ILLINOIS POLLUTION CONTROL BOARD
January 24, 1974
Citizens For A Better Environment,
an Illinois not—for-profit
corporation, and the Environmental
Protection Agency
V..
)
PCB 73-181
Engelhardt, Inc., an Illinois
)
PCB 73—304
corporation, and the North Shore
Sanitary District, a municipal
corporation of the State of Illinois
Mr. Fredric J. Entin, attorney appearing for the
Environmental Protection Agency,
Mr. Alfred W. Lewis, attorney for respondents
Engelhardt, Inc. and NSSD.
OPINION AND ORDER OF THE BOARD (by Dr. Odell)
The Citizens For A Better Environment (hereinafter
called C3E) filed a Complaint on May 1, 1973, against Engelhardt,
Inc. and North Shore Sanitary District (hereinafter called NSSD)
alleging violations of the Environmental Protection Act (herein-
after called Act) and certain rules and regulations in the
operation of a landfill in Zion, Illinois. The Environmental
Protection Agency (hereinafter called EPA) filed a Complaint
against the same Respondents o:~ July 27, 1973, alleging similar
violations to those set out by CBE for the landfill located in
the South ½ of the NW¼ of Section 32, Township 46 North, Range
12 East at McAvee and Beach Roads in Benton Township, Lake County,
Illinois. This landfill in Zion was operated by Engelhardt, Inc.
and owned by NSSD. EPA moved for consolidation on July 30, 1973,
and on September 7, 1973, Complainants filed a joint amended
Complaint specifically alleging that:
1. Respondents violated Section 9(a) of the Act by dis-
charging contaminants into the environment causing air pollution
from August 9, 1972, through September 7, 1973.
2. Respondents caused water pollution in violation of
Section 12(a) and (d) of the Act from August 31, 1972, through
September 7, 1973, by the discharge of contaminants into the
environment through pumping contaminated water and leachate
from the site into a nearby ditch running into Bull Creek.
11
—
15
—2—
3. Respondents violated Section 21(b) of the Act by
allowing open dumping from July 26, 1972 through September 7,
1973.
4. Respondents violated Section 21(e) of the Act in
that the permit issued to Engelhardt (July 7, 1972, Permit ~tl972-
48) contained conditions for operation which Respondents did not
comply with. This violation occurred from July 26, 1972 through
September 7, 1973, the day that this amended Complaint was filed.
Various rules of the Rules and Regulations For Refuse
Disposal Sites and Facilities (herinafter called Rules and
Regulations) were allegedly violated. Complainants also charged
that Respondents violated certain rules of Chapter Three: Water
Pollution Regulations of Illinois (hereinafter called Chapter
Three). Specifically, Complainants averred that:
5. Respondents violated Rule 3.04 of the Rules and
Regulations by allowing open dumping at the refuse disposal
site. This occurred from July 26, 1972 through September 7, 1973.
6. Respondents violated Rule 4.03(a) and (b) of the
Rules and Regulations from August 17, 1972 through September 7,
1973, by failing to post the opening and closing hours and days
of operation of the site and failed to adequately treat the roads
resulting in dust nuisance at the site.
7. Respondents violated Rule 5.07(a) of the Rules and
Regulations from July 26, 1972 through September 7, 1973 by
failing to satisfy the daily six-inch cover requirement.
8. Respondents violated Rule 5.12(c) of the Rules and
Regulations from January 10, 1973 through September 7, 1973 by
depositing refuse in standing water at the site.
9. Respondent Engelhardt violated Rule 404(a) of
Chapter Three from August 31, 1972 through September 7, 1973 by
causing or allowing effluent exceeding 3Omg/l of BOD5 to flow
into a drainage ditch tributary to Bull Creek.
10. Respondent Engelhardt violated Rule 405 of Chapter
Three from August 31, 1972 through September 7, 1973 by discharg-
ing effluent containing fecal coliforms exceeding 400/100 ml into
a drainage ditch tributary to Bull Creek.
In March, 1972 NSSD was required by a court order to
expand its facilities at the lake front site in Waukegan,
Illinois. Completion of a storm sewer retention reservoir was
ordered by June, 1973. NSSD contracted with Engelhardt, Inc.
in March, 1972 to remove about 230,000 cubic yards of material
from the Waukegan site so that the reservoir could be constructed.
11 —16
The Waukegan site had at one time been used as a refuse disposal
site for chemicals and articles of equipment of Abbott Laboratories,
a pharmaceutical company. Engelhardt had until the end of May,
1973, to remove the soil and construct the Waukegan storm retention
water reservoir.
Engelhardt, Inc. purchased a landfill site, the Zion site,
the subject of this Complaint, in May, 1972, to accept the 230,000
cubic yards from Waukegan. Respondent agreed at the time of purchase
to resell the site to the Waukegan Port District which planned to
expand its airport
——
already located across the street
——
onto
this landfill site. The District’s commitment to purchase was
contingent upon the completion of the Zion site landfill by June 1,
1973. Waukegan Port District agreed to pay Engelhardt half of his
purchase price, but not more than $50,000 for the Zion site.
Soon Engelhardt, Inc. encountered difficulties in getting a
permit from Lake County authorities to use the Zion site as a land-
fill. To avoid the time-consuming procedure of seeking a variance,
Engelhardt deeded the landfill to NSSD, which was not subject to
the same permit limitations imposed on private persons. This
transaction occurred in mid-July, 1972, with NSSD taking title
subject to the agreement entered into between Engelhardt, Inc.
and the Waukegan Port District. Work had already commenced at
the site by the end of June. In August, September, and October,
very heavy rainfalls hampered operations, creati~xgdelays and
resulting in many neighborhood complaints. Hauling from the
Waukegan site was completed in January, 1973, but water problems
have delayed site completion so that by the October, 1973, hear-
ings the landfill was still months away from compliance with the
approved plan, originally scheduled for June, 1973.
Hearings were held in Waukegan, Illinois on September 12,
October 10, and October 11, 1973. Witnesses called by Complainants
included employees of EPA and the Lake County Health Department.
Approximately six local residents also testified for Complainants.
Respondents had two principal witnesses, Mr. Cooper, a Super-
intendent for Engelhardt, Inc., and Mr. Lewis, attorney for
Respondents.
The testimony established that Respondents violated
Section 9(a) of the Act. Several times during summer and fall
of 1972, the site caused dust problems to neighbors (R—34, 141,
196, 211). Odor problems were pervasive on certain occasions;
the strongly medicinal smell still lingered through June, 1973
(R—l48, 178, 288, 194). Respondents violated Sections 12(a) and
(d) of the
Act
by pumping contaminated water off the site (R-122,
414, 415, 455, 477, 478). Leachate was photographed running off
of the site (R-233; Complainants Exhibit #21) and this was
supported by the testimony (R-133).
11 —17
Respondent Engelhardt violated special conditions #3
and #4 of its permit; therefore, Section 21(e) of the Act has
been breached. Although Engelhardt, Inc. submitted an initial
report satisfying special condition #1, no later quarterly
reports were made to the EPA to fulfill special condition #4
(R-ll3). Engelhardt did not seek permission to discharge leachate
from the site which violated special condition #3 (R—ll4). The
evidence fails to establish that standard condition #2 was violated
because Respondent’s contour design (EPA Exhibit #1) sets down
final contour requirements not yet implemented at the site.
Rule 4.03(a) and (b) bf. the Rules and Regulations was
violated by Respondents. Two witnesses testified that no sign,
specifying the opening and closing hours, existed at the site
(R-67, 224). Second, although Respondent Engelhardt had a tank
truck at the site to control the dust problem (R-4l3),the serious
nature of this nuisance was established by the evidence (R-34,
141, 196, 221).
Rule 5.07(a) was violated by Respondents because they
failed to apply six inches of cover at the end of daily operations.
The inspections of July 25 and July 26, 1972 reveal that no cover
had been applied (R—43)
.
No cover was observed on several
occasions in late summer and fall of 1972 (R-46, 47), This same
situation persisted in January, 1973 (R-3l6, 319) and later in
March (R—335; Complainants Exhibit #27); and even through the
summer months of 1973 (R—149). Respondent Engelhardt, Inc.
offered evidence that cover was always applied but that it had
a tendency to erode off of the slopes because of the heavy rains.
This necessitated recovering when Respondent became aware that the
fill was exposed (R—456). Respondent stated that he could think
of no occasion when daily cover was not applied (R-456). The
Complainants’ evidence refutes this claim.
The Respondents deposited refuse in standing water at
various times in January, 1973 in violation of Rule 5.12(c) of
the Rules and Regulations. Refuse was photographed being pushed
into the ice in January, 1973 (Complainants Exhibit #27; R-~325,
332, 333). Other violation dates are not established because it
is unclear whether rain ponded around deposited refuse or whether,
in fact, refuse was pushed into standing water.
Rule 404(a) of Chapter Three was violated by Engelhardt, Inc.
on September 14 (R—228), September 18 (R—243, 244) and on
October 2, 1972 (R—247). Rule 405 prescribing a limit of 400
fecal coliforms per 100 ml of water was violated on the same
three dates established for Rule 404(a) in the testimony.
We do not decide whether open dumping occurred in violation
of Section 21(b) of the Act and Rule 3.04 of the Rules and
Regulations because of the more specific allegations established
in this action.
NSSD has also violated the Act and Rules.
We have in the past dismissed parties from enforcement actions
where owners have neither controlled nor acquiesced in the illegal
11 —18
—5—
activity occurring at the site. Here, however, the purpose
of the title transfer to NSSD was to bypass the safeguards
of the public hearing process; therefore, NSSD clearly played
an active role in causing serious environmental problems to
develop at the Zion site.
The thrust of Respondents hearing defense is summarily
set forth in the brief filed November 15, 1973 with the Board.
At page 13 the Respondents state:
Under all the circumstances set forth, we respect-
fully submit that compliance with the Board’s
regulations has imposed an arbitrary and un-
reasonable hardship. on the Respondents who have
acted conscientiously, persistently and in good
faith, to comply, under adverse circumstances,
with the time limit imposed by the court order to
complete the project in question within the terms
of the permit issued by the Agency. For these reasons
we further respectfully submit that no penalty should
be assessed against th~Respondents.
The Respondents,in their answer to CBE filed with the Board on
July 31, l973,admitted that there have been technical violations
of the Rules and Regulations. Much of their testimony was directed
at methods to complete the job within the court ordered time—table
and handle the water problem which occurred on site. Four different
methods were explored by Respondent Engelhardt to remove the water
from the site. Initially it was pumped off the land (R—4l5)
until Lake County pointed out that the water was not suitable for
pumping from the property, In October, 1972 Respondent unsuccess-
fully tried to treat the water to purify it for discharge into
waterways (R-4l6)
.
In March, 1973 a sand and charcoal filter
technique was tried but the water could not be sufficiently purified
to allow it to be pumped from the site (R—4l8). Finally, in April
Engelhardt, Inc. sought to connect into the NSSD sewer system but
because of the sewer ban set down in League of Women Voters v.
NSSD #70—7, #70—12, 13, 14; 1 PCB 369 (March 31, 1971), NSSD could
not sign the permit. Respondent Engelhardt received a variance from
the Board on August 30, 1973 (PCB #73-272) and is now properly
disposing of the 5 million gallons of water ponded on the 13—acre
landfill site.
We are unable to agree with Respondents that these good
faith efforts to correct serious breaches of the Act and Rules,
which breaches had a significant deleterious impact on the
immediate community, is sufficient reason to mitigate the penalty.
Respondent Engelhardt partially imposed the problem upon himself.
Engelhardt, Inc. had until June 1973 to complete the project; no
facts were introduced to explain why all the material had to be
removed from the Waukegan site during the first half of the
contract period. We can certainly sympathize with Eng~’1hardt’5
11—19
—6—
predicament faced with rainfalls double seasonal norms which
occurred in August, September and October, but the evidence
presented is insufficient to convince us that the material
could not have been hauled in the spring.
Second, incidents occurring at the landfill not caused
by the heavy rains serve to aggravate the penalty. Respondent
admits that fencing was not complete when dumping began (R-402);
a permanent gate was not installed until much later. As a result,
neighborhood children entered the site and discovered
vials,
syringes, and broken bottles (R-l60—175). Many of these objects
were taken home and played with and later discovered by parents.
Workmen for Eng~lhardtgave the children permission to swim in
the ponded water on at least one occasion during the summer of
1972 (R-172, 182). Mr. Cooper, a general superintendent of
Engelhardt, admitted that he was not aware of any county ordinance
relating to landfills (R—473) and did not know about the rules and
regulations regarding landfills existed until he had been working
on the site for two months (R—483, 484).
Third, the testimony shows that Engelhardt, Inc. and NSSD
severely affected the quality of life during the summer of 1972
by their disruption of the environment. Neighborhood activities
were curtailed or canceled, and families were besieged by odor
and dust. Air-conditioning was not completely effective against
the problems, and for those without air—conditioning the situation
was worse. Property values have also dropped in the neighborhood
(R—l89), but presumably, higher values will return once the site
is completed.
For these reasons, mitigation is not called for in this
case; this is especially true as to Engelhardt, Inc. which
exclusively carried out the activities at the landfill.
This 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 cease and desist from all violations of
the Act and all rules as established under this Complaint. Progress
on the program of compliance shall be reported to the Environmental
Protection Agency on a monthly basis by Engelhardt. Total compliance
with the Act and applicable rules is to be achieved not later than
June 1, 1974.
2. Respondent NSSD pay a penalty of $1000.00 for its
violations of the Act and rules.
3. Respondent Engelhardt, Inc. pay a penalty of $7,500.00
for its violation of the Act and rules. Paymthit by each Respondent
11 —20
—7—
shall be by certified check or money order made payable to the
State of Illinois, Fiscal Services Division, Environmental
Protection Agency, 2200 Churchill Road, Springfield, Illinois 62706.
Payment shall be tendered by each Respondent within 30 days of the
adoption of this Order.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, certify that t~ieabove Opinion and Order was adopted by
the Board on the
c~4/~’\
day of
________________,
1974, by a vote
of ~
to ~
Qzbf~7.J4z~
Christan L. Moff~’