ILLINOIS POLLUTION CONTROL BOARD
November 10,
1976
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
PCB 76-6
JOHN TARKOWSKI,
Rr-~sDondent.
HONORABLE WILLIAM
J.~
SCOTT, Attorney General, by Mr. James Dobrovolny,
appeared on behalf of Complainant;
MR.
JOHN TARKOWSKI,
Respondent, appeared pro se.
OPINION AND ORDER OF
THE
BOARD
(by Mr. Goodman):
On January
6,
1976,
the Attorney General on behalf of the
People of the State of Illinois
(People)
filed
a Complaint against
John Tarkowski,
alleging violations of Sections
21(b)
and 21(e)
of
the Environmental Protection Act
(Act)
and Rules 202(b)
and 305(c)
of the Solid Waste Regulations,
Chapter
7 of the Board’s Rules and
Regulations.
Evidence depositions were taken by Complainant in
this matter on May 25,
1976
in Lake Zurich,
Illinois.
Mr.
Tarkowski,
although notified, did not attend.
A hearing
in this matter was
held on June
11,
1976,
in Waukegan,
Illinois.
Mr.
Tarkowski
appeared pro Se.
Several citizen witnesses testified at the hear-
ing.
Specifically, the Complaint in this matter alleges that
Mr. Tarkowsk±operated a refuse disposal site
in Wauconda,
Lake
County,
Illinois without an Operating Permit and that he failed to
apply
final cover to the site.
Mr.
Tarkowski’s address
in Wauconda
24
—
210
—2—
is 431 South Lakeview Drive.
This address
is also
known
as Lots
38
and
39
in Robert Bartlett’s Lakeland Estates.
The area in which
Mr. Tarkowski
resides and in which the site
is allegedly operated is
entirely residential in nature.
A question of whether Mr. Tarkowski
is presently the true owner of the property was raised at the hear-
ing.
However,
Mr.
Tarkowski admitted that he has total control of
the property and access
to
it
(R.272).
An employee of the Environmental Protection Agency
(Agency)
testified during the taking of the evidence deposition that he first
visited the site on November 20,
1973
(dep.
p.6).
At that time,
he
observed plasterboard, wood, metal,
landscape wastes, roofing
materials,
and other materials covering an area of about one and one-
half acres
in size.
On March
6,
1974, the Agency again observed
similar materials on the site.
Most of the material was deposited
in standing water in a low swampy area.
(Wengrow dep.
p.
11-12).
Mr. Wengrow of the Agency also observed a hedgerow of landscape
wastes extending 100
feet
back from Mr.
Tarkowski’s driveway.
On
March 11,
1976,
after the filing of the Complaint, the Agency again
inspected the site and observed plasterboard, wood, metal and land-
scape wastes deposited in a swampy area.
The berm of landscape
wastes extended 200-300 feet along Mr. Tarkowski’s property.
(Wengrow dep.
p.13).
In addition,
Mr. Wengrow observed 70-80 barrels
on the site, most of which apparently contained some sort of oil or
other liquid.
Exhibits submitted by the People indicate that the Agency
notified Mr.
Tarkowski on December
5, 1973, that the conditions
on his property may constitute violations of the Act and the
Solid Waste Regulations.
The Agency again contacted Mr. Tarkowski
on March
20,
1976,
and April
2, 1976,
subsequent to the inspections
noted above which again revealed violations of the Act and Regu-
lations.
Several citizen witnesses residing in close proximity
to the
site in question testified at the hearing.
Neighbors of Mr. Tarkowski
have
for several years observed trucks delivering various materials
to
Mr. Tarkowski’s property,
including building scraps, dry wall, dis-
carded drums, brush and landscape waste clippings.
(R.104,
136,
156,
217,
226,
235).
One witness testified that he has observed a sign at
the entrance to Mr.
Tarkowski’s property which reads
“Fill Wanted”
(R..l80).
A photograph submitted by the People verifies this obser-
vation.
Witnesses testified that the berm of landscape wastes
represents
a potential fire hazard and that Mr.
Tarkowski’s property
is very unsightly due to the various materials desposited thereon
(R.l37)
24—211
—3—
Mr.
Tarkowski does not deny that he has deposited these vario
materials on his property.
His defense, rather,
is that the matert~f
is not “refuse” within the meaning of the Act and that, because he
is depositing the material on his own property
in an attempt to pre-
vent a serious soil erosion problem, the permit and cover requirements
of the Act and Regulations do not apply.
In essence,
he claims that
the purpose of his activity is
to protect, not destroy,
the environ-
ment,
and that, therefore,
no violation has occurred.
Mr. Tarkowski testified that vast devastation and flooding have
occurred on his property,
creating a serious erosion problem and
mosquito breeding grounds
(R,242,
253).
He alleges
in his Reply
Brief that the flooding and erosion are due to overflow and under-
ground seepage from an “illegal”
lake and dam in the subdivision 18
feet above the level of his property.
Mr. Tarkowski contends that
he
is attempting to fill
in his property and prevent erosion by
depositing dry wall on the site.
In further defense of his actions, Mr.
Tarkowski indicates
in
his Reply Brief that the landscape wastes on his property are being
used to make
a silt dam to prevent erosion and to afford privacy
from onlooking neighbors
(R.279)
and that logs on his property are
used in his fireplace
in the winter.
He further alleges that the
barrels are being welded together to create a culvert to be used as
a drainage ditch.
Section 21(e)
of the Act provides that no person shall:
(e)
Conduct any refuse—collection or refuse—
disposal operations,
except for refuse generated by
the operator’s own activities,
without a permit granted
by the Agency...
Section
3(k)
of the Act defines “refuse”
as “garbage or other dis-
carded materials,
.
.
The Board
finds that although Mr. Tarkowski may have
a specific
purpose for depositing dry wall wastes,
building scraps,
landscape
wastes and various other materials upon his property,
these
materials are “discarded materials”
and,
therefore,
“refuse” within
the meaning of the Act,
They are merely deposited on the property
and are intended to remain there
in their present state.
Mr.
Tarkowski’s collection of said refuse on his property without a
permit constitutes
a violation of Section 21(e)
of the Act and Rule
202(b)
of the Solid Waste Regulations.
Although Mr. Tarkowski’s
intentions may have been to enhance rather than damage the environ-
ment, we have held in the past that intentions are immaterial to a
finding of a violation itself, EPA v.
Village of Karmak,
16 PCB 13,15,
and that the permit system is necessary to ensure that refuse dis-
posal
is carried out in an environmentally sound manner,
EPA v.
City
of Rushville,
18 PCB 136,138.
24 _212
—4—
Mr.
Tarkowski claims
that the metal drums deposited on his
property
are
being
welded
together
to
form
a
culvert
to
be
used
as
a drainage ditch.
Photographs submitted by the People verify his
contention.
The People presented no evidence demonstrating that
Mr.
Tarkowski has been inactive in his construction of this culvert
and that,
therefore, the drums may accurately be described as “dis-
carded materials.”
The Board, therefore,
finds that at the present
time the metal drums are not refuse within the meaning of the Act.
Similarly,
although the Board finds that the berm of landscape
waste
is refuse, any logs which Mr. Tarkowski is
storing on his
property for use
in his fireplace are not refuse within the meaning
of the Act.
The Board notes that the Complaint in this matter also charged
Mr. Tarkowski with violation of Section 21(b)
of the Act and Rule
305(c) (final cover)
of the Solid Waste Regulations.
As to the
alleged violation of Rule 305(c),
the Board finds that no evidence
was
presented
which
indicates
that
the
site
has
been
closed
and
that
Mr.
Tarkowski’s
activities
have
ceased.
In
fact,
exhibits
sub-
mitted indicate that neighbors of Mr. Tarkowski observed trucks
delivering landscapc ~::~1ste,
dry wall,
and other materials well after
the Complaint in this matter was filed
(Ex.
30,
35).
Because we have
no evidence that activities have ceased, we are unable
to find that
the final cover requirement was applicable
at the time of the Com-
plaint.
The allegation that Mr. Tarkowski violated Rule 305(c)
is,
therefore,
dismissed.
Furthermore,
the Board has held that the activities which
constitute a violation of Section 21(e)
of the Act, operating with-
out a permit,
do not constitute
a violation of Section 21(b).
EPA
V.
City of St. Charles,
16 PCB
369; EPA v.
Krenz Trucking,
Inc.,
16
PCB 439.
The allegation of violation of Section
21(b)
is hereby
dismissed.
Although immaterial
to a finding of violation,
Mr. Tarkowski’s
intentions
as well as
the factors listed in Section
33(c)
of the
Act must be
considered
by
the
Board
in
fashioning
.~
remedy.
Section
33(c)
requires
the
Board
to
consider
the
extent
of
injury
to
the
public,
the
economic
and
social
value
of
the
source,
suitability
of
location,
and the technical feasibility and economic reasonableness
of correcting the problem.
24—213
—5—
As noted earlier,
the atea in which Mr. Tarkowski’S property
is located
is entirely residential.
The site has been described
by other residents as unsightly and as
a potential fire hazard due
to the large berm of landscape wastes
(R.77,
137).
Mr. Tarkowski,
as pointed out earlier, alleges that he
is attempting
to prevent an
erosion problem caused by an “illegal” lake,
However, a soil
ex-
pert testified on behalf of the People that Mr. Tarkowski’s property
is in a
flood plain, that the site in question consists mainly of
Houghton
soil,
which
is very unstable, and that the site is unsuit-
able for a landfill because the fill material would continue to
settle and may never stabilize
(Nargang dep.).
Although the Board
recognizes
that Mr~ Tarkowski does
face an erosion problem, his
method
of
solving
the
problem,
depositing
refuse
in
an
unstable
area, has the potential for creating more environmental damage than
it alleviates.
No evidence was submitted on the cost of clearing
the site of all refuse.
The Board notes,
however, that Mr. Tarkowski
is unemployed and was unable to afford counsel to represent him in
this matter.
The
Board
recoqnizes
that
Mr.
Tarkowski
faces
a
serious
erosion
problem.
The
Board
will
order
Mr.
Tarkowski
to
cease
and
desist
his
refuse
collection
activities
but
will
give
him
the
option
either
of clearing the property of all refuse or of applying for and obtain-
ing the required operating permit within 120 days of the date of
this Order.
As
to the question of penalty,
the Board notes
that
Mr.
Tarkowski
was warned several times by the Agency that his activities were in
violation of the Act and Regulations.
He chose to continue.
Such
delay and the resulting environmental damage warrant the imposition
of
a penalty.
However, the Board has held that a Respondent’s finan-
cial status is relevant to the size of a penalty.
EPA v. Aluminum
Processing Corp., PCB 335
(1973).
Because
of Mr. Tarkowski’s apparent
lack of funds,
the costs he will incur in either clearing his pro-
perty or obtaining
a permit,
and his intent to prevent
an
erosion
problem,
the Board
finds that
a low penalty of $75.00
is appropriate.
This Opinion constitutes the findings of fact and conclusions
of law of the Board
in this matter.
24
—214
—6--
ORDER
It
is
the
Order
of
the
Pollution
Control
Board
that:
1.
Mr.
John Tarkowski
is found to have violated Section
21(e)
of the Act
and
Rule
202(b)
of the Solid Waste Regu-
lations.
2.
For said violation,
Mr. Tarkowski shall within 45
days
of
the
date
of
this
Order
pay
a
penalty
of
$75.00,
payment
to
be
made
by
certified
check
or
money
order
to:
State
of
Illinois
Environmental
Protection
Agency
Fiscal
Services Division
2200
Churchill
Road
Springfield,
Illinois
62706
3.
Mr.
Tarkor
ski
shall
cease
and
desist
his
refuse
collection
activities.
4.
Within
120
days
of
the
date
of
this
Order,
Mr.
Tarkowski
shall either clear his property of all refuse or apply for and
obtain
an
operating
permit
from
the
Agency.
5.
The allegations that Mr. Tarkowski violated Section 21(b)
of
the
Act
and
Rule
305(c)
of
the
Solid
Waste
Regulations
are
hereby dismissed~
I, Christan L.
Moffett, Clerk of the Illinois Pollution Control
Board,
hereby
certify
the
above
Opinion and Order were ado ted on
the
day
of
fl~~,4_J
~,
1976
by
a
vote
of_hp
Illinois
Pal
trol Board
24—215