ILLINOIS
POLLUTION CONTROL BOARD
November 10,
1977
ENVIRONMENTAL
PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 76—114
HAROLD BROVERMAN and THEODORA
)
BAXER, d/b/a TAYLORVILLE LANDFILL,
Respondents,
OPINION
AND
ORDER OF THE BOARD
(by Dr. Satchel?):
This matter comes before
the
Board upon a complaint filed
April 26, 1976 by the Environmenbal Protection Agency
(Agency).
An amended complaint was filed
on
November 5,
1976.
The amended
complaint alleges that
Responc~ients
own and operate a refuse
disposal site of approximately twenty acres located in the
Southwest Quarter of the Southeast Quarter of Section
13 of
Township 13 North, Range
3 West in Christian County,
Illinois
and that Respondents have operated the site without an opera-
ting permit since July 27,
1974
up
to the date of filing the
amended complaint, in violation of Rule 202(b)(1)
of the Chap-
ter 7: Solid Waste Regulations
(Regulations)
and Sections
21(b)
and 21(c)
of the Environmental Protection Act
(Act).
In addi-
tion thirty-five days of various violations of Rules 305(a),
305(b)
,
305(c)
,
303 (a)
,
303(b)
,
303(c)
,
310(b)
,
311 of the
Regulations and Sections 21(a)
and 21(b)
of the Act were also
alleged.
The Board will dismiss the allegations of violation of
Section 21(b)
of the Act in connection with the permit viola-
tions.
The Board has consistently held that a Section 21(b)
violation cannot be based on the allegation of a permit
violation.
Nine days of hearing were held in this case covering a
time period from August 16,
1976 to April
1, 1977.
Seventeen
citizen witnesses testified.
During the course of the pro-
ceeding several legal i~sues arose for which a disposition
must be made by the Board.
First, Complainant has filed with the Board two sets of
Requests to Admit: the first was filed June
1,
1976 and the
second was filed on July 9,
1976.
Both documents were received
by Respondents’
attorney
(Comp.
Ex.
1 and
2).
Under Board
28123
—2—
Procedural Rule 314, unless
a denial or a written objection
is received within 20 days
after
service, the matters of fact
of which admission is requested are admitted.
In this case
Respondents had failed to answer either request.
On the
second day of hearing Respondents attempted to file an answer
to the Request for Admissions, Second Set
(R.
400).
This
attempt is not timely and will be denied.
The facts con-
tained in the Requests to Admit are deemed admitted.
The Board has also been requested by Complainant to
take official notice of its own final order
in
PCB 72-23,
5 PCB 415
(September
12,
1972)
under Board Procedural Rule
322.
This rule allows notice to be taken of all facts
~f
which judicial notice may be taken and of other facts within
the specialized knowledge and experience of the Board.
The
Board does
take notice of this prior final order dealing with
the same site and one individual Respondent who is the same.
The Board could find violations of most of the allega-
tions
in the complaint based on the admissions;
however, the
Board will look to the evidence presented for further docu-
mentation of violations.
For this reason the Board must con-
sider several other issues arising at hearing.
Respondent
made a lengthy offer of proof covering pages 233—257
at the
second day of proceedings.
The question being contested con-
cerned trash on a citizen witness’
land
(R.
232)
;
however,
the offer was mostly concerned with economics
(R.
254).
The
Board finds that the offer did not prove the relevance of the
question and should not be considered as part of the record.
A second offer of proof
(R.
1369) went to the refutation of
an occurrence of an injury at the landfill; since no other
reference is made to this anywhere in Complainant’s case and
there are no allegations mentioning such an occurrence it is
irrelevant and will be stricken from the record.
The Hearing Officer’s ruling excluding Complainant’s
Exhibits 9,10,11,13 and 20 was contested by the Attorney General
and the exhibits were included
as an offer of proof.
The Board
will affirm the Hearing Officer’s ruling on this issue.
Other
offers of proof at pages 518,807,1303 and 1347 are accepted.
Offers of proof at pages 641,1375,1387 and 1415 are denied.
At the close of the hearing a motion was made to amend
the complaint to inc1ud~ four additional dates in Count II.
Under Board Procedural Rule 328
(currently Rule 326)
this
is
allowed as long as there is no undue surprise.
Respondents
objected at the time of the motion, but not at the time the
evidence was presented or when cross—examination was made.
The
Hearing Officer allowed the amendment but requested a written
amended complaint be filed within
14 days.
The Board finds no
reason that this amendment should not be allowed.
28-124
—3—
During the course of the hearing there was
a re—
occurring question concerning sufficiency of evidence to
prove a lack of daily cover.
There are several ways this
can be shown including but not limited to:
(1) photographs
and/or testimony of uncovered refuse after the site is closed;
(2)
photographs and/or testimony of the same refuse uncovered
for two or more consecutive days;
(3) photographs and/or
testimony of uncovered refuse in the morning prior to the
operation of the site;
(4) photographs and/or testimony of
quantities of exposed refuse in much greater amounts than
the site normally receives on a given day and beyond the
capability of the available equipment to cover;
and
(5) photo-
graphs and/or testimony showing refuse in areas not o~rating
on that date.
On this basis there was perhaps evidence ex—
cluded that may have been helpful to the Board because it
was not shown to be
after
the closing of the site.
The Board does find that
on
the basis of the admissions
and on all of the evidence
at the hearing there is no doubt
that there is
an ongoing day to day operation of this site
and that Respondents do not have the required permit from the
Agency
(Admissions
#3,
R.
80).
This
is a violation of Rule
202(b) (1)
of the Regulations and Section 21(e)
of the Act.
Violations of Rule 305(a)
requiring six inches of daily
cover are found to have occurred on the following dates:
November 14, 1974
-
Exhibit 68 taken at 4:10
p.m.
shows
exposed refuse.
The site is run from 8:00
a.m.
to
4:00 p.m.
six days a week
(R.
965).
These hours are
accepted as normal,
absent a showing of irregularity.
December 17,
1974
-
Exhibit 69 taken at 4:00 p.m.
shows exposed refuse.
The Agency witness, Mr. Eisenkoff
observed old fill material that was weathered and possi-
bly charred
(R.
969—971)
January
7,
1975
*
Exhibit 70 taken at 4:20 p.m.
shows
exposed refuse.
August 13, 1975
-
Gilbert Stauffer testified that the
Taylorville Landfill received 150 cubic yards of refuse
a day, based on his own knowledge and what Mr.
Broverman
told him
(R,
289,2)0).
At 9:30 a.m.
on August 13, 1975
John Diefenback observed 1,000
to 1,200 cubic yards of
piled uncompacted refuse
(R.
449).
August 19,
1975
-
Mr. Eisenkoff observed at least 200
cubic yards
of exposed refuse after 6:00 p.m.
(R.
1032,
1042, Ex.
71—75).
28-125
—4—
September 10, 1975
—
John Taylor visited the site
at approximately 3:30 p.m. until after 4:00 p.m.
and observed in excess
of 1,000 cubic yards of
refuse laying uncovered at the landfill site
(R.
936,
938)
October
1,
1975
-
Mr. Eisenkoff visited the site at
3:55 p.m.
and stayed approximately two hours
(R.
1050).
He observed approximately 400 to 500 cubic yards of
exposed refuse
(R.
1052,
Ex.
77,79,80).
October 2,
1975
—
Mr. Eisenkoff arrived at the site
at 4:15 p.m.
and stayed approximately two hours
(R.
1092).
The same area of the site observed the day before still
had approximately 500 cubic yards
or more of exposed
refuse
(R.
1094).
November 24,
1975
-
Mr. Diefenback visited the site at
approximately 10:00
a.m.
and observed approximately
3,000 to 4,000 cubic yarcis of piled refuse
(R.
460,461).
During this inspection Mrs. Baker stated the site had
not been covered since the previous week
(R.
473).
Com-
plainant’s Exhibits 37,38,39 all show identical areas of
exposed refuse on November 24 and 25, 1975.
Several
other photographs also show the same
areas
(Comp.
Ex.
31-
36,
R.
492—498).
April
6, 1976
-
Mr. Stauffer was at the site at 8:30
a.m.
(R.
145).
He observed approximately seven to eight acres
on which there was exposed refuse
(R.
297).
June 22, 1976
—
Mr. Stauffer visited the site at approxi-
mately
3:30 p.m.
(R.
307).
He took Complainant’s photo-
graphic Exhibits
17 and 19.
On June
23, 1976 he returned
at approximately 3:30 p.m.
and observed the same volume
of refuse as the day before,
estimated at over 8,000 cubic
yards
(R.
30,
Comp.
Ex.
20-23).
June
23,
1976
—
See paragraph above concerning June 22,
1976 noting Exhibits were taken at 4:00 p.m.
July
1,
1976
-
Mr. Stauffer visited the site at approxi-
mately 11:30 a.m.
and observed an estimated 7,000 to
8,000 cubic yards of exposed refuse
(R.
316,317).
Also alleged are violations of Rules 303(a)
and 303(b).
Rule 303(a) provides that all refuse must be deposited into the
28-126
—5—
toe of the fill or the bottom of
a trench.
Rule
303(b)
provides that all refuse shall be spread and nompacted
as rapidly as deposited and placed in layers not to exceed
a depth of two feet.
Proof of violations can be either by
photograph or testimony.
The Board finds sufficient evi-
dence to find violations of these rules as
follows:
January 14,
1974
*
Complainant’s Exhibit
8
is self-
evident
that
the
refuse
was
not
placed
in a trench or
at
the toe of the fill.
It was also not spread and
compacted.
Both rules were violated.
February 5,
1974
-
Only a violation of Rule 303(b)
is
alleged.
Mr. Diefenback observed mounds of uncompacted
refuse
(R.
436).
November 14,
1974
-
A violation of Rule 303(a)
is
evident in Complainant’s Exhibit 67.
December 17,
1974
-
Rule 303(b) violation;
see Com-
plainant’s Exhibit 69.
January
7,
1975
—
Rule 303(b) violated
(Comp.
Ex.
70).
August
19,
1975
-
Rules 303(a), 303(b) violated
(Comp.
Ex.
71—75)
October
1,
1975
-
Rules
303(a), 303(b) violated (Comp.
Ex.
77—80)
October 2,
1975
—
Rules
303(a),
303(b)
violated.
Same
refuse previously observed was exposed and uncompacted
(R.
1094)
November 24, 1975
-
Rules 303(a),
303(b) violated
(Comp.
Ex.
31,
32,
33).
November
25, 1975
-
Rules
303(a),
303(b)
violated
(Comp.
Ex.
34,
35,
R.
480).
September 14,
1976
-
Rule 303(a) violated
(Comp.
Ex.
46,
50)
September
16,
1976
(Comp.
Ex.
62).
April
6,
1976
—
Rules
303(a),
303(b) violated
(Comp.
Ex.
15,
16).
June
22,
1976
—
Rules
303(a),
303(b) violated
(Comp.
Ex.
17,
18).
28-127
—6—
June 23,
1976
—
Rules
303(a),
303(b) violated
(Comp.
Ex.
19, 21, 22,
23),
July
1,
1976
-
Rules 303(a),
303(b) violated
(Comp.
Ex.
24*27)
Open burning violations have also occurred at the
Taylorville site.
There is sufficient evidence in the record
to find violations of open burning on November
24, 1975
(Comp.
Ex.
31,
32,
R.
460)
,
November 25, 1975
(Comp.
Ex.
34—36,
R.
477)
November
26, 1975
(R,
1095, 1096), September
14, 1976
(Comp.
Ex. 47— 52,
R.
747,
870),
September 15,
1976
(Comp. Ex.
53—55)
and September 16, 1976
(Comp. Ex.
43, 44, 62).
On SepL
ber
14,
1977, Mr. Broverman stated he did not know how the fires started
and that the Taylorville fire department would not respond to
the fire
(R.
756).
During the proceedings Respondents contended
that the Agency must show intent in order
to prove an alle-
gation of causing or allowing open burning.
This
is not correct.
Knowledge or scienter is not an element of violation under the
Act, Frank Cobin
V.
PCB etal, 16
Ill. App.
3d
958
(5th
Dist.
1974), Bath,
Inc. et al ~P~B
et
a?,
10
Ill. App.
3d 509
(4th
Dist.
1973).
The fact that a fiE~has occurred accidentally
can be shown in mitigation.
Before the Board can make a determination of final remedy
in this case it must consider facts and circumstances as re-
quired by Section
33(c)
of the Act.
The burden of proof in
this consideration also was questioned by Respondents.
This
has
been resolved
in Processing and Books v.
Pollution Control
Board,
64 Ill.
2d 68, 351 NE.2d 865
(1976).
Complainant must
meet the burden of pursuasion on the essential elements of
the offense;
however, it is the burden of the Respondents to
show compliance would be unreasonable under Section 33(c)
of
the Act.
Very
little information relative to Section 33(c)
of
the Act was
presented.
Approximately twenty citizens volun-
tarily testified most of whom were concerned about the con-
sequences of the landfill closing.
None stated opposition to
requiring compliance with the Regulations and the Act.
A
Board order requiring compliance with the Regulations and
the Act is not a shut down order.
The Board will consider
what evidence the record does provide.
The injury to the
public
is multi-faceted.
Two citizen witnesses appeared to
state their opposition to
the way the site
is currently oper-
ated
(R.
216,
264).
Because of lack of cover, trash is
blown
or dragged
back onto the road from the site
(R.
218).
LeRoy Harris stated that numerous times
in rainy weather the
road
by the site
has been impassable because of mud and
28-1
28
—7—
trash
(R.
217).
These occasions have required him to get
out of the car and clear the road of boards with rails and
trash to make it passable
(R.
217).
Mr. Harris further
stated that approximately a year before the August 1976
hearing date that his mother suffered an apparent stroke;
an ambulance was summoned but was forced to take an alter-
native route because the road was unfit for travel
(R.
218).
Phyllis Harris
(sister-in-law of LeRoy Harris) also ob-
jected to the site because it is an eyesore and it causes
problems on the road
(R.
266).
She also expressed concern
that the site would have bad health effects
(P.
266,267).
There is also injury to the public in terms of
b~
passing the permit system enacted by the Act and Regulations.
The permit system is
created
to
protect
the
public
from
pollution before it occurs.
Respondents’
failure to provide
this protection in light of many notices
(Comp, Ex.
28,
R.
80,
473,961, PCB 72-23)
only aggravates the injury.
Improperly
run sites, particularly those lacking adequate cover, have
great potential for producing leachate which pollutes the
water, providing conditions ripe for fires, and providing
favorable conditions for rats,
flies and other vectors.
The social and economic value of this site as it now
exists
is questionable.
Certainly the people of Christian
County should have a properly permitted and operated sanitary
landfill
in which to discard their refuse.
There are land-
fills
in contiguous counties that would be available for use
(R.
558).
Respondent did bring
in numerous citizens to
testify to costs involved at other landfills.
These witnesses
do not qualify as experts.
It is apparent that equipment and
financing of landfills are expensive
(R. 1215,1216,1295).
However, no effort was made by Respondents
to tie any of this
information to the problems of the operation at Respondents’
site at Taylorville.
There was no actual analysis of what
it would cost
to bring the site into compliance.
Other than availability for refuse disposal there was
no evidence concerning priority of location.
Respondents do
possess
a development permit.
This
is evidence that if the
site were properly developed that the location and geological
conditions
are appropriate for a solid waste disposal site.
Respondents made no showing that their site was unique
in terms of technical or economic practicability from any
other permitted site in the state.
Respondents gained an
unfair economic advantage over other permitted sites by
operating in violation of the standards.
28-129
*
8—
Financial disclosure by Respondents proviced the
follow-
ing information concerning the Taylorville
Landfill:
Year
Gross Receipts
1974
$53,361
~5U,666
1975
$70,565
$65,165
1976
$81,102
$78,000
Respondents introduced as Exhibits
20 and
21
contracts
for the years
1974 and 1976 respectively.
These contracts
provide for excavation work at the Taylorvill:
~andfill.
Respondents also have several oral contracts
~
1425),
These
contracts would be evidence of ability to come into coxu~iiance
with the Regulations and the Act.
The Board
can
only note that
Respondents have the responsibility of enforcing the contracts
they have made.
The admissions are sufficient to cover
all the dates
in
the complaint.
There is a
great
deal of additional substan-
tiation contained in the
record.
In light of the blatant
ongoing violations of the Act
and
Regulations, the Board finds
that a heavy penalty is necessary to aid in
the
enforcement of
the Act.
A penalty of $10,000 will be assessed jointly and
severally.
The Board feels that this penalty is inadequate
considering the length and degree of ongoing violations; how-
ever,
a greater penalty may delay compliance.
Respondents
will be required to cease and desist from further violations
of the Regulations and the Act.
This Opinion constitutes the Board’s
findings of fact
and
conclusions of law in this matter.
ORDER
It is the Order of the Pollution Control
Board
that:
1.
The allegation of violation of
Section 21(b)
of
the Environmental Protection Act in relation
to
the
alleged
permit
violation
is
dismissed.
2.
Harold Broverman and Theodora Baker,
d/b/a
Taylor—
ville Landfill are found to be in violation of:
Rule 202(b) (1)
of the Board’s Solid Waste Regula-
tions and Sectin
21(e)
of the Act from July 27,
1974 to April 21,
1976; Rule 305(a)
on twenty-eight
days from January 14, 1974 to July 1,
1976; Rule
305(b)
on nineteen days between March
7, 1974 and
July 1,
1976;
Rule 305(c)
on twenty—four days from
January
14, 1974 to July
1,
1976; Rule 303(a)
on
seventeen days from October
4, 1974
to July 1, 1976;
28-130
Rule 303(b)
on twenty—two
days from
January 14,
1974 to July
1,
1976; Rule
303(c)
on February
5,
1974; Section
21(a)
of the Act on April
1,
1974
and February
3,
1975;
Rule
310(b)
on fourteen
days from
January 14, 1974
to March
4, 1976;
and
Rule 311 on seven days from November 20, 1975 to
September
16,
1976.
3.
Respondents shall cease and desist all further
violations of the Regulations and the Act.
Unless
an operating permit is issued within 120 days
from
the date of this order the site shall be closeth
4.
Respondents shall pay a penalty of $10,000 jointly
and severally within
35 days of this Order,
Payment
shall be by certified check or money order payable to:
State of Illinois
Fiscal Services
Division
Environmental
Protection
Agency
2200 ChuroSili Road
Springfield, Illinois 62706
I, Christan
L. Moffett, Clerk of
the Illinois
Poiluti~n
Control Board, hereby certify the above Opinion and Order were
a,~ptedon the
~
day of
1977 by a vote of
~hristan
L. Moffet4~Jerk~
Illinois Pollution LControl Board