ILLINOIS POLLUTION CONTROL BOARD

August 15,

1972

Y~VIRONMENTAL PROTECTION AGENCY,

Complainant,

v

)

PCB 72—189

DEAN M, PENN AND WALTER DEEMIE,

Respondents.

Larry

R~

Eaton,

Assistant

Attorney General, for the Environmental

Protection

Agency;

Thomas

J,

Penn, Jr~for Respondent Penn and Wilbur

D.

Dersch

for

Respondent Deemie.

OPINION AND ORDER OF THE BOARD

(by Mr. Parker):

Respondent Penn owns property near Peoria, Illinois upon

which Respondent Deemie operates a refuse disposal facility

pursuant to

a lease from Penn entered into in March of 1971,

Prior to Deemie~scommencement of operations

in 1971, and

since at least as early as 1963,

the refuse disposal facility

had been

a large pit approximately 100 feet deep into which

garbage and trash including glass, trees, bushes and old

automobiles and appliances were dumped indiscriminately

(A,

Il,

18,

25,

27,

41)

The pit had been infested with rats and posed a

serious danger to children playing nearby

(R,

12,

36,

39).

Since becoming a lessee in 1971 Deemie has conducted fill operations,

primarily with building demolition wastes, which fill has covered

over some of the trash and garbage.

As

a result the pit is now

only

20

to

40 feet deep

(A,

11,

24).

The Complaint charges Respondents with operating the facility

without an Agency permit, and with causing or allowing open

dumping of garbage and refuse on December 29,

1971, January 25,

1972

and March

23 and 24,

1972,

Respondents are also charged with

failing

on one

or

more of those dates

a)

to provide portable

fencing around the fill site,

b)

to properly spread and compact

refuse admitted to the site,

c)

to provide proper daily cover

at the facility, and d)

to properly conduct salvage operations and

to prohibit

scavenging

operations at the facility.

The

Agency

requests an

order that Respondents

be required

to apply for an

Agency permit

and that

the facility

be

closed if the permit applica-

tion is denied, that Respondents be required to cease and desist

from violations in accordance with a compliance program approved

by the Board,

and

that monetary penalties be assessed.

---

At the public hearing,which was held on July 14,

1972,

the

Agency and Respondents

stated that they had arrived at an agree-

ment,

to be reduced to writing, concerning the factual issues

raised by the Complaint

(R.

7-9).

The only witnesses who testi-

fied at the hearing were several residents who lived near the

refuse disposal facility.

These neighbors said they were gener-

ally favorably impressed with Respondents’ accomplishments in

filling the pit and would like

to see the filling operations con-

tinue until the pit is completely filled,

at which time they feel

that the neighborhood property values will be increased

(R.

10—12,

17—18,

23, 27—28,

36, 43—44).

Following the public hearing Respondents and the Agency

filed

two separate documents with

the

Board, one entitled

Stip-

ulation and Proposed Order” containing eight paragraphs of

stipulated facts

(and no proposed order)

and the other entitled

“Order”,

The Stipulation

admits the facility has not been registered

either with the Illinois Department of Public Health or the

Illinois Environmental Protection Agency as a refuse disposal site.

It also admits that no operating permit has ever been obtained,

although Respondent Deemie has twice made permit applications which

have been rejected by

the

Agency for inadequate information

(par.

3).

The Stipulation also acknowledges that two Agency inspectors

~Mssrs.Diefenbach

and Lambert), and

an Agency photographer

(Mr. Vollmer)

,

if called to testify, would describe their observations

and photographing

of

open dumping of garbage and refuse,

failure

to provide portable fencing, failure to properly spread and compact

refuse, and failure

to

provide proper daily cover,

all as charged

in the Complaint

on

each of the four dates alleged therein

(pars.

4-6)

Respondent Deemie would, according to the Stipulation

(par.

8),

admit “that the testimony of the inspectors and photographer

for

the Environmental Protection Agency is substantially correct, and

that

the violations that they have testified to and which have been

alleged in the Complainant’s

Complaint herein were essentially

true,

and

that

the pictures taken by Mr. Vollmer, which are attached

hereto,

accurately depict the site”.

Respondent Penn would testify,

according

to

the

Stipulation

(par.

7),

that he had believed Deemie

was complying with

the

laws and regulations concerning dumping

activity, and that accordingly Respondent Penn’s had been only

a “passive negligence”.

While the photographs attached to the Stipulation show great

quantities of uncovered refuse at various locations in the pit, we

note from the Stipulation

(par.

8)

that Respondent Deemie compacted

and covered this refuse on the evening following taking of the

photographs, that he keeps a supervisor at the site at all times and

that

he

has a cable extending across the front of the site to pre-

vent entrance by trespassers.

5

—

160

---

The Order submitted for our review provides for a meeting

between Respondents and the

Agency

in July,

and

for

Respondents

either

to close the

dump

site with a final cover if no

permit

is

obtained as a result of the meeting, or to apply for a permit no

later than August

31, 1972.

The Order also calls for the

dump

site

to be closed permanently if, as a result of failure or inaction on

the part of the Respondents, no permit is obtained by December 31, 1972.

Finally, the Order calls for payment by Respondents of a penalty,

levied jointly and separately, in the awunt of $750.00 for the

admitted violations.

The Clerk of tho Board was informsd by Respondents’ attorneys

via telephone on August 14, 1972

that

Respondents are proceeding

with plans to apply for a

permit

and do not plati to shut

down

at this

time.

We find that the stipulated facts and the record evidence

support the basic thrust of the proposed order, which we adopt

to the extent indicated below.

While the magnitude of the $750.00

money penalty is perhaps on the

low

side, we believe it is justified

in this instance by Respondents’ present recognition of, and resolve

to abide by, the laws and regulations concerning dumping.

We also

believe the emphasis should properly be placed here on the

abatement plan rather than the money penalty since Respondents’

filling operation has a desirable goal and should be encouraged to

the extent that the pit will eventually become filled up thereby

This Opinion constitutes the Board’s findings of fact and

conclusions of law.

ORDER

1.

Respondents

shall cease and desist from causing or allow-

ing

open

dumping

of

garbage and

refuse in their

dump

site

2. Respondents shall apply for

an

Agency

permit

to

conduct

fill operations no later than August 31, 1972.

3. In the event that as a result

of

failure or inaction on

the

part

of Respondents no permit is obtained by December

31, 1972, the

dump

site will be closed permanently with

final

cover.

4..

Respondents

shall

within

35

days

after

receipt

of

this

Order

pay

a penalty of $750.00 by check payable to

Fiscal

Services Division, Environmental Protection Agency

2200 churchill Road, Springfield, Illinois

62706. This shall

be the responsibility of Respondents jointly

and

severally.

I,

Christan

Moffett,

Clerk

of

the

Pollution

Control

Board,

certify

that

the

Board

adopted the

above

Order

and

Opinion

this

fl

‘“

day

t

,1972,

by

a

vote

of_______

..~.