ILLINOIS POLLUTION CONTROL BOARD
August 28, 1975
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
PCB 75-38
CITY
OF
MONMOUTH,
Respondent.
Mr. Anthony
B.
Cameron, Assistant Attorney General, on behalf of
Complainant;
Mr. Buford W. Hottle,
Jr., Attorney,
on behalf of Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr. Dumelle):
The Environmental Protection Agency
(Agency)
filed a complaint
on January
27,
1975 charging respondent, City of Monrnouth
(Monmouth)
with
failure
to obtain
an operating permit for a solid waste manage-
ment site,
in violation of Rule 202(b) (1), PCB Rules and Regulations,
Chapter
7
(Solid
Waste) and Section
21(e)
of the Environmental
Protection Act.
A Request For ~\dmissions Of Fact,
filed by the Agency on
January 31,
1975, went unanswered by Monmouth.
A public hearing
in
this matter was held in Monmouth on July 16,
1975.
At the hearing the Agency introduced as Complainant’s Exhibit
No.
1 the Request For Admissions Of Fact.
This exhibit constitutes
the Agency’s total case-in-chief.
It asserted that Monmouth operated
its solid waste management site,
located in Warren County,
without
a permit on August
21, September
4 and September 12,
1974 and also
on two or more days each week between July
28,
1974 and January
25,
1975.
It further asserted that Monmouth did not possess an operating
permit. for this site at any time between July 27, 1974 and January
24,
1975.
Under Board Procedural Rule 314 these assertions stand
admitted for the purpose of this action since Monmouth neither denied
nor objected to them.
Although such denials or objections would have
had to occur within twenty days after service,
it
is also relevant to
note that Monmouth similarly failed to deny the truth of these
assertions
at the hearing held several months thereafter.
On the
basis of these admissions the Board finds that Monmouth did violate
the Act and Solid Waste Regulations as alleged.
There remains only
the question of how much of a civil penalty should be assessed for
these violations.
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388
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At the hearing Monmouth presented the testimony of George
N. Bersted, Mayor, and Carl Palmer, Consulting Engineer,
to explain
the City’s good faith attempts to conform with the permit require-
ment.
In rebuttal,
the Agency attempted to introduce
letters
purporting to show that Monmouth had notice of the permit requirement
long be~fore it attempted to comply with it.
The evidence was withheld
by the Hearing Officer as improper.
For reasons noted below this
decision of the Hearing Officer is overruled.
In his opening statement Mr. Hottle, representing Monmouth, indi-
cated that it was the City’s intention
to show that it had done
everything it could to obtain the operating permit.
He explained:
and we will show in our case that we tried
to abide by all measures of
a sanitary landfill
since they asked us to...
And this
is our position.
We believe that the City
of Monmouth has done all it can financially do toward
completing requirements of securing this permit.
(R.7).
In support of this position Mayor Bersted was called upon
to testify that Monmouth took steps to procure a permit as soon as
it learned of its obligation to do
so:
Question:
Generally speaking timewise, when did the City
of Monmouth first know they had to have a permit
to operate the landfill?
Answer:
Our Street Superintendent advised myself and the
Committee on January 24, 1974 that
we
had to have
a permit by April 24,
1974.
Question:
So you are talking about four months that you were
asked to secure
a permit, right?
Answer:
Yes.
Question:
What if anything was done by you as the Mayor or
the City Council concerning the request of the
Street Superintendent?
Answer:
I immediately contacted our engineers....
that we would have to get to work on this and it
would have to be
in stages as far
as the City
was concerned because of the financials
(sic)
involved
in obtaining this permit.
(R.15-16).
Mayor Bersted further testified that Monmouth had so far
expended $11,000 for aerial maps and soil testing
in its attempt
to
secure
a permit
(R.16-l7).
He also testified as to the considerable
expenses for the operation of the landfill
(R.l9—2l)
.
On cross
examination,a letter dated April
19, 1972 and addressed to Mayor
l3crsted from the Agency,
was introduced, which letter acknowledged
18
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389
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receipt of
an inquiry regarding the landfill and indicated attachment
of instructions
for, and copies of
a permit application
(R.30, Compi.
Ex.
3).
Mayor Bersted acknowledged receipt of the letter(R.30).
Questioned about his earlier statement concerning the date on which
Monmouth first became aware of the permit requirement,
the Mayor
responded:
Well,
I believe my statement was that we
in the letter of January is when we got started
on that
to meet the timetable of April.
Prior to
that,
we did not get started on
it because of
financial difficulties.
Question:
I
see.
So that
is when you got started,
not when you knew about the requirements,
is that a correct statement?
Answer:
That’s right.
Monmouth also presented the testimony of Carl Palmer, whose
consulting engineering firm was hired to prepare the plans and speci-
fications necessary to obtain the permit.
He testified that he was
contacted sometime
in early 1974 or late 1973 concerning the operating
permit, but he could not recall exactly when
(R.37).
The remainder
of his testimony outlined the steps
taken, down to the very day of
the hearing,
to secure the permit.
These steps included obtaining
topographical maps and test borings
(R.38).
A photogrammetry firm
was contacted on February
22,
1974
(R.39).
On April
22,
1974,
a
letter was sent to the Agency requesting an extension of time beyond
the April 24 deadline for permit applications
(Resp.
Ex.6).
After
receiving
a letter from the Agency, dated April 24, indicating
it
could not grant such an extension,
(Resp. Ex.7)
Mr. Palmer continued
to prepare the plans and specifications necessary for a permit appli-
cation
(R.43).
The photo survey was completed by late June,
and a
soil survey was initiated
in late August
(R.45—46).
Soil work was
completed
in November and analysis of ground water samples
was
begun.
This work was completed
in January 1975
(R.47).
A permit application
was finally submitted on February 19,
1975.
After
a meeting with the
Agency in Springfield,
the application was amended and resubmitted on
February
26,
1975
(R.
53-54).
A developmental permit was issued on
April
1,
1975,
approximately thirteen months after the photogrammetry
firm was contacted
(R.65,
Resp. Ex.25).
The permit conditioned the
issuance of an operating permit upon completion of final cover on
several portions of the site,
compliance with the Act and regu-
lations, and collection of background samples.
Mr. Palmer indicated
that,
as of the day of the hearing, at least one of these conditions
had been met
(R.69).
In addition to the above witnesses, Monmouth also called to
the stand Charles
E.
Clark, Manager of the Permit Section, Division
of Land Pollution Control, Environmental Protection Agency, Mr. Clark
testified that Monmouth had in fact submitted its permit application
(R.7l).
In rebuttal the Agency recalled Mr. Clark and attempted
to
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390
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introduce a series of letters, addressed to Monmouth from the Agency,
to show that warnings had been issued concerning the permit require-
ment as early
as October
4,
1973.
Each of the letters indicated
that Monmouth had no permit for the landfill and further indicated
when permit applications were due.
The Hearing Officer improperly
denied these letters as exhibits as not being proper rebuttal evidence.
They were forwarded to the Board, however,
as part of the record
as
offers of proof.
The Hearing Officer was clearly in error concerning
the admissability of these letters.
They were offered for the sole
purpose of showing that Monmouth had notice of the permit requirement.
This goes to the issue of good or bad faith and
is relevant to our
consideration of any penalty in this action.
It was Monmouth that
first raised the issue of mitigation.
Indeed, the whole of Monmouth’s
case must be viewed
in the way of mitigation, since the technical
violation itself was proven in the case—in—chief and never disputed.
This
is consistent with its attorney’s opening statement and the testi-
mony of the Mayor,
as quoted above. Once raised,
it was proper for the
Agency to present such evidence as it had bearing on Monmouth’s
lack
of good faith
in attempting to secure the permit.
The letters may
also be viewed
in the way of impeachment,
since they bear on the
Mayor’s initial statements
as to the time Monmouth first became aware
of the permit requirement.
Rather than the four month notice indi-
cated in the Mayor’s first statement, the letters show that Monmouth
was on actual notice much earlier.
The letters are hereby admitted
and made
a part of the record as follows:
Letter dated October
4, 1973
Comp.
Ex.
4
Letter dated November
7,
1973
Comp.
Ex.
5
Letter dated December 11,
1973
Comp.
Ex.
6
Letter dated February 19,
1974
Comp.
Ex.
7
Letter dated March
15,
1974
Comp.
Ex.
8
Letter dated April
19,
1974
Comp.
Ex.
9
Letter dated May 20, 1974
Comp.
Ex.
10
Letter dated July
1,
1974
Comp.
Ex.
11
Letter dated August
23,
1974
Comp.
Ex.
12
The evidence
in this case indicates that there is considerable
mitigation
in that MOnmouth proceed with due dispatcrl
once
it had contacted its consulting engireering firm.
Moreover,
considerable money has been spent in preparation for the permit
application.
It
is also evident, however, that Monmouth was on notice
to apply for a permit long before it finally did.
The Solid Waste
Regulations were adopted on July 27,
1973, providing a period of one
year within which
to obtain an operating permit.
The adoption of
that regulation was sufficient to place Monmouth on record notice.
Above and beyond that, numerous letters reminding Monmouth of the
permit requirement were sent by the Agency.
The record shows that
once action was commenced,
it took approximately a year before the
permit application was filed.
Had Monmouth initiated such action
when the.regulation was adopted,
the application could have been
completed much earlier, perhaps within or near the deadline, and
earlier review of the quality of the operation would have been possi-
ble.
After due consideration of the record in this case we find
that a civil penalty of $300
is warranted for Monmouth’s failure
to
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secure an operating permit.
Such a penalty
is assessed not as
a punishment, but rather to protect the integrity of the permit
system and as an aid
to the enforcement of the Act.
In reaching
this decision we have considered all the factors of Section 33(c)
of the Act,
and found that the degree of injury is minimal, the
social and economic value of the landfill considerable, insufficient
evidence concerning suitability of the site to its locale,
and no
technical or economic difficulty
in correcting the violation.
This Opinion constitutes the findings of fact and conclusions
of law of the Board in this matter.
ORDER
1.
Respondent, City of Monmouth,
shall pay a penalty
of $300 for its violation of Rule 202(b) (1)
,
PCB
Regulations, Chapter
7,
and Section
21(e)
of the
Environmental Protection Act.
Payment to be made
within
35
days,
to:
Fiscal Services Division,
Illinois Environmental Protection Agency,
2200
Churchill Road, Springfield,
Illinois 62706.
2.
Respondent, City of Monmouth,
shall comply within
60 days with all special conditions of its develop-
ment permit,
No.
1975-28-DE.
IT IS
SO ORDERED.
I,
Christan
L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify the ab ye 0 inion and Order were adopted on
the
_____________
day of
_______________,
1975 by
a vote of
3
toO
I ~
Christan
L. Moffett,
Clerk
Illinois Pollution Control Board
18— 392