ILLINOIS POLLUTION CONTROL BOARD

December

 21, 1971

ENVIRONMENTAL PROTECTION AGENCY

v.

)

 PCB 71-298

CITY OF WAUKEGAN,

 a Municipal

Corporation; ZION STATE BANK

AND TRUST COMPANY,

 a Bank

)

chartered by the State of

Illinois; T-K CITY DISPOSAL

INC.,

 an Illinois Corporation;

TEWES COMPANY,

 INC.,

 an liii-

nois Corporation

Lee Campbell, appearing on behalf of

 the Environmental Protection

Agency

Murray Conzelman, appearing on behalf

 of the City of Waukegan

John Sloan,

 appearing on

behalf of T-K Disposal Inc.

 and Tewes

Company,

 Inc.

Donald Lindquist, appearing on behalf of the Zion Bank and Trust

Company

OPINION OF THE BOARD

 (by Mr.

 Kissel):

On October

1,

 1971,

 the Environmental Protection Agency

(the “Agency”)

 filed a complaint with the Board alleging that on

certain dates

 in June of 1971 the City of Waukegan, T-K Disposal,

Inc., and Tewes Company,

 Inc. operated

 a landfill site

 in the

City of Waukegan,

 contrary to the Environmental Protection Act

and the Rules and Regulations promulgated thereunder.

 Specifically,

Waukegan and

 the Zion Bank were accused of operating the site

 without first obtaining

 the permit required by Section

 21(e)

of

the Act,

 of causing or allowing open dumping

 as prohibited by

 21(b)

of the Act, Rule

 3.04 of the Rules and Regulations

 for Refuse Dis-

posal

 Sites

 and Facilities

 (the “Refuse Rules”),

 and Section 471

of the Refuse Disposal Sites

 and Facilities Act,

 of failing to

adequately spread and compact the refuse and apply daily cover

as

required by

 Rules

 5.06 and 5.07(a)

of

the

Refuse Rules,

 of not

providing fencing,

 access and sanitary facilities

as

required by

3

301

Rule 5.02 of the Refuse Rules, and of creating a water pollution

hazard contrary to Section 12(d) of the Act by the improper de-

positing of contaminants on the land near water, and T—K Disposal

and Tewes are accused of having deposited refuse on the site in

violation of Section

 21(f) of the Act.

 The Agency asked that

Waukegan and the Zion Bank be required to apply for an operating

permit for the site and properly close the site.

 In addition,

the Agency requested that an order be entered by the Board direct-

ing all respondents to cease and desist from further violation of

the Act and applicable regulations, and that money penalties be

 assessed against each of the respondents.

 In response, the City

of Waukegan, Tewes and T-K Disposal filed “special and limited”

appearances and moved to dismiss the complaint on various grounds

which challenged the jurisdiction of the Board.

 A hearing was

held on the complaint of November 23,

 1971 before Michael Berkman,

Hearing Officer.

Before discussing the events of the case, we must first turn

to a consideration of the motions to dismiss filed by Waukegan and

Tewes.

~J

 The three grounds of Waukegan’s motion to dismiss will

be dealt with separately:

(1)

 That Section 42 of the Act permits actions only be

filed in the name of the People of the State of Illinois and

brought only by

 the State’s Attorney or the Attorney General,

and thus, the action brought here in the name of the Environmental

Protection Agency was improper.

 We disagree.

 The action brought

in this case is indeed permittea by Section 31(a) of the Act

which not only gives the Agency authority to file a complaint,

as it did in this case, but requires it to do so when its inves-

tigation discloses that “a violation

of

 the Act or the Rules

and Regulations) may exist”,

 Section 103(a), Chapter 111-1/2,

Ill.

 Rev.

 Stat.

 In addition, in this case one of Waukegan’s

objections is moot because the Attorney General did prosecute the

case.

(2)

 Section 33(b) of the Act is unconstitutional insofar

 as it permits the Board to impose money penalties, and therefore

confers judicial power

upon

an administrative

body.

 We have dealt

with .this argument on other occasions and particularly in the case

of EPA

 Modern Plating Corp. ,PCB 70-38, May 3,

 1971;

 see par-

ticularily pages

3-13.

 We adopt the reasoning in that case here that

1)

 For purposes of brevity and clarity, the use of the word

“Tewes” will mean both Tewes and T—K Disposal, unless otherwise

indicated.

3— 3fl~

Illinois has long recognized

 the right of the legislature to confer

quasi—judicial power, including the power to impose money penalties,

on administrative agencies.

As

 the Modern Plating opinion pointed

out,

 the granting of these powers is not novel, but “What is novel

is that an argument against such authority can still be heard today”,

supra, page

4.

(3)

 The Board does not have the power to enter a cease and desist

order since the complaint did not allege a continuing violation

of

the Act or the Rules, or the lack of an adequate remedy at law.

This argument has even less merit than does the other point

made

by Waukegan.

 The Board has th~power to impose cease and desist

 orders under Section 33(b)

 of the Act; and may enter such orders

as it deems necessary under the Act to stop violations of the law

or the regulations.

 In this case, there could be a continuing

violation of the law if the City failed to properly cover the

landfill as required or

 if the City failed to get the required

permit,

 and this was alleged as

 a violation.

 Whether a cease and

desist order will be entered by the Board, however, is to be deter-

mined by the facts of ihe case obtained after hearing, and it is

not a proper issue to be raised before the hearing in a motion

to

dismiss.

 For these reasons we believe that the motion to dismiss

should be denied.

 Tewes also filed a motion to dismiss on similar

grounds and that should be denied as well.

 Waukegan, T-K Disposal,

and Tewes are subject to the jurisdiction of this Board,

 and if

the evidence warrants it, can have penalties and a cease and desist

order entered against them by the Board.

One other procedural

 point.

 Waukegan and Tewes filed a jury

demand in this case, apparently contending that they are entitled

to a jury trial in any complaint seeking penalties under the Act.

We have previously dealt with this matter of the right to trial by

jury in EPA v. Modern Plating Corp., supra, and we adopt that opinion

here.

 Generally, in administrative matters, the Illinois Courts

have, held constitutional the imposition of penalties by administra-

 tive ~gencies without a trial by jury.

 See People v.

 Crawford,

80

 Ills

 App.

 2d 237,

 255 NE

 2d 80

 (1967) and Department of Finance

v.

 Cohen.1

 369 111.510,

 17 NE 2d 327

 (1938).

 The demand for a jury

trial by ‘Waukegan and Tewes will, therefore, be denied.

Now to the events of the case.

 Each year the City of Waukegan

sponsors

 a program called the “Spring Clean Up Week”.

 The citizens

of the town are encouraged to dispose of solid refuse of varying

kinds

 (but not garbage) and the City picks up the refuse for de-

positing at a disposal site.

 In 1971,

 “Spring. Clean Up Week” ran

from June 14 through June 18.

 Waukegan hired Tewes

 to handle the

wastes collected during the week and also made arrangements with the

owner of the property located northeast of the intersection of But-

rick Road and Wilson Avenue and south of Blanchard Road in Waukegan

3

303

to dump the refuse on that property.

 This kind of arrangement was

typical of other years during the

 “Spring Clean Up”.

Before discussing the specific violations alleged by the

Agency, we should first deal with the matter of the liability of

the Zion Bank,

 The testimony showed that the Zion Bank merely

held this property as

 a trustee in a land trust.

 The Bank did

not receive any benefits’ of ownership of the property, and merely

held the

title

from the beneficiaries of the

 trust.

 This

 kind

of ownership, without involvement in the management of the property

itself,

 is not enough to impose liability in the Zion Bank.

 There

was no proof that the bank made substantial decisions about the

use of the property.

 We,therefore, relieve the Zion Bank of any

responsibility for the use of the site.

 By this decision we are

not saying that the trustees of land trusts will be automatically

released from responsibility, but we are saying that no proof

existed that this trustee,

 the Zion Bank, participated in,

 or had

anything to do with, decisions concerning the use of the property.

The first allegation made by the Agency is that Waukegan and

the Zion Bank failed to get a permit as required by Section 21(e)

of the Act.

 Since we have relieved the Zion

Bank

from any respon-

sibility, we will only consider whether Waukegan should have gotten

a permit.

 Section

 21(e)

 of the Act provides that:

“No person shall:

(e)

 Conduct any refuse—collection or refuse-disposal

operations, except for refuse generated by the

operator’s own activities, without a permit granted

by the Agency upon such conditions, including

periodic reports and full access to adequate records

 and the inspection of facilities, as may be necessary

to assure compliance with this Act and with regula-

tions adopted thereunder,

The Agency proved that Waukegan did not apply

 for, or receive, a

permit from the Agency as required by the above quoted Section of

the Act.

 Waukegan either knew, or should have known, that a permit

was necessary before it could operate a refuse disposal site.

The

Section is clear in stating the obligation of the City to get a

permit.

 Since it didn’t,

 it violated the Act.

 it is clear that

the exception pertaining

 to refuse “generated by the operator’s ac-

tivities” does not apply to the facts of the case.

 The refuse

deposited at the site in this case was generated by the residents

of Waukegan and not by the activities of the City in performing its

daily affairs.

 Simply put, Waukegan violated Section 21(e)

 of the

3

304

Act in failing to apply for and receive a permit before operating

the refuse disposal site described herein.

Violations of many of the Refuse Rules were also proved.

The

uncontradicted testimony was that there was no fencing of the site

(96,

 161)

 as required by Rule 4.03(a)

 of the Refuse Rules, and there

were no sanitary facilities

 (98,

 161,

 213) and shelter

 (97, 161,

 213)

as required by Rule 4.03(c)

 of the Refuse Rules.

 ~Obviously,Waukegan

regarded this

 as a “temporary” refuse facility, but even so, it

must have complied with the Act and the Refuse Rules as stated.

It

didn’t.

In addition to the violations detailed above, Waukegan was

also accused of open dumping of refuse,

 failure to compact the refuse,

failure to confine the dumped refuse to the “smallest practicable

area,

 and failure to adequately cover the refuse after it was dumped.

Each of the violations were proved on certain dates between June 14

and June 18, 1971.

 Open dumping by Waukegan trucks was demonstrated

by the uncontradicted testimony of three witnesses on each of the

days in question.

 The witnesses testified to actually seeing the

trucks, marked with the name of the City of Waukegan, dumping refuse

on the site,

 and coupled with the evidence outlined below concerning

the failure to cover the refuse,

 the proof of open dumping couldn’t

be clearer.

 It is certainly true that to prove “open dumping” as

described in the Refuse Regulations, one must show that not only was

there dumping in the open on an unapproved site, but that the

material was not properly covered

 as required by the Refuse Rules.

One witness testified that the equipment (bulldozer) on the

site was doing nothing more than packing the refuse around to make

a clearer way for the incoming dumping trucks.

 Another said that

the area of dumping was too large and was therefore uncontrollable.

It is difficult from the testimony to say that Waukegan used these

“bad practices” every day, but we can say that from the evidence

the site was not being operated as

 it should have been.

The witnesses attempted to say that Waukegan did not provide

adequate cover on the refuse as required by Rule 5.07(a) which re-

quires a daily cover of at least six inches of material on the

refuse.

 But as the attorney for Waukeganpointed out, none of the

witnesses were at the site at the end of the day to definitely

prove that adequate cover was not used.

 The testimony of the witnes-

ses generally

 is that they observed the same refuse from one day

to the next which to them demonstrated that adequate cover had not

been properly applied.

 We agree, but we can only find violations

on June

 18 and 19 when the same refuse was actually found by the

witnesses on the next day.

 It would be eminently more convincing

i~more photos had been taken of the actual refuse site to prove

that cover had not been applied.

—

305

We

now turn to the question of liability of Tewes and T—K

Disposal.

 Tewes and T-K Disposal are only alleged to be guilty

of open dumping in violation of Section

 21(f)

of

the Act.

 Neither

company had

the

responsibility of doing anything with the site

itself.

 They merely contracted to bring the refuse

to

the site

and deposit it.

 From the testimony,

 they did their job well.

They were seen dumping refuse on June

15

 (Tewes and T—K Disposal),

June 16

 (Tewes), and June

17

 (Tewes and T-K Disposal).

 No permit

was required of Tewes or T-K Disposal to dump refuse on the site,

and therefore the question

is whether

they

should be held respon-

sible

for depositing refuse on a site apparently authorized

 for dump-

ing

by the City of Waukegan.

 We think they should be held to the

responsibility of inquiring

 as, to whether a permit has been issued

for the

 site and therefore whether it is a proper place

 for the

disposal of refuse.

 To hold otherwise would allow collusion

between cities and dumpers,

 allowing those who do the dumping to

walk away with ignorance and say

 “I didn’t know I couldn’t dump

there.”

 Open dumping is

 a serious environmental problem like

open burning.

 Both are

the

 grossest of violations and those who

are involved in conducting them must be held to accept the con-

sequences.

 To require that Tewes

 or P—K Disposal inquire about

the site in advance

 is not an unreasonable burden~. Apparently,

both companies are in the business of hauling refuse and have done

so many times

 in the past.

 These are not people unfamiliar with

the laws of open dumping,

 so to allow

them

 to go free in this case

would give carte blanche to all haulers of refuse in the state to

dump anywhere they wish and say

 “I didn’t know.”

 Furthermore,

the Agency telephoned T-K Disposal on June 15,

 1971,

 and advised

them that continued use of the site would violate Section 21(f)

of the Act.

 This telephone call was confirmed by a letter sent

to Mr. Tewes of P-K Disposal on June

16,

 1971.

 See complainant’s

Exhibit

8.

 In fact,

 then, Tewes knew that further use of the site

could subject him to an action before the Board.

 He took the risk

and lost.

This opinion constitutes the findings of fact and conclusions

of law of the Board.

3—

306

ORDER

Based upon the evidence and exhibits

 in the record,

the

Board hereby orders the following:

1.

 Waukegan shall pay

 a money penalty to the State

of Illinois in the amount of $1,000 for its failure

to obtain

 a permit, failure

 to provide fencing

around

the

site,

failure

post

proper

sign,

failure

 to provide shelter,

 failure to compact

refuse, open dumping, failure

 to confine the

refuse to the smallest practicable area,

and

failure

adequately

cover

the

refuse

after

was dumped, all in violation of the Act and the

Regulations

described

the

Waukegan.~shal.l

not

operate

the

refuse

disposal

site

described

this

opinion

without

first

applying

fo~

permit

required

the

Act.

3.

 Tewes and

P-K

Disposal

shall

each

pay

money

penalty

the

State

Illinois

$250

for

the dumping of refuse as described in the opinion.

Mr.

Dumelle

will

submit

Supplemental

Statement.

Christan

Moffett,

Acting

Clerk

the

Polluti,on

Control

Board,

certify

that

the

Board

adopted

the

above

Opinion

and

Order

this

21st

day

December,

1971

vote

4-0.

3—

307