ILLINOIS POLLUTION CONTROL BOARD
August 21, 1997
GORDON KRAUTSACK, an individual,
)
)
Complainant,
)
)
v.
)
PCB 95-143
)
(Citizens Enforcement - Land)
BHOGILAL PATEL, an individual, SUBHASH
)
PATEL, an individual, ELECTRONIC
)
INTERCONNECT, INC., an Illinois
)
corporation, and ELECTRONIC
)
INTERCONNECT CORPORATION, an
)
Illinois corporation,
)
)
Respondents.
)
INTERIM OPINION AND ORDER OF THE BOARD (by R.C. Flemal):
This matter is before the Board on a motion for partial summary judgment, with
supporting affidavit, filed by Gordon Krautsack (complainant). Complainant moves for
summary judgment against one respondent, Electronic Interconnect Corporation
1
(EIC), on
three of the four counts: Count I (open dumping), Count II (improper disposal of wastes), and
Count III (hazardous waste disposal without required permits). Complainant requests that the
Board issue an order directing EIC to cease and desist from the continuing violations by
ordering EIC to remove the on-site wastes. Complainant further requests that the Board defer
ruling on civil penalties at this time.
For the reasons stated below, the Board finds that there are no genuine issues of
material fact remaining regarding Counts I, II, or III against EIC, and that complainant is
entitled to judgment under the law. The Board will accordingly grant complainant’s motion
for partial summary judgment against EIC and order an appropriate remedy.
PROCEDURAL HISTORY
The original complaint in this matter was filed on May 11, 1995. An amended
complaint was filed on November 21, 1995. The amended complaint consists of four counts,
three of which are at issue here.
1
Complainant does not seek summary judgment in the instant motion against the remaining
respondents, Bhogilal Patel, Subhash Patel, or Electronic Interconnect, Inc.
2
The motion for partial summary judgment was filed on May 20, 1997. Pursuant to 35
Ill. Adm. Code 101.241(b), and specifically Section 103.140(c), EIC was allowed a response
time of seven days after service of the motion. EIC requested, and received, two extensions of
time to file such response. Initially, the Board granted EIC an extension to file its response
until June 30, 1997. Krautsack (June 5, 1997), PCB 95-143. Subsequently the Board granted
EIC another extension until July 7, 1997. Krautsack (July 10, 1997), PCB 95-143. Despite
the two extensions, EIC has not filed a response to complainant’s motion for partial summary
judgment.
On July 22, 1997 complainant filed a motion to bar response from EIC. As no
response has been filed by EIC, this portion of the motion is moot. However, complainant’s
motion also requests that the Board invoke its rules at 35 Ill. Adm. Code 101.241(b) regarding
motion filing. Pursuant to Section 101.241(b), if a party does not file a response to a motion,
such party shall be deemed to have waived objection to the granting of the motion, but such
waiver of objection does not bind the Board in the decision of the motion. Pursuant to Section
101.241(b), and more specifically 103.140(c), the Board finds that EIC has waived objection
to complainant’s motion for partial summary judgment. However, because the Board is not
bound in its decision by such waiver, the Board will fully examine the substance of the motion
below.
ALLEGED VIOLATIONS
Counts I, II, and III of the amended complaint allege that EIC violated Sections 21(a),
(e), and (f) respectively, of the Environmental Protection Act (Act)(415 ILCS 5/1 et seq.
(1996)). Section 21 of the Act provides in pertinent part:
No person shall:
a. Cause or allow the open dumping of any waste.
****
e. Dispose, treat, store or abandon any waste, or transport any waste into this
State for disposal, treatment, storage or abandonment, except at a site or
facility which meets the requirements of this Act and of regulations and
standards thereunder.
f. Conduct any hazardous waste-storage, hazardous waste-treatment or
hazardous waste-disposal operation:
(1) without a RCRA permit for the site issued by the Agency under
subsection (d) of Section 29 of this Act, or in violation of any
condition imposed by such permit, including periodic reports and full
access to adequate records and the inspection of facilities, as may be
3
necessary to assure compliance with this Act and with regulations and
standards adopted thereunder; or
* * *
415 ILCS 5/21(a), (e) & (f).
FACTS
EIC manufactured printed circuit boards at a facility located at 800 Greenleaf in Elk
Grove Village during the period from June 1991 to December 1994. S. Patel Dep. at 8, 51;
B. Patel Dep. at 36, 48, 49.
2
During that period EIC leased the facility from the owners, one
of whom is complainant Krautsack. Krautsack Aff. EIC assumed the lease at the site from
EII. EIC made generally the same products as EII, using the same operations and chemicals,
for the same customers.
S. Patel Dep. at
51-52. Respondents Subhash Patel and Bhogilal Patel
were sales manager (S. Patel Dep. at 46) and operations manager (B. Patel Dep. at 7, 34),
respectively, for EIC during the period in question.
3
During the manufacturing operations various wastes were produced. Some of these
wastes were collected in a 55-gallon drum which had been sunken into the floor of the facility.
S. Patel Dep. at 54; B. Patel Dep. at 11, 39-40. The 55-gallon drum was placed in the ground
by EIC sometime between June 1991 and August 1992. Wastes placed in the drum included
acid, lead, plating wastes, cleaning materials, and copper. B. Patel Dep. at 25, 45, 46.
No seal was present around the top of the drum, such that when the drum filled and
overflowed, the contents of the drum flowed into gravel around the top of the drum and into
the soil underneath. S. Patel Dep. at 59-61; B. Patel Dep. at 42-43. According to Bhogilal
Patel, the drum overflowed “quite often” (B. Patel Dep. at 41), which he characterized as
“more than once and less than 100 times” (B. Patel Dep. at 41).
Some of the wastes that were placed in the 55-gallon drum and which overflowed into
the soil were hazardous wastes as classified pursuant to the Resource Conservation and
Recovery Act (RCRA). B. Patel Dep. at 67-68; see also hazardous waste manifests, exhibits
G and H to motion for summary judgment.
2
The motion for partial summary judgment contains several documents as exhibits. Those cited
herein are the deposition of Subhash Patel (Exh. B) cited as “S. Patel Dep. at ___”; deposition of
Bhogilal Patel (Exh. C) cited as “B. Patel Dep. at ___”; March 16, 1995 letter and attachments
from Green Environmental Group by William Frerichs to Greenleaf Properties (Exh. E) cited as
“Frerichs Letter at ___”; affidavit of Gorden Krautsack (Exh. F) cited as “Krautsack Aff.”; and
affidavit of William Frerichs (Exh. J) cited as “Frerichs Aff.”
3
From January 1987 through June 1991, Subhash Patel was the president of EII and Bhogilal
Patel was the secretary and personally handled manufacturing at EII.
4
The drum has since been removed and the floor patched. However, subsequent
investigations conducted at the site in February 1995 revealed contaminants in the soil,
including copper, lead, ammonia, and methyl ethyl ketone (MEK). Frerichs Letter at 1;
Frerichs Aff. The contaminants include RCRA hazardous wastes in the categories D002
(corrosive), D004 (arsenic), D007 (chromium), D008 (lead), and F005 (MEK) wastes.
Frerichs Aff.
DISPOSITION OF ALLEGED VIOLATIONS
Summary judgment is appropriate when the pleadings, depositions and admissions of
fact, together with any affidavits, show there is no genuine issue of material fact to be
considered by the trier of fact and the movant is entitled to judgment under the law. Purtill v.
Hess, 111 Ill. 2d 229, 240-241, 489 N.E.2d 867, 871-872 (1986); Waste Management of
Illinois, Inc. v. IEPA (July 21, 1994) PCB 94-153; ESG Watts v. IEPA (August 13, 1992),
PCB 92-54; Sherex Chemical v. IEPA (July 30, 1992), PCB 91-202; People v. ESG Watts
(March 6, 1997), PCB 96-233.
With the exception of moving for extensions to file a response, EIC has failed to
respond to the motion for partial summary judgment. In fact, EIC has failed to respond to the
complaint. As noted above, EIC has therefore waived objection to the motion.
Count I
Count I of the complaint alleges a violation of Section 21(a) of the Act. Section 21(a)
prohibits the open dumping of any waste. “Open dumping” is defined in the Act as “the
consolidation of refuse from one or more sources at a disposal site that does not fulfill the
requirements of a sanitary landfill,” where “refuse” is waste. 415 ILCS 5/3.24 & 3.31
(1996). The Act defines “waste” as “any garbage, sludge from a waste treatment plant…or
other discarded material, including solid, liquid, semi-solid, or contained gaseous material
resulting from industrial, commercial, mining and agricultural operations….” 415 ILCS
5/3.53 (1996). A “sanitary landfill” is defined in the Act as “a facility permitted by the
Agency for the disposal of waste on land meeting the requirements of the Resource
Conservation and Recovery Act…and without creating nuisances or hazardous to public health
or safety….” 415 ILCS 5/3.41 (1996).
Subhash Patel stated in his deposition, that during his entire tenure with EII, he did not
know of any spills or releases of chemicals at the site.
S. Patel Dep. at
37, 45. Bhogilal Patel
supported this answer; he also did not know of any leaks or spills of any kind while EII
operated the site.
The eyewitness depositions affirm that EIC caused and allowed the dumping of
wastes from the printed circuit board operations, including substances currently found
as contaminants in the on-site subsurface. EIC was not permitted by the Illinois
Environmental Protection Agency to dispose of waste on-site, and the site is not
permitted as a sanitary landfill. Complainant is required to demonstrate, and has
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demonstrated, how the placement of the dumped material into the 55-gallon drum
resulted in the waste entering the environment through the surrounding soil. Illinois
Environmental Protection Agency v. Bennett (April 20, 1995), AC 94-5; Illinois
Environmental Protection Agency v. Seaman (May 5, 1994), AC 92-86.
Complainant’s affidavit states that prior to 1986 the site was clean and free of
environmental contamination.
Krautsack
Aff.
The evidence shows that the 55-gallon drum
was placed in the ground by EIC between June 1991 and August 1992. Environmental
contamination was discovered on-site in December 1994 when EIC vacated the site; and at that
time, there were also numerous signs of spillage and discoloration on-site.
The Board hereby finds uncontested evidence exists to find EIC violated Section 21(a)
of the Act.
Count II
Count II of the complaint alleges a violation of Section 21(e) of the Act. Section 21(e)
prohibits EIC from disposing and storing any waste except at a facility which meets the
requirements of the Act and of regulations and standards thereunder. The Act defines
“disposal” as the “discharge, deposit, injection, dumping, spilling, leaking or placing of any
waste or hazardous waste into or on any land…so that such waste or hazardous waste or any
constituent thereof may enter the environment or be emitted into the air or discharged into any
waters, including ground waters.” 415 ILCS 5/3.08 (1996). EIC disposed of wastes into the
ground when it allowed the 55-gallon drum to spill over into the soil surrounding and enter the
environment. EIC also stored the wastes in the 55-gallon drum without meeting the
requirements of the Act. Complainant produced undisputed evidence that EIC violated Section
21(e) of the Act. The Board finds EIC violated Section 21(e) of the Act.
Count III
Count III of the complaint alleges a violation of Section 21(f) of the Act. Section
21(f) prohibits the storage, treatment and disposal of hazardous waste without a proper RCRA
permit. According to the depositions, on occasion the wastes were shipped off-site for
disposal with accompanying Hazardous Waste Manifests. Attached to the instant motion are
several Uniform Hazardous Waste Manifests. See MSJ Exhibits G & H. Confirming the
witnesses statements, almost all of the wastes in the Manifests are designated the waste as
RCRA hazardous wastes in the categories D002, D004, D007, and D008. MSJ Exhibits G &
H. It is uncontested that the wastes in question included hazardous waste.
EIC did not have an Agency-issued RCRA permit to treat, store, or dispose of
hazardous waste on-site. On this basis we find that EIC violated Section 21(f) of the Act.
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REMEDY
Having found that EIC violated the Act, the Board must determine what constitutes a
proper remedy. Complainant requests that the Board order EIC to cease and desist from
further violations by removing the wastes. Complainant suggests the Board delay determining
the appropriate civil penalty to be imposed until after EIC remediates the site.
The Board’s remedy determination is governed by Section 33(b) of the Act. Under
Section 33(b) the Board has authority to issue final orders, including orders directing a party to
cease and desist from violations of the Act, and orders imposing civil penalties in accordance
with Section 42. Under Section 33(c) (415 ILCS 5/33(c)), when issuing its orders and
determinations, the Board is to consider all the facts and circumstances bearing upon the
reasonableness of the discharges, but not limited to:
i. the character and degree of injury to, or interference with the protection of the
health, general welfare and physical property of the people;
ii. the social and economic value of the pollution source;
iii. the suitability or unsuitability of the pollution source to the area I which it is
located, including the question of priority of location in the area involved;
iv. the technical practicability and economic reasonableness of reducing or
eliminating the emissions, discharges or deposits resulting from such pollution
source; and
v. any subsequent compliance.
Initially, we consider the character and degree of injury to, or interference with the
protection of the health, general welfare, and physical property. EIC polluted the soils and
earth with liquid wastes and hazardous wastes and those wastes remain at the site. The
environmental investigation performed on the site indicates there are several types of
hazardous wastes present, including approximately 750 cubic yards of impacted soil, and a
minimum of 1,000 cubic yards of soil are probably impacted. Frerichs Letter. The
depositions, answers to interrogatories, and reports show that the chemicals used in EIC’s
manufacturing operations have overflowed into the soil. Detrimental environmental effects
will continue if these contaminants are not removed. There is no indication if any
groundwater could possibly be impacted by the contamination, or if the waste could become
leachate. The only suggested clean-up option is dig and haul the contaminated soil away to a
proper disposal area. Frerichs Letter. The Board finds that the consideration of Section
33(c)(1) of the Act establishes the unreasonableness of the alleged violations and must be
weighed against EIC.
There is no information in the record to indicate the amount, if any, of social and
economic value of EIC’s operations. (Section 33(c)(2)). There is no evidence in the record as
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to the location of the site, specifically the suitability or unsuitability of the area. There is
certainly nothing in the record to indicate the site was a suitable area to dispose of waste,
including hazardous waste. The priority of location does not come into question in this matter
because the complainant is the owner of the site and EIC was the lessee.
Lastly, there is no question that it is technically practical to eliminate this
environmental harm through monitored waste management at the site and proper off-site
disposal. In fact the depositions and Uniform Hazardous Waste Manifests indicate that there
were instances when EIC did send the wastes off-site.
4
The Board finds it was technically
practicable to eliminate the spills by emptying the 55-gallon drum when it filled. There were
at least two employees on site, Subhash and Bhogilal Patel, and it is reasonable to assume they
were not the only employees. Dumping the waste out of the 55-gallon drum and into the
1000-gallon tanks could not have been an economically unreasonable task to perform to
prevent the overflow from entering the soil. The Board finds that this factor weighs against
EIC.
Lastly, the evidence shows that EIC has not remediated the site and although the drum
has since been removed and the hole patched, contamination remains on site. The only
document submitted regarding construction on-site after EIC vacated the premises was a
general contractor’s invoice for patching concrete holes from a sump pit, filling it with gravel,
and removing and replacing cement block in the outside wall. EIC did not remove the wastes
on-site, it buried them. The Board agrees with complainant’s characterization of EIC’s
conduct as representing the worst kind of corporate behavior, “wanton disregard of
environmental safety and regulations, plus a purposeful attempt to conceal the contamination.”
MSJ at 9. This attempt to cover the hole containing the origin of the contamination weighs
heavily against EIC.
According to the subsurface investigation performed by The Green Environmental
Group on February 9 and 17, 1995, soil testing confirmed the presence of contamination on
site. The report recommends that at least a portion of the site should be excavated, where
cleanup of all of the soil is estimated at $75,000, in addition to excavation of the interior and
exterior of the building to remove contaminated areas. The record clearly indicates that EIC
has not come into subsequent compliance.
Based upon the record and the factors in Section 33(c) of the Act, the Board hereby
orders EIC to immediately cease and desist violating the Act, and directs EIC to remediate the
site.
4
When the drum was filled, the liquid waste was dumped into one of two 1000-gallon
above ground tanks to be disposed of off-site by Envirite. S. Patel Dep. at 17 -19, 36; B.
Patel Dep. at 23.
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Civil Penalty
With regards to the requested civil penalty, the Board’s authority to issue a civil penalty
is governed by Section 42 of the Act. In accordance with Section 42(a), any person that
violates any provision of the Act or Board regulations is liable for a civil penalty not to exceed
$50,000 for the violation and an additional civil penalty not to exceed $10,000 for each day
during which the violation continues. Section 42(b)(3) is specific to the violation of Section
21(f); if a person violates Section 21(f), they shall be liable to a civil penalty of not to exceed
$25,000 per day of violation.
Complainant seeks a civil penalty of $50,000 against each respondent for each
violation, and an additional civil penalty of $10,000 for each day the violation continues.
However, as noted in Section 42(b)(3), a violation of Section 21(f) of the Act has a maximum
civil penalty of $25,000. In light of complainant’s request, the Board reserves ruling on any
civil penalty until after EIC has remediated the site.
CONCLUSION
Based upon the record, where complainant’s allegations against EIC were supported
with depositions, affidavits, uniform waste manifests, and an environmental assessment, the
complainant has demonstrated that EIC violated the Act as alleged in Counts I, II, and III of
the complaint. EIC has not responded to any of the allegations made against it by
complainant. The Board finds that partial summary judgment against EIC is warranted. The
Board will direct EIC to cease and desist from further violations of the Act and remediate the
site. The Board will address the appropriate civil penalty, if any, after site remediation is
completed.
ORDER
1. The Board hereby grants partial summary judgment in favor of Gordon Krautsack,
complainant, against respondent Electronic Interconnect Corporation, an Illinois
Corporation, (EIC).
2. The Board finds that EIC violated Sections 21(a), (e) and (f) of the Act.
3. EIC is hereby ordered to cease and desist from violations of the Act.
4. EIC is hereby ordered to immediately complete remediation of the site, including removing
any waste which was improperly disposed, in compliance with the Act and applicable
Board regulations.
5. EIC is hereby ordered to complete remediation at the site by December 31, 1997.
IT IS SO ORDERED.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above interim opinion and order was adopted on the 21st day of August 1997, by a vote of
6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
