ILLINOIS POLLUTION CONTROL BOARD
April
28, 1977
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 74—471
WILFORD
E.
(“ERNIE”) JOHNSON and
)
NORMA
I.
JOHNSON, d/b/a BYRON
)
SALVAGE,
Respondents.
Mr. Michael A.
Benedetto,
Jr., Assistant Attorney General, appeared
for the Complainant;
Messrs. Sherwood
L. Levin and Daniel
L. Weisz,
Attorneys, appeared
for the Respondents.
OPINION AND ORDER OF THE BOARD
(by Mr.
Zeit.lin):
The original Complaint in this matter was filed December 16,
1974,
in which Complainant Environmental Protection Agency
(Agency) alleged
that Respondent Wilford E. Johnson, d/b/a Byron Salvage, had operated
a refuse disposal site in Byron, Ogle County,
in violation of various
provisions of the Environmental Protection Act
(Act)
and this Board’s
Water Pollution Control Regulations.
Respondent Norma
I.
Johnson
was also alleged to have owned and controlled that site, although
she was not charged with operation.
The matter
is presently before
the Board on an Amended Complaint filed October
9,
1975, containing
similar allegations.
The procedural history of the case is
quite complicated and
need not be entirely reiterated.
In
13 Interim Orders*
the Board
has dismissed and reinstated the case,
allowed the Agency to bring
in additional Complainants who were later dismissed,** consolidated
the case with
a counterclaim, Johnson
v.
EPA, PCB 76-210, and later
dismissed that case.
*
Interim Orders were entered on 7/10/75,
8/7/75,
9/4/75,
9/18/75, 10/16/75,
11/6/75, 11/26/75,
12/4/75,
3/11/76. 6/18/76,
9/30/76,
1/20/77, and 3/3/77.
See also,
Chairman Dumelle’s
Concurring Statement of 9/30/76.
**
Respondents Julian
Kullberg,
d/b/a Roto-Rooter,
Interstate
Pollution Control,
Inc.,
and Kullberg Enterprises,
Inc., were dismissed
3/11/76.
25
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347
—2—
At the time of hearing on February 17,
1976,
at Oregon,
Illinois,
the Agency moved for dismissal
of Counts III and IV of its Amended
Complaint.
With regard to the remaining Counts,
I and II
(Count V1
never addressed,
was later dismissed), the Agency and the Johnsons
entered
a Stipulation of Fact.
Although no signed Stipulation was
ever submitted to the Board, as required by the Procedural Rules,
the Board now finds that it will waive that requirement in the
interest of reaching an expeditious decision.
We find the Stipula-
tion of Fact acceptable and shall base this Opinion and Order on it.
We also note that the matters filed by the Attorney General
on September 15,
1976,
consisting of several in—depth reports on the
site in question, performed by the Illinois State Geological Survey
and the Agency,
have not been made a part of the record.
They are,
however, responsive to the Board’s Order of June
18,
1976,
and were
served upon Respondent who for over six months has failed
to object
to their filing or entry into the record.
Although we do not rely
on the use of those materials in reaching our decision on the alleged
violations, we do find that their use is appropriate in determining
the severity of violation and the absolute need for a remedy to
protect the health,
safety, and welfare of the public.
The Johnsons began operation of
a scrap metal business, commonly
known as “Byron Salvage,”
in 1964 or
1965.
Mr. Johnson purchased
ten acres of the site in question in 1968 or 1969,
in joint tenancy
with his wife.
The remainder of the parcel upon, which the operation
was conducted
is owned by a third party.
Mr. Johnson also owns
50
acres northeast of the salvage yard,
separated from it by a ravine,
which
is leased out and used for motocycle racing.
As a result of
an injury,
Mr. Johnson ceased participation in the operation of the
salvage business for the site in question in
1964; his two sons
currently operate the business.
An Agency inspection on October 23,
1970,
indicated that various
55-gallon and 10-gallon drums of chemicals were present
—-
uncovered
-~
on the site.
Although the Agency knew,
at least,
that these barrels
might contain sodium cyanide and other toxic hazardous substances,
It
n~nethe1ess ordered
those barrels buried,
and the site covered
in
a manner consistent with the subsequently enacted Solid Waste
Regulations.
(Exhibits
4
—
20
to
the
Stipulation indicate
that.
the
Agency probably knew the hazardous nature of the contents of the
barrels as early as 1970.
The Agency certainly had knowledge of
the situation no later than May 26,
1971.)
Respondent Johnson then proceeded to cover those barrels,
and
on August 11,
1972,
the Agency advised him that the site had been
“satisfactorily” covered.
On October
3,
1972, the Agency sent a telegram to Mr. Johnson,
(Ex.
28),
informing him that further investigations had indicated
a
serious water pollution problem resulting from the materials buried
on the site.
25
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348
—3—
Although we find that one of the alleged dates of violation for
one of the cited pollutants
is not proved by the exhibits to the
Stipulation,
(Ex.
2 does not show a copper concentration violation
on October
2,
1972),
the exhibits indeed show
a multitude of violations
over a long and continuous period.
Exhibits
22
(9/29/72),
24
(10/2/72),
26
(10/3/72)
,
29
(10/4/72)
,
30
(10/5/72)
,
31
(10/6/72)
,
32
(10/10/72)
34 10/11/72)
,
36
(4/24/73)
,
37
(4/15/74)
,
38*
(5/16/74)
,
39*
(5/20/74)
43
(7/17/75), and
¶37 of the Stipulation
(6/5/74,
5/26/75,
and 6/16/75),
are adequate to prove the allegations
of Count
II of the Amended
Complaint.
Count
I,
alleging the creation of a water pollution hazard,
is shown more than adequately by the exhibits and the Stipulation.
The magnitude of these violations and the potential for future
harm resulting from them is also shown by three reports, filed
subsequent to tF~ehearing, in accord with our Interim Order of
June 18,
1976.
The first of these,
a “Report on Disposal of Toxic
Wastes at Byron Salvage Yard,” by the Agency’s Division of Land/
Noise Pollution Control Land Unit, concludes that:
Data suggest that waste disposal at the yard
is the major source of pollution.
Concentrations
of chemicals are high enough to cause lethal
effects on human and animals...
Percolation of
the polluted surface water poses a serious threat
to ground water
in the area.
This report finds that the drums should be found and removed from
the site, along with the soil already contaminated.
A second report, by the Illinois State Geological Survey,
(August 27, 1976), prepared for the Agency,
is titled,
“Investigation
of Hydroqeologic Conditions for Disposal of Toxic Industrial Wastes
in Byron Area, Ogle County,
Illinois.”
The Geological Survey’s
conclusions included:
Geologic conditions at the Byron Salvage Yard
are not suitable for the disposal of industrial
wastes.
.
.
.Wastes buried
in
the
southern and
western part of the salvage yard could potentially
cause extensive contamination of ground water.
The Survey’s study goes on to point out that some ground water
contamination is already detectable in wells and springs in the
area.
*
These exhibits, consisting of
1 page each,
are stated in
the Stipulation to consist of
2 pages each.
25
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349
—4—
Another
Illinois State Geological Survey study,
“Electrical
Earth Resistivity Survey of Byron Salvage Yard Study Area,”
(Sept.
2,
1976), concluded that:
fThe
measured electrical earth resistivity
values changed across the study area.
-
.and the
low values may indicate the presence of buried
wastes or metal.
The buried wastes appear to
be concentrated in filled drainageways.
There is no dispute as to the existence of the alleged violations;
however,
the responsibility for the violations
is strongly disputed
by the Respondents.
Briefly, Respondents claim that they did only
what the Agency directed them to do, and that they are therefore
relieved of any .civil responsibility for those acts.
The legal
theories relied upon are those of estoppel and entrapment.
(A
previous Interim Order disposed of Respondents’ claims of laches
and statute of limitations.)
Turning first to the allegation of entrapment, Respondents
admit that,
“Criminal statutes may have no direct application to thea
instant case...,”
(Respondent’s Brief,
at 9).
Respondents state
that the defense is asserted for its “persuasive value,”
(id.).
We find that there
is indeed no direct application to the instant
case,
and find the defense to be without merit.
Respondents’
Brief presents at length the application of the
doctrine of equitable estoppel to governmental bodies generally,
this Board specifically, and its predecessor,
the Sanitary Water
Board.
See,
e.g., Hickey
v.
Ill.
Central
R.R.
Co.,
35
Ill.
2d 427,
447—449 7T~66);Wachta
v. Pollution Control Board,
8
Ill.App.
3d 436
(1972)
;
Frank
v.
Sanitary Water Board,
33 I11.App.
2d
1
(1961).
In summary, Respondent alleges that inasmuch as an Agency of the
State of Illinois directed the burial of the barrels
in question,
the Agency is estopped from alleging, and this Board is estopped
from finding,
a violation with regard to the results
of such burial.
There can he no question that the Agency’s actions did contribute
to the problem at hand.
As noted in Respondents’ Brief,
it
is
indeed ironic
that the
Agency should prosecute after writing to
Mr. Johnson,
on August
11, 1972,
(Ex.
21),
that:
The inspection disclosed that you have satisfactorily
closed and covered your refuse disposal site.
Your
cooperation in this matter is appreciated.
If the
Agency can be of any assistance
to you
in the future,
please contact us.
The next correspondence between the Agency and Mr. Johnson,
as
reflected in the record,
was the telegram of October
3,
1972,
cited
above.
25
—
350
—5—
Despite the Agency’s role in this unfortunate situation,
estoppel will not lie.
As the Agency points out
in its Brief
(even
while admitting its role),
estoppel is inappropriate where the health
and safety of the public are at issue.
Respondents’ duty in this
case,
like the Agency’s, was the protection of the health,
safety,
welfare,
and environment of the people of the State of Illinois;
the
Agency’s failure to properly prosecute and execute that duty cannot
and does not excuse the Respondents.
See,
e.g., People ex. rel
Brown
v.
Illinois State Troopers’ Lodge
No..
41, 286 N.E.
2d 524
(1972);
People v.
Larson,
308 N.E.
2d 148
(1974); Pacific Shrimp Co.
v.
Department of Transportation,
375 F. Supp.
1036
(1974).
Respondents operated the site; they owned a portion of the land
in question;
they were responsible for the placement of the barrels
on the site;
they actually caused the barrels to be covered.
They
are responsible and liable for the violations alleged.
In addition to the issues discussed above, we note that
Respondent Wilford Johnson has been permanently disabled since 1974
and has not worked since then, and Respondent Norma
I. Johnson,
52,
is undergoing regular treatment for cancer and is confined to a
wheelchair much of the time.
The realty described above, consisting
of the disposal site and
50 adjacent acres,
is presently
in fore-
closure proceedings.
Respondents have a considerable quantity of
debt with no source of income or property.
They are principally
supported by a son attending school and working part-time thereafter.
Neither has any accumulated savings.
All
of
these facts were apparent at the time of our June
18,
1976,
Interim Order.
As a result, we noted that in cases
of this sort our
“function goes beyond the mere imposition of liability.
.
.and includes
finding with reasonable assurance that pollution problems such as
those admitted to.. .will be abated.”
Turning
to the factors enumerated in §33(c)
of the Act, we find
nothing there to alter our decision as to the violations.
The dis-
cussion above details at length the serious existing and potential
interference with the “protection of the health, general welfare,
and physical property of the people,” likely to arise from Respondents’
actions.
As with the other factors under §33(c), Respondents intro-
duced no evidence on this issue other than the minimal information
contained
in the Stipulation,
as was their burden.
Processing
&
Books,
Inc.,
v.
Pollution Control Board,
64
Ill.
2d 68,
351 N.E.2d
865
(1976)
The Fact Stipulation does indirectly address the issue of the
social and economic value
of the site when the parties note
(~39)
that,
“Proper disposal sites have been largely unavailable or
relatively expensive.”
As we have often noted,
any value that a
site might have is negligible
if the site is unsuitable and
is
improperly operated.
That the site is unsuited is patent; that
the site has been improperly operated is obvious in the results.
25
—
35~
—6—
Priority in location is not an issue.
The area
is principally
agricultural, and this improper use may render
it unsuitable for
that or any other use.
Even if Respondents did have priority, that
would not provide license for the actions taken here with regard to
the improper burial of the barrels.
The parties stipulate
(1149)
that it would have been technically
feasible to properly dispose of the barrels.
The question remaining
is correcting the present situation.
The barrels must be found
and removed,
along with the already-contaminated soil.
Although the Respondents did not enter any evidence as to the
economic reasonableness of preventing this situation,
it would seem
that they could have simply refused to accept hazardous wastes.
We
are not provided with the income which such wastes provided for the
Johnsons.
The economic reasonableness of remedying the problems already
caused is another matter.
The Stipulation specifically declined
(1150)
to discuss the costs of removal.
In fashioning our Order,
however, we must balance this lack of information against the fact
that something must be done
to effectively remedy the existing and
potential public health danger here.
Although we shall enter a cease and desist Order,
we have no
way of knowing the effect such an Order will have.
With regard to
the Johnson’s property and any affected downstream areas, we can
only hope that our Order will induce the State, or some successor
to the Johnson’s interest in the property, to take the necessary
abatement measures.
E.g., Lang v.
Metzger, 101 Ill.App.
380,
aff’d.
206
Ill.
475,
69 N.E.
493
(1902).
To that end, we shall continue in effect the provisions of the
Interim Order of June 18,
1976, as they apply to the Johnsons.
This
will allow continued study and, hopefully, appropriate corrective
measures such as excavation of the barrels and contaminated soil.
The Agency’s rights under that Order shall, of course, be subject
to the limitations contained
in our Interim Order.
Finally, we shall require the parties to this action,
including
Complainant, to report to the Board within 90 days of the date of
our Order in this case as
to the status of the site and any plans
for further abatement.
We can then,
if necessary,
request further
action from any other appropriate Agency.
In light of the circumstances, no penalty is appropriate.
We
shall grant the Agency’s Motion to Dismiss Counts III and IV, which
concern adjacent property, inasmuch as that Motion is based on the
fact that a third party is remedying the problems there.
This Opinion constitutes the findings of fact and conclusions
of law of the Board in this matter.
25
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352
—7—
ORDER
IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that:
1.
With the exception of that portion of Count II,
¶11,
alleging violation of the Water Quality Standards for copper in
Rule 203(f)
of Chapter
3:
Water Pollution, on October 2,
1972,
Respondents Wilford E.
Johnson and Norma
I. Johnson are
found to
have violated Sections 12(a)
and 12(d)
of the Environmental Protection
Act and Rules
203(a)
and 203(f)
of Chapter
3: Water Pollution,
(cyanide, cadmium, copper,
iron,
lead,
manganese, nickel,
silver,
and zinc), on the dates and as alleged in Counts
I and II of the
Amended Complaint in this matter.
2.
Respondents shall cease and desist the above violations
by causing the removal of the barrels and contaminated soil in a
safe,
legal, and expeditious manner.
3.
Respondents shall,
for a period of ninety
(90) days from
the date of this Order,
take such other actions as are necessary
for continued compliance with paragraphs
1 and
2 of the Board’s
Interim Order
in this matter entered on June 18,
1976.
4.
The parties to this matter shall, within ninety
(90) days
after the entry of this Order,
submit to the Pollution Control Board
a report describing the status of the site in question, and further
detailing any abatement activities which have been undertaken or
are contemplated by the parties or any other person.
5.
Counts III and IV of the Amended Complaint in this matter
are dismissed.
Mr. James Young abstained.
Mr. Jacob
D.
Dumelle concurred.
I,
Christan L.
Noffett, Clerk of the Illinois Pollution
Control Board,
hereb~ycertify the above Opinion and Order were
adopted on the c~1 day of
_________,
1977, by
a vote of
i/—p
Christan L. Mof ett, Clerk
Illinois Pollution Control Board
25
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353