ILLINOIS POLLUTION CONTROL BOARD
    April 10, 1975
    ENVIRONMENTAL PROTECTION AGENCY,
    Complainant,
    v.
    )
    PCB 74—388
    CITY OF ST. CHARLES,
    a municipal corporation,
    Respondent.
    Mr. Jeffrey S. Herden, attorney for Complainant.
    Mr. Alvin Catella, attorney for Respondent.
    OPINION AND ORDER OF THE BOARD (by Dr. Odell)
    On October 25, 1974, the Illinois Environmental Protection
    Agency (Agency) filed with the Illinois Pollution Control Board
    (Board) a Complaint against the City of St. Charles. It charged
    that the City, from July 27, 1974, until October 25, 1974, failed
    to have an Agency Operating Permit for its solid waste manage-
    ment site in violation of Section 21(b) of the Illinois Environ-
    mental Protection Act (Act) and Rule 202 (b) (1) of the Solid
    Waste Regulations (Chapter Seven). An Amended Complaint, alleging
    the additional violation of Section 21(e) of the Act was filed on
    March 28, 1975. The site is located in Section 35, Township 40
    North, Range 8 East, in Kane County, Illinois.
    A hearing was held on February 13, 1975, in the City Council
    Chambers of St. Charles, Illinois. Complainant established that
    the site was operating on July 31 and September 6, 1974, without
    a permit (R. 6). No permit has yet been applied for (R. 10).
    Refuse was observed at the site but no garbage was seen there dur-
    ing the July and September visits (R. 8). Respondent admitted
    dumping sludge and concrete at the site from July 31 until
    September 19, 1974 (R. 13). All dumping of sludge was discon-
    tinued after September 19, and it is now being hauled to another
    landfill (R. 19). At the present time, soii and landscape waste
    are being dumped at the site (R. 13). The City was aware that
    it was violating the Act but decided against applying for a permit
    while the sludge was being dumped because of the additional
    ex-
    penses
    for soil tests and borings associated with such an applica-
    tion (R. 17). The City intends to apply for an Agency Operating
    Permit to deposit concrete and soil at the site (R. 21).
    We find that Respondent violated Section 21(e) of the Act
    and Rule 202(b) (1) of Chapter Seven from July 27, 1974, until
    October 25, 1974, as alleged in the Complaint. The fact that
    sludge was no longer deposited at the site after September 19
    16—369
    —2—
    does not mean that violations ceased or obviate the need for
    an Operating Permit, because concrete and landscape waste con-
    stitute refuse within the meaning of the Act and Chapter Seven.
    While Respondent’s status as a municipality argues for mitigation,
    Respondent’s flaunting of the Act and Chapter Seven Regulations
    means that more than a nominal penalty must be assessed. If a
    person believes that it has grounds for non-compliance, the
    variance procedure is available to enable it to establish its
    case.~ A person does not have the option of ignoring the man-
    dates of the Act and Regulations.
    We hold that a violation of Rule 202(b) (1) of Chapter
    Seven does not constitute a violation of Section 21(b) of the
    Act. First, the language in Section 21(b) states that no person
    shall “cause or allow the open dumping of any other refuse in
    violation of regulations adopted by the Board;” Section 3 of
    the Act defines “Open Dumping” and “Sanitary Landfill” as follows:
    3(b) “OPEN DUMPING” means the consolidation of refuse
    from one or more sources at a central disposal
    site that does not fulfill the requirements of a
    sanitary landfill.
    3(1) “SANITARY LANDFILL” means the disposal of refuse
    on land without creating nuisances or hazards to
    public health or safety, by confining the refuse
    to the smallest practical volume and covering it
    with a layer of earth at the conclusion of each
    day’s operation, or by such other methods and
    intervals as the Board may provide by regulation.
    Both definitions refer to the day-to-day physical operations
    and procedures used at a solid waste management site. We do
    not believe that operating a site without a permit is the kind
    of activity described by the definition of “Open Di~mping” and
    “Sanitary Landfill” and, therefore, it is not proscribed by
    Section 21(b) of the ~Act. Second, Section 21(e) of the Act
    clearly indicates that failure to have a permit violates Section
    21(e). Section 21(e) of the Act would be unnecessary if such
    activity were illegal under Section 21(b) of the Act. Since we
    presume that Section 21(e) of the Act was included for some
    logical reason, we conclude that it is meant to proscribe activity
    not otherwise limited under Section 21 of the Act.
    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. Respondent violated Section 21(e) of the Act and Rule
    202(b) (1) of Chapter Seven as set out in the Opinion.
    16—370
    —3—
    2. Respondent shall pay a penalty of $400.00 for its
    violations of the Act and regulations established in this
    Opinion. Payment shall be by certified check or money order
    payable to the STate of Illinois, Fiscal Services Division,
    Environmental Protection Agency, 2200 Churchill Road, Spring-
    field, Illinois 62706. Payment shall be made within 35 days
    of the adoption of this Order.
    3. Respondent shall apply to the Agency for an Operating
    Permit within 30 days of the adoption of this Order.
    4. Respondent cease and desist violating Section 21(e) of
    the Act and Rule 202 (b) (1) of Chapter Seven within 120 days of
    the adoption of this Order.
    I, Christan L. Moffett, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Opinion and Order was ad—
    o~edon
    the
    1~5k~~day of
    ___________,
    1975, by a vote of
    9~tanL~~~
    16—371

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