ILLINOIS POLLUTION CONTROL BOARD

August 18,

1977

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB 76—57

DEAN PENN and WALTER DEEMIE,

Respondents.

Mr. John Vafi Vranken, Assistant Attorney General, Attorney

for Complainant

Mr. Dean Penn and Mr. Walter Deemie, appeared pro se

OPINION AND ORDER OF THE BOARD

(by Mr. Young):

This matter comes before the Board on the Complaint filed

on March

1, 1976,

by the Environmental Protection Agency

charqing Dean Penn and Walter Deemie with various violations

of the Act and regulations in the operation of a refuse disposal

site located in Peoria County.

Specifically, Dean Penn is

charged with owning and Walter Deemie with operating a refuse

disposal site from July

27,

1974, until May

10, 1976, without

the requisite operating permit in violation of Rule 202(b) (1)

and Section 21(e)

of the Act.

Respondents are charged with

failing to place cover on all exposed refuse at the end of the

day’s operation on seventeen different occasions

in violation

of Rule 305(a)

and Section 21(b)

of the Act.

Finally, Respondents

are charged with causing or allowing open burning at the site on

January

8,

1976,

in violation of Rule

311 and Section

21(b)

of

the Act.

The Board notes that Respondents

are not unfamiliar with

proceedings before this Board.

They have been involved in one

prior enforcement proceeding

(PCB 72-189,

5 PCB 159)

and one

variance proceeding

(PCB 72-432,

6 PCB 669), both of which involved

this same landfill site.

The final order in the enforcement pro-

ceeding, based upon a Settlement Stipulation, directed Respondents

to permanently close the site no later than December

31, 1972,unless

an operating permit was obtained from the Agency.

When permit dis-

cussions thereafter broke down with the Agency,

evidently over the

question whether a clay liner should be installed

to prevent

leaching conditions,

the Respondents filed the aforementioned

variance petition which basically souqht permission

to continue

~

~2&-317

(~

)

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operation of the site witriout a ~orc~it from the Agency and in

the same manner as the operation had been conducted in the past.

This variance request was denied

because

of the fears expressed

regarding a continued leachate condition

(6

PCB

66~

670)

At

the

hearing

held

in

the

instant

matter,

Complainant

attempted to establish several relevant facts through operation

of Rule

314 of our Procedural

Rules

which

requires, among other

things,

that

the

answers

to

request for admissions be sworn.

ComDlainant

had

filed

a

request

in::

admission,

and

although

both

Respondents

filed

answers

thereto,

neither

was

sworn

as

required

by

our

rule.

Because

of

this

defect~

Complainant

argued

the

answers

should

be

deemed

as

not

havina

been

filed,

thus

resulting

in

the

admission

of

the

requested

f&~cts~

The

Board

feels

other-

wise.

Although the answers were clearly defective, absent the

filing

of

a

Motion

to

Strike

which

would

have

provided

the

answering

party

a

chance

to

remedy

the

defect,

the

Board

is

reluctant

to,

and

shall not~role that the

answers

be

deemed

as

not having been filed.

in regards

to

the

operatinq

nermit

charge,

the

record reveals

that Walter Deemie

admitted.

that

h~

n;~ned (R.

31)

,

and operated

the site in question without

the requisite operating permit

(R.

32).

These admissions are sufficient to support a finding of

violation.

Insofar as Dean Penn

is concerned,

the record

establishes that he no longer owns

the

site

in

auestion

~R. 21),

nor was he the owner durinq the time frame of the Complaint

(Ag.

Exh.

#27).

In addition to

this,

there was no evidence

to support

a finding that he was an operator of the site.

In view of the

foregoing,

the Board must dismiss the entire Complaint as

to

this Respondent.

The evidence

in regards

to the seventeen daily cover charges

is insufficient

to support a finding of violations with two ex-

ceptions.

In order to prove

a violation of the daily cover re-

quirement,

it

is necessary to establish that such cover was not

applied at the end of the working day.

This fact can be established

by either

vi

si t inq the s~te

~i

t

thc’

‘nd

oI

the

(~Z1~S

operation and

findinq

that. the requisite cover was nob applied, or by visiting

the site on two d~itcrentdays and findinq

the same refuse uncovered.

EPA v.

Waukegan, PCB 71-298,

3

PCB 301,

305

(1971).

With the ex-

ception of the March

9,

1976,

and the April

15,

1976,

charges,

neither the testimony nor exhibits establish that this procedure

was followed.

Upon inspecting Agency Exhibits

24,

25, and 26,

there can be no doubt that the requisite daily cover was not applied

to the refuse shown therein, and that

such

refuse remained uncovered

for nearly two months.

In regards

to the single open burning charge,

the

board finds

the

Agency’s

evidence

insufficient

to

support

the

finding

of

violation.

While

Agency

testimony

establishes

that

there

was

a

2631~~

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—3—

fire at the site

(R.

52), the Board does not believe that a

witness’s mere positive response

to counsel’s question whether

there was

a fire on the site is sufficient to support a finding

of violation.

EPA v.

C.

M.

Ford, PCB 72-230,

6 PCB 165,

167

(1972).

Considerable amplification

is necessary.

Even if this testimony

were to be considered sufficient to support a finding of violation,

it would still be insufficient to support the imposition of any

penalty for such violation.

This charge will therefore be dis-

missed.

In consideration of Section 31(c)

of the Act, the Board

finds that Respondent failed to prove that compliance with the

Board’s regulations would have imposed an arbitrary or unreasonable

hardship.

in dete~rminationof the appropriate remedy for the violations

set forth herein, the Board,

after consideration of the factors

included in Section

33 of the Act,

and the facts

of this case,

concludes that the technical practicability and economic reasonable-

ness of complying with the regulations as well

as the economic

value

of

the

pollution source,

and the priority of location, werq

never

raised

as

issues

in

this case.

While the Board recognizes

the desirability of filling up an abandoned

sand

pit that is lo-

cated in a residential area,

that fact alone does not excuse the

continued,

longstanding

violations of

our

regulations

and

of

the

Act

as

exist

in this case.

Lastly,

the Board notes that although no serious environmental

harm has been proven,

the Board believes

that a penalty

is nonethe-

less required.

If the Board were

to impose substantial penalties

only if serious harm has been proven,

the independent significance

of the permit system and our regulations

is lost, and a return to the

common law nuisance conceots may as well occur.

The Board has con-

sistently

stated that the permit

system

is

the

cornerstone

of

the

Act

and

that

whenever

necessary,

the

Board

should

use

its

penalty

power

as

an

economic

incentive for compliance with the

permit

re-

quirements.

In view of this belief, and the longstanding violation

found herein,

the Board will assess

a penalty of $3,000.00

for the

violation

of

Rule

202(h)

(1)

and

Section

21(e)

of

the

Act,

and

a

penalty

of

$500.flfl

For

the violation of

Rule

305(a)

and

Section

21(b)

of

the

Act.

The

Board will further

require

Respondent

to

properly

close

the

site

or obtain a permit from the Agency.

This

Opinion

constitutes

the

Board’s

findings

of

fact

and

conclusions of law in this matter.

ORDER

1.

Respondent,

Walter

Deemie,

is

found

to

have

operated

a

solid

waste

management

site

from

July

27,

1974,

until

May

10,

1976,

26319

---

in violation of Rule 202 (b) (I) of our Solid Waste Rules and

Section 21(e)

of the Act and shall pay a

penalty of $3,000.00

for such violations;

further he is found

to have violated

Rule

305(a)

of our Solid Waste

Rules

and Section

21(b)

of the

Act

on March

9,

1976,

and April

15,

1976, and shall pay

a penalty

of

$500.00 for these violatiocs.

Penalty payment by certified

check

or money order payable

to the State of Illinois shall

be

made within

35 days of the date of this Order to:

Fiscal

Services Division,

Illinois Environmental Protection Agency,

2200

Churchill Road,

Springfield,

Illinois,

62706.

2.

Those portions of the Complaint involving the single

open burning charge as well

as the remainder of the daily cover

charges

for which violations were not found

to exist are hereby

dismissed.

3.

The Complaint,

as

it concerns Respondent Dean Penn,

is

hereby dismissed.

4.

Respondent shall apply

final cover within 90 days of

the adoption of this Order unless he has obtained the requisite

operating permit frem the Agency~

IT

IS SO ORDERED

Mr.

Jacob Dumelle dissents

I,

Christan

L, Moffett, Clerk of the Illinois

Pollution Con-

trol Board,~herebycertify the

a ove Opinion and Order were ado ted

on the

J~

day of

~

1977

by a vote of

Illinois Pollution

Board