ILLINOIS POLLUTION CONTROL BOARD
December 4, 1975
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v.
)
PCB 75—239
)
ROLAND W. FRIEDER, an individual,
)
and H.H. DAVIS CO., an
Illinois
)
corporation, both d/b/a a partnership
known as “JOLIET INDUSTRIAL DISTRICT,”
)
Respondents.
OPINION
AND
ORDER OF THE BOARD
(by Mr. Goodman):
On June 12,
1975, the Attorney General of the State of
Illinois filed a complaint against Roland W. Frieder, an
individual, and H.H. Davis Co.,
an Illinois corporation,
both d/b/a a partnership known as “Joliet Industrial Dis-
trict.”
The complaint alleged that from July 27,
1973,
through the present,
Respondents caused or allowed the
development of a solid waste management site without
a
development permit,
in violation of Sections 21(b) and 21(e)
of the Act and Rule 201 of the Solid Waste Regulations
(Chapter 7).
The Complainant further alleged that on or about
April
8, 1975, and April
23,
1975, Respondents caused or
allowed the open burning of refuse on the premises of the
Joliet Industrial District, in violation of Sections 21(b)
and 9(c)
of the Act and Rule 502 of the Air Pollution Regu-
lations
(Chapter 2).
The site is located on Industry Avenue
in the City of Joliet, Will County,
Illinois.
A hearing was held on September 11,
1975, at which a
draft of a Stipulation and Proposed Settlement
(Stipulation)
representing the final agreement of the parties was entered
into evidence.
No additional evidence was presented, and no
citizen witnesses testified.
A final draft of the Stipu-
lation was filed with the Board on September 12,
1975.
On October
9, 1975, the Pollution Control Board
(Board)
entered an Interim Opinion and Order finding that the Stip-
ulation was insufficient in that it failed to support a
finding that Respondents were operating a solid waste manage-
ment site as alleged in the Complaint.
The cause was re-
manded to the Hearing Officer for appropriate action, either
by way of amendment of the Complaint and Stipulation or
hearing.
On October 24,
1975, Complainant filed a Motion
for Leave to File Amended Complaint Instanter and submitted
an Amended Complaint.
On November 6, 1975,
Complainant’s
Motion was granted.
19
-
380
—2—
The two count Amended Complaint alleges that Respon-
dents caused or allowed the open dumping of refuse in viola-
tion of Section 21(b)
of the Act and caused or allowed the
open burning of refuse in violation of Section 9(c)
of the
Act.
The Board finds that the Amended Complaint brings the
pleadings into conformance with the facts set forth in the
Stipulation and Proposal for Settlement.
The Factual Background in the Stipulation indicates
that Respondent H.H. Davis Co. was an Illinois corporation
operating in business as a partner under the name Joliet
Industrial District until
its dissolution on or about Decem-
ber 31,
1974.
Respondent Roland W. Frieder has been and is
presently operating said business.
On April
8,
1975, April 23,
1975, and August
4, 1975,
refuse was observed covering a considerable area of the
Joliet Industrial District, primarily in the southeastern
section, premises not specifically leased to any given
tenant.
Photographs of the premises on these dates are
attached to the Stipulation.
Furthermore, on April
8, 1975,
and April
23,
1975, evidence of open burning was observed.
Respondent, Roland Frieder, contends that the refuse on
the premises was,
at least in part, debris from an uncon-
trolled fire which occurred on a portion of the premises
leased to his tenant, Gundy Industries,
in September of
1974.
Photographs of said fire are attached to the Stip-
ulation.
Respondent indicates that he has taken legal
action against Gundy Industries for failure to remove the
debris.
Respondent further represents that he has spent
approximately $15,000.00 and foresees an additional expendi-
ture of $5,000.00 in the removal of debris and refuse.
Respondent denies having knowingly permitted or allowed
any dumping of refuse.
In order to prevent any future
unauthorized dumping, he indicates his intention to erect
fences in any area accessible
to the public where fencing
does not presently exist.
In the Terms of Settlement the parties agree that each
lessee of the premises located within the Joliet Industrial
District is responsible both to Respondent,
Roland Frieder,
and to the State of Illinois and its agencies in its duty to
prevent the accumulation of refuse on the premises in ques-
tion.
The Complainant, however,
indicates its position that
Respondent’s duty, under Section 21(b)
of the Act,
to not
cause or allow the open dumping of refuse attaches regard-
less of the source of such refuse.
19- 381
—3—
A lessor of property is responsible for causing or
allowing violations under the Act whether or not such
violations occur on portions of his property he has leased.
EPA v. James McHugh Construction Co., et
al, PCB 71-291;
People of the State of Illinois v
Lincoln Stone Quarry,
Inc.
et al, PCB 75-368.
The Board stated in both these
cases that:
The term ‘allow’ imposes affirmative duties that
may in some cases
go beyond those of the common law to
exercise care to prevent others from causing pollution
We do not believe the policy of the statute can be
evaded by contract
Therefore, Respondent is responsible for violation of Sec-
tions 21(b)
and 9(c) of the Act whether the violations
occurred on leased or unleased portions of his property.
Respondent,
Roland W. Frieder,
agrees to clear the
premises of the Joliet Industrial District of all presently
accumulated refuse on or before November 30, 1975, barring
strikes, Acts of God or inclement weather;
provided that
any resultant extension of time shall not exceed the time
lost by reason of the foregoing causes.
In effecting this
agreement, the parties agreed that:
i.
Respondent,
at his option, may let a contract to
engage
a third party to clear such refuse;
ii.
Respondent will apprise Complainant of his pro-
gress in clearing such refuse on a bi—weekly schedule
(to be set by the parties hereto).
If Respondent
elects to contract for such clearing, he will advise
Complainant as to the date said contract is let and the
proposed dates for initiation and completion of clear-
ing activities;
iii. Respondent will allow
a representative of Com-
plainant to enter and inspect the premises of the
Joliet Industrial District for the purpose of evalu-
ating the progress of clearing activities,
at any
reasonable time without prior notice.
iv.
Upon completion of clearing activities Respondent
will promptly so notify Complainant, whereupon a
representative of the Complainant will inspect the
premises and take photo9raphs attesting to the removal
of all accumulated refuse;
and
v.
Thereafter, Respondent will allow representatives
of Complainant to enter and inspect
the premises of
Joliet Industrial District for the purpose of ensuring
that no accumulations of refuse are occuring at any
reasonable time without prior notice.
19-382
—4—
Respondent agrees to append to all existing leases and
include in any future leases a provision which expressly
forbids any on—site dumping by any lessee or agent thereof.
Respondent is to serve on Complainant a copy of said ap-
pended or included provision with an affidavit attesting to
its inclusion in leases pursuant to the agreement.
Respondent agrees
to take all reasonable actions to
prevent dumping by members of the public on the premises of
the Joliet Industrial District, including, but not limited
to,
the posting of conspicuous signs prohibiting dumping at
access points to its premises.
Furthermore, Respondent agrees to clear from the Joliet
Industrial District any refuse which is or should be known
by him to have been deposited thereon by any person or
persons, known or unknown.
Respondent is to clear such
refuse within the next subsequent ninety—six
(96) hours or
within such interval of time as may be reasonable under the
circumstances, but not to exceed two weeks
in any event.
Finally, Respondent agrees to remit $1,000.00 to the
State of Illinois in settlement of violations found by the
Board.
The Board finds that Respondent has caused or allowed
the open dumping of refuse in violation of Section 21(b)
of
the Act and has caused or allowed the open burning of
refuse in violation of Section 9(c) of the Act.
For said
violations,
the Board assesses the stipulated penalty of
$1,000 and accepts the Stipulation submitted by the parties
as an adequate plan of compliance.
This constitutes the findings of fact and conclusions
of law of the Board.
ORDER
It is the Order of the Pollution Control Board that:
1.
Respondent, Roland W.
Frieder,
is found to have caused
or allowed the open dumping of refuse in violation of Section
21(b)
of the Act and has caused or allowed the open burning
of refuse
in violation of Section 9(c)
of the Act.
2.
Respondent Roland W. Frieder shall cease and desist
violating Sections 21(b)
and 9(c)
of the Environmental
Protection Act.
19- 383
—5--
3.
Respondent shall comply with all the
terms
of
settlement of the Stipulation signed by the parties on
September 11,
1975.
4.
Respondent, Roland W. Frieder,
shall, within 45
days, pay a penalty of $1,000 for the violations of Section
21(b)
and Section 9(c)
of the Act found herein.
Penalty
payment by certified check or money order payable to the
State of Illinois shall be made to:
Fiscal Services Divi-
sion, 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 Opi
on an
Order
were adopted on the
4/”
day of
_______________,
1975 by a vote of
4’.~
Christan L. Moff
Clerk
Illinois Pollution Control Board
19-384