section 21(b) of the Act. Respondents’ conduct

is actionable through the saving clause in Section 49(c) of the

Act.

This Opinion constitutes the findings of fact and

conclusions of law of the Board in this matter.

ORDER

It is the Order of the Pollution Control Board that:

1)  Respondents Merle Buerkett and Harold Cline

are found to have violated Rule 507(b) of the

Department of Public Health Rules and Regulations

for Refuse Disposal Sites and Facilities for

failure to apply final cover to a solid waste

management site owned by dime and operated by

Buerkett from the period six months after terminating

operations until July 27, 1974.

2)  Respondents shall pay as a penalty the sum of $250.

each, 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

3)  Respondent Merle Buerkett shall apply final cover

pursuant to Rule 5.07(b) within 120 days of the

adoption of this order, and shall post a performance

bond

of $7500 to assure corrocLion of the 

violaLion

within the time prescribed.

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

Control Board, hereb~certify the abov Opinion and Order were

adop~don the~1  

day of 

1978 by a vote

aL~L~P~

Christan L. Moff~Y/

~ii~

Clerk

Illinois Pollution Control Board

30—I II