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.
    18
    388

    —2—
    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
    389

    —3—
    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
    18
    390

    —4—
    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
    18— 391

    —5—
    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

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