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.
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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.
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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
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499