UT
POLLUTION CONTROL BOARD
December 20, 1977
ENVIRONMENTAL PROTECTION AGENCY,
)
ComplaL~~it,
v,
)
PCB
~T~69
ANDREW J,
KAUFMAN,
)
Respondent.
MR. RUSSEL R,
EGGERT, ASSISTANT ATTORNEY GENERAL, APPEARED FOR
THE
COMPLAINANT.
MR.
L,
STANTON DOTSON, ATTORNEY AT LAW, APPEARF
NOR THE RES-
PONDENT.
OPINION
AND
ORDER OF THE BOARD
(by
Mr. Werner):
I.
LEGAL
BAC
ROUND
This
matter comes before tT~Board upon the March
1, 1977
Complaint of the Environmental Protection Agency
(Agency)
charging Andrew J. Kaufman with vio’~ationsof Rules
210,
302,
303 (a)
,
303 (b)
,
304,
305,
306,
308,
310(b)
,
and 314 (f)
of
Chapter
7:
Solid Waste Regulations
(Chapter 7), thereby vi-
olating Rule 301 of Chapter
7 and Section 21 of the Environ-
mental Protection Act(Act).
Hearings were held on July 28,
July 29, August 15, and August
22,
1977.
At the August 22, 1977 hearing, Kaufman made a motion to
dismiss based on
an April
8,
1976 compliance agreement between
Kaufman and the Coles County State’s Attorney.
The motion
argues
in the alternative that Kaufman is immune from state
prosecution or that the Agency
is esf-opped from prosecuting
this matter.
The motion is denied.
A county State’s Attorney
cannot bind
a state agency by way of a compliance agreement
where the state agency was not a party to that agreement.
Healy v. Deering,
231 Ill.
423,
at 431—432
(1907); DuPont
V.
Miller,
310 Ill,
140, at 148—149
(1923)
On March 21,
1977, the Agency filed
a First Request to
Admit Facts which Kaufman, through his attorney, refused to
answer on Constitutional
g :ounds.
Following full argument
on this issue,
the Hearing Officer ordered Kaufman to answer
the request for admissions on April 19,
1977.
No answers
were filed with the Board.
Under Procedural Rule 314(c),
28
—
443
—2—
each of the matters referred
to
in the First
Request to
Admit
Facts are deemed admittcd by Kaufman.
Therefore,
the
Board
finds Kaufman in violation of Rules
210, 301,
302,
303(a),
303(b),
304,
305,
306,
308,
310(b),
and 314(f)
of Chapter
7
and Section
21 of the Act.
II. FACTUAL BACKGROUND
Kaufman owns and operates
a solid
waste management site
located near Humboldt, Coles County,
Illinois.
Reports of
Agency inspections on the following dates were placed into
evidence to prove violations of Chapter
7:
July 8, 1975
Testimony of Diefenback,
fl.
48-61
Aug.
28,
1975
Testimony of Diefenback,
R.
b3—66
Sept.
24, 1975
Comp.
Ex.
26
Nov.
4,
1975
Cornp,
Ex.
27
(with photos*)
Dec.
22,
1975
Comp.
Ex.
31 and
33
(with photos, Ex.
32A
Jan.
13,
1976
Testimony of Diefenback,
R.
67-70
May
6,
1976
Comp.
Ex.
28
Sept.
15,
1976
Comp.
Ex.
34
(with photos Ex.
35”)
In addition,
a report of an inspection made on April 20,
1977
(Comp.
Ex.
36, with photos, Ex.
37*) was admitted asan Agency
exhibit for the limited purpose of justifying a penalty.
These inspection reports will be referred
to
by
date only
in the remainder of this Opinion.
III. REVIEW OF EVIDENCE
Agency inspection reports show a violation of Rule 303(a)
on the following dates:
August
28,
1975,
December
22, 1975,
*Although the Board appreciates the introduction of the photos
in the evidence, the descriptions attached to them were im-
precise and did not assist the Board in visualizing the physical
characteristics of the site.
28-444
-.3--
May
6,
1976,
and September
15, 1976.
No refutinj evidence
was presented.
Reports list violations of Rul?
303(b)
on the following dates:
August
2$~
1975,
September
24,
1975,
November
4,
1975, December 22,
1971.,
January 13, 1976,
and
September 15,
1976.
The Agency brought forth evidence showing violation of
Rule
304, for lack of adequate Supervision and Equipment.
Kaufman was not present at the site during the November
4,
1975
inspection and admitted that he was off the
si-fr
on the day
prior
to the July
8, 1975 and January 13,
1976 ~rispections
(R.66,
181,
91-2).
In addition, the record contains uium:rous
references
to equipment failures.
Kaufman admits to these
breakdowns of his bulldozer
(R.434).
Violations of Rule 305(a)
were
reported on all inspection
dates,
Kaufman admitted to the iuepeótor that
he
had failed
to provide daily cover on the days prior to the July
8,
1975
and August
28, 1975 inspections
(0.60,
66,
81,
85).
A third
violation is probable, but not
for
certain,
from the observation
by the inspector of refuse frosen into the bottom of
a shallow
working trench on December
22,
1975.
Violations of Rule 305(b) were reported on November
4,
1975,
January 13,
1976, May
6,
1976, and September 15,
1976,
However,
to prove a violation of the intermediate cover requirement,
the Agency must show an intent not to deposit refuse on the
area for
60 days or the actual passing of
60 days without new
deposits.
No such evidence appears
in the record.
Violations of Rule 305(c) were reported on November
4,
1975, December 22, 1975, January 13, 1976
(see R.
91), May
6,
1976,
and September 15, 1976; Kaufman admitted that the final
cover
at the site was inadequate
(R.426-7).
Two other witnesses
also testified as to the lack of adequate final cover:
Lesley
Young,
a trash hauler with knowledge of conditions
at the
site but without knowledge of the regulations
(R.282-284)
and William Daley, an earth contractor hired by Kaufman to
place final cover over portions of the site
(R.330—332).
An alleged violation of Rule 306 was reported on
December
22, 1975.
However, the inspection did not take place
at the end of the working nay.
Violations of Rule 308 were reported on September 24,
1975,
November 4,
1975, December 22,
1975, May 6,
1976, and
September 15,
1976,
The salvage area is
located on the west
end of the site near a working trench of the landfill.
28
—
445
—4—
A violation of Rule 314(f) was reported on September
15,
1976.
In addition, another inspector observed large
numbers
of flies at the site on several occasions, although specific
dates were not mentioned.
(R.l66).
A violation of
Rules
210 and 310(b) was alleged in the complaint.
Agency inspection
reports made no mention of this violation.
Kaufman did, how-
ever, request a permit to allow acceptance of liquid wastes.
(Comp. Ex.
4B)
Finally, violations of Rule 302 were reported for all
inspection dates,
First, the record contains substantial
evidence
that Kaufman was accepting more than 10 cu. yds. of refuse
per day.
Kaufman himself had requested a revised operating
permit allowing him to accept 60 cu.
yds. per day
(Coinp.
Ex.
4A and 4B).
It is also beyond a doubt that Kaufman
accepted commercial wastes.
A “glass road” made up of
flashbulbs has been part of the site since at least December
2, 1975
(Comp.
Ex. 30).
In addition, trash hauler Young, who regularly
deposits refuse at Kaufman’s landfill,
testified that his entire
trash route consists of commercial customers
(R.287-8).
The
other three alleged violations deal with the cover requirements
and are discussed on pp.
3.
Ill. PENALTY
The Board has considered the Section 33(c)
factors
in assessing a penalty for these violations.
Kaufman has
the burden of producing evidence concerning these factors.
Processing and Books, Inc. v. Pollution Control Doard,
64
Ill.
2nd 68,
351 N.E. 2nd 865
(1976).
The character and
degree of injury is primarily related to a leachate
problem.
Inspectors observed some seeping of leachate off
the site on all inspection dates and observed a noticeable flow
of leachate off the west end of the site toward the nearby
Kaskaskia River on September
24,
1975 and December 22,
1975.
Acceptance of liquid wastes at the site might also cause
environmental damage as well as contribute to the leachate
problem if not properly contained.
2a-446
—5—
Tht. social and
n’
n-alnic
value of the landf’.
I
site
~:asfleirly establish’:.
b.~’.’~rousf-rash haulers ‘estified
d;:’
1’.
fman’s landfill
waz
•
an
~nli place in
C”’
a
County
t;’ic
r
-
rr.f
use
could
be
aepoc
U.
•
~out
constan’.
amage
t~1’
~
equi~.n.ent.
Based
on
the
evidence
available,
we
find thc
landfill site is suitable to its location
if
properly
operated.
Compliance appears to be both technologically feasible
and economically reasonable.
In fact, Kaufman has already
taken many of the steps
needed
to achieve total compliance.
Numerous mitigating factors appear in the record.
Cold and wet weather contributed to some violations.
Equipment breakdowns, also a major cause for non—compliance,
have been alleviated by the purchase of a second bulldozer
CR. 466). Nonetheless, Kaufman
now
understands that there must
be sufficient equipment, personnel, and supervision
available at the site to comply with Rule 304
(R.131e2).
Kaufman’s failure to place final vover
is attributable
in part to erroneous advice received from a trash hauler
Lesley Young
CR. 282).
However, when informed of proper
procedures he contracted with Dale’s’ for a placement of
proper final cover
CR.331).
Kaufman has contrart-ed with
Douglas Andrews, P.E., to draw up plans for the purpose of
1)
improving the physical characteristics of the site to
control leachate seepage and
2) submitting an ctpplication
for a revised permit from the Agency.
Andrews testified that
the original plan was deficient and did not comport with the
realities of the situation, especially in allowinci Kaufman
to accept only 10 cu. yds.
of refuse per day
(R.
109-10, 130).
Subsequently, Kaufman was not made aware that his
compliance agreeement with the Coles County
State’s Attorney was not binding on the State of Illinois.
To ameliorate any future problems, Andrews is willing to pro-
vide sufficient supervision over the site to educate Kaufman
o
in
‘)rK’r
oprrat
ion
of
Ii
In
1
and
I
u
1
I
.
Numi’n
un;
wit
iu’nses
have
‘h-.;e—ribed
Knul maui
an
a
man
of
qi aal
jul
e’e;r
it
y
who
would
make
a
qenuine
effort
lo
comply
whit
(‘h.iptci
7.
Based
on
the
above
factors,
the
Board
assesses
a
penalty
of
$200
for
these
violations.
This
Opinion
and
Order
constitutes
the
findings
of
fact
and conclusions of law of the Board.
28—
447
6—
ORPEY
It
is the Order of the Pollution Control Board that:
1.
Kaufman has violated Rule 210, 3014 302, 303(a),
303(b),
304,
305, 306, 308, 310(b), and 314(f) of Chapter 7
and Section 21 of the Act.
2.
Kaufman shall cease and desist from the aforementioned
violations within 150 days of the date of this Order.
3.
Kaufman shall apply to the Agency for a revised operating
permit within 45 days of the date of this Qrder.
4.
within 30 days of the date of this order, Kaufman
shall, pay a penalty of $200, payment to be made by certified
check or money order to:
State of Illinois
Fiscal Services Division
Illinois Enironnental Protection Agency
2200 Churchill Road
Springfield, Illinois
62706
(‘hr
i:;i.sn
I..
MoP
tell,
CJes’k
oP.
use
iii
i
iso I:;
Pt’
Li
ulion
Con tr’.’l
Board,
hereby
certify
the
above
Opinion
and
Order
were
adopted
op
the
_c2~’
day
of
~
p
1977
byavoteof.~o
(Li~
O/hJJ,w
~1?Thfln’L. nc,ft
,
C er
Illinois Polluti
tontrol
Board
28-448