ILLINOIS POLLUTION CONTROL BOARD
    May 20,
    1976
    ENVIRONMENTAL PROTECTION AGF~CY,
    )
    Complainant,
    )
    v.
    )
    ?CB
    75—406
    RICHARD
    0.
    Mc~
    OE
    Ic:,
    )
    i~es:onJent,
    OPINION AND ORDER OF
    THE
    BOARD
    (by Mr.
    Durn
    lie);
    On October 17,
    1975,
    the
    Environmental Protection Agency
    (Agency)
    filed before the Board a Complaint against Respondent
    Richard
    C. McCormick,
    alleiing a violation of Rule 305(c)
    of
    the Board’s Solid Waste Regulations and hence Section 21(b)
    of the Environmental Protection Act
    (Act).
    On November
    5,
    1975 the Agency filed and sent to the Respondent a Request
    for Admission of Facts,
    to which Respondent did not respond
    (R.
    50).
    On January
    2,
    1976,
    the Agency filed and sent to
    the Respondent a notice to appear at the scheduled hearing and
    produce documents relating to the economic reasonableness
    of compliance with the Board’s Regulations and the Act.
    On
    January
    14,
    1976,
    a hearing was held on this matter in the
    Marshall County Courthouse,
    Lacon,
    Illinois.
    Respondent
    failed to appear at this hearing and no documents were
    produced
    (R.
    51); nor did any representative or attorney
    of Respondent appear
    CR.
    21),
    The Hearing Officer in this matter,
    Mr. Jeffrey
    J. Estes
    states:
    I want the record to show that
    I have called the
    Respondent,
    Richard
    C. McCormick at all the public
    areas of this Courthouse in Lacon, Illinois,
    and,
    for that matter, in the Circuit Court
    Room, and
    he has not responded.
    He has been duly notified
    of this hearing in the manner prescribed by statutes
    and the procedural rules
    (R.
    3).
    I would like to note here,
    before
    I forget it, that
    this hearing was commenced at 10:30 this morning.
    21 —423

    —2—
    It was set for 10:00 and we waited for thirty
    minutes.
    It is now several hours
    since the hearing
    was schedried to start and Mr. McCormick has not
    appeared yet
    (A. 4~),
    Rule ~20
    of
    the
    hoard’s
    Procedural
    Rules
    provides:
    “Failure
    of
    a party to
    a1~j:earon the
    date
    set
    for
    hearing,
    or
    failure
    to
    proceed
    as
    ordered
    by the Board,
    shall
    constitute
    a
    default,
    The
    Board
    shall
    thereafter
    enter
    such
    order
    as
    appropriate
    based
    upon
    the
    a vidence
    introduced
    at
    the
    hearing.”
    The
    Board
    must
    therefore now consider
    the
    record
    established
    by
    the
    Admissions
    under
    Rule
    314
    and
    the
    evidence
    presented
    by
    the
    Agency
    at
    the
    Januaru
    14,
    1976 hearIng.
    Pursuant to
    Rule 314(c)
    of
    Lhe Procedural
    Rules,
    each
    of
    the
    matters of fact
    of
    which
    adeission
    was
    requested
    are hereby
    deemed admitted.
    Further
    admitted are the
    genuineness and
    accuracy of each document for
    which
    admission was requested.
    The following facts
    are thus
    established:
    1.
    Respondent formerly operated a
    solid
    waste
    site
    southeast of Magnolia
    in
    Marshall
    County.
    2.
    Respondent ceased operations
    of
    the
    site
    on
    or
    about
    August
    5,
    1974.
    3.
    Respondent
    did
    not,
    as
    of
    October
    7,
    1975,
    provide
    the
    final
    cover required by Rule 305(c)
    of
    the
    Solid
    Waste
    Regulations.
    On
    the
    basis of these “admissions” the Board finds Respondent
    in
    violation
    of
    Rule
    305(c)
    of
    the
    Solid
    Waste
    Regulations
    and
    Section
    21(b)
    of the Act as alleged in the Complaint.
    Further,
    the
    same
    finding
    is
    fully
    supported
    by
    the
    Agency’s
    evidence
    presented
    at
    the
    hearing.
    The
    Board
    must next determine the appropriate remedy.
    Section 33(c)
    of the Act requires that the Board take into
    consideration all of the facts and circumstances bearing upon
    the reasonableness of the violations.
    However,
    the question
    presented is what happens when the record is silent on any of
    those factors.
    Section 31(c)
    of the Act places the burden of proof of
    the
    33(c)
    factors upon the Respondent to show mitigation where,
    as in this case, the alleged violation involves one of the
    Board’s Regulations.
    By failing to produce the requested docu-
    ments and by failing to appear at the hearing, Respondent has
    21
    —424

    —3—
    failed in that burden and has thus waived his right to have
    “.
    .
    .aIl
    the facts and circumstances bearing upon the reasonableness.
    .
    considered under Section
    33(c)
    of the Act.
    At the hearing the Agency stated that its estimate of
    the cost of covering the site would be $40,000
    CR.
    14).
    This
    estimate was based on the determination that 43,000 cubic
    yards of dirt would be required
    (R.
    15)
    and that there is
    sufficient dirt available at the site location
    (R.
    14,
    39).
    As Respondent operates a landfill site north of Minok,
    Illinois
    (R.
    16)
    ,
    he already has the necessary equipment and men employed
    on his payroll
    CR.
    25).
    This could considerably lessen the cost
    of applying the final cover
    (R.
    15).
    The Board will order Respondent
    to cease and desist this
    violation of the Act.
    To accomplish
    this,
    Respondent must properly
    close and cover the site,
    including grading to provide drainage
    and seeding to prevent erosion, within ninety days of the date
    of this Order.
    It is admitted that Respondent ceased operation of the site on or
    about August
    5,
    1974
    (see above).
    Further, Exhibit 20
    is the
    lease and agreement by which Respondent was allowed to operate
    the site
    (R.
    31).
    The lease expired over a year ago.
    Therefore,
    the cease and desist order requires the Respondent to comply
    with Rule 305(c)
    of the Solid Waste Regulations;
    to properly
    apply a final cover.
    The Respondent’s default and the fact that he had been
    previously requested to apply
    a final cover
    (Exhibit 16,
    17)
    indicate a definite lack of good faith.
    The Board further
    takes notice of a prior Board Order
    (PCB 72-16)
    referenced
    in the record
    (R.
    17).
    In that enforcement action the Board
    found this same Respondent to have violated regulations
    in
    his daily operation of this same landfill site,
    assessed a
    penalty of $250.00,
    and ordered Respondent
    to cease and desist
    the violations at this site.
    Further, Exhibit 24
    is
    a Judgment
    against Respondent, entered in the Circuit Court for the Tenth
    Judicial Circuit
    (No.
    74—E-126), ordering him to remit
    $250.00
    to the State of Illinois at the Environmental Protection
    Agency.
    This Order was sought and obtained by the Attorney
    General of Illinois
    to recover the penalty assessed against
    Respondent in PCB 72-16 which he had failed to pay
    CR.
    18).
    These
    facts clearly establish
    a course of conduct demonstrating
    bad faith.
    21—425

    —4—
    The Board therefore finds that a performance bond in the
    amount of $40,000 is necessary to insure compliance with this
    Order.
    The Board further finds
    a substantial penalty to be
    appropriate in this cause.
    In making this determination
    the Board has considered the evidence presented by the
    Agency relative to the factors
    as described in Section
    33(c)
    of the Act.
    While finding that Respondent has waived its
    right to have mitigating factors considered,
    the Board will,
    in fashioning this remedy consider that evidence pertaining
    to 33(c)
    factors which does appear
    in the record.
    33(c) (1)
    The main purpose of this final cover requirement
    is to prevent leaching
    CR.
    13).
    Leachate has such adverse
    effects as de—oxygenating and/or contaminating ground water
    and wells with materials toxic to humans
    as well as other
    wildlife
    CR.
    14).
    Mr. William Child, Regional Supervisor
    of the Agency’s Division of Land Pollution Control, Central
    Region, testified that he has observed leachate coming
    from Respondent’s site.
    The leachate enters a small
    intermittent stream which probably flows into Bud Creek
    (R.
    23,
    24).
    The problem of leachate is amplified by
    the fact that the site is located
    in a headwater area
    (R.
    23).
    Exhibit
    4 describes
    the nature of the observed
    leachate problem.
    While there is no documentation of
    specific adverse environmental effects,
    it appears that
    they would exist.
    Such contamination of groundwater,
    streams and wells
    is not only unnecessary but the damage
    to our environment is difficult to measure.
    33(c)(2)
    A closed landfill has no positive social or economic
    value except for new uses of the land.
    An improperly covered
    landfill has a highly negative social and economic value.
    When operated, this site apparently did have social value as
    a place
    to dispose of domestic waste.
    However, improper operating practices
    such as the violations found in PCB 72-16 negate any such
    value where an alternate disposal site probably exists.
    Further,
    Respondent has a minimal investment in the site
    (R.
    31, Exhibit 20).
    33(c) (3)
    Respondent’s site consists of sIx acres of gravel
    pits
    (R.
    45).
    An intermittent stream runs through this
    headwater area
    (R. 23).
    Aside from these factors, which
    demonstrate that the site is unsuitable for
    a landfill,
    there are only five residences shown to be in the immediate
    21—426

    —5—
    vicinity of the site
    (Exhibit
    1,
    B.
    28).
    Each of these
    people apparently has an interest
    in the land on which the
    landfill was operated and were parties to the lease which
    allowed Respondent to fill the gravel pits
    CR.
    27
    to
    29,
    Exhibit 20).
    33(c) (4)
    There is no doubt that the application of final
    cover to a landfill is both technologically practicable and
    economically reasonable.
    On the evidence before
    the Board,
    it is obvious that Respondent’s operation of this site
    was not a matter of extreme expense. The payment of $15
    or $20 monthly rent on an operating landfill was not a hardship
    to the operator
    (R.
    32).
    Further,
    as discussed above, Respondent
    already has the necessary equipment and manpower, and the cover
    material
    is at the site.
    Consideration of these factors leads
    to the conclusion
    that a substantial penalty is appropriate.
    It is not enough
    merely to order a violator to do that which he was required
    to do in the first place.
    A substantial penalty
    is necessary
    here to aid enforcement of the Act.
    Respondent has created
    a danger of contaminating rivers, groundwaters and wells,
    and all apparently because compliance with the law would
    cost money.
    The purpose of the Act is,
    “....to assure that
    adverse effects upon the environment are fully considered and
    borne by those who cause them”
    (Section 2-b).
    The Board will
    require that Respondent pay
    a civil penalty of $5,000.
    This Opinion constitutes the Board’s findings of
    fact
    and conclusions of law.
    ORDER
    1.
    Respondent Richard
    C. McCormick is hereby found to have
    violated Rule 305(c)
    of the Board’s Solid Waste Regulations
    and Section
    21(b)
    of the Act.
    2.
    Respondent Richard
    C. McCormick shall cease and desist
    the aforesaid violation and shall properly close and
    cover the subject site,
    including grading to provide
    drainage and seeding to prevent erosion, within 90 days
    of the date of this Order.
    A final closing plan shall
    be presented to the Illinois Environmental Protection
    Agency within
    30 days of the date of this Order.
    21—427

    —6—
    3.
    Respondent Richard C. McCormick shall pay
    a penalty for
    for the aforesaid violation the sum of $5,000
    to the
    State of Illinois, payable 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
    4.
    Respondent Richard C. McCormick shall post
    a performance
    bond,
    in a form satisfactory to the Agency,
    in the
    amount of $40,000 to guarantee compliance with paragraph
    2 of this Order.
    The bond shall be posted, within 10
    days of the date of this Order, with:
    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
    nd Order were adopted on the
    ~
    day of May, 1976 by a vote of
    -
    Q
    Illinois Pollution
    Board
    21—428

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