ILLINOIS POLLUTION CONTROL BOARD

June

6,

1975

ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v.

)

PCB 74—476

CLARENCE 0.

NELSON,

Respondent.

Mr. Michael A. Benedetto, Jr.

and Mr. Stephen

Z. Weiss,

Assistant Attorneys General appeared for Complainant.

Mr.

Kenneth J. Gumbiner and Mr. Robert F.

Casey appeared for

Respondent.

OPINION AND ORDER OF THE BOARD

(by Mr. Goodman):

This matter comes before the Pollution Control Board

(Board)

upon the Environmental Protection Agency’s

(Agency)

December 17, 1974 Complaint and March

31, 1975 Amended

Complaint.

Clarence 0.

Nelson (Nelson)

is charged,

therein,

with operating

a solid waste management site without

a

permit in violation of Rule 202(b) (1)

of Chapter

7:

Solid

Waste Regulations and therefore in violation of 21(b)

and

21(e)

of the Act.

As the Amended Complaint merely conforms

to the proof, we grant the Agency’s motion to file it.

Nelson

is located in Kendall County and takes care of

80

of Aurora’s household refuse

(R40).

Nelson also ser-

vices Piano, Illinois.

Several interested citizens test-

ified to the hardship they and/or their cities would exper-

ience if Nelson is shut down.

The principal hardship would

be increase of costs based upon the greater distance to the

next closest landfill

(13

to

25 miles)

and the higher cost

of dumping

($0.20 more per ton or $0.35 more per yard).

Nelson is open

5 1/2 days per week and takes in 800 cubic

yards per day at an average charge of

$0.80 a yard

(R233)

Mr.

C.

0.

Nelson admits that the landfill has no develop-

mental or operating permit issued by the Agency

(R226).

Nelson has applied several times for a permit,

the

first

time

in 1971 and the latest,

in 1974.

Respondent contends that a permit issued by default.

Its basis for this contention is that it filed an applic-

ation on June 28, 1974 and a more information letter was not

sent by the Agency until August 22,

1974.

Rule 205 per-

taining to permit applications does provide for default

operating permits in subsection

(g)

in the event the Agency

fails td take

final action within 45 days from the filing

thereof.

An app-lication is deemed filed when receiied by

the

Agency

(205(f)).

No evidence is contained in the record

17

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261

---

—2—

as to the date the Agency received the application.

In

addition the record does not state the date on which the

application was sent.

Rule 205(e) provides that applica-

tions be sent via registered or certified mail, return

receipt requested.

Nelson has failed to carry its burden in

proving the elements of

a default permit.

The Board must

find that no default permit issued.

As a violation of 202(b) (1)

is not a violation of 21(b)

of the Act,

see EPA V.

E.

&

E. Hauling, PCB 74—473

(1975),

that portion of the Amended Complaint alleging a violation

of Section 21(b) must be dismissed.

The Agency’s witness, Mr.

Beechley, upon cross examina-

tion,

stated that he had no knowledge of leachate or pollu-

tion from the site

(201—202).

However, from borings taken,

Mr. Beechley concluded that

“the natural soils at the site

were somewhat less than desirable for natural attenuation of

leachate.”

(R207)

In mitigation, the Respondent has attempted to comply

with all of the Agency’s requests.

Nelson has placed drain

tiles under the landfill to collect leachate.

A plastic

liner was installed

over

the

clay

and

more

clay

placed

on

top

to

collect

leachate

a~d drain

it

into

a

retention

tank.

(R266)

The Board finds that Nelson has operated, since July 27,

1974, without a permit and assesses a penalty of $500.00

against Nelson for said violation of Rule 202 (b) (I)

and

§21(e)

of the Act.

Mr. Dumeile will file a Concurring Opinion.

This Opinion constitutes the findings of fact and

conclusions

of

law

of

the

Board

in

this

matter.

ORDER

It is the Order of the Board that:

(a)

C,0. Nelson cease and desist from operating its

solid waste management site unless

it applies for and

obtains an appropriate operations permit within 120 days of

the date of this order.

(b)

C.O. Nelson is ordered to pay, within 45 days,

a

penalty of $500.00 for the violations of Rule 202(b) (1)

of

the So1~tIWaste Regulations and Section 21(e)

of the Envi-

ronmental Protection Act found herein.

Penalty payment by

certified check or money order payable to the State of

Illinoi.

shall be made to:

---

—3—

Fiscal Services Division

Illinois Environmental Protection Agency

2200 Churchill Road

Springfield, Illinois

~220b

(c)

That portion of the Amended Complaint alleging a

violation of Section 21(b)

of the Ac:. is hcreby dismissed,

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pojiution

Control Board, hereby certify the above Opinion and Order

were adopted on thea

~t’~-

day

of

_______

1975 by a vote of

~

—.

Christan L. Moffe?t,

Clerk

Illinois Pollution Control Board

17