ILLINOIS POLLUTION CONTROL BOARD
August 7, 1975
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB 74-~396
CITY OF PONTI~\C,
)
Respondent.
MR. ANTHONY B. CAMERON, Assistant Attorney General, on behalf of
the Complainant.
MR. WILLIAM F. FUHR, on behalf of the Respondent.
OPINION AND ORDER OF THE BOARD (by Dr. Odell)
This enforcement case was filed by the Attorney General
on behalf of ~he Environmental Protection Agency (Agency) on
October 29, .~74. The Complaint alleges that Respondent, City
of Pontiac (Pontiac), operated a solid waste management site
from July 27, 1974, until October 29, 1974, without a permit
from the Agency, in violation of Rule 202(b) (1) of the Solid
Waste Regulations (Chapter 7) and Section 21(e) of the Environ-
mental Protection Act (Act). On or about December 2, 1974,
Pontiac moved tc dismiss the Complaint on the grounds that it
was exempt from the permit requirement under Section 21(e) of
the Act. The Agency filed an Objection to the Motion to Dismiss
on December 6, 1974. On December 19, 1974, we ordered that
Respondent’s Notion to Dismiss would be taken with the case.
A hearing was held in the Pontiac City Hall on February 5,
1975, in which counsel for Respondent renewed the Motion to
Dismiss. At the close of the hearing it was stipulated that
concluding oral arguments would be waived in favor of briefs.
The Agency and Pontiac filed their briefs on April 2 and May 1,
1975, respectively.
HISTORY
The subject of the Complaint is a tract of land, owned
by Pontiac, wtich is located in Section 23, Township 28 North,
Range 5 East, Livingston County, Illinois. Pontiac previously
operated this tract as a city dump. At the hearing, Mayor Joseph
S. Trainor testified that Pontiac stopped using the site in
January of 1969, at which time it was closed and posted (R. 79).
The Mayor further testified that since that date the site has
been used only for the depositing of demolition debris and dirt
from buildings and ditches owned by Pontiac (R. 80).
Mr. Ray Sandifer, who resides on city property adjacent to
the site, testified that in his capacity as City Works Administrator
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he was in charge of the site when it was open as a dump. He con-
firmed that i~tceased operation as a dump on January 6, 1969, and
that such cessation was both posted and published in the news-
paper (R. 68~-69). He explained that since that time Pontiac has
deposited thereon “concrete and wreckage” from buildings purchas-
ed and demolished by Pontiac, and dirt from city drainage projects
CR. 70). He further explained that while he discovered trespassers
on the site quite often soon after it was closed, it occurred “very,
very seldom
. . .
hardly at all now” (R. 73).
The Agency presented the testimony of two of its Environ-
mental Specialists who had visited the site in issue. Mr. David
Lambert testified that he had visited the site on August 12 and
October 24, 1974, and that it was in operation on both of those
dates (R. 12, 15). Although the Respondent objected that testi-
mony as to the October 24 visit
was
irrelevant, since it occurred
on the same day the Complaint was mailed and therefore evidence
adduced thereon was outside the scope of the Cor~’plaint,Mr. Lambert
testified that there “was some indication it the sitel had been
operating for some time” (R. 17). As a result of the August 12
inspection, the Agency sent to Pontiac a letter stating that it
was operating a refuse disposal site without a permit, in apparent
violation of the Act and Chapter 7 (R. 17, Comp. Ex. 2). The
parties stipulated that during the year previous to the date of
the hearing, Pontiac had received at least five written communica-
tions (one of which was offered as Comp. Ex. 2, R. 27) from the
Agency to the effect that the Agency was of the opinion that
Pontiac required a permit for the subject tract of land.
On cross examination Mr. Lanthert conceded that his in-
spection report (Comp. Ex. 1) indicated that the refuse on the
site at the time of his August 12 visit included concrete, street
sweepings and trees (B. 39). On redirect, however, he added that
it was not his practice to detail every component dumped in any
given landfill he inspected.
Agency employee John Diefenback testified that he had in-
spected the site on September 18, 1974, and had found indications
that refuse had been accepted “in the past, preceding your
Diefenback’s~ inspection” (R. 54). His conclusion was based on
his observation that some of the refuse
——
in particular, card-
board and paper products
——
was unweathered, and that some refuse
at the site had. been deposited in areas where he had not observ-
ed any at a previous inspection (R. 55). He does not indicate,
however, when his previous inspection occurred. Photographs
taken by Mr. Diefenback on his September 18 inspection (admitted
into evidence as Comp. Ex. 4) showed, and Mr. Diefenback testified,
that the refuse included cardboard products in addition to brush
and demolition wastes (B. 53).
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ISSUES
Pontiac has raised the defense, both in its Motion to
Dismiss and its brief, that it is not required to have a permit
under Section 21(e) of the Act since it comes within the exemp-
tion created therein. Section 21(e) reads in relevant part:
(No person shall) Conduct any refuse—collection or
refuse—disposal operations, except for refuse generated
by the operator’s own activity, without a permit grant-
ed by the Agency
If Pontiac pLoperly comes within the scope of this exemption it
similarly has a valid defense against Rule 202(b) (1) of the Solid
Waste Regulations (Chapter 7) since the 21(e) exemption is express-
ly incorporated therein. Briefly, Pontiac contends that the
demolition waste and dirt from drainage projects disposed of at the
site constituted “refuse generated by the operator’s own activ-
ities”.
Refuse is defined in Section 3(k) of the Act as including
any discarded solid materials. There can be no question
——
nor
does Pontiac deny
-—
that such a broad definition encompasses
the kind of waste involved here. We have previously held that
building demolition wastes may constitute refuse as defined by
the Act. EPA
v,
Rafacz Landscaping and Sod Farms, Inc., PCB
72—196, 6 PCB3T(October 24, 1972).
The remaining language of the 21(e) exemption is what the
parties quarrel over. “Operator” is not defined in the Act.
Pontiac asser:s that it should be defined as broadly as in Rule
104(1) of the Solid Waste Regulations, i.e., “a person
who owns,
leases, or manages a solid waste management facility.” Pontiac
claims that under such a broad definition it would be an operator
and that the di~posa1of the demolition debris and drainage dirt
would be its own activities
--
thus within the exemption of
Section 21(e). -In pressing this argument Pontiac relies on the
proprietory aspect of the disposed waste, since it reiterated,
both at hearing (R. 70) and in its brief (p. 8), that the build-
ings demolished were owned by the city and that all material plac-
ed on the site was city property.
The Agency, however, points out that the prohibition of
Section 21 applies to a “person”, while the exemption applies to
the activities of an “operator”. It argues that if the Legisla-
ture had intended the exemption to have the same breadth as the
prohibition, it would have used the same word to establish each.
Since “person” has an all—encompassing definition in Section 3(j)
of the Act, the Agency asserts that “operator” must have a
significantly narrower scope. It further argues that “operator”
should be defined in the ordinary sense of “a natural person or
small group of natural persons who do the physical act of operat-
ing the facility in question” (Camp. brief, p. 13).
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We need not rule on how “operator” should be defined under
the circumstances of this case, because under both definitions
proposed by the parties, Pontiac is not entitled to the exemption.
We reject Pontiac’s contention that mere ownership of the refuse
brings it within the scope of the exemption. Section 21(e) and
its exemption must be interpreted consistently with the purposes
of the Act. Title V, Section 20 states this purpose to be pre-
vention of pcllution or misuse of land arising out of improper
refuse disposal. To achieve this end the Regulations establish
a permit system controlling refuse—disposal activities. The
intent of Section 21(e) was to exempt minor amounts of refuse
which could be disposed of without environmental harm on the
site where it was generated. There was no intent to create a
gap in the permit system of the magnitude suggested by Pontiac.
To interpret the exemption as allowing the municipality to dispose
of any refuse it owns without a permit will mean that large
quantities of varied materials could be indiscriminately deposited
at a waste-disposal site. This obviously circumvents both the
permit systeic and the purposes of the Act.
Pontiac concedes that it in fact deposited the debris at
the site. It further stipulated that it did not have an operating
permit (B. 7). The Agency witnesses both indicated the site was
in operation, with evidence of past operation, at the time of
their visits. Photographs clearly show the debris deposited at
the site. Having concluded that such debris does. not entitle
Pontiac to the exemption in Section 21(e), we find this evidence
sufficient to make out violations of the Act and Regulations as
alleged in the Complaint. As for Pontiac’s assertion that it
did not feel it needed a permit for this operation, we have
previously held that a respondent acts at its own risk when it
proceeds on the assumption that no permit is necessary. EPA v.
Kaluzny Bros., PCB 72—160, 7 PCB 79, 82 (February 14, 1973).
In addition we find the evidence concerning waste other
than demolition debris and drainage dirt sufficient to warrant
the conclusion that Pontiac violated Rule 202(b) (1) of the Solid
Waste Regulations regardless of the applicability of the exemp-
tion by allowing the use of the site without a permit. Mr.
Diefenback testified that he observed, and his photographs showed,
refuse other than demolition wastes
--
specifically cardboard
boxes. Altho~ighthe disposal of such boxes was not actually
witnessed, unauthorized dumping occurred. We have consistently
held in the past that an owner of a refuse disposal site has a
duty to take all reasonable steps necessary to prevent others
from using the site illegally. EPA v. Village of Port Byron,
PCB 72-67, 6 PCB 9 (October 24, 1972). The testimony indicates
that there was no fence at all on the west side of the site and
that a single cable on the north side had a gap of two hundred
yards through which access could be gained (R. 14).
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In evaluating a monetary penalty for the violations set
out herein the Board considered the factors included in Section
33(c) of the Act and other facts in this case. The refuse de-
posited by Pontiac did not include putrescible materials nor
create a health hazard. Some mitigation is justified because
Respondent is a municipality. Also, the portion of Section 21(e)
of the Act that is contested in this case is difficult to inter-
pret. Under these circumstances the Board will not assess a
monetary pena1t~’ herein, but will require Pontiac to properly
close the site or obtain a permit from the Agency if Respondent
chooses to continue depositing refuse at the site.
This ‘i)pinion constitutes the findings of fact and con-
clusions of law of the Board.
ORDER
IT IS THE ORDER of the Pollution Control Board that:
1. Respondent, City of Pontiac, shall cease and desist
violating Rule 202(b) (1) of Chapter 7 and Section 21(e) of the
Act, as found herein, within 90 days of the adoption of this Order.
2. Respondent shall apply final cover within ninety (90)
days of the adoption of this Order if it intends to close the
site; or apply for within thirty (30) days, and receive within
ninety (90) days, an operating permit from the Agency if it
intends to continue operating the site.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order wap
adopted on the Jr” day of August, 1975, by a vote of ~
Christan L. Moff ~,f~!C1erk
Illinois Pollutick~C~ontro1Board
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