ILLINOIS POLLUTION CONTROL BOARD

March 29,

1973

)

ENVIRONMENTAL PROTECTION AGENCY

)

)

)

v.

)

PCB 72-200

)

)

CITY OF DU QUOIN

and

)

UNITED ELECTRIC COAL COMPANY

)

)

MAURICIO DOMINGUEZ,

SPECIAL ASSISTANT ATTORNEY GENERAL, FOR

THE

ENVIRONMENTAL PROTECTION AGENCY;

JERRY

B.

SMITE!, FOR CITY OF flU QUOIN; R.K. PEEK AND R.N. GRADY

FOR UNITED ELECTRIC COAL COMPANY

OPINION

AND

ORDER OP TILE BOARD

(by Mr. Seaman):

This case was filed by the Environmental Protection Agency on

May 10,

1972,

against the City of

Du Quoin and United Electric Coal

Company.

The complaint charged United Electric as owner

and

Du

Quoin

as operator of a refuso disposal facility located near

Dii

Ouoin, with operation of a refuse disposal facility without

a

in violation

of Section 21(e) of the Environmental Protection

Agency (“Act”); causing or allowing dumping of garbage in violation

of Section 21(a) of the Act; causing the open dumping of refuse

in

violation of Section 21(b) of the Act; causing or allowing open

burning of refuse in violation of Section 9(c) of the Act; open

dumping of refuse in violation of Rule 3.04 of the Rules for Refuse

Disposal Sites and Facilities (“Rules”),

remaining in effect pursuant

to Section 49(c) of the Act; causing or allowing open burning in

violation of Rule 3.05;

failure to provide proper daily cover in

violation of Rule 5.07(a); failure to provide proper final cover

in violation of Rule 5.07(b); and failure to provide adequate vector

control in violation of Rule 5.09.

United Electric Coal Company filed a general denial and two affirma-

tin~defenses culminating in a Motion to Dismiss the complaint against

it.

The first affirmative defense is that it has not been in

possession of the land since 1954

and

is therefore not accountable

under the Act.

The second affirmative defense, consists of a lease

between United Electric and the City of Du Quoin.

This lease states

in part “Lessor hereby gives

to the lessee the right and privilege

7—

419

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-2-

at all times during the continuance of this lease

to use said

leased premises for a city garbage dump

and the lessor shall in no

manner be held liable for same.”

As

to the affirmative defenses,

the fact that a person has leased a parcel of land

to another person

and

is not in possession

of the land does not absolve that person

of his responsibility

to comply with

the laws of the state.

Whether

or not a civil action against the lessee lies for recovery of any

penalties assessed against United Electric is not the concern of

this

Board.

Accordingly, we find that the company’s affirmative

defenses

are without merit and therefore deny the Motion to Dismiss.

The City of Du Quoin and the Agency filed

a Stipulation which

in

effect admits the violations

as alleged in the complaint.

The

Stipulation

includes

the following language:

“The dumping area was not confined.

The garbage and

refuse was frequently mixed with trees and brush.

As

a consequence,

it was difficult

to compact the

garbage and refuse and to provide the required daily and

final cover.

At all times mentioned

in the complaint,

the amount of uncovered refuse varied from time to time

from

a minimum of approximately 200 feet of exposed

face

to approximately 1,000

feet of exposed face.

The

exposed face,

from time

to

time, became

so steep that

spreading and compacting and providing the daily and

final

cover was difficult with the equipment located

on

the premises.

The employees

at the refuse disposal

site

left the premises at

5:00 p.m.

during Monday

through Friday and at 3:00 p.m.

on Saturday.

Uowever,

refuse material continued

to be deposited on the premises

by contractors and other persons served by the refuse

disposal site.

As

a consequence,

the dumping was un-

supervised and deposited at random in the various

areas

of the dump.

In addition,

the refuse was not

spread, compacted

and provided with daily cover.

There

has been

rio evidence of open burning upon said premises

within the last year.”

The photographs submitted as Agency Group Exhibit

1 through

5

graphically document this unfortunate situation.

The situation

has

improved subsequent

to

the filing of the complaint.

The

City

is

in the process

of obtaining

a permit for the facility

(Stipulation,

pp.

2-3)

and recent inspections

(Respondent’s

Exhibits

1

and

2)

have

shown

that

the

dumping

has

been

confined

arid

that

the

proper daily and final cover

is being provided.

Brief

quotes

from

the

Agency

inspection

reports

indicate

the

progress

being

made.

In

the

Agency

inspection

of

September

27,

1972

(Respondent’s Exhibit

1)

the inspector states

“Site

is showing

definite improvement.”

From the Agency inspection

of November

27,

1972

(Respondent’s Exhibit

2)

the :inspectors state:

“Present opera-

7

—

420

---

-3-

tion

is

confined,

spread, compacted

arid fairly well covered.”

The City’s attempt

to upgrade

the facility are described by

the

mayor of Du Quoin.

He states

that he fired the previous operator

(R.

p.4).

He has obtained information on proper operation from

the

Illinois

Municipal

League

(R.

p.2)

,

from the Agency

(R.

p.5)

and

from

consulting

engineers

(Stipulation,

pp.

3-4).

We

find

that

the

City

of

Du

Quoin

and

United

Electric

Coal

Company

have

violated

the

Act

and

Rules,

with

the

exception

of

open

burn:ing,

as

alleged by the Agency.

The Stipulation,

and

the copious

sets

of

photographs

submitted

as

EPA

group

exhibits

1

through

5

provide

more

than

adequate

support

for

such

findings.

United

Electric

is

found

in

violation

although

they

did

not

actively

participate

in

the

operation.

We

have

consistently

held

that

ownership

confers

responsibility

on

the

owner

to

comply

with

the

law.

United

Electric

cannot

contract

away

its

obligation

to

obey

the

Act.

See

EPAv.

ProducersMini~eta1,

PC B

72-403.

This

opinion

constitutes

the

findings

of

fact

and

conclusions

of

law

of

the

Board.

0 RI) ER

1.

The

City

of

Du

Quoin

and

United

Electric

Company

are

each

penal~

~zed

$500

for

violations

of

the

Act

and

Rules

as

found

in

the

Opinion.

Payment

shall

be

made

by

certified

check

or money

order

payable

to

the

State

of

I ilinois,

and

shall

be

sent

to

Fiscal

Services

Division,

Illinois

Environmental

Protection

Agency,

2200

Churchill

Road,

Springfield,

Illinois

62706,

said

payment

to

be made within thirty-five

(35)

days from

the

receipt

of

this

Order.

2.

Respondents

shall

cease

and

desist

from

further

violations

of

the

Act

arid

Rules,

except

that

Respondents

shall

have

l2()

days

from

the

(late

of

this

order

to

obtain

a

permit

pursuant

to

Section

21(e)

of

the

Act

to

operate

the

facility.

I

,

Christan

IL.

Moffett

,

Clerk

of

the

Illinois

Pollution

Control

Board,

hereby

certi

f~

the

above

OpiVion

and

Order

were

adopted

by

the Board

on

the

~f~’

day

of

~

1973,

by

a

vote

of

to

_~____.

7

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421

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