ILLINOIS POLLUTION CONTROL BOARD
April
8, 1976
ENVIRONMENTAL PROTECTION AGENCY,
)
)
Complainant,
)
)
)
v.
) PCB 75—356
)
HAROLD K. FASSETT, HENRY W.
)
FASSETT, and J.P. WETRERBY
CONSTRUCTION CORP.,
a
Delaware
)
Corporation,
)
Respondents.
OPINION AND ORDER OF THE BOARD (by Mr. Dumelle):
This matter comes before the Board on a Complaint filed by
the Environmental Protection Agency (Agency) on September 11, 1975
against
Respondents Harold K.
Fassett, Henry W. Fassett, and J.P.
Wetherby Construction Corporation. An Amended Complaint was filed
on September 24, 1975. The Amended Complaint sets forth two
counts. Count I alleges that Respondents Harold K. Fassett
and
Henry W. Fassett (The Fassetts) violated Sections 21(b) and 21(e)
of the Environmental Protection Act (Act) and Rule 202(b) of
the Board’s Solid Waste Regulations. Count II alleges that
Respondent J.P. Wetherby Construction Corporation (Wetherby)
violated Section 21(f) of the Act. A hearing was held on
November 13, 1975 at which a Stipulation and Proposal for
Settlement was presented by
the parties accompanied
by four
Joint Exhibits.
No other evidence or testimony was submitted.
COUNT I
Paragraph 5 of
Count I alleges that the Fassetts owned and
operated a refuse disposal site in LaSalle County, Illinois
beginning on or about July 27, 1974. Paragraph 1 of the Stipulation
states that the Fassetts purchased the land in question in
November of 1974. Paragraph 7 of the Stipulation establishes that
the Fassetts allowed Respondent Wetherby to deposit demolition
wastes on the site prior to May 2, 1975 and during the period
between May 2, 1975 and May 25, 1975. This fact is also demonstrated
by Joint Exhibits A,B, and C. There is no doubt that these facts
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constitute the ownership and operation of a solid waste management
site.
Rule 202(b) of the Board’s Solid Waste Regulations,
and thus Section 21(e) of the Act require existing solid waste
management sites to have operating permits issued by the
Agency. Paragraph 13 of the Stipulation states that at no
time has any of the Respondents sought or held any permits
for this site. The violation is clear. However, the Fassett’s
conduct was not shown to have constituted the allowance of open
dumping of refuse in violation of Section 21(b) of the Act. That
portion of the Complaint will be dismissed. Paragraph A of
the Terms of Settlement states that the Respondents feel that
they have not been in violation because they lacked the intent
to operate a solid waste management site. It is clear that
the Fassetts did perform each and every act which led to the
Board’s conclusion that they owned and operated a solid waste
management site. The fact or allegation of the lack of intent
has no relevance here to the issue of whether a violation did occur.
COUNT II
Count II alleges that Respondent Wetherby has disposed of
demolition debris at the Fassett site. Paragraph 7 of the Stipula-
tion expressly admits this allegation. As discussed above, it
is established that no permits were issued for this solid waste
site. Section 21(f) of the Act provides that:
No person shall:
******
(f) Dispose of any refuse, or transport any
refuse into this State for disposal, except at a
site or facility which meets the requirements of
this Act and of regulations thereunder.
Wetherby therefore disposed of refuse at a site which was in vio-
lation of the Act and regulations thereunder. The Board finds
that for the purpose of finding a violation of Section 21(f)
of the Act, the absence of an operating permit will suffice.
THE PROPOSED SETTLEMENT
Respondents have presented this Proposal for Settlement for
the Board’s consideration pursuant to Rule 333 of the Board’s Pro-
cedural Rules. The Respondents refer the issue of penalty to the
Board, while agreeing to cease and desist the questioned activities
and remove any refuse deposited on the premises in the future. The
Stipulation and Proposal for Settlement shall be adopted in all
respects by this Board.
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PENALTY
The Fassetts have been found to have operated a landfill
without the required permit. Wetherby has been found to have
disposed of refuse at a site which was being operated in viola-
tion of Board Regulations. The remaining issue is the penalty.
In assessing a penalty the Board considers many factors,
including those enumerated in Section 33(c) of the Act. Following
is a discussion of each of these 33(c) factors concerning each
of the violations found in this case.
Neither of these violations are merely ~‘technicalt’.As stated
in Section 2(b) of the Act, “It is the purpose of this Act...
to assure that adverse effects upon the environment are fully
considered and borne by those who cause them (emphasis added).
The permit program is the mechanism by which the legislature
has chosen to insure such full consideration of adverse effects
upon the environment. The process of obtaining a permit entails
a thorough assessment of the potential adverse environmental effects.
The permit requirements are truly the key for the entire effort
to enforce the Act and Board Regulations. A failure to complete
the permit process thereby undermines the enforcement program and
the Act!s mechanism for the protection of the health, general welfare
and physical property of the people of Illinois.
The violation of Section 21(f) of the Act, disposal of
refuse at a violating site, is just as serious. There are some
potentially very serious environmental effects which may become
apparent soon or at some future time. Problems of leachate and
contamination of land and of water supplies are long-term threats
which cannot be ignored. The depositing of refuse at a viola-
ting site, as well as operation of a site without a permit,
are activities which impair the enforcement program and which
are difficult to assess and almost impossible to remedy.
It is also apparent that this landfill has no significant
social or economic value. The dumping of demolition debris
was merely a matter of the convenience of both parties. There
is no indication that this activity was not suitable to the
particular location. However, an improper landfill is necessarily
unsuitable to any area, Likewise, there is no issue here of
technical practicability or economic reasonableness.
The Board feels that a penalty is warranted for each of these
Respondents. Penalties in this case will serve to protect the
integrity of the permit system, which is the heart of the environmental
program.
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In the present case a penalty is warranted as an aid to the
enforcement of the Act and the Board’s Regulations. The Board
finds that penalties of $1,500 for the Fassetts and $1,500 for
Wetherby are adequate and appropriate.
This Opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
1. Respondents Harold K. Fassett and Henry W. Fassett are hereby
found to have violated Section 21(e) of the Environmental Protection
Act and Rule 202(b) of the Board’s Solid Waste Regulations.
2. Respondents Harold K. Fassett and Henry W. Fassett, shall pay
as a penalty for the above violations the sum of $1,500; liability
for said penalty to be joint and several. Payment shall be made by
certified check or money order within 35 days of the date of this
Order to:
State of Illinois
Fiscal Services Division
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois 62706
3. That portion of the Complaint which alleges that Respondents
Harold K. Fassett and Henry W. Fassett violated Section 21(b) of
the Environmental Protection Act is hereby dismissed.
4. Respondent J.P. Wetherby Construction Corporation is hereby
found to have violated Section 21(f) of the Environmental Protection
Act.
5. Respondent 3. P. Wetherby Construction Corporation shall pay
as a penalty for the above violation the sum of $1,500 payment
to be made by certified check or money order within 35 days of the
date of this Order to:
State of Illinois
Fiscal Services Division
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois 62706
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board hereby certify the above Opinion a d Order were adopted on the
~‘_day
of April, 1976 by a vote of
-
0
Illinois Pollution
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