ILLINOIS POLLUTION CONTROL BOARD

May 11,

1978

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

v.

)

PCB 77—319

JACK HARDEN, d/b/a

JACK HARDEN

)

DISPOSAL,

Respondent,

MR. JOHN W. VAN VRANKEN AND MR. STEPHEN

T.

GROSSMARK, ASSISTANT

ATTORNEY GENERALS, APPEARED ON BEHALF OF THE COMPLAINANT.

MR. WILLIAM

T. PANICHI APPEARED ON BEHALF OF THE RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by Dr. Satchell):

This matter comes before the Board upon a December

2,

1977

complaint filed by the Environmental Protection Agency

(Agency).

Respondent

is charged with a violation of Section 21(f)

of

the Environmental Protection Act

(Act)

for disposing of refuse

at a site doing business without an Agency operating permit.

A public hearing was held on February 17, 1978 at the

Christian County Courthouse

in Taylorville.

Since 1969, Respondent has owned and operated a refuse

collection and disposal service

(R.

95).

He has approximately

900 customers

(R.

97)

in the villages of Bullpit, Kincaid,

Pawnee, and Tovey

(R.

26).

Respondent~soperation consists

of two one-ton trucks with 17 cubic yard refuse bodies on

each

(R.

28);

together these trucks average three to five

loads per week

(R. 32).

During the term of the alleged violation, Respondent

used

tW(

SQl

id

w~~

t~c~

man~icjementF~ic

iii,

Lies

t:o dispose of

his

refuse

(R.

33)

.

For

roughly

one—third

of his loads,

Harden

went

to

the

Buerkett

landfill

in

Springfield

(R.

103);

the

remainder

of

the

time,

he

used

the Taylorville landfill that

is

the

subject

of

this

case

(R.

106).

Evidence

presented

showed that the Taylorville landfill was closer to the places

where the refuse was collected and also charged less per load

(Comp. Ex.

1,

R.

33,

34,

55).

The Taylorville 1and~iliwas the subject of a previous

matter

before the Board in EPA

v.

Harold Broverman and

Theodora Baker, PCB 76-114

(Nov.

10,

1977).

In that case

Broverman

& Baker were found to have operated the Taylorville

landfill without an Agency operating permit as required by

3O~~I89

---

Rule 202(b) (1)

of Chapter

7.

~1Jd

Waste

Regulations

and

Section

21(e)

of the Act

Th~hespondeits there

were

ordered

to

obtain an operating pcrrnit ly March 10, 1978 or have the

site closed.

Respondent has admitted Lh~ he used the

Taylorville

site approximately two to thre3 times per week during part of

the period from April

1, 1977

t

the date of the filing of the

complaint

(R.

30,

107)

.

Agency ~epresentatives

actually

observed his trucks there on Tune 34

(R.

42), August 22

(R. 48),

and August 23, 1977

(R.

48)

~tter

sent during August

1977

and an enforcement notice sert on Septenber 14,

1977 informed

Harden of the unpermitted status of the Broverman site, the

violations of Section

21(e)

and 21(f

r-he availability of

other landfills that did have pcrmits

rd the consequences

if

he did not cease dumping at the Taylorrille landfill

(Comp,

Ex.

2,

3).

In mitigation he ha~ snown that after receiving

the letter and enforcement notice from the Agency,

he

slowed

his use of the Taylorville land-

11 in September and quit

using it altogether at the end of Octobrr

(R. 40).

Respondent

now

exclusively uses

-ho Buerkett site in

Springfield to dispose of refuse

(R.

105).

This landfill is

properly licensed

(Comp. Ex.

2’

The Respondent also contend’ that in~was not aware that

the Taylorville landfill was

ai~ illegally operated facility

until he received the enforc~mentnotce

Even after the

notice, Respondent was confused

1-S

to the site~s status.

This

uncertainty is attributable

to

1-he existence of

a development

permit for the site, Broveriran~cassurance that the site was

operating legally because the Agency did not comply with

Section 39 of the Act by specifying reasons for denial of a

permit, and the actual daily use of the

ite even after the

Broverman suit was instituted.

Section 21(f)

of the Act states

±at

no person shall:

“dispose of any refuse,

or transport any refuse into this

State for disposal, ex~eptat a site or facility which meets

the

requirements

of

Lhi~ Act

or

of

requla

Lions

thereunder.”

Respondent

admits

that

he

disposed

of

refuse

at the Taylorville

landfill

during

the

term

alleged

in

the

complaint.

He

contends

however,

that

the

Agency

did

not

carry

~ts

burden

in establishinq

a

21(f)

violation since no proof established that the facility

was

operating without a permit.

A motion to dismiss was

made

at the hearing

(R,

88)

;

its basis

is that the violation

established

in EPA v

Broverman and Baker predates the period

of Harden~salleged violation and is therefore not

relevant

to

Respondent~scase.

The Board, in reviewing

both

the

record

before

it now

and

its

decision

in Broverman,

concludes

that

the

Agency

did satisfy

its

burden.

Testimony from

several

witnesses

indicates

the permit status of Broverman has not changed in the

last

year

(R. 50—5l),

After Au

1977,

Harden knew that the

site

had

no

operating permit

(IL

99).

His reliance on

---

Broverman’s

rur-~

~d coat

consequences

for

which

h—

for reliance

on

a

petroL

n

Broverman,

at

IL

lii,

al

it

for denying

the

opera4

inc

per

evidence,

the

Agency

fa~

~et

i~

Respondent

has

t.e

l-vr3

~r

for

example,

an

parat

~j

p

t

to deny

the

rot

on

t.

1~i~

Respondent

in

vioJatso~i

of

f~

In making a

ti

al

deter

in~

must consider the ~a~tor~

of S~—

is no

doubt that ref ase c lle~

the

community’

however

de”~e

site

increases

the

p~ter

ia~

c~

for water

pollutioi,

Mr

Ha

around

Novemoer

1,

1~7/

‘tit

Respondent

did

continue

to

u

of

the violation3

He dii ro

the Agency to inquire abc

-

I-

Taylorville

landfill

(R

0

now

using

a.~permitted

landt

technologically

ani

e~or

r.

attorney

in

~los

ing

dtter

p

~cd

have saved

b~ using

ar

-

trips a

week

for

Lwai~a

weeks

arrived at $63.00; however

~

At a benefit of $5

30

a:

tu

be

much

larger

tha

i

$63

3~

£

concludes

that

a

S2Oj,

U

-

~a of

e site carries

cuept responsibility.

As

lt of

ctx.ri

39 compliance,

H

e

of

reasons

‘L~~irqp

esented

all

this

rder.

B~jo ~d

that,

the

nc

ciar

evidence—

cs

jrasented.

In

deciding

o

Boa

H.

logically

finds

-

2

~

i i~

case

the

Board

)

of

the

Act.

There

&

iabie

service to

permitted

landfill

~ther

vectors

and

-

i

using

the

site

g~LLing factor.

a

sfter

receiving

notice

~

e~fo

t

to

contact

Jr

of dumping

at

the

~

that

Respondent

is

ac

compliance

is

~

bie

Respondent~s

:n

t~. what

Respondent

might

I ~1

sic

He

assumed

three

too

ip ~

t

November

and

c~p~aiir

runs

from

April.

5l)

the

figure

should

te~c easons the Board

a

a onable,

This Opinicr

ns1-i~t-~

a

-

idi~gaof fact and

conclusions

of

Ja

r:

t

is

iii- cci

It is

he

Or-~

o

Poli

.tion

~

~rol

Board

that:

1.

Resporc~

~

n

.~s

nereby

denied,

2.

Pesp~nder~

i

~

~

i

1(tj

of

the Act by

disposir

~

~f

at

-

Ea

t

operating

in

violat~on

f

i

A~.

a

-~

~

-

us

adopted

by the

Board

3.

Respondent

rL~

~y

a

p~ra1t~

t

S~0O.00

within

35

days

of

tJ~

cit

o

rh ~ 0re2 p~ahe

by certified

chech

Oi

L

State

of

:~c~s

Fjsea2

Services

Di’

~sion

illire

s

Bun

~onrisnta’

Protection

Agency

2200

(hjrchal1

Rad

Springfield,

Illinois

62706

---

—4—

I, Christan L.

Moffett, Clerk of the Illinois Pollution

Control Board, hereby c~rtifythe above Opinion and Order

were

adopted on the

_________

day of

_______________,

1978

by a vote of

~

.

Christan

L. Moffet

Illinois Pollution

‘trol Board

30—