r:

~

r

~i:JM

COBTROL

BOARD

v’i~

6

1977

PCB

75~-447

C

~

1U

~N.71 TR~P

-u

~

T3RNBY

CENER1~L,

appeared on behalf

~

~:

~O)dCf

of Respondents

Bernard!.

-

~

Mr

Dumelle)

~

Board on an

Amended Complaint

6

rv1ron~ienta1

Protection

Agency.

of five Counts and

alleaes

t.

~

~5

the Board~s

Solid

Waste

1.

te Bernardis

near Piety

Hill,

1~.

‘

‘~

ucaiinq was held

on

February

19,

~I

a~-

~~r$

t

~

~d

not appearS

On

July

8,

1976

1

-

~

c~i

n~:etia

h~1er

which

granted

the

Aqency

leave

:~

fi

S

a

3

Tni-’ndeS

ilalut,

which

dropped

the

allegations

i~

-

rj~

c1~hr

3r

a-

di

and

deleted

Count

\TT,

The

Irer

m

r

S

-~

~‘e’~

Lhe

Eubmission

of

alfidaviLs

from

~act

~C

a

t

-

e~-t~

t’~

cru~ts of

coverinq

or

removinq

~Se

ro~1~u

t

h

i~

m

t~

ub~ect site~

Such

affidavits

havinq

bcea

~

~?-c. tie Board uow v11 be better

able

to

construct

a remedy

On Jauu~v 2~

Q

6

tS

.Tmericv nersonally

served

upon

Responlei-t P~~ o

SSC

~mcraea

Complaint and

the

Request

for

~-i:s~iur

of

~

tIn

~itu

the Board on

January

28,

1976.

Sesponde

a

-

of

a~oearat the

February 19

hearino,

Pe~~n~ieutiru~

~

~

~espond

to

the

Request

for Admissions.

24

505

---

-

~—

h’arf

s Procedural Rules the

-

i~

default.

Pursuant

to

-.

a

t:J

~ds

Respondent Trump

to

~a~ission

was requested.

~

agents caused or allowed

-

a

6

a

~aterial

and other refuse

-

:n on a number of

occasions

-

~a.

at

~oc~indent

Trump of

the

illegality

~ -1

i~i

a

~hibit

LL)

cmi

ed

on

two

separate

occasions

-

ic

,~

S

-mcd

a

ae

refuse.

-

-

~-

-

jpsoc~tion

reports

and photoqraphs

-

15

cr

12,

1975

inspection.

-ouaars

for

admission

which pertain to

a

~mda

t

~

Perrardis.

-

--

-

tip

;ease

this

dumping

prior

to

-

-

-

-

a

inC

admissions

will be discussed

the

Second

Amended Complaint.

a-

~-

-

~

-

-

~r-

Complaint

alleges

that Respondent

-a-

I

-

-

r3a-nardi

allowed,

the

operation

of

-

-

-

a-

-

-~

a-i

~iolation

of

the

permit

require—

-A

r

a

1

5

t

ci

m

a

Board~s

Solid

Waste

Regulations

a

-

I

Ia--

-nd

Section

21(b)

of the Act.

a

a-au ill

~

ruaiuae

to

provide

final cover and

S

--

-

a-

~S—t’

~n

~5

P~iec

305(c)

and Section 21(b)

t

7h~

a

-

a

3U~ a

respectively.

Count

II

alleges

Ia-

a-a

a-

‘TJO61ta-

of

Seation

21(b)

of

the

Act,

Count

V

lee

-

-

-

lent

-

~

r

~ondnrt

fnr~h~r

viol

ated

--

-

(

~

I

•

ta-.

ta-a-

Scar-

aaain~L

the

Bernardis are

a~ ui-ca-

t

urc~uf ron~conduct.

There

is

no

fa’-tiaS

ia-i

-

a-

~ce

aeac~

—

i-corning

whether the dumping

~a-Laa11y

d

d

ca-a

or

statler

proper

cover

was provided or

whether

a

rca-nit

v’as

obta-a-ed.

---

The fact

that the dumpinq did occur on

ti’

Boinardi

site is

sufficient

to find th~altered vilations

as

a uroperty

owner

must

be

presumed

to have bn~n in

~(

it

o’

o~

his

own

land.

This

fact

is

especially

true

hec~

i~

~io

formal

action

was

taken

to

force

Respondent

Trump

to

~cns

C in~i ~

or

~o

remove

the

refuse,

and

the

informal

contacts

wore

less

than

vigorous.

However,

the Bernardis appar~nt

lack

of

actual kiowledge

of

the dumping

until after its

corn~let ~on

(~

28,

48,

49)

presents

substantial

mitigation as will

he C

scussed

bclow,

No

evidence has been

intrdl

ced

t

conthadict

the

Aqency~s

35

evidentiary exhibits which

c

ary

show the thuth of each

of

the Complaint~sallegations

However,

the

allegation

in Con

I

2

a Section 2l(e~

violation

constituting a violaUon

t

he

on 21(b)

ol

the Act

will be dismissed,

That proposed irterpretatran has been

repeatedly

rejected by this Board

The violations alleged

c

a ‘~otcon~ntec

i~

Lhe record and

are deemed admitted by Respr~~t ~r~r

The F

ard

finds

that Respondent Trump caused,

~d

tie Re~ondents Bernardi

allowed,

the operation of

a

lid

‘astc

anacerncnt site without

the required permitS

The Boa~d~in

s that hesuindent Trump

caused,

and the Respondent~sIe~ra~u

lnwed

tth oceration

of

a solid waste management

~i

‘n n

~atjon

~

the require~

ment

of

daily

cover

and

fir

ii

~cunr

~he

~oard

thnds

that

the

violations

of

the

daily

cover

~r.

i rar

c

~r

no.

irements

like~

wise

constitute

open dumpinq

nf

r~f~

Lc

The

~o~rd finds that

Respondent

Trump~s

aforesaid concuct of dc,~ ~ing waste at

a site in violation of the perm

t

a.

cci

rquirements

also

constitutes

a

violation of Sn

t~Or

~(L)

nf th0

ct~

The

Bernardis

never

gave

oernissior

no ~cyore

to dump on

their

properly

(B.

29,

42,

48

Err

the ov~cerccintroduced

at the hearing,

~nd qi u n

r~

r’

)

t

I

I

I

0

vi

t

h(

Hoard

finds

that huspondert

~u

ii

t

oh

I

ito

it

I

ho

Ih

riardis

land

without

either

th

in ~crn

c~ ~

r

v1

~

(B.

28,

42,

48)

It is apparent from the record

nat ro at~eunt was made

to property spread,

compact ard cover the r ~Fu~e dumped

(see Agency

reports, Exhibits AthL)

he

1euLr~qwith siooly an open

dump, which has a hi’,hly

iic~c

C

s)’JaJ

a

~unomic

valce~

---

—4—

Open

dumps

present a health and safety hazard and destroy the

value

of

the

property

upon which they are located. The dumping

on another’s

land without permission has an especially odious

nature.

There

is no doubt that the proper operation of

a solid

waste management site

is economically reasonable and technologically

feasible.

To appropriate

the use of another’s land for such an

unnecessary,

and

socially

and

economically

negative

purpose is

unjustifiable.

Open dumping

is unsuitable to this particular

site

as

it

is

to any

area.

On August

6,

1976 the Agency filed the affidavit of Mr.

David

L. Lambert upon his personal July

20,

1976 inspection of the

subject site,

Mr. Larnbert estimated the total removal cost at

$25,940.

On August

20, 1976 Mr. Thomas

M~

Shields, attorney for

Respondents Eugene

(Jr.)

and Kenneth Bernard! filed an affidavit

based upon his inspection of August 11,

1976.

Mr.

Shields stated

that the complained

of refuse had been removed.

As the Agency

has not responded

to this observation the Board will assume that

it is accurate.

The Board finds

that

it

would serve no useful purpose to

impose a substantial penalty upon the Bernardis for their

violations.

The Board finds

a penalty of $100.00

to he

appropriate and will further order that the above-stated

violations be ceased and desisted from.

The Bernardis will

also be

required

to

take such actions as are necessary

to

prevent any

future

promiscuous dumping.

The

Board does find

a substantial penalty appropriate

for Respondent- Trump

-for the reasons shown above

as aqqravatina

factors regarding Section

33(c)

of the Act.

The Board finds

$1,000.00

to

be

an

appropriate penalty, especially given Mr.

TrumpT

s

promises to remove the debris

(Admission “C”, above).

This

Opinion constitutes the Board’s

findings of fact and

Mr. Young concurs except as to penalty.

ORDER

1.

Respondents

Eugene

Bernard!,

Jr. and Kenneth Bernard!

are

hereby

found

to

have

violated Rules

202(b) (1),

305(c)

,

arid

305(a)

of

the

Board’s

Solid

Waste Regulations and Sections

21(e)

and 21(b)

of the Act.

2.

As

a penalty for the above—found violations Respondents

Eugene Bernard!,

Jr. and Kenneth Bernard! shall pay to the

24

—

508

---

State

of

Illinois the sum

of

~l”

13,

uaprnent to

be

made

by certified

check or money order within

3~ days

of

the

date

of

this Order to:

State

of

I

110a-

Fiscal

Set

ices

D~vis on

Illanois

Pa- ‘to

lacatal

Protection

Agency

2200 Churcla-

a-ad

Springfield

111

~ois

b2/OE

3.

Respondent Kenncth Tcana

aS

hereby found

to have violated

Rules

202(b) (1),

305(c),

and 305~a) of

the BoardTs Solid Waste

Requlations

and

Sections

21(c),

21(h),

ar~l 21(1)

of

the

Act.

4.

Respondent

Kenaeth

a-a-

a

all

a~ as

a penalty

for the

above~found

violations

the

a-ar

or

th

000,0)

to

tne

State of Illinois,

Paynent

shall

be

made

bp

cer

P

ad

‘heck

or

roncy

order

within

35

days

of

the

date

of

this

Crd

r

-c

State of

Illinois

Fiscal Se~a~esDivIsion

Illinois I-nviroa-rental Protection Aaency

2200

Chu

a-

--

P a-f

Springfi~

(,,

-

5.

Respondents EuJene Bernardi,

Jr

,

Kenneth Bernardi, and

Kenneth Trump shall cease the ~boue~found

violations and desist

from

such violations

in

the

ttture

6.

Responuents Fuoene Pa-nard~

a-

ana Kenneth Bernardi

shall

take

such

actions

as

ax.

~1scessary

cc

prer ant

future

pro~

miscuous

dumping

on

the

subiet

sith.

IT

IS

SO

ORDERED,

I,

Christan

P.

Moffett,

Clerk

of

tne

Illinois

Pollution

Control

Board,

hereby

certify

the

noove

~plnion

arid

Order

were

adopted

on the

_~__day

of

January

l~’

iv

~-

rote

of

Illinois Pollution

rol Board