ILLINOIS POLLUTION CONTROL BOARD
April
4,
1975
ENVIRONNENTAL PROTECTION AGENCY,
)
Complainant,
)
v.
)
PCB 74—403
TODD McKEE,
d/b/a
TODD’S
)
SANITATION SERVICE,
)
)
Respondent.
)
Mr. Fredrick Benson,
Assistant Attorney General, appeared for the
Complainant;
Mr. David
H.
Adamson
III, Attorney, appeared for
the Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr.
Zeitlin)
The Complaint
in
this matter was filed by the Attorney General
for
the Environmental Protection Agency (Agency)
on October 29,
1974.
The
Complaint alleges
that Respondent operated a solid waste management site
in Macoupin County 1.from July 27,1974 until October 29,
1974 without an
operating license from the Agency
as required by Section 21(e)
of
the
Environmental Protection Act
(Act),
and Rule 202(b) (1)
of
the Pollution
Control Board’s
Solid Waste Rules and Regulations.
(Ill.
Rev.
Stat.
Ch.
ill 1/2,
Sec.
1021(e) (1973);
PCB Regs.
Ch.
7,
Rule 2O2(b)(l).
The
operating permit requirement
of Rule 202(b) (1)
became effective for
existing solid waste management sites on July 27, 1974.)
Turning first
to preliminary matters, the Board must initially
resolve two matters which arose at a hearing held
in this case on February
10,
1975.
First, the Agency moved under Board Procedural Rule 303(b)
to
corrE~ct the name of
the Respondent in
this matter.
The Agency’s oral
motion would dismiss as Respondent Todd McKee, and substitute in his
place Todd’s Sanitation Service,
Inc.
The Attorney for Todd Sanitation
Service, Inc.,
objected to
the Agency’s motion,
complaining that such a
substitution would result in unfair surprise if accomplished at such a
late date.
Respondent moved orally for dismissal of
the cause in
this
matter based on such surprise, and upon the Agency’s lack of diligence
in discovering
the operator of
the site in question.
Rule 303(b) states clearly that misnomer of parties
is not
a ground
for dismissal, and that the name of any party may be corrected at any
time.
It is clear
to the Board
that
in this matter no surprise was
worked upon Respondent and that
it would not be unfair
to make the
substitution requested by the Agency.
For that reason, Respondent Todd
McKee, d/b/a Todd’s Sanitation
Service,
is hereby dismissed, and Todd’s
1.
The legal description of
the property
is,
Section 30,
Township
7
North, Range
9 West.
16—299
—2~-
Sanitation
Service,
Inc.
(Todd’s Sanitation),
is substituted therefore.
Secondly, Respondent orally requested a Variance as regards this
matter at
the conclusion of the hearing. Such a motion clearly fails
to
meet the requirements of Board Procedural Rule 401 and cannot be given
serious consideration by the Board.
Turning now to the factual determinations to be made in this matter,
the Board finds that a prima fade case of violation has been made by
the Agency.
Respondent stipulated at the hearing to the following
facts:
1.
Respondent did not possess an operating permit
issued by the Environmental Protection Agency for the op~
eration of a solid waste management site at any
time
between the dates of July 27,
1974 and October 24,
1974.
2.
Respondent operated
or caused to be operated a
solid waste management site in Macoupin County on August
5,
1974.
3.
Respondent operated
a solid waste management site
in Macoupin County for two or more days each week between July 28,
1974 and October 19,
1974.
4.
Respondent submitted by mail on February
6,
1975,
an operating permit application for the site in question
(R.
6,7).
Respondent’s apparent defense
in this matter is that its failure
to
obtain an Agency operating permit was the result of good faith attempts
to comply with other pertinent regulations for the operation
of a solid
waste management site.
Further, Respondent has attempted
to show its
good faith in attempting to obtain the required permit.
Respondent employed a consulting engineer in April,
1974,
to begin
work on the permit application
(R.37,
54).
It
is clear however, that
Respondent was aware well before that date that an operating permit
would be required for the
site.
At
the latest, Respondent was aware of
such a requirement in the Fall of l973(R.
52,64).
Further, Respondent
testified to the fact that
it realized
in the Fall of 1973 that an
engineer would be required
to assist
in
the permit application process
(R. 101,111—12).
(Respondent’s Attorney objected to the introduction of copies of
letters from the Agency to Respondent,
each containing warnings regarding
the necessity of
a permit,
and several containing an April, 1974 deadline
for permit applications;
the objections were based on best evidence grounds.
It is not necessary for the Board to reach decision on
this matter,
in that
16—300
—3—
Respondent’s testimony on these matters renders~such evidence
merely
cumulative.
The testimony of Respondent’s President, Mr. McKee, and its
Secretary—Treasurer, Mrs. McKee, verify the fact that letters containing
such warnings were in fact received by Respondent, regardless of the
admissibility of the individual examples offered by the Agency at hearing.)
Further aggravating the failure of Respondent to obtain an operating
permit,
Mrs. McKee testified that she did not closely read,
or pay
attention
to, the contents of the warning letters sent to Respondent by
the Agency.
It is clear that such letters did contain the information
regarding permit applications, although that information was in
a “form
letter” context,
as described by Mrs. McKee
(R. 16—20).
Respondent also testified that it could not
know~
that a consulting
engineer would require ten months to make adequate preparations for a
proper permit application.
But Mrs. McKee did testify to personal
knowledge of the fact that Respondent’s consulting engineer had never
worked on
a landfill permit application for a site such as the one in
question here
(R.
103).
Further, while the consulting engineer testified
that Respondent fully cooperated with his permit application preparation
(R.
50),
it is also clear from the consulting engineer’s testimony that
the permit application could not be completed due, at least in part,
to
Respondent’s failure to finalize a lease for the landfill site(R.
49).
Respondent has also testified through its officers that the reason
for delay in retaining an appropriate consultant was a result of inadequate
funding.
Both Mr.
and Mrs. McKee testified that an engineer was not
retained until April
of 1973 for that reason
(R. 52,112).
It
is clear, from the facts described above that Respondent’s failure
to obtain the appropriate operatingpermit resulted from factors within
Respondent’s control.
Respondent has failed to rebut the prima facie
case of violation presented by the Agency.
The long delay in filing a
permit application, when coupled with Respondent’s admitted negligence
in attending to the permit requirement, militate for the imposition of
a
penalty in
this case.
It should be noted
in mitigation,
however, that Respondent apparently
did in fact undertake considerable steps to bring the site into compliance
with other applicable Board Regulations, and that the permit application
in question did involve considerable expense for the Respondent.
In
fact,
the Agenc~ydid not question Mrs. McKee’s testimony that it was
necessary for she and Mr. McKee to take out a second mortgage on their
home to pay for the engineering
fees connected
to Respondent’s permit
application
(R.
112).
For these reasons, balancing the unexcused delays
in application for the permit against the mitigating factor the Board
feels that
a penalty of $500 will sufficiently serve the intent of the
Act and act as sufficient protection for the permit system.
16—301
—4—
Considering as we must the factors set
out
in Section 33(c)
of
the
Act, the Board finds that those considerations provide no excuse for the
delays described above, and do not provide further mitigation as regards
to
the imposition of a penalty.
On
the contrary, balancing the necessity
of a viable permit system with the reasonableness of
the efforts required
to secure
a permit,
both a finding of violation and
the imposition of a
penalty are mandatory.
While the site in question here may provide
considerable social and economic benefit to
the area which it serves,
it
is
of greater benefit to that area and to
the state as a whole to have
a viable permit system covering the operation of landfill
sites.
This Opinion constitutes
the findings
of fact and conclusions of
law of
the Board in this matter.
ORDER
IT IS THE ORDER of the Pollution Control Board
that:
1.
Respondent Todd Sanitation Service, Inc.,
is found
to have operated a solid waste management site in Nacoupin County
during the period July 27,
1974 to October 29,
1974 without the
required operating permit from the Agency,
in violation of Section
21(e)
of the Environmental Protection Act and Rule 2O2(b)(l)
of the
Board’s Solid Waste Rules and Regulations.
2.
Respondent shall pay as
a penalty for such violation the
sum of
$500,
payment
to be made by certified check or money order
within
35 days
of the date of this Order
to:
State
of
Illinois
Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
Illinois
62706
3.
Respondent shall cease and desist the aforesaid violations,
and shall cease operations on,
and properly close in accord with all
applicable
Board regulations,
the subject site unless an appropriate
operating permit has been issued by
the Agency within 120 days of
the adoption of
this Order.
4.
Respondent’s oral Motion for Variance is denied.
I, Christan
L.
Moffett,
Clerk of the Illinois Pollution Control Bqard
hereby certify that the above Opinion and Order were adopted on
the
_______
day of
____________________,
1975 by a vote of ______to
~
Christan
L.
Moffett,
1
Illinois Pollution Con
Board
16—302