ILLINOIS POLLUTION CONTROL BOARD

March 28, 1977

ENVIRONMENTAL PROTECTION AGENCY,   

)

Complainant,

v.

)

PCB 76-60

CITY OF LINCOLN, a municipal     

)

corporation,

Respondent.

Mr. George W. Tinkham, Assistant Attorney General, Attorney

for Cornrlainant

Mr. Warren Peters, Attorney for Respondent

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 charging the City of Lincoln with various permit

and regulatory violations in the operation of its landfill.

The Complaint was amended on April 1, 1976, and three

public hearings were held with the first on May 28, 1976,

and the last on June 23, 1976.

The Agency initiated various discovery procedures in

this matter including a Request for Admission of Facts, Re-

quest for Genuineness of Documents, and Interrogatories.

The City failed to respond to any of these discovery procedures

and therefore in accordance with Procedural Rule 314(c), each

of the matters of fact and the genuineness of each document

of which admission was requested is deemed admitted by the

City.

Because of the City’s failure to respond to the inter-

rogatories as ordered by the Hearing Officer, the Agency filed

a Motion for Sanctions with the Hearing Officer asking that

the City be prohibited from offering any evidence relating to

issues addressed by the interrogatories, which would in any

way modify admissions made by the City by operation of Rule

314(c), and further that economic value of the pollution source,

the economic reasonableness and technical feasibility of coming

into compliance with the Rules not be issues in this case. At

the first hearing, after hearing argument by the parties, the

Hearing Officer granted only that portion of the Agency’s re-

quest relating to the Respondent’s right to submit evidence

25

—

187

—2—

which would modify the admissions already made by the Agency.

In the course of the following hearings, the Hearing Officer

effectively reversed his ruling in 

this 

regard and reserved

ruling on the Motion for the Board.

The Agency’s Motion is based on the premise that a party

should not be allowed to ignore discovery orders and thereby

gain unfair advantage at the hearing. The Board has previously

stated that it will enforce discovery orders and the Board

reaffirms that position. EPA v. Truax-Traer Co., PCB 72-63,

7 PCB 131; EPA v. Fleischman Malting Co.,, PCB 73—193, 11 PCB

443. The Board does not believe, however, that every violation

of a discovery order requires the imposition of sanctions. The

unanswered interrogatories the subject of this dispute were

mailed to the City on April 28th, thirty days prior to the first

hearing. The discovery order was not entered until May 7th,

and specified that the interrogatories were to be answered

on or before May 20th. On that date, the City informed the

Agency that the answers to the interrogatories could not be

delivered on that date. The Motion for Sanctions was filed

by the Agency on the 21st day of May, and the Hearing Officer

heard argument on the 28th of May, on the first day of hearings.

At the hearing, the City objected to the imposition of sanctions

and offered to answer the interrogatories if given additional

time and accordingly moved for a continuance. The City stated

the interrogatories were not answered because they were quite

voluminous and because of the City’s hope that the settlement

discussions contemporaneously underway would render response

unnecessary. The Agency thereupon objected to any continuance

on the grounds that further delay should not be tolerated.

The Board does not believe the City’s failure to respond

under these circumstances warrants the imposition of the severe

sanctions reauested by the Agency. We are not concerned here

with repeated failures to answer, but with only a single

occurrence. While the Board does not condone this conduct on

the part of Respondent, 

and does not believe any party should

benefit from his own failure to participate in the various

discovery procedures, other more appropriate relief was available.

A single continuance should have been granted and if Respondent

still failed to comply, the severe sanctions requested would

then seem appropriate.

The Complaint in this matter is comprised of five Counts.

In Count I the City is charged with operating its solid waste

management site since July 27, 1974 without an operating permit

in violation of Rule 202(b) (1) and in further violation of

Section 21(e) of the Act. In Count II, the City is charged

with unsDecified open dumping charges in violation of Section

21(b) of the Act. Because of the failure to include a specific

—

188

—3—

regulation allegedly violated, this Count will be dismissed.

EPA v. John W. Helms, PCB 75—357, 20 PCB 43 (1976). In

Counts III, IV and V the City is charged with failure to

comply with the Board’s daily, intermediate and final cover

requirements on numerous specified dates in violation of

Rules 305(a), (b) and (c) respectively, and in further viola-

tion of Section 21(b) of the Act.

By failing to respond to the Request for Admission of

Facts, the City admitted sufficient facts upon which the

Board can find both the permit and cover violations. Further-

more, the City never contested the violations at the hearings

but offered testimony showing the mitigating circumstances

surrounding the violations.

It was the City’s contention that the cover violations

were primarily due to large accumulations of landscape wastes

which remained uncovered during the period alleged. The

record in this matter supports the City’s contention. Much

of this landscape waste, an estimated 2000 tons (R. 243),

existed on the site prior to July 27, 1973 (R. 61), the effective

date of these regulations, and some of this material was still

uncovered as late as March 1, 1976 CR. 83), the date the Complaint

in this matter was filed. Although the City received numerous

Agency visits and reports warning the City of these violations,

the record shows that little corrective action was taken by the

City until late in 1975. In September 1975, the City finally

placed an order for an air curtain destructor (R. 260) and

generally increased their efforts to comply by hiring independent

contractors to perform some of the required work (R. 292). In

January of 1976, the City began to both burn and apply cover

to the landscape wastes CR. 275). The City’s financial records

also indicate that the increased efforts did not take place

until late 1975 (Resp. Exh. No. 3). Because the City delayed

over two years before doing what was required, and because no

satisfactory explanation was offered for this delay CR. 295),

the Board believes the imposition of a monetary penalty is

necessary.

In consideration of the Section 33(c) factors in the

assessment of a penalty, the Board notes that although no

serious environmental harm has been proven, the failure to

comply with the permit and cover requirements increases the

potential for such harm. The Board notes that the Agency has

repeatedly denied the City’s request for an operating permit

because of a leachate problem (R. 235), one of the very problems

which led to the adoption of the cover requirements. The City

has never appealed any of these permit denials.. Although this

landfill provides an important service for the people of Lincoln,

such a finding does not excuse a failure to comply with this

requirement of the Act and particularly since an air curtain

—

189

—4-.

destructor could have been utilized for disposal throughout

the entire duration of the violations. Neither the location

of the site, nor the priority of location is an issue in this

case. Further, the City never contested the technical feasi-

bility or economic reasonableness of complying with the regu-

lations. These considerations aside, the Board finds the over-

riding circumstance in this case is the City’s failure to make

any serious efforts to comply for over two years, despite

repeated requests and warnings by the Agency.

In view of the foregoing, the Board will assess $250.00

for the operating permit violation and $500.00 for the cover

violations. The Board will further order the City to cease

and desist further operation of the site without the requisite

permits.

This Opinion constitutes the Board’s findings of fact

and conclusions of law in this matter.

ORDER

1. IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that

Respondent, City of Lincoln, is found to have operated its

solid waste management site in violation of Rules 202(b) (1),

305(a), 305(b) and 305(c) of the Board’s Solid Waste Rules

and in further violation of Sections 21(b) and 21(e) of the

Act and will be assessed $750.00 for these violations. 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. Respondent, City of Lincoln, shall cease and desist

further operation of its landfill unless it obtains an operating

permit within 120 days of the date of this Order.

3. Count II of the Complaint is hereby dismissed.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the above Opinion and Order were

adopted o~the ~1   

day of 

__________________,

1977 by a

vote of 

~

Illinois Pollution Control Board

—

190