ILLINOIS POLLUTION CONTROL BOARD
September
30, 1976
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 76-21
JOHN P. WYATT,
)
Respondent.
Mr. Robert Reiland and Mr. Russell
R. Eggert, Assistant
Attorneys General, appeared on behalf of the Complainant.
Mr.
W. Loren Thomson appeared on behalf of the Respondent.
OPINION
AND
ORDER OF THE BOARD
(by Dr. Satchell):
This matter comes before the Pollution Control Board upon
a complaint filed by the Environmental Protection Agency
(Agency)
on January 21, 1976.
An amended complaint was filed on April 20,
1976.
The amended complaint alleges that John P. Wyatt owns
and has operated a solid waste disposal site in Section 32,
Township 24 North, Range
2 East of the Third Principal Meri-
dian, in McLean County,
Illinois.
The amended complaint further
alleged that Respondent failed to place a compacted layer of
not less than two feet of cover over the entire surface of the
final lifts of the solid waste disposal site within sixty days
following the placement of refuse in said final lifts and that
as of the date of the complaint refuse and debris remains ex-
posed at the site in violation of Rule 305(c)
of the Solid Waste
Regulations and Section 21(b) of the Environmental Protection
Act
(Act).
A hearing was held on June 10, 1976 at Bloomington,
Illinois.
The Agency presented testimony concerning eleven inspec-
tions of the site from January 26,
1974 through May 19,
1976.
At the first inspection Mr. Wyatt stated that the operation
was nearing completion,
that he would probably finish it by
filling it with soil and that he had sold it to the City of
Bloomington and was operating it for the City of Bloomington
(R.
14,
15).
On August 12, 1974 exposed refuse consisting of
demolition-type material, for example: wood, brick, steel and
reinforcing rods was observed
(R.
77).
On this date Mr. Wyatt
told Agency inspector, Dave
Lambert,
the site was closed and
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was not accepting any more refuse
(R.
78).
On the Agency
visit of September 1, 1974 it was observed that the north
face was open with refuse exposed; the west end of the
property was exposed and central portions of the site
lacked final cover
(R.
23).
On September
11, 1974 Mr. Wyatt
discussed conditions with Agency inspector, John Diefenback
(R.
24, 25).
At this time there was some cover material
piled on the site
(R.
25).
On October
2,
1974 refuse was
protruding the cover material on the central portion of the
site,
the north face was open and the west end had open
refuse
(R.
30).
In December of 1974 refuse was observed
along the north portion of the boundary of the site adja-
cent to the fence line and approximately 60 to 80 feet
parallel south of the fence line
(R.
83).
On November 19,
1975 conditions similar to the previous inspections were
found.
The north face was open;
the west end was exposed
and refuse was protruding through the cover material on
centralized portions of the site
(R.
32).
This was also
the general condition of the site on February 23, 1976
(R.
33).
During the February 23,
1976 inspection Mr.
Diefenback spoke with a man from the City of Bloomington
who indicated the City of Bloomington had responsibility
for the property in some respect, ownership or agreement
to purchase
(R. 34).
On April 13,
1976 the north face was
open as was the west end and refuse was protruding through
the cover on central portions
of
the site
(R. 38).
The Agency also presented pictures of the area as
exhibits.
Although work on the face of the fill was con-
tinuing the north face of the fill consistently remained
exposed
(Comp. Exs.
7,
8,
10, 12 and 13).
Respondent’s case
is concerned with the question of
Respondent’s property lines.
The City of Bloomington does
own property next to Mr. Wyatt’s on the south
(R. 145).
The
City also owns
a lot south and east of Mr. Wyatt’s property
(R.
151, Comp.
Ex.
1).
Although the evidence of ownership
presented is somewhat confusing and difficult to follow, the
Board finds sufficient evidence was presented to show failure
to place final cover within sixty days on the site, particu-
larly along the north face of the fill and on the central
areas.
Respondent also raised as a defense that the Solid
Waste Regulations were enforced selectively and therefore
unconstitutionally.
Proof of this allegation consisted of
pictures of other sites with uncovered refuse
(Resp.
Ex. 18—26).
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620
—3--
This defense is without merit.
Conscious exercise of some
selectivity is not a constitutional violation, Oyler v. Boles
368 U.S.
448, 456
(1962).
Respondent made no showing that
prosecution was based on an unjustifiable standard such as
race,
religion or other arbitrary classification as
is
necessary to prove selective enforcement, Id.
The Board finds that Respondent has failed to place
final cover within sixty days in violation of Rule 305(c)
of
the Solid Waste Regulation and Section 21(b)
of the Act.
Be-
fore the Board can fashion a remedy Section 33(c)
of the Act
must be considered.
The possibility of the presence of
leachate
in this situation is not great
(R. 63).
The primary
hazards at the site according to the Agency are fire hazard
or vector harborage
(R.
48).
There is another refuse dis-
posal site
to the north of the Wyatt site
(R.
48).
There is
also a residential neighborhood in the area
(R.
48).
The site
located as it is next to a similar site may be located suitably;
however,
a solid waste site not covered properly can be a
hazard to the residents of the area and perhaps an attractive
but dangerous play area for children.
Respondent’s exhibits
1 through 13 are pictures taken
two days before the hearing indicating that most of the fill
area has received enough cover to at least a depth where
there is no protruding refuse
(R. 156).
The Agency estimate
for covering all the area to attain compliance was that it
could cost from approximately $7,000 to $13,000 or $14,000.
According to Respondent’s Exhibits
1 through 13 at least part
of this has been already accomplished.
Respondent’s income
for 1973 was approximately $23,000,
in 1974 it was $18,000
and in 1975 $14,600
(Comp.
Ex.
23,
24,
25).
There was some
cover material piled at the site
(R.
24).
Respondent’s pri-
mary business was demolition and he employed an operator,
truck driver, and laborer
(R.
188).
It would appear that
the necessary equipment to complete the fill was readily
available.
Considering what Respondent has already done
to comply with the regulations and what money and material
was available at the time, there is no reason that Respondent
could not have placed final cover in the proper period of
time.
Because no environmental harm was alleged and improve-
ments were continuing, the Board finds
that a penalty of $500
is adequate to aid in the enforcement of the Act.
Respondent
shall also be required to complete adequate placement of final
cover within 90 days of this Order.
This constitutes the Board’s findings of fact and con-
clusions of law.
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621
—4—
ORDER
It is
the order of the Pollution Control
Board
that:
1.
Respondent is found to be in violation of Rule 305(c)
of the Solid Waste Regulations and Section 21(b)
of the Act.
2.
Respondent shall complete placement of final cover
within 90 days of this Order.
3.
Respondent shall cease and desist further violations
of the Act.
4.
Respondent shall pay a penalty of $500 within 35 days
of this Order.
Payment shall be by certified check
or money order payable to:
State of Illinois
Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois 62706
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the ab ye Opinion and Order were
adopted on the
~
day of
____________
1976 by a vote
of
~
Illinois Pollution
Board
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622