;LLINOIS POLLUTION CONTROL BOAP~)
December 20,
1977
ENVIRONMENTAL PROTECTL;~AGENCY,
Complainant,
v,
)
PCB 77-89
R.
H.
MOON, d/b/a
R.
H. MOON
)
and SONS,
and JACK HORN,
)
Respondents.
OPINION
AND
ORDER OF THE BOARD
(by Mr. Dumelle):
Respondents in this case have been accused of operating a
refuse disposal site without an operating permit issued by the
Agency,
in violation of Section 21(e)
of the Act and Rule 202(a)
of the Boardts Solid Waste
Regi..lations.
A hearing was held at
the McDonough County Courthouse
in Macomb,
Illinois on August
5,
1977.
The subject site is located at the end of Canyon Drive in
Macomb.
At one t~imethe entire site was located past a drop off,
but it has been filled in for the past thirty years.
The fill
has been comprised of dirt,
demolition materials, and trash
(R.26).
Some of the material has been deposited by Mr.
R.H.
Moon and other materia:’ has been dumped with his permission.
No one has ever been given permission to dump trash, but
quite a bit has~been placed over the years.
Mr. Moon feels that he should not be held liable for any
violation because his activities fall under the exemption pro-
vided
in Section 21(e)
of the Act and because the materials
he placed at the site did not constitute refuse.
Mr. Horn
argues that since
he
does not own the site,
he should not be
held accountable for its operation.
Neither Respondent feels
that the unpermitted dumping of trash by unknown third parties
should be blamed on them.
The Board
is faced with a situation where no one wants to
accept responsibility for creating an unsightly dump.
The
owner of the site,
stepmother to Mr. Horn,
is confined to a
nursing home in Washington,
Indiana and probably has no com-
munity interest in its opeLation.
Consequently this action
can focus only on the qu ~stion of whether or not the Respondents
have violated the Act and the regulations.
Any cleanup or proper
operation must await a separate proceeding.
28
—
449
Mr. Moon stated that he had been in the excavating
business
for many years and that he had engaged in the demolition trade
as well (R.ll).
He admitted that he had been disposing of dirt
and concrete at the site for many years with the permission of
Mr. Horn
(R.27,30,40).
Mr.
Moon also levels the site with some
of his excavation equipment
(R.27)
and stated that he “...l.t
the CIPS dump dirt and cement in there, otherwise a neighbor
slips
in there”
(R.l8).
The Board has construed the exemption in Section 21(e)
of
the Act and has stated that it
is very narrow.
In Environmental
Protection Agency
v. City of Pontiac,
18 PCB 303,306
(July 7,1975),
the Board rejected Pontiac’s contention that
it was exempt be-
cause
it owned the refuse.
The Board stated as follows:
“Section 21(e)
and its exemption must be interpreted
consistently with the purposes of the Act.
Title V,
Section 20 states this purpose to be prevention of
pollution or misuse of land arising out of improper
refuse disposal.
To achieve this end the Regu-
lations establish a permit system controlling refuse—
disposal activities.
The intent of Section 21(e)
was to exempt minor amounts of refuse which could be
disposed of without environmental harm on the site
where it was generated.
There was no intent to create
a gap in the permit system of the magnitude suggested
by Pontiac.
To interpret the exemption as allowing
the municipality to dispose of any refuse it owns
without
a permit will mean that large quantities of varied
materials could be indiscriminately deposited at a
waste-disposal site.
This obviously circumvents both
the permit system and the purposes of the Act.”
Mr. Moon’s contention that excavating and building demolition
wastes are not refuse has also been rejected by the Board
See
Environmental Protection Agency
v.
Rafacz Landscaping
Sod Farms,
Inc.,
6 PCB
31
(October 24, 1972).
Since his activities were not exempt and the discarded
material was refuse,
Mr. Noon has violated the Act and Rule
202(a)
if
it can be established that he was an operator.
Since the definition of operator in Rule 104(1) of the
Board’s
Solid Waste Regulations includes any person who manages a
solid waste management facility, Mr. Moon’s supervisory
activities would fit him in this category.
Mr. Horn’s capacity as an operator is less clear.
Although
he never owned this property, he did negotiate on behalf of
his
father when the site was purchased (R.63).
Mr. Moon stated that
he received permission from Mr. Horn to continue to fill the
land
and that he acted pursuant to this permission.
Since Mr. Horn’s
father died on October 11, 1974,
he has obviously not been
handling his affairs since that date.
Consequently Mr. Horn
cannot be found to have acted as an operator during the period
of this complaint.
28
—
450
Mr. Mou~isviolations constitute a threat to
the
Agency’s
permit system.
~hose
people who contemplate dumping at
an un-
permitted location must be shown that they cannot unilaterally
decide what is refuse and what is not.
The Board’s Regulations
which govern the operation of landfills never will be
generally
adhered to unless unin~rmedand unpermitted operations
are
closed.
In this case the Board cannot order that this
site be
properly covered or that
the
Respondents perform any
remedial
action.
Some future action to accomplish proper closure is
necessary.
However the Board
can
impose a penalty which
will
act as a deterrent to Mr. Moon
and
any other person who
is considering the same sort of activity.
Mr. Moon claims that he was advised by a representative
of the Agency in 1974 that no permit was needed for his
filling
activities
(R.33).
The Agency denied ever giving this advice
and stated that Mr. Moon was told in June,
1975 that he needed
a permit
(R.74,75,120).
Although Mr. Moon is no longer engaged
in the excavating business,
he did testify that he was main-
taining a stockpile of cover dirt at the site (R.27)
and
that
he still pu.shed over the piles of refu~seperiodie~lly.
It
i~
apparent that Mr. Moon decided not to look into getting a
permit.
There should be no reason for any Agency employee
to
advise Mr. Moon that no permit was needed since this advice
would have been erroneous.
Mr. Moon enjoyed the benefit of disposing of excavation and
demolition wastes from his own business free of charge.
Al-
though the savings to Mr. Moon have not been quantified in
the record, they are real nonetheless and shall be considered
by the Board in setting a penalty.
A penalty of $200 shall be
levied against Mr. Moon.
The record does not show any economic dislocation that
would flow from closing this site.
There is no evidence of jobs
associated with this facility or any indication that problems
in solid waste management in McDonough County would result from
closure.
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.
Respondent R.H. Moon is hereby found to have
violated Section 21(e)
of the Act and Rule 202(a)
of the Board’s Solid Waste Regulations.
2.
Respondent R.H. Moon shall cease and desist
immediately from any further violations.
28—451
3.
Those portions of the complaint charging Re-
spondent
Horn
with violations of Section 21(e)
of
the Act and Rule 202(a)
of the Board’s Solid Waste
Regulations are dismissed.
4.
Within 30 days of the date of this Order, Re-
spondent
R.H. Moon shall forward the sum of $200 by
certified check or money order to:
Fiscal Services Division
Ill. Environmental Protection Agency
2200 Churchill Road
Springfield,
Illinois
62706
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the a ove Opinion and Order
were
adopted on the
_________
day of
_______________,
1977 by a
vote of
-~
.
Christan L. Moff~, Clerk
Illinois Pollution Control
Board
28
—
452