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

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