ILLINOIS POLLUTION CONTROL BOARD
March 21, 1974
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
-
)
PCB73—2
OSCAR E. DENNY, d/b/a D. and S. LANDFILL,)
F~spondent.
Thomas Cengel, attorney for Complainant.
Samuel Possin, attorney for Respondent.
OPINION AND ORDER OF THE BOARD (by Dr. Odell)
The Environmental Protection Agency (EPA) filed its
Complaint against the Respondent on January 2, 1973. An
amended Complaint was filed March 26, 1973, and a second
amended Complaint was filed January 8, 1974. The Respondent,
Oscar E. Denny, operated a sanitary landfill until May 1, 1973,
at the Northwest ¼ of Section 31, Township 1 North, Range 8
West in St. Clair County, Illinois.
The EPA alleged in its second amended Complaint that:
1. From December 2, 1971, until January 8, 1974
-—
including certain specified dates
--
Respondent caused or allowed
open burning of refuse in violation of Section 9(c) of the
Environmental Protection Act (Act) and Rules 3.05 and 5.12(d) of
the Rules and Regulations for Refuse Disposal Sites and Facilities
(Rules and Regulations).
2. From April 18, 1972, until May 1, 1973
--
including
certain named dates
-—
Respondent caused or allowed open burning
of refuse in disregard for Section 21(b) of the Act and Rule 3.04
of the Rules and Regulations.
3. From April 18, 1972, until ~4ay1, 1973
—~
including
certain designated dates
--
Respondent failed to confine the
dumping of refuse to the smallest practical area and thus breached
Rule 5.03 of the Rules and Regulations.
4. From April 18, 1972, until May 1, 1973
——
including
certain identified dates
——
Respondent failed to spread and
compact refuse as rapidly as it was admitted to the site in
violation of Rule 5.06 of the Rules and Regulations.
—2—
5. From September 29, 1971, until May 1, 1973
--
including certain specified dates
—-
Respondent failed to
satisfy the six-inch daily cover requirement of Rule 5.07(a)
of the Rules and Regulations.
6. From December 2, 1971, until January 8, 1974,
——
including certain dates referred to
—-
Respondent deposited
refuse in standing water in violation of Rule 5.12(c) of the
Rules and Regulations.
7. From March 16, 1972, until May 1, 1973
——
including
certain designated dates
--
Respondent failed to carry out
salvage operations in a sanitary manner and failed to remove
salvaged materials daily, offending Rule 5.10(a) and (d) of
the Rules and Regulations.
8. Within six months of the closing of its site,
Respondent failed to apply a compacted layer of two feet of
final cover as required by Rule 5.07(b) of the Rules and
Regulations.
9. Respondent was the subject of a previous enforcement
action, i.e. Environmental Protection Agency v. Oscar E. Denny
d/b/a D. and S. Landfill #71—32; 2 PCB 331 (August 30, 1971).
Respondent has failed to comply with various parts of Point 1 of
the Order. Respondent has not ceased and desisted from open
burning, has not carried out immediate refuse compaction, has
not covered refuse daily, has failed to implement sanitary
salvaging operations, and has deposited refuse into standing
water.
The hearing took place on January 29, 1974, in Belleville,
Illinois. Respondent only called one witness.
Respondent made an objection to testimony offered by
witnesses who used notes to refresh their recollection before
testifying. We uphold the Hearing Officer’s ruling that the
testimony was properly admissible. The rule is that a witness
can use any object
—-
including a note
-—
to jog or refresh his
memory in order to facilitate his own independent recollection
of the events. In this case, the notes were used to revive
memory; they were not used as a substitute for first—hand
recollection.
The EPA’s evidence established that Respondent Denny
violated Section 9(c) of the Act; and Rules 5.06, 5.07(a), and 5.12
(c) and (d). Respondent also violated the Board’s Order of
~ugust 30, 1971.
Section 9(c) of the Act and Rule 5.12(d) were violated
on two dates, June 2 and 5, 1972 (Comp. Ex. 5, Photographs A and
B)
.
Respondent’s son, who ran the site when Oscar Denny was not
available (R-l94)
,
also admitted that he was aware of the fires
at the landfill (R-llO).
11
—t~22
—3—
Rule 5.06 (immediate refuse compaction) was violated
by Respondent on numerous occasions over an extended period.
Refuse was uncompacted from April 18, 1972, to April 26, 1972
(R-60; Comp. Ex. 4, Photographs A and B, G and H, and N, P,
and Q)
.
Refuse remained uncompressed from June 2 to June 5,
1972, (Comp. Ex. 5, Photographs C, D, E, F, G, and H)
.
Some
of the same refuse had not been condensed by July 13, 1972 (Comp.
Ex. 7, Photograph G). Some of this refuse (Comp. Ex. 5,
Photograph C and D) still remained uncompacted on April 9, 1973
(Comp. Ex. 3, Photograph I).
Rule 5.07(a) was repeatedly breached. Material uncovered
on March 16, 1972 CR—SO) was still visible on April 10, 1973
(Comp. Ex. 3, Photograph H). Other refuse, unconcealed on April
18, 1972, was still above ground on April 26, 1972 (Comp. Ex. 4,
Photograph J, L, and M). Material seen on June 2, 1972, was
still not buried on June 5, 1972 (Comp. Ex. 5, Photograph E, F,
C, and H). Refuse observed on August 9 and 10 had still not
been covered by October 4 and 5, 1972 (R-ll9, Comp. Ex. 8,
Photographs E and F). Art Denny, son of Oscar Denny, admitted
on February 21, 1973, that the operation was several weeks behind
in covering the material brought onto the site (R-140)
Rule 5.12(c) was broken on August 10, 1972, when the EPA
observed a truck dumping refuse into water ponded on the site
(R—l14)
Respondent violated the Board’s cease and desist Order
of August 30, 1971, in that subsequent to the Order open burn-
ing occurred at the site, refuse was not compacted as fast as
admitted to the site, daily cover was not applied, and refuse
was deposited into standing water.
We find that the EPA has not established violations of
Section 21(b) of the Act, and Rules 3.04, 3.05, 5.03, 5.07(b),
and 5.10(a) and (d) or that point of the Board’s Order prohibiting
scavenging. Section 21(b) of the Act is violated when open
dumping occurs in contravention of the regulations. Although
Rule 3.04 of the Rules and Regulations prohibits opening dumping,
this Rule is not applicable if the facility is a sanitary land-
fill. Rule 5.11 permits open dumping for non-putrescible waste;
therefore, no violation of 3.04 has occurred. Rule 3.05 prohibits
open burning. Since we have already ruled that open burning
occurred in violation of Rule 5.12(d), we hold that Rule 3.05 is
not relevant to the sanitary landfill here in issue. Sufficient
evidence was not introduced to establish a violation of 5.03.
Although EPA introduced evidence of the areas of the landfill
being used, failure to supply guidelines on the issue of
practicability means that no violation has been proved. EPA
characterized the collection of certain refuse as a salvage
operation and alleged that Respondent did not carry out the
operations in compliance with Rule 5.10(a) and (d). Respondent
indicated that the material was not collected for salvage
Durposes and was, in fact, later buried (R225-6)
.
The testimony
11—623
—4—
is in conflict; based on Respondent’s statement that the
material was put underground and not meant to be salvage,
the evidence is insufficient to find a violation of Rule 5.10(a)
and (d). Rule 5.07(b) is violated if final cover is not applied
within 6 months of final placement of refuse. The landfill closed
on May 1, 1973 (R-7). The six—month timetable of Rule 5.07(b)
means that a violation could not have occurred until November 1,
1973. Rule 5.07(b) of the Rules and Regulations was superceded
by Rule 3.05(c) of Chapter Seven: Solid Wastes on July 27, 1973.
Therefore, no violation occurred of 5.07(b). Since Rule 3.05(c)
of Chapter Seven was not mentioned in the Complaint, we cannot
hold Respondent in violation of the final cover requirement.
Testimony offered by Respondent focused on mitigation.
Respondent often had equipment troubles at the site (R—l96, 240).
Respondent Oscar Denny had a heart attack in December, 1971 (R-
238) and has been under a doctor’s care for several years (R—2l7)
Oscar Denny is fifty-one years old and has distinct financial
difficultues. No evidence was offered as to the fair market
value of the landfill. Some evidence was offered that Oscar
Denny owes his son, Art, $65,000, as proper compensation for
services performed at the landfill since 1968 (Comp. Ex. 10).
Excluding the debt to the son and appraising the fair market
value of the landfill at zero, Oscar Denny’s assets are $28,000
greater than his other liabilities.
It does not appear that Respondent’s activity had a sub-
stantial impact on the environment. No garbage has been dumped
at the site. There is no vermin prQblem at the site (R-2l7).
There is no problem of leachate at the facility (R-94). Attempts
have been made since May 1, 1973, to apply final cover but most
refuse has not been covered (R—l69).
Although Respondent’s violations have been long—continuing,
the fact that the landfill operation is now closed argues against
a severe penalty. The main function of the Board is to achieve
compliance with the Act and Rules; the Board’s penalty powers
only serve as a means to this end. In its closing argument, EPA
prayed for the imposition of a penalty. Then it stated (R-259):
“The more important question is the question of what
is to happen to the site. It was closed May 1, 1973.
.
we ask that the Board require that Respondent Oscar
Denny completely cover that site with at least two
feet of cover material within sixty days after the
issuance of the Board’s order.”
We agree with this approach suggested by EPA. Based on the facts
and circumstances of this case, a severe penalty would not be
appropriate. This constitutes the findings of fact and con-
clusions of law of the Board.
11 —624
—5—
ORDER
IT IS THE ORDER of the Pollution Control Board that:
1. Respondent apply two feet of final cover material
on those portions of the landfill not already overspread with
final cover. Final cover activities must be completed within
120
days of the adoption of this Order. Within 30 days of the
adoption of this Order, Respondent must post a performance bond
of $5,000, in a form satisfactory to EPA, to assure compliance
with this final cover Order.
2. Respondent pay a penalty of $200 for its violation
of the Act and Rules and Regulations. 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. Pay-
ment must be tendered by Respondent within 35 days of the
adoption of this Order.
I, Christan L. Nloffett, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the ~~~lday of
/y)g...L.~,
,
1974,
by a vote of
____
to 0
Christan L. Moffe~~1erk
11—625