ILLINOIS POLLUTION CONTROL BOARD
    January
    16, 1973
    ENVIRONMENTAL PROTECTION AGENCY
    v.
    )
    PCB 72—128
    TUCKER FREIGHT LINES,
    INC.
    a corporation
    OPINION AND ORDER OF THE BOARD
    (by Mr. Dumelle)
    This
    is an enforcement action alleging that Tucker has
    owned
    a
    landfill
    site near Montqomery in Kane County, Illinois
    and has operated the site on numerous specified dates in
    violation of the Environmental Protection Act and also of the
    Rules and Regulations for Refuse Disposal Sites and Facilities.
    The hearing was held on November
    3,
    1972.
    The hearing had originally been set for October
    18, l972~
    On that date the Agency appeared but the respondent did not
    whereupon the hearing officer telephoned the respondent and
    at the respondent’s request continued the hearing
    to November
    3.
    The hearing officer also sent a letter to the respondent
    stating that
    the hearing had been re-set for November
    3.
    On
    November 3 the respondent did not appear again.
    Once again
    the hearing officer telephoned the respondent and advised them
    that the
    hearing would proceed without the respondent as a
    default matter.
    At the request of the respondent, the hearing
    officer allowed them fourteen days thereafter
    in which to
    present any written evidence they may have had.
    On November 17,
    the respondent filed with the Board an
    answer to the Complaint wherein it denied almost all of the
    allegations in the Complaint.
    It did admit, however, that
    it owns the site in question.
    On December
    6, the Agency
    filed a Motion to Strike the Answer and for Default of Respon-
    dent pointing out that the unverified Answer could not serve
    as evidence in the case.
    We agree.
    We will not treat the
    Answer as evidence;
    it is merely an unverified pleading and
    therefore cannot be considered
    as any basis
    for our decision.
    One alleged violation is open dumping of garbage and refuse
    in violation of Sections 21(a)
    and
    21(b)
    of
    the Act respective-
    ly and also of Rule 3.04 of the Rules,
    There is no evidence
    in the record
    to prove open dumping.
    No one was seen dumping
    and there is insufficient evidence to show that new refuse
    was present on certain days which had not been there earlier.
    6
    497

    —2—
    It was alleged that the site was not adequately fenced.,
    in violation of Rule 4.03(a)
    of the Rules.
    The Agency inspector
    testified that there was inadequate fencing on the specific
    dates alleqed.
    We find that the site was not adequately
    fenced in violation of Rule
    4.03(a) on 12/29/70,
    2/4,
    4/26,
    6/15,
    8/10,
    8/16,
    and 8/17/71,
    1/26 and 2/15/72.
    It was alleged that the dumping of refuse was not confined
    to the smallest practical area,
    in violation of Rule
    5.03.
    The Agency inspector testified that the refuse was not confined
    to such area on 12/29/70,
    2/4,
    4/26,
    8/10,
    8/16,
    and 8/17/71,
    1/26 and 2/15/72.
    We find that the violations did occur on
    the dates
    stated by the inspector.
    It was alleged that the unloaclinq of refuse was not
    supervised,
    in violation of Rule 5.04.
    Since there is no
    evidence of any unloading occuring, we must find that there
    was
    no
    need
    for
    any
    supervision.
    In
    order
    for
    there
    to
    be
    a
    need for supervision there must be proof that there was actually
    unloading
    on
    the
    dates
    alleged.
    It
    was
    alleged
    that
    there
    was
    insufficient
    equipment
    in
    operating
    condition
    at
    the
    site,
    in
    violation
    of
    Rule
    5.05.
    The inspector testified that there was no equipment at the
    site on 12/29/70,
    2/4,
    4/26,
    6/15,
    8/10,
    8/16 and 8/17/71,
    1/26 and 2/15/72.
    We find thatthe violations did occur on
    the dates stated by the inspector.
    It was alleged that the refuse was not spread and com-
    pacted,
    in violation of Rule 5.06.
    The inspector testified
    that there was no spreading or compacting being done on 12/29/70,
    2/4,
    4/26,
    6/15,
    8/10,
    8/16 and 8/17/71, 1/26 and 2/15/72.
    We find that the violations did occur on the dates stated by
    the inspector.
    It was alleged that there was no daily or final cover,
    in violation of Rule
    5.07(a) and
    (b) respectively.
    The in-
    spector testified that there was no cover on any of the alleged
    dates.
    Furthermore, photos taken by the inspector on four of
    the dates show that the refuse had not been covered.
    In
    addition,
    it
    would
    almost
    be
    impossible
    to
    provide
    daily
    cover
    without
    any
    equipment
    ever
    beinq
    present
    at
    the
    site.
    We find that there was no daily cover,
    in violation of Rule
    5.07(a)
    on 12/29/70,
    2/4,
    4/26,
    6/15,
    8/10,
    8/16 and 8/17/71,
    1/26 and 2/15/72.
    It was alleged that there was refuse in standing water,
    in violation of Rule 5.12(c).
    The inspector testified that
    he
    did
    see refuse
    in standing water on 4/26,
    6/15,
    8/10,
    8/16
    and 8/17/71,
    1/26 and 2/15/72.
    We find that the violations
    did occur on
    the dates
    stated by the inspector.
    6
    498

    —3—
    Finally,
    it was alleged that the site was operated in
    a manner so as to create a water pollution hazard, in violation
    of Section 12(d)
    of the Act.
    However,
    there is no evidence
    in the record upon which to make such a finding.
    The inspector did testify that the site is now closed
    and that a final cover has been applied.
    It appears that
    Tucker merely owns the site but is not in the business of
    operating a landfill for profit.
    We would classify this as
    a promiscuous dump site but nevertheless the owner is
    responsible for allowing his property to be used in such
    manner.
    Ample
    notice of the situation was given to Tucker by
    conversations between Agency personnel and Tucker on April
    26,
    1971 and June 15, 1971
    (R.lO,
    12).
    In addition, the Agency
    Exhibits Nos.
    13-18 show that letters were sent to Tucker
    on
    November 12,
    1970, February 12,
    1971, May 7, 1971, May 10,
    1971,
    August 13, 1971, and February 4,
    1972.
    Under the circumstances
    we find that
    a penalty of $500 would be appropriate.
    The situation
    should have been remedied long before now.
    This opinion constitutes the Board’s findings of fact and
    conclusions of law.
    ORDER
    1.
    Respondent shall cease and desist from all violations
    found in this bpinion.
    2.
    Respondent shall pay to the State of Illinois by
    February 21,
    1973 the sum of
    $500 as a penalty for the
    violations
    found in the proceeding.
    Penalty payment
    by certified check or money order payable to the
    State of Illinois shall be made to:
    Fiscal Services
    Division,
    Illinois Environmental Protection Agency,
    2200 Churchill Drive, Springfield,
    Illinois
    62706.
    I, Christan L. Moffett,
    Clerk of the Illinois Pollution Control Board,
    hereby certify the above Opinion and Order were adopted on the
    16th day
    of January,
    1973 by a vote of
    3-0
    ~~n~Moff~2
    ,*~E
    Illinois Pollution C~?~
    ‘trol Board
    6
    499

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