ILLINOIS POLLUTION CONTROL BOARD
January
3,
1974
ENVIRONMENTAL PROTECTION AGENCY
v.
)
PCB 72—485
MILAN CORPORATION
MILAN CORPORATION EAST
)
Delbert Haschemeyer, Assistant Attorney General for
the EPA
Thomas A.
Lechien,
attorney for Respondent Milam
Hillary H. Hallett and Keith Fitzgerald, attorneys
for Respondent
Milain East
OPINION AND
ORDER
OF THE BOARD
(by Dr. Odell)
The Environmental Protection Agency (hereinafter called
EPA)
filed a Complaint on December 11,
1972, against Milam
Corporation (hereinafter called Milam)
alleging violations of
the Environmental Protection Act (hereinafter called Act)
and
numerous violations of the Rules and Regulations for Refuse
Disposal Sites and Facilities
(hereinafter called Rules and
Regulations).
The landfill is located in the Southwest 3/4 of
the Northwest
¼
of Section
5, Township 2 North, Range
9 West,
in the County of St. Clair, State of Illinois.
The Complaint
charged Respondent Milam with violating Sections 21 (a),
(b)
and
(e)
of the Act, which prohibit open dumping of garbage, open dump-
ing of refuse, and operating without a permit.
Section 21(e)
the permit violation, was a continuing offence; whereas, thirteen
named dates from July 1970 through July 1972 were specified for
violations
of Section 21(a)
and
(b)
of the Act.
Next,
the Complaint
alleged that Respondent carried out open dumping, neglected pre-
operational site improvements, unloaded refuse without supervision
and failed to police the area,
failed to comply with the continuous
and daily spreading and compacting procedures, did not apply final
cover, and deposited hazardous liquids at the site,
all in violation
of Rule 3.04,
4.03,
5.04,
5.06,
5.07(a), 5.07(b), and 5.08 of the
Rules and Regulations.
These violations occurred at various
specified times as stated in the Complaint from July 1970 through
July 1972.
On March 14,
1973, EPA filed an amended Complaint.
It
alleged that Section 21(e)
of the Act and Rule 4.03 were still be-
ing violated and added additional violation dates concerning
Sections 21(a)
and
(b)
of the Act and Rule 3.04,
5.04,
5.06,
5.07(a),
and 5.08 of
the Rules and Regulations.
The additional violations
covered
a six—month period from September 1972 through February
1973.
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—
495
—2—
The first hearing was held on April 4,
1973;
and on May 30,
1973,
the second and final hearing was held in the case.
During
the first hearing, EPA deleted four dates from July 1970 through
October 1970 from its Complaint,
and changed December 26,
1972,
to December 24,
1972,
to make the pleadings conform with the proof.
Respondent Milam was represented by counsel, Mr. Lechien;
and
Respondent Milam Corporation East (hereinafter called Milam East)
was represented by
Mr. Fitzgerald, and later by Mr. Hallett, a
member of the same law firm.
Various motions have been made by the parties and were made
part of the record.
EPA made the following motions:
(I)
Motion to file amended Complaint
(March 14, 1973).
(2) Motion to add party co—respondent, Milam East
(April
13, 1973).
Milam
East made the following motions:
(1)
Motion to strike amended Complaint.
This was made
during the first hearing.
(2)
Motion to exclude testimony of inspector Child.
(3)
Motion to strike all the dates from the Complaint
on which no evidence has been offered.
(4)
Motion to strike evidence of violations where no
photographs exist showing the violations alleged
have existed for 24 hours.
(5) Motion to strike and dismiss proceeding for illegal
entry.
Milam made the following motion:
(1)
Motion to dismiss the Complaint
EPA’s motion to file the amended Complaint is granted.
First,
we note that the Certificate of Mailing attachei to the amended
Complaint does not satisfy Procedural Rule 305(b) which states:
(b)
All pleadings, motions, and
discovery notices, after notice and
complaint shall be served personally
or by registered or certified United
States mail.
Mr. Haschemeyer, the attorney for the EPA, attempted to overcome
this objection by indicating
he had personally mailed
a, copy of the
motion by Certified Mail to Mr.Hallett
(HR1-5). ESince the pagination
for hearings one and two is not continuous, the specific page will
be prefaced by identifying the particular hearing record, i.e.,
HR1 or HR2.) Although Mr. Haschemeyer failed to introduce the receipt
into evidence, we hold that he has satisfied the test of the Original
Document Rule
(see McCormick on Evidence,
2nd Edition, 560
(1972)).
The information in Mr. Haschemeyer’s verbal statement is sufficiently
reliable that failure to introduce the receipt is harmless error.
Furthermore, Mr. Fitzgerald did not actually dispute the accuracy of
the evidence;
rather,
he stated that he did not have a record of
10—496
—3—
having received the motion
(HR1-5).
Second,
Mr. Fitzgerald objected to the amended Complaint
on the grounds that its late mailing did not give him thirty days
to investigate the allegations in the Complaint.
Rule
308(c)
of
the Procedural Rules makes clear that failure to respond to the
motion within five days of service of the motion means that the
party is deemed to have waived objection to the granting of the
motion.
EPA’s motion to add Milam East as a party co-respondent is
granted.
Respondent did not object to this motion under Rule 308(c)
within five days.
Second, no prejudice resulted to Milam East in
that it actively participated in the April
4,
1973 hearing,
as well
as in all other stages of litigation.
Milam East’s motion to exclude the testimony of inspector
Child is denied.
The showing of bias of a witness goes to the
question of credibility of testimony, not to the exclusion of
evidence.
Besides Mr. Child’s association with the EPA, there is
little information in the record to support Respondent’s motion.
Furthermore,
the transmittal letter of the Hearing Officer to the
Board states that the credibility of witnesses is not an issue in this
case.
Respondent’s
(Milam East) motion to strike all dates from the
Complaint on which no evidence was offered is allowed.
Most of
these dates were actually struck by EPA at the first hearing
(HR1-127,
128).
These dates
—
July 29,
1970; September 10,
1970; October
7,
1970;
and October 15,
1970
-
were struck from violation of Sections
21(a)
and
(b)
of the Act and Rules 3.04,
5.04,
5.06,
and 5.07(a)
of
the Rules and Regulations.
No evidence was offered on a violation
of Rule 5.08 on September 10,
1971,
or to a violation of Rule 5.06
on November 29,
1972.
These are also struck.
Respondent’s
(Milam East)
motion to strike evidence of violations
where no photographs exist showing the violations alleged have existed
for 24 hours is granted in part.
It is limited to those Rules which
measure violations in terms of a 24-hour period.
Rule 5.07(a)
speaks of daily cover.
We agree with Respondent’s conclusion that
“daily cover” demands
a continuous 24—hour violation
(HR2—96 to 123).
Under Rule 5.07(a), May
3 and
4 are the only dates that withstand
this test.
Furthermore, we are not convinced that EPA’s letter ~of
September 27, 1972
(HR2-302,
Comp.
Ex.
#35)
gave Respondent notice of
the midnight closing time.
The statement of the EPA witness that
the mailing of such letters is a routine business procedure, but
that he did not know whether this letter had been mailed
(HR2-307),
does not assure us that the letter had in fact been mailed to Milam
East.
Since Complainant claims to have mailed the letter, we think
someone with more direct knowledge,
like Mr. Clark,
should have been
called to testify concerning this
fact.
The Complaint is therefore
struck as to Rule 5.07(a), except for the dates of May 3 and
4,
1972.
10 —497
—4—
Respondent’s
(Milam East) motion to strike and dismiss
the proceedings for illegal entry is denied.
The recent U.S.
Supreme Court case of United States v. Biswell
(406 U.S.
311)
is controlling.
In that case the Court held that
a federally
licenced pawn shop operator was subject to warrantless searches
and seizures under the Gun Control Act of 1968.
The Court stated
that
(406 U.S.
315):
“In the context of
a regulatory inspection
system of business premises that is carefully limited in time,
place, and scope, the legality of the search depends not on
consent but on the authority of
a valid statute”.
Furthermore,
the Court said
(406 U.S.
316):
“It is also apparent that if
the
law is to be properly enforced and inspection made effective,
inspections without warrant must be deemed reasonable official
conduct under the Fourth Amendment”.
In this situation,
Section
4(d)
of the Illinois Environmental Protection Act is clearly
applicable.
It permits
searches and seizures “in accordance
with constitutional limitations” which were satisfied in this
case.
On April
13,
1973, Milam filed a motion to be dismissed
from the action.
We grant the motion in part.
The facts estab-
lish that Milam East leased the property from Milam on October
1,
1971,
(HR1-lO
;
Resp.
Ex.
#5)
and has continued to lease the
land since that date.
First, we hold that Milam is not liable
as lessor under the Act or Rules and Regulations in this case.
The test for lessor
liability is whether
a lessor receiving
economic benefit under
a lease has the capacity to control the
actions of the lessee.
See EPA v. James McHugh Construction Co.
et al.
#71—291,
4 PCB 511,
513
(May 17,
1972).
Although lessor
cannot relieve himself of
such responsibility through contract
with the lessee, we hold that where the companies are distinct
and unrelated and where the operation is an extensive one,
lessor should not have the burden of seeing to it that lessee
obeys the law.
Second, the evidence in this case is sufficient
to establish that Milarn operated its site prior to October
1,
1971,
without a permit under Section
21(e)
of the Act.
The facility
was operating as
a landfill before October
1,
1971,
(HR1—19), and
the permit violation has been established.
Evidence was offered by
Mr. Hartharger,
an employee for Milam East,
that Respondent Milam
operated without a permit
(HR1-ll).
Mr. Lechien did not challenge
Mr. Hartbarger’s testimony as to this fact, although by failing to
object,
Mr. Lechien only waived the preliminary proof that the wit-
ness was qualified to respond concerning such information.
Since this
10 —498
—5—
evidence was not rebutted,
we find a violation of Section 21(e)
of the Act
(see McCormick on Evidence 2nd Edition 21
(1972)).
Third, since all other violations of the Act and Rules and Regulations
occurred after October
1,
1971, the Complaint is dismissed as to all
other allegations.
The final procedural matter is to note that although the Rules
and Regulations have now been superceded by Chapter Seven: Solid
Waste Regulations of the Pollution Control Board, the liability of
Respondent Milam East is to be adjudged under the rules in effect at
the time of the violation.
Rule 102 of Chapter Seven makes clear
that any proceeding which arises prior to the effective implementation
date of Chapter Seven
is to be governed by the Rules and Regulations.
The implementation date for Chapter Seven was July 27,
1973. All
violations under this Complaint occurred prior to this date.
Turning to the merits, we find that Milam East has violated
Sections 21(a),
(b),
and
(e)
of the Act and Rule 4.03,
5.04,
5.06,
5.07(a), and 5.08 of the Rules and Regulations.
The evidence offered by Complainant was not refuted.
Beer
cans
(HR1-.39;
Comp. Ex.
#6) were seen at the site on April
4 and
5,
1972.
This violates Section 21(a)
of the Act.
Section 21(e) was
admitted to be violated by Respondent
(HR2-5). Section 21(b)
of the
Act is violated when the Rules and Regulations are violated.
These
Rules and Regulations were breached in the following manner.
Rule
4.03 requires permanent fencing, all—weather roads, and shelter
areas as a condition precedent to the operation of
a landfill.
Permanent fencing was not installed until sometime in July 1972
(HR1-48).
Rule 5.04
is violated when unloading is not properly super-
vised and portable fencing is not used.
Portable fencing was lacking
on March
8,
1972
(HR1—89), April
4,
1972
(HR1—28), and May 3 and
4,
1972
(HR1-43,44).
Blowing litter was observed on April
4 and
5,
1972
(HR1-28
to 31). The blowing litter is circumstantial evidence that
inadequate policing was being carried out.
Section 5.06 of the Rules
and Regulations requires continuous spreading and compacting of refuse.
On October 13,
1971,
refuse was seen stacked high on the face of the
landfill and spreading was not occurring
(HR1-2l).
PhOtographs
(Comp. Ex.
#4 and #5)
on April
4 and 5,
1972,
show that refuse was
not being compacted in shallow layers as rapidly as it was admitted
to the site.
The photographs for June
7 and
8,
1972
(Comp. Ex.
#14,
#15,
#16,
#17, and #18), evidence the same kinds of activity observed
on April 4 and
5.
The depth of the refuse indicates that the 2-3 foot
layering requirement was not being implemented.
Spreading and com-
pacting was also not carried out on July 19, 1972
(Comp.
Ex. #24).
Similar violations occurred on July 25
(Comp. Ex. #23 and #26) and
July
26
(HR1-56).
Failure
to spread and compact was also documented
on December 24 and 25, 1972
(Comp.
Ex.
#28,
#29, and #30)
.
These
numerous violation dates tend to refute Respondent’s assertions
that cover was being continuously applied
(HR2-3l5).
10—499
—6—
Rule 5.07(a)
was violated during the 24-hour period of
May 3,
1972,
to May 4,
1972,
(Comp. Ex.
#11 and #12),
in that
a
compacted layer of six inches of material was not used to cover
the exposed material at the end of each working day.
Rule 5.08 prohibits the deposition of liquids without approval
from the EPA.
Much evidence was submitted by EPA of liquids dis-
carded from barrels.
The photographs indicate
(Comp.
Ex.
#1,
#2,
and #9)
that materials poured from barrels existed on the site on
April
4,
1972.
Liquids were present at the site on July 21,
1972,
(Comp. Ex.
#22; HR1-54), and May
3,
1972,
(Comp.
Ex.
#13) and May
4
(HR1-44).
Respondent admitted that barrel discharge was a problem
(HR2-222)
and stated that radioactive materials were inadvertently
delivered to the site on one occasion
(HR2-~2l6).
We find it unnecessary to decide whether the open dumping pro-
hibition of Rule 3.04 has been violated in this case.
Open dumping
is a catchall term that embraces a number of specific infractions
alleged elsewhere in the Complaint.
In light of our above findings
regarding the more specific counts, we need not decide whether Rule
3.04 has been violated here.
See EPA v. Clay Products,
Inc.
#71-41;
2 PCB 33
(June 23, 1971). Also, we hold that insufficient evidence
has been presented to find a violation of Rule 5.07(b), the final
cover requirement.
The testimony offered
(HR1-44)
stated the con-
clusion that no final
cover had been applied.
This information,
standing alone,
is not enough to establish a violation of Rule 5.07(b).
Respondents case in chief was aimed previously in support of
penalty mitigation.
United Disposal Company is the parent company
of Milam East and Mal, another landfill, subject to Illinois
law,
located on Chouteau Island (HR2—285 to 288).
EPA had requested
United Disposal Company to first obtain a permit for Mal, and then
proceed with Milam East later
(HR2-9,
252).
An attempt to get a
permit for Milam East had been initiated in November 1971
(HR2-l6).
Engineers have been working to qualify Milam East for a permit since
late 1972,
a short time after Mal got its permit (HR2-38). Testimony
was offered that Respondent is trying to operate a model landfill
(HR2-280), but that it has taken time to get everything done.
A
main problem confronted Mal landfill
in the spring of 1973 when
Mississippi River flooding caused it to be closed down
so that
additional refuse had to be transferred to Milam East
(HR2-l87).
At the time Mal received its permit, Milam East was approved as an
alternate site in case Mal should have to be closed down
(HR2-182).
The barrels have created a problem, but Mr. Immel from the Attorney
General’s office had told Milam East it was satisfactory to bury
them in an isolated area at the landfill
(HR2-222).
Evidence was
offered that Milam East now handles
800 truckloads a day (HR2-288).
Photographs were introduced which were taken on May 20,
1973,
(HR2-63;
Resp.
Ex.
#1
-
#14)
to show that the landfill is a model landfill.
EPA admitted that at the present time the landfill was in pretty
good shape
(HR2-324).
10
—
500
—7—
Although numerous literal violations of the law have
occurred, we believe that mitigation is called for in this
case.
Respondent has shown substantial good faith in its on-
going program to bring Milam East into compliance with the
law.
Had Milam East not delayed in seeking a permit from EPA,
it might have been in compliance at
a much earlier date.
Finally, the adverse environmental impact is minimal
in this
case.
This constitutes the fingings of fact and conclusions
of law of the Board.
ORDER
It is the Order of the Board that:
(1)
Respondent Milam pay a penalty of $400.00
for
operating a landfill without a permit prior to its leasing
arrangement on October
1,
1971.
Name of payee and his
address should be the same as that indicated for Milam East
as set out in paragraph three below.
(2)
Respondent Milam East cease and desist from all
violations of the Act and Rules and Regulations as established
under this Complaint.
(3)
Respondent Milam East pay a penalty of $1,000.00
for its violation of the Act and Rules and Regulations. Pay-
ment shall be by certified check or money order made payable
to the State of Illinois, Fiscal Services Division, Environ-
mental Protection Agency,
2200 Churchill Road, Springfield,
Illinois 62706.
Payment shall be tendered by both Respondents
within 35 days of the adoption of
this Order.
Mr. Henss was not present.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, certify that the above Opinion and Order was adopted
by the Board on the
3rd day of
January
,
1974, by a
voteof
‘4
to
p
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501