ILLINOIS POLLUTION

CONTROL

BOARD

November

21,

1972

ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

POE 72—162

CALVIN GEISS,

both individually

and

d’b/a

C

&

A DISPOSAL,

and

FRED

D.

BENNETT,

Respondents,

Herman

R.

Tavins, Assistant Attorney General,

for Complainant;

0.

Park Davis

for Respondent

Geiss;

Respondent Bennett

aopeared

pro so.

OPINION

AND ORDER OF THE BOARD

(by Mr. Parker)

The

complaint in this matter was filed

by

the Agency

on April

20,

1972,

alleging violations of various Rules and

Regulations

for

Refuse Disposal Sites

and Facilities,

hereinafter referred

to as Rules,

continuing

in effect pur-

suant

to Section

49

(c)

of

the Environmental

Protection

Act,

hereinafter referred

to as Act,

and various provisions

of

the Act itself.

Rescondent Geiss

is the operator of an apparently sub-

stantiel sanitary landfill near Rockdale,

Illinois

(R,

32)

Respondent Bennett leases the site

to Geiss

(R.

58)

.

The

site

has been used as

a

landfill by Respondent Geiss

for

approximately eight years

(R.

32)

.

The landfill serves

a

population of roughly

30,000

(F.

34),

and is

located

in an

area consisting primarily of industry and other sanitary

landfill operations

(R.

24)

.

The closest residential area

is

approximately one

to

two miles away

from the site

(R.

27)

Several

of

the violations charged by the Agency were not

proved

in the record.

There was

no evidence

as

to causing

a

water pollution hazard

in violation of

Section

12

(d)

of

the

Act.

The

only evidence bearing

on that charge was

the un—

controverted

testimony of Geiss that no liquids are collected

by

him

(P.

34)

.

Accordingly,

we find

no violation

of Section

12

(d)

of

Lhe

Act.

We also find

no violation of Rule

5.09

of the Rules,

which

recuires

the

operator of

a sanitary landfill

to provide adequate

vector

control measures.

Hot only was no testimony introduced

6

—

271

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regarding the presence of vectors, but there was considerable

affirmative testimony as to the rodent control program

utilized by the operation

(R.

39-40).

The Agency inspector

testified that he

had

not seen any rodents during any of his

inspections of the site

CR. 14).

We find no violation of Rule 4.03

Ce) of the Rules

requiring adequate fencing of the site.

does not support a finding of inadequate fencing.

The questions of open dumping

(section 21

Cb)

of the

Act and Rule 3.04 of the Rules)

and daily cover

(Rule 5.07

Ca) of the Rules) are more difficult.

Testimony of the Agency

witness indicates that more cover was needed on seven separate

occasions and adequate cover was provided on only two

occasions

CR. 12).

Just what is meant by “more daily cover”

is not clear.

Unfortunately, no photographs of the site were

introduced into the record, and without such photographs it is

often difficult to determine whether or not there was open

dumping of refuse or placement of adequate cover.

Because

of the incomplete nature of proof, we find no violation of

the six inch daily cover requirement of Rule 5.07

Ca) of the

Rules or of the open dumping prohibition of Section 21

Cb)

of the Act and Rule 3.04 of the Rules.

The only two allegations proven are operation of the site

without a permit and failure to provide shelter for the site’s

operating personnel.

There was uncontroverted testimony that

there were no buildings on the site

(R.

27), and there was no

testimony indicating that any shelter was available off the

site.

Accordingly, we find a violation of Rule 4.03

Cc) of

the Rules.

There was no permit issued by the Illinois Depart-

ment of Public Health, nor was the site ever registered with

the Illinois Department of Public Health

CR. 18), as required

by Rule 1.01 of the Rules.

Neither has a permit been issued

by the Environmental Protection Agency in accordance with Section

21

Ce) of the Act.

In mitigation of these violations, Petitioner

does have a permit to operate a sanitary landfill from the

Will County Health Department

CR.

37; Respondent Exhibit 2).

Furthermore, Respondent is diligently pursuing obtaining a

permit from the Environmental Protection Agency

CR. 42 et. seq.).

We repeat here what we have said before about the necessity

for obtaining an Agency permit.

Section 21

(e) of the

Act

requires a permit for all refuse disposal sites and facili-

ties

Cwith an exception irrelevant to this case)

“after the

Board

has

adopted standards for the location, design, operation

and maintenance of such facilities.”

The Rules, which antedated

the Act, became regulations of the Board pursuant to Section

49

Cc) of the Act, and have now been identified as PCB Regs.,

Ch.

7, Part II.

Therefore, by operation of statute, Agency

permits have been required for all landfill sites since July 1,

1970,

the effective date of the Act.

See EPA v. City of

Woodstock, 72—159,

5 PCB

____,

CNovember 14, 1972).

6—272

---

In view of all the circumstances, we do not believe a

monetary penalty is justified in this case.

The only viola-

tion found relating to site operation,

failure to provide

shelter, is relatively minor.

The failure to have an Agency

permit is more serious; however, a penalty for this violation

may be excused here because in an attempt to obtain an Agency

permit

(made before the filing of this proceeding), Respondent

has retained consulting engineers at considerable expense

CR.

36,

52, 53).

The good faith of the operator, as evidenced

by his attempts to obtain an Agency permit well before a

Complaint was filed against him, militates against assessment

of any penalty.

This opinion constitutes the findings of fact and

ORDER

Respondent shall obtain a permit from the Agency within

six months of the entry of this Order.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, certify ~e

above Opinion a d Order was adopted

by the Board

ozj the

~

day of

fl

,

1972,

byavoteof

t~

to

i

td

—3—

6—273

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