ILLINOIS

POLLUTION

CONTROL

BOARD

August

8,

1972

ENVIRONMENTAL

PROTECTION

AGENCY

PCB

71-381

RAYMOND

A,

PETERSEN

AND

PETERSEN

SAND and GRAVEL,

INC..

an

11lino~sCorporation

Roger

Horwitz,

Assistant

Attorney

General

for

the

Agency

Kenneth

Glick,

Esq.,

for

the

Respondents

OPINION

AND ORDER

OF

THE

BOARD

(by

Mr.

Dumelle)

This

is

an

enforcement

action

alleging

that the

respondents

operated

a refuse

disposal

site

in violation

of

the

illinois

Environmental

Protection

Act

and the

Rules

and Regulations

for

Refuse

Disposal

Sites

and

Facilities.

The

site

is

located

in Libertyville

Township,

Lake

County,

Illinois,

The alleged

violations

include

operating

without

a

State

permit,

open

dumping

of

refuse,

failure

to

confine

dumping

to the

smallest

practical

area,

failure

to

spread

and

compact

refuse

as

rapidly

as

refuse

was

admitted

to the

site,

failure

to

provide

daily

cover,

causing

or

allowing

refuse

to be deposited

in

standing

water

and

causing,

threatening

or

allowing

contaminants

to

be

deposited

upon

the land

in

such place

and

manner

so as

to

create

a water

pollution

hazard.

The

violations

were

specifically

observed

by

Agency

inspectors

on

September

3,

September

8,

September

22,

and October

12,

1971.

Partial

hearing

was

held

on

June

12,1972.

On

June

25

the parties

filed

Stipulation

and

Proposal

for

Settlement

with the

Board

wherein

the

respondents

admit

to

all

the

alleged

violations.

It is

stipulated

that

the respondent,

Raymond

A.

Petersen

obtained

the

site

in

1952

and~commenced operations

as

Petersen

Sand

and Gravel,

Inc.

thereon

for

purposes

of

extracting

and removing

gravel,

dirt,

sand,

and clay.

Beginning

sometime

in

1955,

respondents

began

allowing

various

customers

and others

to

dump

waste

materials

on

a portion

of the

subject

pro-

perty.

5

93

---

-2-

The

respondents

represent

that

the

site

will

be

closed

to

any further

acceptance

of refuse

until

such

time

as

they

are

in

compliance

with

applicable

local

ordinances

and obtain

a State

permit

from

the

Agency.

Also,

all

refuse

has

now been properly

covered

and if a wash-off

of cover

occurs,

any

exposed

material

will

be promptly

covered,

The

respondents

further

represent

that

whatever

refuse

may

remain

in

standing

water

or

in

such

a position

as

to

be a

water

pollution

hazard

will

be

promptly

removed.

lit

is

finally

stipulated

between

the parties

that

the

Board

enter

an

order:

(a)

Requiring

the

Respondents

to

close

the

site

to

the

acceptance

of

any further

refuse

until

such

time

as

Respondents

have

complied

with

applicable

local

ordinances

and

also

obtained

a permit

from

the

Agency.

(b)

Requiring

Respondents

to

completely

cover

any refuse

which

becomes

uncovered

due to

wash

off of

cover

and to

remove

any

refuse

which remains

in standing

water

or

which poses

a

water

pollution

hazard.

(c)

Requiring

Respondents

to

cooperate

in further

future

inspections

of this

site

by

the

Agency,

in order

to

assure

compliance

with the

applicable

statutory

and regulatory

standards.

(d)

Requiring

Respondents

to

pay a penalty

in the

amount

of

$300

for

violations

of

the

Act

and Regulations.

(e)

That

the

Respondent

will

install

a monitoring

well at

a location

to be selected

by

the

Agency.

The

proposed

settlement

is

acceptable

to the

Board

except for

one

item

- -

the

$300

penalty

is far

too

low.

Based

solely

upon

what

was

observed

by

Agency

inspectors,

there

were

seven

separate

violations

committed

on

each

of

four

days

thus

totaling

twenty-eight

specific

violations.

A penalty

of

only

$300

would mean

that

the

respondents

would

pay around

$10

for

each

violation.

There

is

little

question

that

ii

the

respondents

had committed

only

one single

violation

on

only

one day they

would

certainly

receive

a penalty

many

times

more

than

only

$10.

The

Board

does

not

accept

the

principle

of

~cheaper

by

the

dozen

in

its

assessment

of penalties.

In

addition

we

feel

that

the

violation

of operating

for years

without

a

State

permit

is

particularly

serious.

The

permit

process

serves

two

impor-

tant

functions

in

the

prevention

of

pollution:

First,

the

filing

of

a

permit

5

—

94

---

-3-

application

gives

the

Agency the

opportunity

to

investigate

the

situation

to

determine

whether

the

future

operation

of

the

activity

will

be

done

in a

manner

so

as

to

cause

a minimum

amount

of environmental

contamination.

Second,

once

a permit

is

issued

the

Agency

has

actual

knowledge

that

the

activity

is

being

conducted

and therefore

is

in

a position

to make

routine

periodic

field

investigations

to determine

whether

the

activity

is

being

conducted

in violation

of

the pollution

laws

and regulations.

In

the

instant

case

the

Agency

neither

had the

opportunity

to investigate

the

site

based

upon

a permit

application

nor

was

it

put

on

notice

that

the

site

was

in

operation

until

after

it.would

have

known

had the respondents

gotten

a permit

earlier,

It is

obvious

that

the

pollution

at

the

site

would have

ceased

long

ago

if the

respondents

had

applied for

a permit;

either

no

permit

would have

been

issued,

or

else

if

one

did

issue,

the

Agency

would have

been

in

a position

to

detect

the

violations

long

before

it

did because

it

would

have

known

that

the

site

was

being

operated.

Landfills

carry

with their

operation

potentially

severe

environmental

hazards.

If the gravel

pit

in which this

refuse

was

placed

has

no

natural

impermeable

barrier,

such

as

a

clay

bottom,

then the

contamina-

tion

of the

aquifer

may

be

certain

and

.in terms

of our

perspective,

permanent.

Another

significant

point

in

this

case

is

the

testimony

of numerous

residents

in the

area

of

the

landfill

site.

Their

testimony

shows

that

they are

angry

about

the

smell

of garbage,

the

noise,

the

dust,

the fires,

the

probable

contamination

of their

wells

and the

uncooperative

and abrasive

attitude

of

the

respondents.

They really

cannot be blamed

for their

desire

to

live

unmolested.

Admittedly,

most

of

the issues

raised

by

the

residents

are

not

before

us

in this

case

hut

some

of

them

are.

Consequently,

we

cannot

accept

a $300

penalty

in

this

case,

There

is

no

argument

of poverty.

The

respondent

is

not

a part-time

operator

eking out

a

living.

An

evidently thriving

sand

and gravel

business

should

have

and

could

have followed

the

law.

We order

that

the

Agency

and respondents

renegotiate

and

arrive

at

a penalty

more

in

line

with

what

the

Board has

decided

in previous

holdings

and with

what

we feel

to

be

appropriate

under

the

circumstances

of

this

case

or

go

to

a full

hearing

as

provided

for

by

law.

This

opinion

constitutes

the

Board’s

findings

of fact

and

conclusions

of

law.

5

—95

---

-4-

ORDER

The

Stipulation

and Proposal

for

Settlement

is rejected.

The

parties

shall

either

arrive

at

a new

proposal

in

conformity

with this

opinion

or

else

conduct

a full

hearing

whereafter

the

Board

will

take

the

entire

matter

under

advisement.

I,

Christan

L.

Moffett,

Clerk

of

the

Illinois

Pollution

Control

Board,

hereby

certify

the

above

Opinion

and Order

were

adopted

on

the

~~‘day

of

August,

1972

by

a

vote

of

~

~

Christan

L.

Moffett,

Cl

Illinois

Pollution

Contro

Board