ILLINOIS POLLUTION CONTROL BOARD
Apr11 10,
1975
ENVIRONMENTAL PROTECTION AGENCY,
)
)
Complainant,
)
)
v.
)
PCB 74—178
CITYWIDE SERVICES,
INC.,
an
)
Illinois Corporation, and the
COUNTY OF KNOX,
a Political
)
Subdivision
of the State of
)
Illinois,
)
)
Respondents;
)
)
)
)
CITYWIDE SERVICES,
INC.,
)
Petitioner,
)
)
)
PCB 74—177
)
ENVIRONMENTAL PROTECTION AGENCY,
)
)
Respondent.
)
OPINION AND ORDER OF
THE
BOARD
(by Mr.
Zeitlin)
These
two cases concern the operation of a landfill site by Citywide
Services,
Inc.,
on property leased by Knox
County,
Ill.,
from the City
of Galesburg, who in turn had leased the property from the Burlington
Northern Railway Company.
Neither Galesburg nor Burlington Northern are
parties
to either action.
Case PCB
74—177,
a Variance Petition, was originally
filed by Peti-
tioner Citywide Services,
Inc. (Citywide)
on May
13,
1974.
On
that same
date
the Environmental Protection Agency
(Agency)
filed an enforcement
action,
PCB 74—178,
against Citywide
and the County
of Knox, Illinois,
(Knox County).
On May
16,
1974, this Board rejected Citywide’s Variance
Petition as inadequate, finding that it did not contain sufficient
information
to achieve compliance with
the Board’s Procedural Rules for
such
a petition. An Amended Petition for Variance
was refiled on July
9,
1974.
The
original Petition for Variance by Citywide merely asked that
Citywide be permitted
to operate the landfill site for 90 days after
July 27,
1974,
or until filled and contoured as required by the owner,
Burlington Northern.
16— 353
—2—
The Amended Petition for Variance incorporated by reference the
Agency’s enforcement complaint, and in effect claimed hardship and
requested variances from the violations alleged in that complaint.
(A denial of variance is not tantamount to a shutdown order,
and merely
exposes a petitioner to enforcement proceedings,
to this extent Petitioner
Citywide’s claim of hardship in its amended variance petition is patently
deficient.)
Pursuant
to motion by Citywide,
the two cases were consolidated by
Board Order dated July 18,
1974.
HISTORY
Roughly triangular, the landfill site is located in Knox County,
Illinois approximately two miles south of Calesburg.
The two longer
legs
of its boundaries are roughly delineated by a public road and the
Burlington Northern railroad tracks.
The site includes a small, unnamed
creek tributary to Lake Bracken,
more than
1½
miles distant.
There is
some indication
(Stip.
Ex.
C.,
p.
3)
of another small stream on the
site,
entering the creek from the west.
The landfill site was originally leased to the City of Galesburg by
the owner,
then named Chicago, Burlington
& Quincy Railroad Company,
under an agreement dated February
1,
1964,
providing for successive
renewal through 1984.
That lease was assigned by Galesburg
to Respondent
Knox County by an instrument dated June
8,
1964.
Both lease and assignment
thereof contemplated the leasehold’s use for sanitary landfill purposes
(Stip.
Ex.
A).
A contract between Respondents
Knox County and Citywide
(Stip.
Ex.
B and C), was executed July 27,
1964.
That contract provided for
the operation of
the landfill site, by Citywide, for the disposal
of
garbage and refuse from Calesburg
and several smaller municipalities.
That contract set cover and final grade specifications not
in conformance
with later regulatory requirements, which specifications the stipulation
shows were not adhered to at any rate
(Stip.
Ex.
B,
“Specifications”).
Respondent Citywide registered in
1966 with the Illinois Department
of Public Health, Division of Sanitary Engineering,
as required by the
old Rules and Regulations for Refuse Disposal Sites and Facilities.
The Agency commenced inspections of the landfill site
in 1971.
The
Stipulation of the parties specifies
28 inspection dates since 1971.
The stipulatt~dexhibits include photographs, water sample analysis,
and
inspection reports which indiate continued violations since that time
(Stip.
Group Ex.
D,
E,
F).
There is also ample indication of repeated
warnings from the Agency
to Respondents following the inspections.
16
—
354
—3—
In June,
1974, Respondents retained a consulting engineer
to inspect
and prepare a closing plan for the site.
That plan,
(SUp. Ex.
G),
details closely the conditions of
the landfill site, and when compared
with other exhibits (SUp. Ex. D,
E, F), demonstrates
the extent of
Respondent’s violation and the environmental damage resulting.
Further,
that report shows the continuing potential for environmental damage
which may result in the future from Respondent’s mismanagement of
the
site.
During this period,
Respondent Knox County made provision for the
opening of a new sanitary landfill
site,
in Sparta Township.
Knox
County opposed Citywide’s amended Petition for Variance to
the extent
that
it would permit operation of the site here at issue in conflict
with operation of the proposed Sparta Township
site.
The Sparta site
does have an Agency permit and was scheduled for operation commencing
October
1,
1974.
A hearing was held on the consolidated case at Galesburg,
Illinois,
on November
20,
1974, after publication.
Petitioner Citywide at
that
time moved
to withdraw its variance petition, which motion was taken
under advisement by the Hearing Officer,
and all parties
at that time
submitted a Stipulation of Fact and Proposed Settlement pursuant
to
Procedural Rule 333 of this Board.
The contents of
that stipulation are
discussed below.
On January 16,
1975, Respondent Citywide filed with the Board
a
Motion to Postpone ruling on Stipulation
and Proposal for Settlement,
asking also for leave to submit a
Supplemental Stipulation within 30
days.
At
that time Respondent Citywide also waived
the 90—day rule
with regard to its variance petition
until April 16,
1975.
In an Order dated January
23,
1975, the Board accepted Citywide’s
Motion
to Postpone to the extent that
it rejected the original stipulation
of the parties as insufficient.
The Board ordered
that an Amended Stipulation
be resubmitted in a final,
clear
and cohesive fashion,
setting out
timetables and specific duties for the parties.
The Board further
ordered that, were an Amended Stipulation not filed with the Board
within 30 days of the adoption of
the January
23,
1975 Order,
the Hearing
Officer proceed to hearing in the matter.
An Amended Stipulation and Proposal for Settlement was not received
by
the Board until March
12,
1975.
In the interim,
a further hearing
was held ~n March
7,
1975 to present the Board with sufficient information
to resolve matters
that the parties could not reach agreement on.
Public comment received was limited to several individual objections
to a grant of Citywide’s variance petition.
VIOLATIONS ALLEGED
Count One:
The Agency’s Complaint,
PCB 74—178 alleges
in
Count One a violation of Section 21(a)
of
the Act, which
prohibits open dumping
of garbage, and Section 21(b),
prohibiting
the dumping of any other refuse in violation of Board
rules.
16—355
—4—
Count
I further alleges that leachates from the landfill site
caused violations of Title
3 of
the Act,
and Chapter
3,
Water
Pollution Regulations,
of
this Board, for effluents and waters
of
the state.
The alleged specific violations included levels
of contaminants exceeding the following rules:
RULE
CONTAMINANT
Chapter
3,
203(f)
203(f)
203(f)
404(a)
405
408(a)
ammonia nitrogen
(as
N)
boron
iron
BOD5
fecal coliform
iron
Count Two:
Violations of
the old Rules and Regulations
for
Refuse Disposal Sites and Facilities, specificaLly:
RULE
COVERAGE
Those rules continued in effect until July 27,
1973.
The Agency
alleged specific dates of violation commencing in 1971 and running
through July 1973
for
each of these violations,
and submitted exhibits
supporting the charges.
Count Three:
Continued violations
after the Board’s adoption
of Chapter
7,
Solid Waste Rules and Regulations.
Those alleged
violations specifically
included:
RULE
COVERAGE
Chapter
7,
305(a)
305(c)
310(b)
303(b)
314(e)
314(f)
306
All violations as referred to by
continuing nature.
daily cover
(6 in.)
apter
7
60 day cover
(12
in.)
final cover
(2
ft.)
liquid and hazardous waste, permit
requirement
spreading and compacting
leachate monitor and control
vector control
daily litter collection
the Agency were alleged
to be of ~
3.04
5.03
5.04
5.06
5.07(a)
5.07(b)
5.08
open dumping
confinement of dumping
portable fencing
spreading and compacting
daily cover
(6 in.)
cover
(two feet)
dumping liquids, hazardous
material
16—356
—5—
STIPULATION
The
Stipulation and Proposed Settlement
(Stipulation) originally
submitted by the parties to
this action was less than exemplary.
It was
difficult in places to determine
the final agreements
of the parties;
it
was in
sonic places referenced information neither in the record nor
stipulated to,
and appeared
to be contradictory
in
places.
The Amended
Stipulation and Settlement plan
(Amended Stipulation) filed
on March
12,
1975 resolves these difficulties,
and permits
the Board
to reach a
proper
final, determination in this matter.
The Amended Stipulation,
although referenced to the original unaccepted Stipulation, sufficiently
clarified the confusion and contradition which rendered that attempted
settlement unacceptable.
To completely list the provisions of the
Amended
Stipulation would
recluire excessive time and not serve any purpose.
In sum,
it provides
for
the
closure of the site
in question, future sampling and maintenance
at
that site to
insure continued compliance with the Board’s
effluent,
water and landfill regulations, and contains a provision allowing the
Board
to assess penalties
against Respondent Knox County and Citywide.
A performance
bond
is also required to
insure compliance.
Briefly, the
Amended Stipulation includes
the following:
A.
Closure of Site:
The present landfill site
is
to cease
all operations except those necessary for closing by March
15,
1975.
The operator
is
to provide a minimum of
two feet
final cover,
and suitable revegetation.
Exhibit
C
to the
Amended Stipulation
shows
the proper contour and grades
which Citywide will achieve
on the site, using fill as specified.
All contouring, grading and seeding
of the
site shall
be
completed by Citywide
in accordance with
the compliance
plan (Exhibit C),
as soon after March
15,
1975,
as weather
permits, but no later than August
15,
1975.
Respondent
Citywide must identify the source of cover material
to be
used for completion and closure of the site within
15 days
of the adoption of this Order by
the
Board.
B.
Sampling, Treatment and Maintenance:
At several points on
the site
(Exhibit
C), water
samples are
to be taken and
analyzed for ammonia
(NH3), boron,
iron,
manganese,
chloride,
total dissolved solids
(TDS),
and chemical oxygen demand.
Such samples are to be taken quarterly until April 15,
1980,
that
period renewable if necessary to meet the prescribed
standards.
The water from a house well near the site is to be tested
quarterly until
the TDS,
chlorides,
and iron standards of
this Board for groundwater are met for two consecutive
quarters.
After that time testing will not be required~
Further,
an
old well on
the site is to be reopened for
test
purposes.
16
—357
—6—
If shown
to
be necessary as
a result of
the water
quality samples taken
at the site,
a treatment pond
for leachate shall be constructed on the site.
Respondent Knox County will dispose
of treatment
pond pumpings by transportation
to
a local sanitary
district.
Knox County must reach an agreement with
a sanitary district willing
to take the effluent
which will allow for such disposal, within 30 days
after the Order
in this case has been adopted by the
Board.
Even if the construction of this pond is not made
necessary by poor test sample quality,
Respondents
will be required to insure that leachate seeps or
springs
do not enter or pollute the watercourse on
the site.
Additional steps Include the construction
of a clay dike, mulching the stream banks to prevent
erosion, and diversion of runoff.
C.
Penalties.:
Despite Respondents’
long history of
non—compliance and violation,
the Agency has stipulated
and consented to penalties of $2,000 and $500 for
Citywide and Knox County, respectively.
D.
Bond:
Respondents have provided a performance bond,
In
the amount
of $143,400,
to insure that the plans for closing the
site, and subsequent maintenance, sampling, and treatment are
followed.
While the penalties would ordinarily be Insufficient,
the Amended Stipulation
and its ~hibits show that the compliance and closure plans
to be implemented
will entail considerable expense
to both Respondents,
and that both have
cooperated fully with the Agency as regards these plans.
The immediate
additional equipment,
labor,
and engineering fees for Respondents will
amount
to either $43,400 or $46,321,
(dependant on length of time of
closing plan).
Respondent Knox County will be required
to absorb sam-
pling costs over
5 years, and there is also a substantive probability
that the parties will be required
to construct
a treatment pond.
The provisions of
the bond, which assure Respondents’
complete performance
of
the Amended Stipulation requirements,
is a major
factor allowing this
Board
to accept the proposal of
the parties.
This
is particularly
true
in light of the relatively small penalties imposed here.
The Amended
Stipulation and the performance bond, make the parties jointly and severally
liable for the construction of the treatment pond discussed above,
should
such construction be necessary.
The bond coverage for
that contingency
Is
$100,000.
The other provisions of
the Amended Stipulation are too numerous
to
set
out here.
The above constitutes only a partial sunnuary which
Is expressly
made a part of this Opinion and Order.
—7—
DRAINAGE DITCH DIVERSION
A drainage ditch presently enters this site from the east.
The
issue of whether
or not this drainage ditch must be immediately diverted
and prevented from flowing across the site
,is the only issue which the
parties cannot resolve themselves.
Knox County and Citywide feel that
diversion of the ditch would be unnecessary, and result In little or no
benefit
to the environment.
The Agency feels
that limnediate diversion
of the drainage ditch should be made a part of
the Board’s Order in this
matter.
The parties have left the resolution of this question to the
Board, and
the hearing held on March
7,
1975 had as
its sole subject the
necessity, feasibility, and cost for such
a diversion.
The ditch in question is fed initially by drainage from property
not on
the site in question.
On the site, the ditch is fed by a culvert
carrying flow under a road separating the site from adjacent property.
The ditch then flows past monitoring point Y and into the creek flowing
through the site, described above.
On the site,
the ditch is bounded on
both sides by filled areas.
Agency testimony indicated that the ditch
collects waters from approximately 30 acres
of property adjacent to the
site, and also from one—half of
the site itself,
or an additional 30
acres
(R
34,
35).
The Agency is of the opinion that the ditch should be diverted for
two reasons:
1.
Flow from points off the site will,
in effect,
treat
leachate from the site itself by dilution.
This would result in
false reading of pollutant content in monitoring samples taken at
point Y
on the site.
Such false readings,
in turn, would result in
frustration of
the contingency plan to construct a treatment pond
If samples show the necessity for such a pond as a result
of un-
acceptable sample readings
(R.
44).
2.
Continued flow, particularly during rainy periods, would
result in erosion of the banks of the ditch,
exacerbating the
leachate problem
(R.
46).
The Agency’s only witness presented calculations indicating
that these results are likely given a two—year storTh in the area,
resulting in a flow through the culvert,
onto the site,
of two
cubic feet per second
(R.
41).
Respondents,
on the other hand, feel that the ditch presents no
immediate danger to
the environment, and that diversion of
the ditch
should be made a contingency,
dependant on sampling results in the same
manner as in the treatment pond contained
in the Amended Stipulation. Respondents
16 —359
—8—
presented testimony attaching the calculations of the Agency as to
the
drainage area off the site contributing
to
the ditch flow, and as
to the
representative quality of the Agency witness’s observations
(eg.
R.
98,
99,
106).
Respondents’ major contention, however,
is that the diversion of
the ditch will not result
in benefits consistent with the cost of diversion.
But
the testimony presented by Respondents was not definitive as to
the
cost of diversion.
While there was testimony that one possible method
of diversion would cost
$7,000
(R.
104), there was also evidence that
other methods might be possible, for which costs have not been determined,
but which would be less expensive
(R.
126,
127).
The Agency’s case in this matter is clearly more persuasive.
The
Agency elicited testimony,
on both direct and cross—examination, demon-
strating that failure to divert the ditch would present
a real danger of
environmental harm.
The possibility of such harm outweighs the potential
cost
of diversion of the ditch,
and should be accomplished by Respondents
as a part
of the compliance plan to clean up the damage already done in
the operation
of this site.
The parties have not submitted to the Board any definite plan for
the diversion of the ditch here.
We need not contemplate on how it is
to be accomplished.
The diversion shall instead be accomplished by
Respondents in whatever manner is consistent with our decision here, and
is acceptable to the Agency.
It
is evident from the testimony that the
waters carried by
this ditch must at
some point flow into the stream,
discussed above, which crosses the landfill site.
It
is only of importance
here that such confluence not interfere with drainage on
the site; the
Respondents are left
to their own devices in achieving that end.
This Opinion constitutes the findings
of fact and conclusions of
law of the Board.
ORDER
IT IS THE ORDER of the Pollution Control Board that:
1.
Respondents Citywide Services,
Inc., and the County of
Knox,
Ill.
are found to have caused or allowed violations of the applicable
Rules and Regulations
for Refuse Disposal Sites,
(Rules), continued
in
effect until July 23,
1973,
and the applicable Chapter
3 and Chapter
7
Rules and Regulations
of this Board, on dates as shown in the Stipulation
of Fact of the parties.
Such violations were of:
Rule 3.04
open dumping
Rule 5.07(a)
daily cover
Rule 5.04
fencing
Rule
5.03
confined area
Rule
5.06
spreading
& compacting
Rule
5.07(b)
2 foot cover
16
—
360
—9—
Rule 5.08
liquids,
hazardous material
Ch.
7,
Rule 305(a)
daily cover
Ch.
7,
Rule 305(b)
intermediate cover
Ch.
7,
Rule 305(c)
final cover
Ch.
7, Rule 314(e)
leachate control
Ch.
7,
Rule 314(f)
vector co~itrol
Ch.
7,
Rule 310(b)
liquids, hazardous material
Ch.
3, Rule 203(f)
ammonia nitrogen, iron, boron
Ch.
3, Rule 404(a)
BOD5
Ch.
3, Rule 405
fecal coliform
Ch.
3, Rule 408(a)
iron
2.
Respondents Citywide Services,
Inc., and County of Knox,
Ill.,
are further
found to have caused or allowed violations of Sections
21(a)
and 21(b)
of the Illinois Environmental Protection Act,
on the dates
shown in the parties’ Stipulation of
Fact,
(Exhibit H).
3.
Both Respondents will conform in all ways
to the plans
of closing
and compliance, and
to the dates of performance thereunder, contained in
the Stipulation and Proposal for Settlement submitted to this Board,
as
amended,
and in the exhibits thereto.
4.
Respondent Citywide Services,
Inc., shall pay a penalty of
$2,000 for violations
as detailed above,
and in the Stipulation of the
parties.
Payment is to be made within
35 days of
the date of
this Order
by certified check or money order
to:
State of Illinois
Fiscal Services Division
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield,
Illinois
62706
5.
Respondent County
of Knox, Illinois shall pay a penalty of $500 for
violations as detailed above, and In the Stipulation of
the parties.
Payment
is
to be made within 35 days of the date of this Order by certified
check or money order to:
State of Illinois
Fiscal Services Division
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois
62706
6.
Respondents Citywide Services,
Inc.,
and County of Knox, Ill.,
shall jointly within 30 days of
the adoption of this Order by the Board
submit,
in
a form acceptable to
the Agency,
a performance bond
in the
amount of
$143,400.
Such bond will be submitted
to the Agency and will
assure compliance with the plans for closing,
sampling, treatment and
maintenance
as detailed in the Amended Stipulation.
16—361
—10—
7.
The drainage ditch discussed in Paragraph G of the Amended
Stipulation submitted by the parties hereto shall be diverted in a
manner consistent with this Opinion,
the responsibility for such diversion
being joint and several upon Respondents
Citywide Services,
Inc., and
County
of Knox, diversion to be accomplished on or before August 15,
1975,
or upon the completion of all closing requirements contemplated in
paragraph C of the Amended Stipulation, whichever is
sooner.
8.
The Variance Petition of Citywide Services,
Inc.,
PCB 74—177 is
dismissed.
I,
Christan
L. Moffett,
Clerk of the Illinois Pollution’ Control
Board hereby certify that
th,e above Opinion and Order were adopted on
t~e1tb
,
1975 by a vote of
Illinois Pollution
:rol Board
16
—362