ILLINOIS POLLUTION CONTROL BOARD

April

24,

1975

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB 74—387

KRENZ TRUCKING, INC.,

an Illinois

)

corporation,

Respondent,

KRENZ TRUCKING,

INC.,

an Illir~ois

corporation,

Petitioner,

PCB 74—457

v.

(CONSOLIDATED)

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Mr. Jeffrey

S.

Herden, attorney for Environmental Protection

Agency.

Mr. Samuel T. Lawton, Jr., attorney for ,Krenz Trucking,

Inc.

Mr. Harold C. McKenney, attorney for Robert and John Veugeler,

objectors.

OPINION AND ORDER OF THE BOARD

(by Dr.

Odell)

On October 25, 1974,

the Illinois Environmental Protection

Agency

(Agency)

filed a Complaint with the Illinois Pollution

Control Board

(Board)

against Krenz Trucking,

Inc.

(Krenz).

The Complaint charged that Krenz operated its solid

waste

management site

(site) without an Agency Operating

Permit

from

July 27,

1974, until October

25,

1974,

in violation of Rule

202(b) (1)

of

the

Solid Waste Regulations

(Chapter Seven)

and

Section 21(b)

of the Illinois Environmental Protection Act

(Act).

An ~mended Complaint, alleging the additional violation of

Section 21(e)

of the Act, was filed on March 28,

1975.. The site

is

located on the western side of RR-Virginia Cutoff Road,

east of

the Crystal Lake Airport,

in Section 16, Township 43 North,

Range

8 East of the Third Principal Meridian in McHenry County,

Illinois.

On December

6,

1974,

Krenz filed a Petition For Variance

with the Board.

Petitioner requested

a one-year variance from

the permit requirements for its site or until such earlier time

16—439

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—2—

that

the

Agency issued

it

an Operating

Permit.

The Petition

For

Variance stated that depressions at the site would be filled and

the site completely closed out by the fall of 1976.

On the

same day, Krenz filed a Motion To Consolidate the Petition For

Variance with PCB 74-387,

This Motion was granted by the Board

on December 19,

1974,

On January 29,

1975,

the Agency recommend—

ed that the variance be denied until Petitioner was able to es—

tablish its need for the variance and agreed to carry out certain

conditions associated with the grant of the variance,

On January

29, the McHenry County Department of Health requested the Board

to extend case deadlines until more information could be qathered

on possible groundwater contamination at the landfill.

The

Board denied this request on February 6.

On January 31,

1975,

John and Robert Veugeler, McHenry County residents,sought to

intervene alleging they would be adversely affected by the grant

of a variance.

The Hearing Officer, with consent of the parties,

granted this motion at the hearing

(R.

4).

On March

21,

1975,

Krenz waived the .time for final Board action until April

24,

The hearing was held at City Hall in Woodstock,

Illinois,

on January 31, 1975.

The evidence established what Krenz ad~

mitted in its Brief

(pages

4,

5) that Rule 202(b) (1) of Chapter

Seven was violated as alleged in the Complaint.

Krenz had

knowledge in October 1973 that it would need a permit

(Agency

Ex. B

(I).

An application was made on October

30,

1974;

the

Agency denied the Operating Permit on January

28, 1975

(R.

183).

It is the policy of the Agency to deny permits when there are

not sufficient facts to negate the possibility of a water pol—

lution hazard at such sites

(R,

183,

190),

The site has now

been shut down and will only be reopened if the Board grants

Petitioner its variance

CR.

157).

During the time that the

site was operating,

periodic but minor violations relating to

shelter for personnel,

daily cover requirements, and adequate

fire protection arrangements occurred at the site

CR.

19, Agency

Ex.

B).

These were all ~remedied by January

8,

1975

CR. 14,

Resp. Ex.

2).

The reason for delay in applying for the Operating

Permit was the cost of obtaining necessary data for application

as well as discussion with the landowners of the site leased by

Krenz to decide who was going to pay for the costs associated

with permit application

(R.

156).

We assess a penalty of $350.00 for Krenz~dsviolations

of

Rule 202(b) (1)

of Chapter Seven and Section 21(e)

of the Act.

Consideration of factors in Section 33(c)

of the Act makes

such

an amount appropriate,

First, using the site without an Operat-

ing Permit is an injury to the general welfare of the people of

Illinois because it may encourage others to disregard the Act.

Second, the economic and social value of a pollution source is

diminished by non-compliance with applicable

laws

governing

—440

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—3--

operations at that source.

Third, the failure to

have an

Operating Permit in part stems from Krenz’s choice of using

this questionable site for landfill operations.

Fourth, the

factor of technical practicability and economic reasonableness

is not readily applicable here in determining a permit violation.

Finally, Krenz~slong delay in applying for a permit aggravates

the penalty when it had knowledge of the permit requirement in

the fall of 1973.

We

hold that a violation of Rule 202(b)

(1)

of Chapter

Seven does not constitute

a

vio:Lation 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

D’CJMPING” means the consolidation of

refuse from one or more sources at a central

disposal site that does not :Eulfill the re-

quirements

of a sanitary landfill.

:~(:i)

“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~soperation, 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

managem~nt site.

We do

not be—

lieve that operating a site without a permit is the kind of

activity described by the

definitions

of

“Open

Dumping”

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.

The solid waste management site covers approximately 30

acres in or near Crystal Lake,

Illinois.

The site was once a

gravel pit,

arid refuse in unknown quantities has been dumped at

the location for many years

(R.

31, 32,76,

88).

In 1971 Peti—

tioner first entered into an agreement with the now deceased

owner to lease the site for use as a landfill

(R.

145).

All 30

acres of the site have received refuse material in various thick—

16 —441

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—4—

nesses.

Much of the more recent materials overlies older fill

areas

Resp.

Ex.

11

(Ex.

“G”).

The existing fill, is located

primarily on the north, south, and west areas of this site,

which can be roughly described as running north and south in the

shape

of

a

rectangle.

Krenz requested a variance to enable it to fill up, grade,

and seed from, south to north area number three

(the center area)

at the site.

The area is underlain by both recent and old de-

posits.

Area number one (north and west area)

and area number

two

(the southern area)

would also be graded and seeded.

Spec-

ifically, Petitioner p~oposed (Ex.

“G”):

“Area

1

—

the

area

consists

of

approximately 14 acres

oTT~

site and is located generally on the south--

westerly portion with

a border or boundary extending

generally around the entire property,

The lands in

this area have either been filled ~to the practical

limit or consist of areas which will not be filled

but which

wi.i1 be re—excavated for cover material or

graded for drainage.

This area requi.res

final, reinforcement of the existing

temporaty cover, additional grading and filling with

earth material for drainage, the preparation for and

development of a seed—bed, together with final seeding.

Mnch

of

this

area

may be developed for final seeding

in

the

Spring

of

1975.

“Area

2

This

area

consists

of

approximately

5

acres

~‘i~located

generally along the southerly and south~

easterly portion of the property.

The land has all

been previously stripped with gravel removal; and some

leveling and restorations, using strip material, has

taken place in the past~ Remaining portio.ns of this

area are currently being excavated and used for cover

material.

The work to be done in this area wi.ll consist of a

small area of filling and’ covering ‘with waste material,

together with the final grading of the completed cx—

cavated area.

After filling, covering and final grad~

ing of unf.illed areas is complete, a seed—bed must be

developed

and. final seeding accomplished.

It is probable

that

a portion of this area must be used as a haul .road

~or obtaining materials for cover from’the southerly

off—site area up to the point of final closing of the

site.

“Azea3

—

Area consists

of

approximately

1.0

acres.

This

‘area

is currently underlain by old waste—fill

areas

with

varying degrees of

cover.

Part

of

the

area

used

in

the

16

—442

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—5—

past several years under more modern regulations

contains a considerable amount of cover material.

The area will require filling with waste and proper

temporary cover.

The work should be accomplished

by starting in the southerly area and moving the

fill operation northerly using adequate temporary

cover.

Final operation of the closing of the site

consists of grading and final cover on this

area.

It

is pos’sible that a portion on the southerly’’ end

may be finally giaded for

the’ seed-bed and cove’r crop

planted in the Spring of

1976,’”

Approximately 90,000 cubic yards of fill are added to the site

each year;

72,000 of this

is residential refuse

(R,49,

150),

Petitioner~sargument for a variance was based on its

contention that its plan for closing the site was the most

environmentally sound itethod of minimizing leachate problems

at the site, as well as the most economically advantageous

p’rocedure for all persons affected by the site~sclosing.

Petitioner admitted that the possibility of leachate existed at

the site

(R.

78),

Agency evidence substantiated this admission

(Agency Ex. H).

It was established that leachate was just as

likely to be caused by prior dumping materials as from future

operations

(R.

191),

Krenz~sprogram is designed to increase

the water flow off the site and avoid leachate problems by grad~

ing,

seeding, and addition of an impervious cover

CR,46,

48).

Petitioner estimated that its plan would only allow’six inches

of annual rainfall to percolate through the site

(R,

50).

The

average annual’ rainfall in the area is about

36 inches,

A wit-

ness for the Agency admitted that if the proposed plan were

carried out, ‘the policy of the regulations to minimize leachate

and pollution would be achieved

(R,

191), bht added that the

program might not’elir6inate the water pollution threat

(R,l92),

Three wells

(P—I, P-2, and P—3) were drilled on the s,ite

to test for concentration of harmful contaminants...resulting

frorn.the oper’ation of the site.

Lead.concentrations of 0.74 ppm,

1.34

ppm.,

and 0,55 ppm were. found,

These levels are higher than

would normally be expected

(H,

189).

It was not known whether

these concentrations could have resulted from Petitioner~s

recent activities

CR.

191).

The evidence established that

chemical and explosive wastes are not dumped at the site

(R,149),

No testing wells were drilled off the site.

The closest drink—

ing water source is a well one—quarter of a mile from the site.

No

leachate problem is indicated at

th’is nearby well

and

the

proposed closing plan is not expected to adversely affect this

well or other wells now in use

CR.

117).

Petitioner introduced evidence to show that it was not

economically feasible to eliminate the potential pollution

problem by removing the t~~entyacres of refuse and installing

an impervious liner in the bottom of the entire gravel pit

(R.79).

The possibility of

.the: new.~re±us&sleaching could be lessened

if bricks

or

concrete were used as fill in

area

three

(R,52)

,

Lit

such

materials are not available in.sufficient quantities

outside

of the Chicago area

CR.

153),

16

—443

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—6—

Testimony was offered to show that an immediate closing

of the site would impose financial burdens on the Petitioner,

the community, and local haulers.

Petitioner stated that clos-

ing the landfill would mean raising rates substantially with

the possibility of going out of business

(R.

153).

!To offset

its costs of properly closing the site,

it desired to keep

operating.

An official from Cary

(population 4,800) believed

that closing the site would increase pick-up costs to residents

of that community

(R,

104),

It

is hoped

that by the time the

proposed closing plan

is completed,

a county landfill will be

operating

(R,

107),

Three

area

haulers testified that if the

site were closed, higher rates would be necessary resulting in

business uncertainty

(H,

206,

208).

There was some

evidence

that hauling refuse

to a

nearby landfill involved less cost

than hauling to the

Krenz

site, but the location,

size, and

availability of this site was not examined by the parties

(R.

206)

We grant the variance from Rule

202(b)

(1)

of

Chapter

Seven

and Section 21(e)

of the Act from December

6,

1974,

to and includ-

ing December

5,

1975,

Petitioner indicates on pages

18

and 19 of

its March

5,

1975,

Brief

that

it

can substantially comply with the

Agency~sRecommendations

on

page

8,

paragraph

15,

of

its January

29,

1975,

submission,

Proper final

cover,

grading and seeding to

minimize percolation of rainwater through

the

landfill is especially

important,

We

are satisfied that Petitioner

is

making good faith

efforts to

minimize

any

poi:Lut.ion

effects

from current and past

dumping practices,

It is of utmost importance that

proper environ--

mental management

he

carried out to

limit as much as practically

possible deleterious effects from past

management practices.

While

we

realize that granting this variance will not guarantee

avoid-

ance

of all environmental problems,

it represents the

best solution

to an intractable situation.

Conscientiously.carrying out the

Order

in this

case will be an important consideration if Petitioner

applies for another variance in late 1975,

Based on the facts and

circumstances of this case,

it would impose

an unreasonable hard--

IT IS

THE

ORDER of the Pollution Control Board that:

1.

Krenz Trucking, Inc. violated Rule 202 (b) (1)

of the

Solid Waste Regulations and Section 21(e)

of

the Act by operating

its solid waste management site without an Agency Operating Permit

from July 27, 1974,

until and including October 25,

1974.

2.

Krenz Trucking,

Inc. shall pay a penalty of $350.00

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, Springfield,

16

—

444

---

ORDER in PCB 74—457

Petitioner, Krenz Trucking,

Inc.

is hereby granted a

Variance from Rule 202(b) (1)

of the~SolidWaste Regulations

and Section 21(e)

of

the

Act from December

6,

1974,

to

and in—

eluding December

5,

1975,

subject to the following conditions:

1.

Petitioner shall carry

out the Schedule

of Construction

O erations for

Corn letin

and C~osin

Landfill Site as set

out on

pages

an

5 in Resp. Ex,

1

Ex.

G

accor ing

to its terms

and

timetables, except as modified by other conditions

of

this

Order set out below.

2.

No

further

refuse disposal activities shall

be con-

ducted in the areas

referred

to as Area

#1 and Area

#2.

3.

Certain

work

(namely reinforcement of existing temporary

cover, additional grading for drainage, preparation and com-

pletion of

a seed-bed, together with final seeding) shall

be

com-

pleted

on

Area

#1 by June

1,

1975,

4.

Certain work

(namely covering and final grading of

the completed excavated area,

and development of a seed—bed)

shall be completed on Area

#2 by September

1,

1975,

5..

Best efforts shall be made to complete filling or

covering work on Area #3 by December

5,

1975.

6.

No hazardous or

liquid wastes shall

be accepted at the

site.

7.

Petitioner shall take all steps necessary to prevent

leachate from leaving the site and to ensure the protection of

ground-water in the area from leachate contamination,

including

but not limited to the following procedures:

(a)

Cover all filled areas with a good and relatively

impervious cover and plant proper cover crop which

will consume relatively large amounts of surface water

and prevent erosion,

(b) Establish the fill and subsequent cover to such

elevations as to direct surface water and precipitation

away from the site in natural watercourses,

thus prevent-

ing the entrance of such water into the filled area with

the resultant reduction in leachate production, and

(c)

Install two monitor wells off the site at locations

designated by the Agency

(assuming permission of the land

owners involved)

to monitor and test underground water

parameters and to ascertain if any adverse environ-

mental impact was resulting from the landfill operation

as conducted.

If such adverse impact is indicated,

Petitioner will cease operations within

60 days unless

16—445

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—8—

a further variance for such continued operations

is adopted by the Board.

8.

Petitioner shall submit bi—monthly progress reports

to the Agency detailing its progress in completing the site and

complying with the above conditions,

The first report is due

June

1,

1975,

and shall be mailed to tnvironmettal Protection

Agency, Division of Water Pollution Control, Control Program

Coordinator,

2200 Churchill

Road,. Springfield,

Illinois 62706.

Board, hereby certify that the a~ove Opinion and Order was

~~ted

on the~

day of

1975, by

a vote of

16

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