ILLINOIS POLLUTION CONTROL BOARD

May

8,

1975

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

v.

)

 PCB 74—401

I

PAUL HINDMAN,

Respondent.

)

I

Mr. Howard Thomas, Assistant Attorney General, appeared for the

I

Complainant;

Mr. Paul Hindman, Pro Se.

I

OPINION AND ORDER OF THE BOARD

 (by Mr. Dumelle):

I

I

This enforcement action was filed on October

29,

 1974.

The respondent

 is charged with operating a solid waste

management site without

 a permit from the Environmental

Protection Agency,

 in violation

Rule

202(b)

(1)

Pollution

Control Board Regulations, Chapter

 KSolid

Waste)

an~

Section 21(e)

 of the Environmental Protection Act

 (Act)

second count charges respondent with causing or allowing the

I

open burning of refuse in violation of Rule 311 of the Solid

Waste Regulations and Section

 9(c)

 of the Act.

 A public

hearing was held January 10,

 1975 wherein the respondent

appeared pro Se.

I

Paul Hindman leases an eighty acre tract of strip-

i

mined land in Williamson County for the disposal of industrial

waste consisting of cardboard,

 wood and floor sweepings.

At

the hearing Mr. Calvin Badding,

 a regional supervisor with

the Agency, testified that he had visited the disposal site

in question numerous times over the course of two to three

I

years.

 On July 29,

 1974 he noticed a compactor type refuse

hauling truck dumping refuse at the site.

 Photographs

I

depicting this were entered as Complainant’s Exhibits A and

B.

 Mr. Hindman admitted this was his truck

(R.

 14).

I

At

 a subsequent visit on August 21,

 1974 Mr. Badding

I

noticed refuse on the face of the landfill on fire.

 Photographs

depicting such were entered as Complainant’s Exhibits

C,

D,

and E.

 He testified that after taking the photographs he

proceeded into the City of Herrin; stopped by }Iindman’s

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—2—

recycling center and informed him of the fire,

 He claimed

that Hindman said he would immediately extinguish the fire,

Upon returning to the site Badding found Hindman present at

the site attempting

 to divide the blaze from other refuse

(R.

17)

Pina1ly~Badding~-testifiect that a search of Agency

records indicated that Hindman had submitted a permit application

but it had been denied

CR.

 22).

 The application, attached

to the Complaint,

 reveals receipt ~y the Agency on April 29,

1974 and denied on June

3,

 1974,

Mr. Hindman admits having operated the site without a

permit.

 He claims, however,

 that he first applied for the

permit in November,

 1973, which application was never answered,

The application received in April was dated November

5,

1973, but no proof that it actually was sent at that time

was offered,

 Hindman admits to having received several

letters after November,

 1973, warning him of his failure to

have a permit, but attributes his ~delay in reapplying to the

fact that the deadline for having

 a permit was not until

lite July,

1974

(R.

 39).

 With respect to the present status

of the permit, Hindmam testified that he engaged

 a private

engineering firm in September,

 1974 to help him with the

application

CR,

5),

 By the date of the hearing the firm had

not yet submitted the application, nor had it given a firm

 date by whi.ch the application would be completed

(R.

 43-44),

Hindman also testified that he had great difficulty securing

any firm willing to do his application

 CR, 45)~

With respect to

 •the open burning charge, Hindman denied

having started the fire.

 He cited motorcycle riders, whom

he found at the Site when he arrived,

 as a possible cause,

He claimed he didn~tknow if they had set the ~fire but

that it had been done before

 (R, 29~30).

On the basis of the record reviewed above we find

sufficient evidence to warrant a finding that the respondent

violated both the Act and Regulations as alleged in the

Complaint.

 With respect to the open burning violation we

note that Rule 311 provides that no person shall cause

or allow open burning at

 a sanitary landfill site

 (emphasis

added),

We have consistently held in the past that the statute

and regulations are not limited to deliberate violations.

EPA v. J.M. Cooling, PCB 70-2,

 1 PCB

85

 (1970), EPA v. Clay Products

Co.

 et al, PCB 71-41,

 2 PCB 33(1971), EPA v. Harshany,

 Incorporated,

et al, PCB 72—151,

 6 PCB

89

 (1972).

 In Cooling we stated:

16 —574

—3—

Because of his negligence in the operation of the dump

 site,

 the Respondent caused, allowed and permitted the

open burning of refuse in violation of the relevant

statutory and regulatory provisions..

 ,The law does not

require that in order to be found guilty of the open

burning provisions,

 the Respondent must actually be

seen igniting the materials burned.

 Negligence, indifference

and slipshod operation of

 a facility having a high

potential of combustion falls within the purview of the

statute and regulations

 (1 PCB 85, •94).

In Harshany we noted that the operation involved was not

enclosed by a fence adequate to discourage trespassers.

Similarly,

 in the instant case the record does not indicate,

nor do the photographs reveal,

 that the dump was enclosed by

a fence to deter trespassers.

 Considering Hindman’s statement

that “it has been done before”

CR.

 30),

 he wis on notice as

to the possibility of trespassers and open burning on a

landfill which accepted materials having a high potential

for combustion,

In both Harshany and Cooling we assessed a penalty of

$1,000,

 In EPA v. Jes~se~W.Farley,

 Sr., PCB 72-267,

 6 PCB

101

 (1972),

 however, we considered the respondent’s apparent

lack of intention and the relatively small size of his

operation,

 and assessed a smaller penalty of $250.

 Here in

consideration of these factors, and respondent’s expeditious

efforts to extinguish the blaze, we feel that similar low

penalty of $250

 is warranted for this offense.

With respect to the respondent’s failure to •have an

operating permit the controversy as to when an application

was originally .filed is irrelevant.

 Rule 202(b) (1) ..requires

that such permit be obtained by July 27,

1974

 one year

after the effective date of

 the. regulation.

 This requirement

established an affirmative obligation to secure a permit.

Even

 if it

 is true that the respondent first applied in

November,

 1973,

 as he alleges,

 it was nevertheless his

responsibility to at least inquire as to the status of his

application.

 Instead,

 the record shows that he ignored

several warning letters until he refiled in April,

 1974,

Moreover, almost two months remained within which to correct

and refile that application,

 after it was denied on June

3,

1974, before the deadline arrived,

 Mr. Hindman did not even

hire the engineering firm until September,

 1974,

 and as of

the date of the hearing, over five months after

 a permit was

required,

 a new application had still not been completed,

For this

 violation we assess a penalty of $500.

 After

16 —575

—4—

considering the testimony in this case and all the factors

set out in

 Section 33(c)

 of the Act, we find that a penalty

of $500 is justified for these violations.

 A total penalty

of $750 shall therefore be

 levied.

This Opinion constitutes the Board’s findings of fact

and conclusions of law.

ORDER

It is the order of the Pollution Control Board that

respondent, Paul Hindman:

1.

 Cease and desist from further violations of the

Act and Solid Waste Regulations except in accordance with

paragraph 2 of this Order;

2.

 Discontinue all refuse disposal activities at the

subject site unless an appropriate operating permit has been

applied for within

 30 days,

 and obtained within 120 days of

the date of this order:

3.

 Pay a penalty of

 $750 within 35 days,

 for the

violations of Section 9(c)

 and 21(e)

 of the Act and Rules

311 and 202 (b) (1)

 of the Solid Waste Regulations found

herein.

 Penalty payment by certified check or money order

payable to the State of Illinois shall be made to:

 Fiscal

Services Division,

 Illinois Environmental Protection Agency,

2200 Churchill Road,

 Springfield, Illinois

 62706.

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

Control Board, hereby certify the above Opinion and Order

were adopted on the

~8~’

 day of May

 1975 by a vote of

Q~Lth~irj

~ktL

Christan L. Moffett, ,4~k

Illinois Pollution C&~~olBoard

16 —576