ILLINOIS POLLUTION CONTROL BOARD
November 79,
1973
ENVIRONMENTAL PROTECTION AGENCY
)
vs.
)
PCB 72—17
ROY FRIETSCH
OPINION AND ORDER OF THE BOARD
(by Dr. Odell)
The Environmental Protection Agency (hereinafter called
EPA)
filed a Complaint on January 13,
1972,
against Roy Frietsch
of Peoria,
Illinois, alleging violations
of the Environmental
Protection Act (hereinafter called Act) and numerous violations
of Rules and Regulations for Refuse Disposal Sites and Facilities
(hereinafter called Rules and Regulations).
The Complaint
charged that Respondent caused or allowed open dumping at his
refuse disposal site,
located adjacent to Highway
24 and one mile
south of Bartonville,
Illinois,
in violation of Sections
21(b)
and
(f)
of the Act and in violation of Rule 3.04 of the Rules and
Regulations.
Eight dates were specified in the Complaint.
These
dates covered a one-year period from September 17, 1970,
to
September 28,
1971.
The Complaint further charged
that the
Respondent owned and operated this site without having obtained
a permit from the EPA for the operation thereof in violation of
Section 21(e)
of the Act.
Finally,
the Complaint alleged that
the Respondent on the above cited eight dates
unloaded refuse
without supervision, had insufficient equipment in operation at
the site to properly operate the landfill,
failed to comply with
the daily spreading and compacting procedures, insufficiently
covered the refuse both as to depth and frequency,
and permitted
scavenging operations and deposition of refuse into standing
water, all in violation of Rules 5.04,
5.05,
5.06,
5.07 and 5.12
(a)
and
(c)
of the Rules and Regulations.
On January 31,
1972,
the Complaint was amended to indicate
that the violations set out in the original Complaint were
continuing violations,
The Hearing was scheduled for December 4,
1972,
but Respondent was granted
a continuance.
On April
5,
1973
the
EPA
moved
to amend the Complaint by the addition of ten
specific dates from April 17,
1972,
through March 30,
1973.
The
motion
to
amend alleged that the Respondent violated Sections
21
(h)
and
(f)
of
the Act and Rules
3.04,
5.04,
5.05,
5.06,
5.07 and
5.12(a)
and
(c)
of the Rules and Regulations
on
those dates in
the same mannsr
as
set forth
in
the
original Complaint.
£4otion
10
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135
—2—
to strike these supplementary dates was filed on April
11,
1973.
The Hearing was held on April
13,
1973,
and completed on June
20,
1973.
Respondent was represented by counsel, Mr. Garth
At the Hearing the Respondent admitted that he owned the
site and had been dumping refuse there for three years
(R—240,
248)
and only received a permit on June 13,
1973
(R-254).
He
acknowledged that during the time that he had been dumping refuse
into
“Mud Lake” the shape of the lake had been changed
(R-244).
He admitted that the dumping has been carried on without on-site
supervision
(R-309)
and that refuse had sometimes not been com-
pacted on
a daily basis
(R-3l2).
Furthermore, when cover was
applied,
it
was
not
always
done according to the specifications
demanded under the Rules and Regulations
(R-358).
Respondent
also admitted having received notice from the State of Illinois
or its agencies that he was violating the
law, but he added that
the EPA had never told him to stop
(R-253).
The unrefuted evidence presented by the Complainant showed
that on September 17,
1970,
refuse was in the water along the
eastern face of the dump
(R—l77,
178).
On April
22,
1971,
refuse was found lying in
“Mud
Lake”
along the 400—foot face of
the dump.
No cover material was observed near the face where
the refuse was in the water
(R—73).
On July 20 and July 29,
1971,
another inspection was made of the dump.
No
supervision
was seen on either day (R-lOl).
The uncontradicted evidence
further showed that
a
truck
bearing the name of “Frietsch” was
seen dumping at the site on July 29,
1971.
Photographs were
taken on these two days
(Complainant’s Group Exhibit
8).
The
photographs
show refuse in
“Mud
Lake11.
A comparison of these
photographs also shows that spreading, compacting,
and covering
of this refuse did not occur between the July
20 and July 29
interval.
Next, the evidence showed that on August 30 and
August 31,
1971,
refuse
was
in the water along the 400-foot face
of the dump
(R52-26).
This evidence was not challenged.
No
cover material was applied
to
the
refuse existing proximate to
“Mud
Lake”.
The
photographs
taken
on
these
two
dates
(Complainant’s
Group
Exhibit
3) point out that spreading, com-
pacting, and covering did not occur during the evening of August
30,
1971.
The September 28, 1971, inspection revealed that no
cover had been applied to much of the face last observed as un-
covered on July 29, 1971
(R-l14).
The face was observed to have
extended farther eastward into “Mud Lake”, and refuse was still
lying
in
the
water
in
the
same manner in which it had existed on
previous visits (R-1l5).
Photographic evidence was introduced
(Complainant’s Group Exhibit
13)
for January 27 and 28, 1972.
The
photographs established that refuse, uncovered, was lying in the
water.
This existed along the entire length of the face
(R—l23).
No cover had been applied since the previous visit of January 31,
10—136
—3—
1972
(R-123).
Photographs (Complainant’s Group Exhibit
16)
entered into evidence for April
17,
1972,
show refuse lying in
the water.
Dumping was also seen on this date
(R-l88).
Photographs
(Complainant’s Group Exhibit
17) taken June
2,
1972,
show trucks bearing the name of
“Frietsch” dumping refuse at the
site.
~ctual dumping was observed on November 27 and November
28, 1972
(R-202,
203).
Photographs taken on November 27
(Complainant’s Group Exhibit
20)
show refuse lying uncovered
in the water, along the
-face of
“Mud Lake”.
The material is
uncovered and uncompacted,
as observed on previous occasions.
Testimony was also introduced that the Respondent permitted
scavenging on the premises (R—30l).
Respondent’s defense focused primarily on the fact that
the continued filling of
“Mud Lake” would be beneficial to the
community
(R—284,
341,
353).
We conclude that the Respondent violated Sections 21(b)
(e) and
(f)
of the Act and Rules
5.04,
5.06,
5.07,
and 5.12(a)
and
(c)
of the Rules and Regulations.
First, although the Rules and Regulations violated in this
Complaint have now been superceded by Chapter
Seven:
Solid
Waste
Regulations of the Pollution Control Board, Respondent’s
libability
is to be adjuged under the rules in effect at the time of the
violation.
Rule
102
of Chapter Seven makes clear that any pro-
ceeding which arises prior to the effective implementation date
of Chapter Seven is to be governed by the Rules and Regulations.
The implementation date of the Rules under Chapter Seven
is July 27,
1973.
All violations under this Complaint occurred prior to this
date.
Second,
Respondent objected to EPA’s amending the
Complaint
by
the
addition
of ten more violation dates on April
5,
1973,
eight
days
before
the
Hearing
was
actually
held.
Essentially, Respondent~sargument is that the filing of the
amended Complaint does not comport with the due process standard
of fairness, which demands that a party be given sufficient
notice to prepare a defense.
tJnder Procedural Rule
327,
a
continuance can be granted to avoid undue surprise.
The
Hearing
Officer offered to grant the Respondent a continuance as to the
additional dates if he wanted one
(R-7).
The Respondent stated
that he did not need a continuance but was in fact ready to
defend on those dates
(R-7).
We therefore rule that the
Respondent waived any due process objection as to those dates
presented in the amended complaint of April
5,
1973.
Third, we believe that Respondent did not violate Rule
5.05.
Rule 5.05 is violated when evidence establishes that
insufficient equipment is at the site to permit operation of the
10—137
—4—
site according to the approved plan.
Lack of an approved plan
does not violate
this Rule;
rather,
this Rule is violated when
the equipment does not measure up to the approved plan.
Since
no approved plan existed, we feel
it was incumbent upon the EPA
to submit evidence to establish the usual equipment requirements
for a landfill of this type and size.
The result of its failure
to do this means that the Board has no yardstick by which to
determine whether the equipment at the site was adequate. For
these
reasons,
we conclude that the EPA has not established that
Rule 5.05 has been violated.
Fourth, open dumping is
a catchall term that embraces a
number of specific infractions alleged elsewhere in the complaint.
In light of our findings on these more specific counts,
we find
it
unnecessary
to decide whether Section 3.04 of the Rules and
Regulations
has
been
violated
here.
See
EPA
vs. Clay Products Co.
#71—41,
2
PCB
33
(June
23,
1971).
In assessing a penalty in this case,
the Board
focuses
particularly on four factors.
First,
the Respondent knowingly
violated
the
law
over
a protracted period of time.
Respondent’s
knowledge
antedated
by
eighteen
months certain violations
established
under
the Act and Rules and Regulations.
There is no
evidence in the record to show compliance with the Act and Rules
and Regulations by the time of the
April
13th
hearing.
On the
contrary,
a statement made by Mr. Frietsch that “They told me it
was wrong but they didn’t tell me to stop”
shows a narrow and
myopic understanding of his duties under the law.
This conscious
disregard for the law is an important factor in assessing a
penalty.
See EPA vs. Quincy Park District #72-99;
5 PCB 213,
214
(August 22,
1972).
Second, operating without
a permit is a serious
violation of the Act.
Section 21(e)
makes
a permit mandatory.
An
individual who operates without a permit penalizes those who do
comply with the Act as well as those who make good faith efforts
to follow the
law.
Third,
the amount of impact on the environ-
ment can soften or aggravate the penalty.
The amount of harm done
is not to be correlated with the penalty, because the behavior
proscribed under the Act is not contingent upon the damage caused
the environment.
In this case, minimal environmental impact was
shown and this calls for some mitigation.
See Freeman Coal Company
vs. EPA #71-78,
2 PCB 709, 711 (October 28,
1971).
Fourth,
failure
to get a permit and to carry out the other provisions of the Act
and Rules and Regulations should not dedound to the economic benefit
of the Respondent.
To not consider the advantage that the offender
has gained through avoidance of the law would allow the Respondent
to profit by his own wrongdoing.
Expenses saved,
the volume of
dumping and its duration, and the overall economic viability of the
Respondent must be considered
in assessing a penalty.
This opinion constitutes the findings of fact and conclusions
of law of the Board.
10—
138
—5—
ORDER
It is the Order of the Pollution Control Board that:
(1)
Respondent cease and desist from violating those
provisions
of the Act and Rules and Regulations as established
under this Opinion.
(2)
Respondent file a compliance program with the EPA
within
90 days of the adoption of this Order.
If Respondent
cannot complete his program of compliance by July
1,
1974, he
should file a petition for variance with the Agency under
Section
37 of the Act at the appropriate time.
(3)
Respondent shall pay a penalty of $2,500 for the
violations of the Act and Rules and Regulations as described
in this Opinion.
Payment 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 within
90 days of the adoption of this Order.
I, Christan L. Moffet, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on4the
.~“1
day of
~,
,
1973, by
a
voteof
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