ILLINOIS POLLUTION CONTROL BOARD
February 5, 1998
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
ESG WATTS, INC.,
Respondent.
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PCB 96-107
(Enforcement - Air - Land - Water)
THOMAS DAVIS AND AMY SYMONS-JACKSON,
1
ASSISTANT ATTORNEYS
GENERAL, APPEARED ON BEHALF OF COMPLAINANT; AND
CHARLES J. NORTHRUP OF SORLING, NORTHRUP, HANNA, CULLEN &
COCHRAN, APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by C.A. Manning):
This matter comes before the Board pursuant to an eight-count complaint filed by the
Illinois Attorney General, on behalf of the People of the State of Illinois (complainant) and at
the request of the Illinois Environmental Protection Agency (Agency), against ESG Watts, Inc.
(ESG Watts). Complainant alleges various violations of the Environmental Protection Act
(Act) related to ESG Watts’ operation of a municipal solid waste landfill, known as the
Watts/Taylor Ridge landfill (landfill), which is located in Rock Island County, Illinois.
Specifically, complainant alleges that, through the operation of the landfill, ESG Watts
committed various violations of the Act and Board rules related to: cost estimate and financial
assurance obligations; landfill operational obligations; inadequate coverage and leachate;
National Pollutant Discharge Elimination System (NPDES) permit requirements; runoff and
water pollution; groundwater contamination; and air pollution from landfill gas and odor.
Notably, as a penalty for these violations, complainant seeks revocation of ESG Watts’ permit
to operate the landfill. Further, complainant seeks monetary penalties, a cease and desist
order, and attorney fees.
After an extensive period of discovery, the Board held hearings on the complaint before
then-Board Hearing Officer Deborah L. Feinen
2
on October 29-30, 1996, and again on
1
Subsequent to the completion of the record in this matter, Amy Symons-Jackson filed a
withdrawal as attorney of record in this proceeding. She has since been hired as a hearing
officer at the Board. She has not participated in any of the deliberations in this matter.
2
Upon the resignation and December 31, 1997, departure of Ms. Feinen, and subsequent to
the completion of the record, the Board appointed Kathleen Crowley as the hearing officer in
2
December 12, 1996. The parties filed post-hearing briefs. The compiled record, consisting of
over 900 pages of testimony, 82 exhibits and over 100 photographs, forms the basis of the
Board’s decision in this matter.
A number of procedural issues were raised by both parties and are discussed, and
resolved, in this opinion. Among those procedural issues are: whether complainant can
amend its pleadings and complaint to conform to certain record evidence; whether certain
evidence offered by complainant at hearing should be allowed; whether certain proffered
supplementation to the record should be allowed, whether certain pre-1992 evidence, offered
as evidence of water pollution, should be barred upon the principal of
res judicata
; and
whether certain other evidence should be barred upon the principal of
laches
.
As more fully explained below, the Board finds ESG Watts in violation of the
following sections of the Act: Sections 9(a), 12(a), 12(d), 12(f), 21 (d)(1), 21(d)(2), 21(o)(5),
21(o)(6), 21(o)(13), and 21.1(a) (415 ILCS 9(a), 12(a), 12(d), 12(f), 21 (d)(1), 21(d)(2),
21(o)(5), 21(o)(6), 21(o)(13), and 21.1(a) (1994)). The Board also finds ESG Watts in
violation of the following Board regulations: 35 Ill. Adm. Code 302.203, 304.120(c),
304.124(a), 304.141(a), 305.102(b), 620.115, 620.301, 620.405, 807.305(a), 807.305(b),
807.305(c), 807.312, 807.313, 807.314(e), and 807.623. Further, the Board finds ESG Watts
in violation of various permit requirements including Special Condition 8 of Supplemental
Permit No. 1991-292-SP, Special Conditions 2 and 18 of Supplemental Permit No. 1993-167-
SP, and Special Conditions II.7, II.8 of Supplemental Permit No. 1996-087-SP. After due
consideration of the statutory factors found at Section 33(c), as well as Section 42(h) of the
Act (415 ILCS 5/33(c), 5/42(h) (1996)), the Board revokes ESG Watts’ operating permit No.
1972-72-DE/OP. The Board further orders ESG Watts to pay a penalty in the amount of
$100,000, as well as attorney fees in the amount of $26,567.
PROCEDURAL BACKGROUND AND PRELIMINARY MATTERS
Prior to complainant’s filing of this complaint, the Agency provided ESG Watts with
notice of the alleged violations and an opportunity to meet pursuant to Section 31(d) of the Act
(415 ILCS 5/31(d) (1994)). The Agency sent enforcement notice letters, pursuant to Section
31, on May 11, 1995, and August 4, 1995. A meeting was held between all of the parties on
August 16, 1995. Consequentially, the complaint in this matter was filed on November 16,
1995, pursuant to Section 31(a) of the Act (415 ILCS 5/31(a) (1994)), requesting that the
Board order ESG Watts to cease and desist from further violations and requesting a penalty
and attorney fees.
On December 1, 1995, ESG Watts filed a motion to dismiss. The Board denied this
motion on January 4, 1996. See People v. ESG Watts, Inc. (January 4, 1996), PCB 96-107.
The parties subsequently entered into a written and oral discovery schedule. On May 30,
1996, complainant filed a supplemental pleading which altered the request for relief from the
Board. The pleading requested that the Board revoke ESG Watts’ operating permits for the
this matter. As such, ESG Watts’ motion for substitution of hearing officer filed on January
27, 1998, is stricken.
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landfill as a penalty for the violations alleged in the pending complaint. The supplemental
pleading also alleged continuing violations of all counts of the complaint from the date the
complaint was filed, up through and including the date of the hearing.
On July 15, 1996, ESG Watts filed a motion for continuance, arguing that it needed
additional time for discovery. By hearing officer order of July 17, 1996, the hearing officer
granted ESG Watts’ motion and ordered an October 1, 1996, deadline for discovery to be
completed by all the parties. On October 10, 1996, complainant filed a motion for sanctions
due to alleged violations of discovery rules. The hearing officer denied this motion on
October 17, 1996. On October 21, 1996, ESG Watts filed a motion for protective order,
requesting that ESG Watts’ corporate tax records and financial data be sealed from the public.
The hearing officer denied that motion on October 28, 1997.
A three-day hearing was held on October 29-30, 1996, and December 12, 1996. On
December 9, 1996, ESG Watts filed a motion to extend the hearing scheduled for December
12, 1996, which motion the hearing officer denied. During the three days of hearing,
complainant presented eight witnesses including: Agency employees Bill Child, chief, Bureau
of Land; James Kammueller, manager, Water Pollution Control, Peoria Regional Office;
Ronald Mehalic, environmental protection specialist; Kenneth Liss, groundwater unit manager
of the permit section in the Bureau of Land; John Taylor, financial assurance analyst; Joyce
Munie, solid waste unit manager of the permit section in the Bureau of Land and, additionally,
landfill neighbors Joe Whitley, Jerry Martens, and Wayne Siebke. Also, landfill neighbor
Heidi Schultz testified as a member of the public. On behalf of ESG Watts, nine witnesses
testified including Watts’ employees Joe Chenoweth, landfill supervisor; Jerry Eilers, vice
president of Watts Trucking Service Company; Steve Grothus, project manager for landfill
division; Tom Jones, engineer; and John Reiser, technical representative and certified operator
at Sangamon Valley landfill, as well as Mark Mehall, solid waste coordinator of the Rock
Island County Waste Management Agency; Steve Keith, environmental engineer at CH2MHill;
Robert Fortelka, resident engineer at Resource Technology Corporation (RTC) and Steve
Brao, environmental consultant and president of Noble Earth Corporation.
Complainant filed its brief on January 21, 1997; ESG Watts filed its brief on February
10, 1997; and complainant filed its reply brief on February 24, 1997. The Board will now
resolve the post-hearing evidentiary motions which remain for resolution.
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Complainant’s Motion to Conform Pleadings to Proof
In this motion, filed on January 23, 1997, complainant seeks to present two new
allegations for the Board’s resolution. Complainant believes these new allegations conform to
the proof adduced at hearing. Pursuant to Section 103.210(a) of the Board’s Procedural Rules,
35 Ill. Adm. Code 103.210(a) (1994),
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complainant seeks Board consideration of these post-
3
Complainant’s January 22, 1998, motion for request of decision is denied as moot.
4
Section 103.210(a) provides that “[proof] may depart from pleadings and pleadings may be
amended to conform to proof, so long as no undue surprise results that cannot be remedied by
a continuance.” See 35 Ill. Adm. Code 103.210(a) (1994).
4
hearing allegations. ESG Watts objects, arguing that pleadings cannot be amended after
hearing and that, as to one of the allegations, the new allegation would result in undue surprise
and, for that reason as well, should be disallowed. ESG Watts also argues that these new
claims are precluded by Section 31(d) of the Act (415 ILCS 5/31(d) (1996)) since no meeting
took place between the Agency and ESG Watts. As the Board has recently held that the new
Section 31 requirements apply only to the Agency’s action prior to referral to the Attorney
General, we disagree that the claims are precluded by Section 31. See People v. Geon
(October 2, 1997), PCB 97-62.
The first allegation complainant raises in this motion deals with ESG Watts’ failure to
fully fund the financial assurance trust fund, the mechanism by which ESG Watts guarantees
the State that it has enough money on reserve to adequately provide for closure and post-
closure care of the landfill. Proof of such inadequacy was adduced at hearing through the
testimony of Mr. Taylor, a financial assurance analyst for the Agency, and is uncontested.
The charge is very closely related to complainant’s pre-existing count I, dealing with ESG
Watts’ failure to file cost estimates for closure. Section 103.210(a) plainly allows post-
hearing motions to amend pleadings based upon proof adduced at hearing, so long as no
surprise resulted (35 Ill. Adm. Code 103.210(a)). This allegation is a natural outgrowth of the
hearing and discovery process and, as our hearing officer correctly observed, it comes as no
surprise. Accordingly, the Board will allow the motion to conform as to the financial
assurance allegation.
Complainant’s second claim alleges that ESG Watts has violated its permit
requirements concerning the height of its landfill. This claim is based upon the testimony of
an ESG Watts’ witness at the very final stages of the hearing. Throughout the entire discovery
process, complainant never once raised an issue concerning vertical elevation in excess of
permit limits. The Board agrees with ESG Watts that this allegation results in unfair surprise
and disallows ESG Watts from providing an informed evidentiary response. Further, given the
character of the testimony regarding the overage, adequate evidence of this potential violation
is lacking. Accordingly, the Board will not allow this portion of the motion to amend. The
motion is granted as to the financial assurance allegation and denied as to the vertical
expansion issue.
Complainant’s Motion to Allow Offer of Proof and
the Parties’ Various Motions to Supplement Record
The Board discusses these motions collectively as all but one of the motions to
supplement relate to one substantive issue before the Board: the various positions of the
parties on the Agency’s denial of ESG Watts’ significant modification (sig mod) permit.
At hearing on December 12, 1996, the Board’s hearing officer rejected complainant’s
attempt to introduce evidence of the Agency’s denial of ESG Watts’ sig mod permit, which
denial letter was written shortly before the hearing. The hearing officer disallowed the
evidence because she determined that the presentation of such evidence violated her discovery
order. Over the hearing officer’s objection, complainant offered proof of the evidence and
filed a motion for offer of proof with the Board on January 23, 1997. Complainant seeks to
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have the Board allow the testimony our hearing officer disallowed. The Board will not disturb
the determination of our hearing officer on the evidentiary issue. Arguments of complainant
aside, the hearing officer’s determination was clearly within her authority pursuant to Sections
101.220(m) and (n) of the Board’s Procedural Rules (35 Ill. Adm. Code 101.220(m)(n)).
Moreover, we fail to see how the proffered evidence of this permit denial is directly relevant
in this enforcement proceeding. The permit denial is the subject of an appeal which is
currently pending.
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Accordingly, complainant’s motion to offer proof is denied.
Based upon the information contained in complainant’s offer of proof, ESG Watts has
filed several motions to supplement the record. The first four motions and the sixth motion
are each based upon information which ESG Watts wishes to present on the question of the
permit submission and denial. As stated above, the Board does not see the relevance of the
merits of ESG Watts’ permit submission and denial in this enforcement proceeding. Indeed,
such evidence is misplaced and unnecessary as it is merely offered in response to
complainant’s offer of proof, which we have disallowed. Accordingly, ESG Watts’ various
motions to supplement are also denied.
On January 27, 1998, complainant filed a motion to supplement the record. In the
motion, complainant desires to update the Board with information on ESG Watts’ status of the
financial assurance amount. Further, on January 29, 1998, ESG Watts submitted a fifth
motion to supplement the record to also inform the Board of the status of the financial
assurance amount. In that the record has been closed since the close of the briefing stage, the
Board will not hear such motions. The motions and information contained therein do not
substantially aid the Board in determining a penalty for violations which have already
occurred. Accordingly, the motions are stricken from the record and are not considered by the
Board in this matter.
ESG Watts’ Arguments Regarding Pre-1992 Water Evidence
ESG Watts argues that under the doctrine of
res judicata
, any pre-1992 water violations
should be barred because such violations were previously prosecuted in the September 11,
1992, Sangamon County Circuit Court case, People v. Watts Trucking Service, Inc. No. 92-
CH-23 (Cir. Ct. Sangamon Co.). Resp. Br. at 4-5.
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Complainant states that it is not
5
The currently pending sig mod appeal to which this motion refers to is docketed at the Board
as ESG Watts, Inc. v. Illinois Environmental Protection Agency, PCB 95-110. There is also
another pending sig mod permit appeal pending at the Board that is docketed as ESG Watts,
Inc. v. Illinois Environmental Protection Agency, PCB 98-38.
6
Citations to the transcripts will hereinafter be cited to as “Tr. at ___.” Citations to the
complaint will be cited as “Comp. at _____.” Citations to the briefs of complainant will be
cited to as “Comp. Br. at _____”; and “Comp. Reply Br. at _____.” Citations to ESG Watts’
brief will be cited to as “Resp. Br. at _____.” Citations to ESG Watts’ response to
complainant’s request for the admission of facts regarding previously adjudicated violations
will hereinafter be cited to as “Resp. to Previous Violations at _____.” Citations to ESG
Watts’ response to complainant’s request for the admission of facts regarding newly alleged
violations will hereinafter be cited to as “Resp. to New Violations at _____.”
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relitigating any violations which have already been adjudicated against ESG Watts. Comp.
Reply Br. at 2. Complainant asserts that the effluent and water quality violations from the July
1986 inspection and the NPDES permit violations that have occurred since the permit issuance
in October 1986, were not previously included in the Sangamon County Circuit Court case.
The doctrine of
res judicata
operates such that “a final judgment rendered by a court of
competent jurisdiction on the merits is conclusive as to the rights of the parties and their
privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same
claim, demand or cause of action.” Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d
484, 490, 626 N.E.2d 225, 228 (1993). In that the Sangamon County Circuit Court case
previously heard before Judge Richard Cadagin involved the same parties as in the instant
matter, and because the water pollution violations prior to 1992 are also substantially the same
violations as in the previous circuit court case, the Board finds that any allegations prior to
1992 pertaining to water pollution should not be considered, and are therefore stricken.
ESG Watts’ Arguments Regarding
Laches
ESG Watts argues that many of complainant’s allegations should be barred by the
doctrine of
laches
. ESG Watts asserts that in the narrative attached to a July 16, 1986, Agency
inspection (Comp. Exh. 5), the Agency relies on sampling results which identify a violation
with respect to suspended solids. ESG Watts argues that such reliance by the Agency on a
nine-year-old violation is “patently unreasonable” in bringing an enforcement action. Resp.
Br. at 7. Due to a 1987 fire at the landfill, ESG Watts further argues it was unable to defend
itself against a 1986 allegation. Resp. Br. at 7. Further, ESG Watts asserts that the doctrine
of
laches
is applicable with regard to the false Discharge Monitoring Reports (DMRs). Resp.
Br. at 8. ESG Watts states that even though the landfill submitted monthly DMRs since 1986,
complainant waited until February 1994 to determine that the DMRs were improperly
completed. Resp. Br. at 8.
Complainant asserts that
laches
is not applicable in enforcement cases brought before
the Board pursuant to the Act. Comp. Reply Br. at 3. Complainant argues that even if
laches
were applicable, ESG Watts has failed to prove the level of prejudice which would justify the
imposition of the
laches
doctrine. Complainant argues that as soon as the Agency became
aware of improperly submitted DMRs, the Agency pursued enforcement of the violations.
Reply Br. at 4-5.
Laches
is an equitable doctrine which bars relief where a defendant has been misled or
prejudiced because of a plaintiff’s delay in asserting a right. City of Rochelle v. Suski, 206
Ill. App. 3d 497, 501, 564 N.E.2d 933, 936 (2nd Dist. 1990). Although application of
laches
to public bodies is disfavored, it has nevertheless been clear at least since the Illinois Supreme
Court’s opinion in Hickey v. Illinois Central Railroad Co., 35 Ill. 2d 427, 220 N.E.2d 415
(1966) that the doctrine can apply to governmental bodies under “compelling circumstances.”
See also Van Milligan v. Board of Fire & Police Commissioners, 158 Ill. 2d 84, 630 N.E.2d
830 (1994); People v. Bigelow Group, Inc. (January 8, 1998), PCB 97-217, slip op. at 1-2.
There are two principal elements of
laches
: (1) lack of due diligence by the party asserting the
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claim, and (2) prejudice to the opposing party. Van Milligan, 158 Ill. 2d at 89, 630 N.E.2d at
833.
The Board believes that the doctrine of
laches
does not apply to the instant matter.
ESG Watts has not shown lack of due diligence on the Agency’s part. Further ESG Watts has
not shown any prejudice. With regard to the 1986 water allegations, the Board barred such
evidence on the basis of
res judicata
(see discussion above). With regard to the inaccurate
DMRs, the Agency diligently pursued this violation upon its discovery of the circumstances.
As such, the Board believes that there are no “compelling circumstances” which would show
that
laches
should be applied in this matter.
FINDINGS OF FACT
ESG Watts, Inc., an Iowa corporation, is a subsidiary of Watts Trucking Services. Tr.
at 522. ESG Watts owns and operates three landfills in Illinois: the Taylor Ridge landfill
(previously known as the Andalusia Watts landfill, see Tr. at 20), located in Rock Island
County, Illinois, which is at issue in this proceeding; the Sangamon Valley landfill, located in
Sangamon County, Illinois; and the Viola landfill, located in Viola, Illinois. Tr. at 522. The
Taylor Ridge landfill is presently still in operation and accepting waste in accordance with an
operating permit (issued by the Agency in 1972) and several supplemental permits (issued
subsequent to the original operating permit). The Sangamon Valley landfill is not currently
accepting any waste and the Viola landfill is closed. Tr. at 522.
Taylor Ridge Landfill and Surrounding Areas
The Taylor Ridge landfill occupies 56.5 acres near Taylor Ridge, Rock Island County,
Illinois. The landfill serves primarily the Rock Island area and covers an area of
approximately 60 acres. In 1972, the Agency issued to ESG Watts a permit (permit number
1972-72-DE/OP) for the development and operation of the landfill. Through the initial permit
and supplemental permits issued by the Agency, the Agency authorized ESG Watts to conduct
waste disposal and sanitary landfill operations in the State of Illinois. Current permits (as
entered into evidence by complainant) held by ESG Watts regarding this landfill include: (1)
NPDES permit issued on August 21, 1986, and renewed in 1996 (NPDES Permit No.
IL0065307) (see Comp. Exh. 6); (2) supplemental permit (Supplemental Permit No. 1993-
167-SP), issued on August 27, 1993, regarding closure and post-closure plans as well as cost
estimates, and other special conditions (see Comp. Exh. 65); (3) supplemental permit
(Supplemental Permit No. 1995-374-SP), issued on January 9, 1996, which approved the
biennial revision of closure and post-closure care plan for the facility (see Comp. Exh. 56),
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and (4) supplemental permit (Supplemental Permit No. 1996-087-SP), issued on June 13,
1996, which allowed the installation and operation of the active gas management at the
facility. Comp. Exh. 2.
7
This permit is currently on appeal to the Board as ESG Watts, Inc. v. Illinois Environmental
Protection Agency, (PCB 96-181).
8
The Taylor Ridge landfill filed its capacity certification on January 15, 1996. The
operator of the landfill expects that there are 1,782,000 cubic yards remaining in the permitted
capacity of the landfill and that it will close in the year 2000. Tr. at 30; Comp. Exh. 1 at 2-3.
The Taylor Ridge landfill is one of three landfills in Rock Island County which pays a solid
waste fee that funds the Rock Island County Waste Management Agency. Tr. at 514. Mr.
Mehall, a solid waste coordinator at the Rock Island County Waste Management Agency,
stated that if the Taylor Ridge landfill closed, his agency would “only suffer a slight decrease,
if any” in loss of tipping fees from the Taylor Ridge landfill. Tr. at 520.
Several neighbors who own land around the Taylor Ridge landfill testified at the
hearing regarding the problems they have experienced with the landfill. Their testimony is
summarized at relevant portions of this section. Mr. Whitley owns 43 acres in two separate
parcels which are adjacent to each other.
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Tr. at 210. The first parcel is adjacent to the
landfill on the north border of the landfill. Twenty acres of the second parcel are adjacent to
the landfill on the west border of the landfill. Tr. at 210. Mr. Whitley owns a large pond on
his own property and part of a small pond (also referred to as the retention pond) which is on
his property and on the ESG Watts property. Tr. at 90-91. The large pond is a man-made
pond about 400 feet long and 100 feet wide, and runs from north to south. Tr. at 211. The
big pond has embankments; a small trailer is located next to the pond and a fishing dock is
next to the trailer which extends into the pond. Tr. at 196. The large pond is situated to the
north of the landfill. Tr. at 216. On the west side of the pond, the ground tends to slope off
to the west and drain away. Tr. at 197. The large pond is between 100 to 120 feet from the
property line. Tr. at 218. Various small-sized fish inhabit Mr. Whitley’s large pond. Tr. at
196. There is a small watershed feeding the pond on the Whitley property. Tr. at 197. The
small pond acts as a retention pond for silt or soil accumulations from the landfill. Tr. at 179,
221. The small pond was created in 1989 as a berm to cut off water that was entering the
large Whitley pond. Tr. at 657.
Another neighbor, Mr. Martens, lives to the north of the landfill. He testified at
hearing as to the odors, excess litter, and muddy highway from the landfill trucks. Tr. at 329.
Mr. Siebke owns property which abuts the landfill on the northeast corner. Tr. at 353, 423.
A drainage ditch, or creek (known as outfall 001 at the landfill) is on the property of Mr.
Siebke. Tr. at 359, 366. Ms. Schultz, another neighbor who testified at hearing, lives about a
half a mile from the landfill and gave testimony with regard to the odor she and her family
smelled from the landfill. Tr. at 374, 376.
History of Non-Compliance
ESG Watts, and its operation of the Taylor Ridge, Sangamon Valley, and Viola
landfills, has been the subject of myriad Board and court decisions in recent years. Indeed, in
8
On April 26, 1984, Mr. Watts sued Mr. Whitley for slander and libel. The lawsuit was
dismissed in 1991. Tr. at 283, 289. Mr. Whitley then brought a property suit against Mr.
Watts. Tr. at 292. A mutual release was signed by both sides on April 10, 1991, which fully
resolved both lawsuits. Tr. at 293. While ESG Watts argues that this history of conflict
impacts the credibility of Mr. Whitley’s testimony, the Board disagrees.
9
a recent Board decision regarding this landfill, the Board upheld the Agency’s denial of five
waste stream permits, based upon the operator’s history of repeated violations of the Act, as
allowed by Section 39(i) of the Act. 415 ILCS 5/39(i) (1996). See ESG Watts, Inc. v.
Illinois Environmental Protection Agency (March 21, 1996), PCB 94-243
et al
. In denying
the permits, the Agency took into consideration 19 administrative citations, as well as a circuit
court adjudication, involving ESG Watts’ operations of Taylor Ridge or its other Illinois
landfills. The Board’s determination was affirmed by the Illinois Appellate Court, Third
District. See ESG Watts, Inc. v. Pollution Control Board, 286 Ill. App.3d 325, 676 N.E.2d
299 (3rd Dist. 1997).
The 19 administrative citations issued by the Agency to ESG Watts prior to the above-
referenced matter, and referenced therein, include: AC 86-10 (January 22, 1987), AC 87-123
(April 7, 1988), AC 88-17 (May 5, 1988), AC 88-25 (May 5, 1988), AC 88-45 (June 30,
1988), AC 88-49 (June 30, 1988), AC 88-50 (September 8, 1988), AC 88-112 (January 19,
1989), AC 89-38 (April 6, 1989), AC 89-131 (July 30, 1990), AC 89-255 (January 11, 1990),
AC 89-278 (January 25, 1990), AC 89-286 (January 25, 1990), AC 90-26 (August 8, 1991),
AC 90-36 (June 20, 1991), AC 94-11 (April 21, 1994), AC 94-12 (May 5, 1994), AC 94-13
(May 5, 1994), and AC 94-15 (May 5, 1994). The Agency does not believe that
administrative citations have been an effective tool in achieving compliance at the Taylor
Ridge landfill. Tr. at 73.
In addition to receiving these administrative citations, ESG Watts has been a defendant
in at least three circuit court proceedings where the Illinois Attorney General has alleged, and
proven, violations of the Act. On September 11, 1992, Judge Cadagin entered a preliminary
injunction order against the Taylor Ridge landfill in People v. Watts Trucking Service, Inc.,
No. 92-CH-23 (Cir. Ct. Sangamon Co.), that required ESG Watts to: (1) implement adequate
measures to monitor and control leachate; (2) establish an appropriate trust fund balance for
financial assurance; and (3) make quarterly payments of the solid waste management fees and
submit required reports in a timely fashion. Tr. at 313-14. See Comp. Exh. 29 at 2.
Another judgment order was issued on February 2, 1994, by the Sangamon County
Circuit Court, this one involving ESG Watts’ operation of the Sangamon Valley landfill,
People v. Watts Trucking Service, Inc., No. 91-CH-242 (Cir. Ct. Sangamon Co.). In that
case, Judge Leo Zappa found ESG Watts in violation of various provisions of the Act for three
years and ordered ESG Watts to come into full compliance with Agency permits. See Comp.
Exh. 62. Additionally, the court order imposed penalties in the amount of $350,000, and
awarded attorney fees and expert witness costs in the amount of $30,940. Comp. Exh. 62.
On February 23, 1995, Judge Zappa found ESG Watts to be in direct civil contempt for having
substantially failed and willfully refused to comply with the February 2, 1994, judgment order.
The court ordered sanctions, attorney fees, and corrective actions under a specified timetable.
See Comp. Exh. 63. Finally, on June 6, 1996, Judge Zappa entered a supplemental contempt
order which found ESG Watts had not complied with the February 23, 1995, contempt order
and which ordered ESG Watts to institute corrective actions, pay sanctions and attorney fees.
See Comp. Exh. 64. The supplemental contempt order signed by Judge Zappa stated:
“incarceration is a drastic measure but will be seriously considered as a means to enforce
10
compliance if said deadlines are not met or good reasons are not shown for failure to comply.”
Comp. Exh. 64 at 4-5.
Later, on December 15, 1995, the Sangamon County Circuit Court adjudicated ESG
Watts in violation of the Act and corresponding regulations, this time for violations pertaining
to its operation of the Viola landfill. See People v. Watts Trucking Service, Inc., No. 92-CH-
35 (Circuit Court Sangamon County). Watts was ordered to pay the balance of its financial
assurance owed in the amount of $214,382. Resp. to Previous Violations at 7.
Additionally, the Board has found ESG Watts or its parent company, Watts Trucking
Service, Inc., in violation of the Act in each of the following State enforcement cases: IEPA
v. Watts Trucking Service, Inc. (October 14, 1975), PCB 74-131; People and IEPA v. Watts
Trucking Service, Inc. (July 12, 1979), PCB 77-162; IEPA v. Joyce E. Frye & Watts
Trucking Service, Inc. (May 24, 1979), PCB 78-38; IEPA v. Watts Trucking Service, Inc.,
et
al
. (July 9, 1981), PCB 81-7; and People v. ESG Watts (May 4, 1995), PCB 94-127. In
People v. ESG Watts, Inc. (May 4, 1995), PCB 94-127, the Board found ESG Watts’
operation of the Taylor Ridge landfill in violation of the Act based upon a variety of proven
charges, specifically for improperly conducting a waste disposal operation, for failure to
submit reports, for failure to pay fees, for failure to submit cost estimates, for failure to follow
closure requirements, and for failure to submit a significant modification permit. The Board
assessed a penalty of $60,000 against ESG Watts and, in finding that the violations were
knowing and willful, ordered it to pay $4,980 in attorney fees to the Attorney General’s Office
pursuant to Section 42(f) of the Act (415 ILCS 5/42(f) (1994)). We declined at that time,
however, to revoke ESG Watts’ permits to operate Taylor Ridge landfill. See Watts (May 4,
1995), PCB 94-127, slip op. at 16. This case was affirmed on appeal to the Illinois Appellate
Court in ESG Watts, Inc. v. Pollution Control Board, 282 Ill. App. 3d 43, 668 N.E.2d 1015
(4th Dist. 1996).
Finally, in addition to the instant matter, and the past adjudications referenced above,
the Board has a variety of ESG Watts cases on our docket pending resolution. They are: AC
94-28, AC 94-29, AC 94-48, AC 94-49, AC 94-50, AC 94-51, AC 94-52, AC 94-58, AC 94-
59, AC 94-60, AC 94-61, AC 94-81, AC 94-82, AC 94-90, AC 94-91, AC 94-95, AC 95-8,
AC 95-18, AC 95-21, AC 95-28, AC 95-29; AC 98-4; PCB 94-176, PCB 95-109, PCB 95-
110, PCB 96-181, PCB 96-233, PCB 96-237, PCB 97-210, PCB 98-2, and PCB 98-38. Of
these pending matters, 22 are ESG Watts’ appeals from administrative citations issued by the
Agency, two are state-initiated enforcement actions, six are ESG Watts’ appeals of the
Agency’s decisions to deny permits to ESG Watts, and one is a landfill siting review. Some of
the permit denials were based, in part, upon the operator’s prior history of violations. See
ESG Watts, Inc. v. IEPA, PCB 95-110, PCB 96-181, PCB 97-210, and PCB 98-38.
Facts Pertinent to Alleged Violations
Multiple inspections were made of the Taylor Ridge landfill over the course of many
years. The Agency testified to many violations as a result of inspection reports compiled by its
11
inspectors.
9
The Agency made regular, routine inspections of the landfill to determine and
monitor compliance at the landfill; additionally, the Agency made inspections prompted by
various neighbors’ requests. At a minimum, the Agency made six inspections of the landfill
per year. Tr. at 300. During a typical inspection made by Mr. Mehalic, an environmental
protection specialist with the Agency, Mr. Mehalic would seek out the previous day’s working
area to see if it had been adequately covered with soil or synthetic fabric. Tr. at 296, 303-04.
As Mr. Mehalic would observe violations, he would note such violations on a checklist which
he carried with him during each inspection. Tr. at 304-05. Mr. Mehalic would usually walk
around the site with Mr. Chenoweth, the Taylor Ridge landfill supervisor. Tr. at 304, 600.
On almost every inspection performed by Mr. Mehalic, Mr. Chenoweth would accompany
Mr. Mehalic. Tr. at 613. Mr. Chenoweth stated that he would perform the landfill’s own site
inspections not less than three times a week and up to six times a week. Tr. at 604-05; see
Resp. Exh. 52.
Permit Violations and Financial Assurance/Cost Estimates
Pursuant to financial assurance regulations, operators of pollution control facilities are
required to provide financial guaranty that they are able to clean up the facility at the end of its
life. See Part 807.603 (35 Ill. Adm. Code 807.603); Tr. at 475, 478. The money is used to
close the landfill and provide for monitoring and maintenance after closure. See Part 807; Tr.
at 478. There are six financial assurance mechanisms a landfill or solid waste facility can use
to provide financial assurance: payment bond, performance bond, closure insurance, letter of
credit, self-insurance, and trust funds. 35 Ill. Adm. Code 807.640; Tr. at 483-84. Mr.
Taylor, a financial assurance analyst for the Agency, testified that ESG Watts has used the
trust funds mechanism for any financial assurance which it has provided for the facility. Tr. at
484.
Cost estimates reflect the cost of closure of the facility and determine the amount of
money a landfill is required to have in its financial assurance trust fund. The Taylor Ridge
landfill’s permits reflect the Board’s requirements at Part 807 (35 Ill. Adm. Code 807) that
cost estimates be updated biannually. See Comp. Exh. 65 (Supplemental Permit No. 1993-
167-SP) at 1, 2; Comp. Exh. 56 (Supplemental Permit No. 1995-374-SP) at 1. In accordance
with 35 Ill. Adm. Code 807.603, the operator is to provide additional financial assurances to
equal the Agency’s cost estimate within 90 days of the issuance of each cost estimate/financial
assurance permit. Tr. at 489. Initially, Special Condition 8 of Supplemental Permit No.
1991-292-SP, issued December 24, 1991, provided that “[t]he operator shall file revised cost
estimates for closure and post-closure care at least once every two years . . . [t]he revised cost
estimates are due on or before November 28, 1992.” Comp. at 6. Pursuant to that
supplemental permit, ESG Watts filed its cost estimates for closure and post-closure on or
about April 30, 1993. Resp. to New Violations at 1.
9
The Board notes that we did not consider facts pertinent to alleged water violations which
occurred before the September 11, 1992, order issued by Judge Cadagin in No. 92-CH-23.
See
supra
at 6.
12
Supplemental Permit No. 1993-167-SP, issued on August 27, 1993, authorized a
current cost estimate of $324,577.45 and required a biennial revision of the current cost
estimate by no later than November 28, 1994. Comp. Exh. 59 at 1. While ESG Watts
submitted revised cost estimates within a sig mod application filed with the Agency on
September 15, 1994, such application was denied by the Agency on February 16, 1995. Tr. at
35, 548, 924. The next approved current cost estimate, approved over 13 months later on
January 9, 1996, was included in Supplemental Permit No. 1995-374-SP at the amount of
$559,463.59. Comp. Exh. 59 at 1. Supplemental Permit No. 1996-087-SP, issued on June
13, 1996, required ESG Watts to increase financial assurance for this facility to $1,299,464 by
September 11, 1996. Comp. Exh. 59 at 1. In accordance with 35 Ill. Adm. Code 807.623,
ESG Watts was required to bring its financial assurance up to this amount by September 13,
1996, 90 days after the issuance of the June 13, 1996, supplemental permit. As of the date of
hearing, ESG Watts had not updated its financial assurance amount in accordance with permit
requirements; ESG Watts had just over $435,000 in Taylor Ridge’s trust fund for closure of
the facility. Tr. at 489. The trust fund remains underfunded by about $864,464.
ESG Watts’ other two Illinois landfills are also underfunded with respect to their
financial insurance obligations. Tr. at 492. Mr. Taylor prepared three memoranda (Comp.
Exh. 57, 58, 59) which detail the requirements for the ESG Watts’ financial assurance
obligations for all three of the ESG Watts’ landfills. Tr. at 489-90. The total deficiency for
the three facilities on September 19, 1996, was $1,841,971.56. Comp. Exh. 58 at 2; Tr. at
493. If ESG Watts does not pay for the closure of the landfill, eventually the cost will be
borne by Illinois taxpayers. Tr. at 492. The Agency estimates that ESG Watts has benefited
by about $55,000 for its failure to timely supply the Taylor Ridge trust fund with the
appropriate financial assurance obligations from November 1994 to October 1996, the date of
the hearing.
10
The Board notes that complainant entered into evidence the 1994 and 1995
corporate U.S. income tax returns of ESG Watts (see Comp. Exh. 66, 67). Such items show
ESG Watts’ ability to contribute to financial assurance since Watts Trucking Services, Inc. and
subsidiaries had $951,591 of net income remaining in 1995 and $3,460,771 of net income
remaining in 1994. Also, as listed on the 1995 U.S. income tax return, ESG Watts has an
outstanding loan to its sole stockholder, James Watts, in the amount of $1,012,014. Tr. at
540-43; Comp. Exh. 66, 67.
Mr. Eilers testified on the date of hearing that ESG Watts had not obtained financial
assurance, but that ESG Watts had taken steps to obtain the financial assurance. Tr. at 528.
Mr. Eilers stated that the landfill had begun to have discussions in early 1995 with insurance
brokers in order to have an insurance company provide the financial assurance. Tr. at 529-
531, 538. Within the 30 days prior to hearing, Eilers stated that one of the insurance
companies, the Lawly Group, had submitted a formal application to Zurich International
10
By assuming the “cost of capital” for ESG Watts was 15%, and Watts’ trust fund earnings
were 3%, the Agency calculates that the value of the savings is $54,279. See Comp. Exh. 59
at 1-2; see also Tr. at 495-97. (The “cost of capital” is the interest rate which Watts would
have to pay to borrow the money for financial assurance. It is an approximation to show a
rough value of the savings.) Tr. at 497.
13
Insurance Company, to obtain an insurance policy for the amount of financial assurance
required by the landfill. Tr. at 531-32. Additionally, because RTC has funded the gas
management system at the landfill (see discussion
infra
at 26), RTC has also agreed to fund the
additional financial assurance required as a result of the gas management system. Tr. at 528-
529.
Mr. Child testified that the Agency is “gravely concerned” about the underfunding of
the landfill’s financial assurance commitment. Tr. at 16, 41. Mr. Child stated that a trust is
important for fixing erosion control and leachate seeps during closure. Tr. at 41. Mr. Child
further testified that if the landfill lives its full design life, the closure costs would go up due to
the increased volume of refuse which causes an increased amount of leachate. Tr. at 42-43.
Costs would be higher due to the greater amount of daily cover and more final cover; he stated
that additional height on side slopes would also need to be maintained. Tr. at 43.
Significant Modification Permit
Landfill design and technology have evolved greatly over the last 25 years, and with it
so have environmental regulations pertaining to landfill design and operation. Mr. Child
testified at hearing that while there were more than 200 operational landfills in Illinois twenty
years ago, “today the number is 60 and declining.” Tr. at 21.
Board regulations, consistent with later adopted federal Resource Conservation
Recovery Act Subtitle D regulations, establish a system by which landfills in Illinois have been
forced to significantly upgrade their design and operations, or go out of business. Landfill
owners/operators who decided to close their landfills by 1992, were allowed to operate as built
without further upgrade. Landfill owners/operators who desired that their landfills stay open
from 1992 through 1997, were required to submit what is known as a sig mod permit to the
Agency for approval. Landfill owners/operators who desired to keep their landfills operational
beyond 1997 were required to obtain a sig mod permit which would insure that the facility
would fully upgrade and put in all newly required control measures, including groundwater
monitoring and modeling. Tr. at 30-31.
ESG Watts’ sig mod application for the Taylor Ridge landfill was due, pursuant to 35
Ill. Adm. Code 814.104, 814.105(b) and Agency deadline, on September 1, 1993. Comp. at
8. It was not filed until September 15, 1994.
11
The application was not determined to be
“administratively complete” until December 16, 1994. Tr. at 548. Known by Agency
number 1994-436, the permit application was denied by the Agency on February 16, 1995.
Tr. at 35, 548. In a detailed seven-page denial letter, the Agency cited various technical
11
As earlier explained, the untimeliness of this submittal, along with the other alleged
enforcement case violations, was the subject of a previous matter, People v. ESG Watts (May
4, 1995), PCB 94-127,
aff’d
, 282 Ill. App. 3d 43, 668 N.E.2d 1015 (4th Dist. 1996), which
assessed $60,000 in penalties against ESG Watts.
14
reasons for denial. Pursuant to Section 39(i) of the Act (415 ILCS 5/39(i) (1994)), the
Agency also based its denial on the history of ESG Watts’ violations of the Act.
12
Meetings were subsequently held between representatives of the Agency and ESG
Watts concerning ESG Watts’ sig mod application where it was agreed that ESG Watts would
resubmit the application. Tr. at 553, 555. A second sig mod application was submitted in the
fall of 1996, approximately the same period of time that hearings were on-going in this matter.
Tr. at 61-62; see Resp. Exh. 1. Mr. Keith testified that he was hired to assist in preparation
of an application for the sig mod permit for the Taylor Ridge landfill site. Tr. at 545-47. Mr.
Keith stated that part of the 14-month delay to resubmit information responsive to the denial
points to the Agency was due in part to ESG Watts’ failure to pay CH2MHill for the work it
was performing for ESG Watts. Tr. at 565, 567-68. ESG Watts’ additional reasons for the
delay included the fact that leachate samples needed to be taken from the landfill and that there
was a need to collect more field data including soil borings and probing for landfill gas, among
other things. Tr. at 567-68.
13
Exposed Refuse/Cover
The Taylor Ridge landfill has had a continuing problem with exposed refuse and lack
of adequate cover. At the end of every work day, Mr. Chenoweth would attempt to ensure
that adequate cover was in place over any open refuse in the active work space. Tr. at 602.
However, while Mr. Chenoweth testified that he could not recall a time when there was no
adequate cover, the evidence showed otherwise.
14
Tr. at 602.
Mr. Mehalic began recording uncovered refuse violations as early as December 3,
1992. During an inspection on that day, Mr. Mehalic observed uncovered refuse from the
previous operating day covering the surface area of about 150 feet by 25 feet. See Comp.
Exh. 26, photos 1-7; Tr. at 305-06. Mr. Mehalic had specifically asked to see the area of the
previous day’s operation and Mr. Chenoweth pointed to the area of uncovered refuse. Tr. at
307.
Later, in 1993, Mr. Mehalic observed exposed refuse in the southern portion of the
current waste placement area during an inspection on April 14, 1993. Tr. at 310; Comp. Exh.
28, photos 23, 24. Less than two months later, on June 8, 1993, Mr. Mehalic again observed
exposed refuse, this time on the southern portion of the landfill, as well as a 40 by 50 square
12
That denial is currently on appeal before the Board in docket PCB 95-110. At the request of
the parties, the Board has stayed this permit appeal pending resolution of the instant matter.
13
The Board takes administrative notice that this second sig mod application was formally
denied by the Agency on August 5, 1997, and is also currently on appeal before the Board, in
ESG Watts, Inc. v. IEPA, PCB 98-38. The denial letter is based upon technical issues, as well
as an application of Section 39(i) of the Act. Again at the request of the parties, this matter
has been stayed.
14
Mr. Chenoweth stated that at least on one occasion, during bad weather, he would not let
equipment reach exposed refuse because of the potential danger imposed. Tr. at 614. See also
Comp. Exh. 40. Weather could inhibit the landfill personnel from reaching exposed refuse on
various occasions. Tr. at 638.
15
foot area on the eastern slope of the landfill. Tr. at 315. A few weeks later, on June 30,
1993, Mr. Mehalic observed exposed waste again on the same southern portion of the landfill
where he had observed uncovered waste on April 14 and June 8, 1993. Tr. at 318-19; Comp.
Exh. 31, photos 2-4. A month later, on July 28, 1993, Mr. Mehalic again observed exposed
refuse on the southern slope; however, the landfill had made an attempt to cover such area
with synthetic fabric. Tr. at 381.
On his inspections the next year, Mr. Mehalic continued to observe exposed trash.
Specifically, during an inspection on October 6, 1994, Mr. Mehalic observed “portions of
trash starting to poke out” of the eastern slope of the landfill, due to an inadequate amount of
cover. Tr. at 394-95. Mr. Mehalic pointed out the problem to the landfill personnel. Tr. at
395. By the next inspection on December 14, 1994, ESG Watts had made an attempt to
address the uncovered refuse. However, Mr. Mehalic observed that an inadequate amount of
cover remained on that portion of the landfill. Tr. at 396-97.
Mr. Mehalic’s observations of exposed refuse and inadequate cover continued on into
1995 and 1996. On May 18, 1995, Mr. Mehalic observed uncovered refuse in an area
covering approximately 15 by 30 square feet. Tr. at 402; see Comp. Exh. 43, photos 1-4. On
February 14, 1996, Mr. Mehalic observed uncovered refuse south of the previous day’s
working area in the center of the landfill. Tr. at 416. It was not covered with daily cover as
was required by the permit. Tr. at 416. See Comp. Exh. 48, photos 7-27. On that same day,
Mr. Mehalic also observed litter scattered throughout the landfill by the previous day’s active
area. Tr. at 417. Three months later, on May 23, 1996, Mr. Mehalic observed tires
protruding from some cover material on the northern portion of the landfill. Tr. at 421.
In addition to Mr. Mehalic’s observations concerning inadequate cover, hearing
testimony offered by Mr. Brao addressed the issue of final cover. Mr. Brao, president of
Noble Earth Corporation and an environmental consultant, was hired by ESG Watts to
determine the adequacy and density of cover. While he began discussions with ESG Watts
concerning this job in the spring of 1996, he did not actually begin work until a week prior to
the October hearings in this matter. During that week, he performed over 150 soil borings on
the landfill to determine the adequacy and density of cover. See Resp. Exh. 3, 4; Tr. at 582-
83, 588-89. While Mr. Brao believed that there was sufficient cover thickness in place over
much of the area, he admitted that there was, at least, an area of approximately one-half acre
which clearly shows insufficient cover. Tr. at 599.
Leachate
Leachate has long posed a problem at the Taylor Ridge landfill. In 1992, the
Sangamon County Circuit Court issued a preliminary injunction against ESG Watts prohibiting
the Taylor Ridge landfill from, among other things, engaging in further leachate violations.
Tr. at 265. The preliminary injunction also required that the landfill implement adequate
measures to monitor and control leachate. Tr. at 313; see Comp. Exh. 29. ESG Watts has
taken some corrective measures to control the leachate pursuant to the circuit court’s
16
injunction; however, ESG Watts has not implemented adequate measures to control leachate in
the long term. Tr. at 266-67, 314.
Leachate is a liquid that has been in direct contact with a solid waste. See Ill. Adm.
Code 807.104; Tr. at 307-08. It is formed when solid refuse mixes with a liquid and it
accumulates within the landfill. Tr. at 311. If refuse is not properly covered, precipitation
(liquid) can seep into the landfill, come in contact with refuse, and form leachate. Tr. at 311.
As Mr. Mehalic described, “leachate seeks out areas of least resistance and more or less pops
out” of the landfill. Tr. at 311. Short-term steps to eliminate leachate include maintaining
adequate cover, excavating the area and plugging it with a clay cap, and then compacting the
area. Long-term remediation would include extracting the leachate from the landfill. Tr. at
312. Mr. Mehalic believes that long-term leachate remediation is warranted for Taylor Ridge
landfill. Tr. at 312, 433.
In the site inspection reports compiled by Mr. Chenoweth, leachate was continuously
reported as a problem of concern. Tr. at 430; Comp. Exh. 52. Mr. Chenoweth testified that
if he discovered leachate during his inspections, he would flag the leachate seeps. Tr. at 606.
Typically, the landfill personnel would then cap the flagged area with clay. Tr. at 607.
Mr. Mehalic’s various inspections of Taylor Ridge confirmed that, while the landfill
had indeed taken various steps to control leachate, the measures have not successfully abated
leachate seeps. On December 3, 1992, Mr. Mehalic observed that landfill personnel had
repaired various leachate seeps on the southern portion of the landfill. Tr. at 307-08; see
Comp. Exh. 26, photos 8, 11. However, during the next six months, Mr. Mehalic observed
leachate seeps during two inspections: on April 14, 1993, (Tr. at 310, Comp. Exh. 28, photos
16-20); and again on June 8, 1993, (Tr. at 315). Further, on July 28, 1993, Mr. Mehalic
observed two brownish, oily leachate seeps at the northwestern bottom portion of the waste
placement area. Tr. at 381-82; see Comp. Exh. 32, photos 6, 7, 21, 22. The following year,
on April 13, 1994, Mr. Mehalic viewed approximately four leachate seeps (a brownish-orange
liquid) along the southwestern portion of the landfill and southeastern portion of the landfill.
Tr. at 384-85; Comp. Exh. 37, photos 8, 19, 20, 21. Leachate was also a problem on May
25, 1994. Tr. at 389; see Exhibit 38, photos 10, 16, 17, 18.
On August 3, 1994, Mr. Mehalic observed that the landfill had remediated leachate
seeps in the northern portion of the landfill. Tr. at 392. On October 6, 1994, however, Mr.
Mehalic observed leachate seeps while inspecting the southeastern portion of the landfill slope.
Tr. at 393. While Mr. Mehalic again observed the landfill’s attempt at remediation of leachate
seeps on his December 14, 1994, inspection (Tr. at 396; Comp. Exh. 41), by February 9,
1995, leachate was bubbling out of the ground and appeared as a brownish liquid on the
southeastern and southwestern corners of the landfill. Tr. at 401; Comp. Exh. 42, photo 12.
Mr. Mehalic observed another ten leachate seeps on May 18, 1995 (Tr. at 403; Comp. Exh.
43, photos 15-27) and, during an inspection on July 12, 1995, he observed leachate at the
southern slope of the landfill. Tr. at 408; Comp. Exh. 44, photos 17, 18. Also, on August
23, 1995, Mr. Mehalic observed further leachate seeps during an inspection (Tr. at 410) and
17
on July 18, 1996, Mr. Mehalic observed leachate at the southwestern corner of the landfill.
Tr. at 422; see Comp. Exh. 50, photos 7, 9.
Taylor Ridge landfill neighbor, Mr. Whitley, has observed leachate flowing from the
landfill on various occasions since 1986. He testified to these observations during the
Sangamon County court case and again at hearing in the instant matter. He has observed the
following leachate seeps since the court case: leachate flowing from landfill into ponding area
on April 27, 1993, (see Comp. Exh. 19, photos 3-7); and leachate flows on May 23, 1993,
(see Comp. Exh. 23).
Runoff of Silt and Refuse/Erosion
In addition to leachate, the landfill is also beset with the problem of runoff of soil, silt,
and refuse into neighboring properties. This runoff has caused significant erosion and has
contributed to the landfill’s problems with leachate and odor. Tr. at 388. An estimated 31
tons of soil, per acre per year, leave the facility through runoff. Tr. at 172. This estimate
was provided by Mr. Kammueller who based his estimation on a document entitled,
“Estimating Your Soil Erosion Losses With the Universal Soil Loss Equation (USLE),” which
is a circular prepared by Robert D. Walker and Robert A. Pope of the Cooperative Extension
Service, College of Agriculture, University of Illinois at Champaign-Urbana. See Comp.
Exh. 61.
While problems with runoff have historically plagued the landfill, more recent
examples are detailed in this case. Mr. Kammueller observed and documented runoff
problems on an inspection he made of the landfill on February 14, 1994. Tr. at 115-128;
Comp. Exh. 7. At that time, he indicated to Mr. Jones various steps that the landfill personnel
should do to correct these problems. Specifically, Mr. Kammueller and Mr. Jones discussed
corrective actions to control erosion, provide cover, and divert stormwater. Tr. at 128
.
.
Since
the inspection in February 1994, ESG Watts has taken various steps to control erosion and
runoff from the landfill. Landfill personnel have built a diversion structure to divert runoff
away from the Whitley ponds (Tr. at 131), have placed bales of straw in a ditch upstream of
outfall 001 (Tr. at 131), and have planted some vegetative cover on the inactive cap (Tr. at
131-32).
These attempts at control have not been successful, however, as runoff and erosion
problems continued to be observed and documented by the Agency. Tr. at 131-33. For
example, on February 9, 1996, Mr. Kammueller returned to the Taylor Ridge landfill and
observed that ESG Watts was attempting to address the runoff problems by diverting the flow
of the runoff and placing straw bales in the drainage ditch. Tr. at 168. He did not consider
that the corrective action he advised the landfill to conduct in February 1994 had occurred by
February 1996, however. Tr. at 170.
Mr. Mehalic also testified to various observations he made concerning runoff during his
inspections of Taylor Ridge. In addition to runoff of silt and soil, Mr. Mehalic personally
observed various types of refuse that had been carried by runoff from the landfill area and
18
ended in the big pond on the neighboring property. Tr. at 409. On June 30, 1993, Mr.
Mehalic observed refuse in erosion rills during an inspection. Tr. at 319; see Comp. Exh. 31,
photo 11. Exposed refuse was washing down the southern slope of the landfill, causing
erosion. Tr. at 320.
The problems continued to be observed by Mr. Mehalic on his 1994, 1995, and 1996
inspections. On April 13, 1994, Mr. Mehalic observed “the beginnings of an erosional rill”
forming at the northern portion of the landfill. Tr. at 388; Comp. Exh. 37, photos 14, 15.
Four months later, on August 3, 1994, he observed erosion channels in that northern portion
of the landfill. Tr. at 392; see Exh. 39, photos 9, 18. On October 6, 1994, Mr. Mehalic
again observed erosional rills on the northern slope of the landfill and also on the southwestern
slope of the landfill. Tr. at 393; Comp. Exh. 40, photos 12, 17, 18. On May 18, 1995, Mr.
Mehalic observed exposed waste in erosional rills on the western portion of the landfill. Tr. at
404. During an inspection on January 23, 1996, Mr. Mehalic observed erosion problems on
the southern slope of the landfill. Tr. at 416; Comp. Exh. 47, photos 13, 14. Mr. Mehalic
testified that long-term remedies for erosion still need to be addressed by the landfill (Tr. at
433), and that the side slopes of the landfill need to be restructured to accommodate runoff and
to deter any surface water runoff from the adjoining retention pond. Tr. at 433.
Much testimony was adduced at hearing concerning the effect the landfill runoff has
had on neighboring properties. Mr. Mehalic himself conducted an off-site inspection of the
neighboring Siebke property on July 18, 1996, and observed litter, which appeared to be from
the landfill, sitting in a ravine on the property. Tr. At 423. During Mr. Mehalic’s last
inspection before hearing, on September 12, 1996, he observed Siebke’s property which abuts
the landfill on the northeast corner (Tr. at 353, 423), and noticed that the landfill had
constructed a clay side slope liner to restrict off-site movement of litter. Tr. at 427. At
hearing, Mr. Mehalic testified that a berm or other above-grade structure might more
effectively deter litter from running down into the ravine. Tr. at 427-28.
Mr. Siebke, testified at hearing regarding the significant problems he has experienced
with runoff from the landfill. Tr. at 353, 423. A drainage ditch, or creek (known as outfall
001 at the landfill) located on the Siebke property has, over the years, gotten deeper and wider
due to the large amounts of runoff originating from the landfill. Tr. at 359, 366. The excess
runoff washes roots away from trees and has caused erosion to the area around the creek on
the Siebke property. Tr. at 359. There are dead trees and vegetation around the area of the
drainage ditch. Tr. at 360.
Mr. Siebke further testified about the runoff, and the debris it contained, from the
landfill. Specifically, Mr. Siebke stated: “[w]e have found -- you name it. There [have
been] tires, tampon applicators, surgical gloves, you know, tin cans. Anything that would go
into a landfill, we have seen. Bottles.” Tr. at 360-61. When refuse would wash into the
ditch, Mr. Siebke would call the landfill to come and clean it. Mr. Siebke testified that the
amount of trash in the drainage ditch has, at times, generated enough refuse to fill up 10 to 12
garbage bags during one cleanup. Tr. at 369. Regarding the landfill’s efforts at cleaning up
the washed-up debris, Mr. Siebke stated that landfill personnel were responsive “. . . as far as
19
coming down and cleaning up the debris after . . . it’s created. But they don’t try to solve the
problem.” Tr. at 368-69. Mr. Siebke testified that the problem has gotten worse within the
present timeframe, compared to the past four or five years, because the operation of the
landfill has changed, in that the landfill is actively filling in the northeast corner of the site.
Tr. at 362.
Mr. Whitley also testified to the considerable problems he has had on his property as a
result of runoff from the landfill, especially soil. Due to silt runoff from the landfill, Mr.
Whitley has had to change the elevation of the dike in his pond, by raising the water ten feet.
Tr. at 218. In 1982, the large pond had a depth somewhere between 14 and 16 feet, and at the
time of the hearing in this matter, the pond measured nine feet, at the maximum, in its deepest
point. Tr. at 219. The small retention pond also fills up with silt from the landfill from time
to time. An inspection conducted by Mr. Mehalic on July 12, 1995, confirmed Mr. Whitley’s
testimony about silt entering the small pond. On that inspection, Mr. Mehalic observed that
the small retention pond was heavily laden with silt, which originated from the landfill sloped
area from the northern portion of the landfill. Tr. at 409.
Between 1990 and 1995, landfill personnel cleaned out the small pond about four
times. Generally when they cleaned the pond, they piled the extracted material on the pond’s
banks. Tr. at 239-41. Eventually, the siltation would slide back into the small pond and the
pond would need to be dredged again. Tr. at 241-42. Though silt fences and other measures
were used to try to prevent the silt from entering the pond, such measures proved unsuccessful
in the long term. Tr. at 243-259. The dredging of the pond and piling of the siltation has not
been effective in preventing further runoff from the landfill onto Mr. Whitley’s property. The
siltation in the pond and the dredging which resulted from the accumulation of the siltation was
photographed by Mr. Whitley. Several of these photographs were entered as exhibits during
the complainant’s case-in-chief. See Comp. Exh. 17, 18, 19, 20, 21.
Another landfill neighbor, Mr. Martens, testified that he and his family are bothered by
excess litter and a muddy highway from the landfill trucks. Tr. at 329. Mr. Martens testified
that, due to a muddy highway, he has experienced his automobile sliding off the road because
of large chunks of mud originating from the landfill. Tr. at 336.
NPDES Permit/Water Pollution
On August 21, 1986, the Agency issued ESG Watts an NPDES permit (permit number
IL0065307) to allow for the discharge of stormwater at Taylor Ridge landfill at two discharge
points: outfall 001, a natural ravine on the north side of the landfill and on the Siebke
property; and outfall 002, on the south side of the landfill. See Comp. Exh. 6; Tr. at 101,
103, 659; see also Comp. Exh. 3. Both of these outfalls empty into at least three unnamed
tributaries of the Mississippi River. Tr. at 105-107. The NPDES permit requires certain
effluent standards to be met by any discharge from the landfill and also requires the monitoring
of such discharges. Tr. at 107. ESG Watts would remove ponded stormwater by pumping it
to discharge points 001 and 002. Tr. at 658-59. As the landfill personnel excavated from the
northwest to the northeast, they would dig down to a bottom elevation three to six months
20
ahead of the landfilling activities. After digging, the “ponded” areas would fill with
precipitation and would need to be pumped out. Tr. at 659. The contents of the small
retention pond was not considered ponded stormwater. Tr. at 661. As Mr. Jones testified,
ESG Watts’ interpretation of the NPDES permit was that only those discharges which they
were actively pumping had to be monitored. Tr. at 879.
The monitoring obligation in the landfill’s NPDES permit required that the landfill
monitor the parameters in the discharge water and submit DMRs to the Agency. Tr. at 109.
Evidence adduced at hearing clearly establishes that the landfill often filed inaccurate DMRs.
The DMRs were inaccurate in that they showed no discharge (and accordingly, no monitoring
for required parameters) at various times when there would naturally have been a discharge,
and during times when landfill personnel pumped water through the outfall point. One
example was Mr. Kammueller’s February 14, 1994, inspection of the landfill. While there
was clearly a discharge (which Mr. Kammueller observed, took a sample from, and tested (see
Comp. Exh. 7)), the landfill reported “no discharge” on the relevant DMR for that month for
both outfalls. See Comp. Exh. 8; Tr. at 110-111, 134-135. Albeit a small discharge at the
time of Mr. Kammueller’s visit, there was enough to test and, because snow was just
beginning to melt, it was obvious to Kammueller that the water would flow faster quite soon.
As Mr. Kammueller testified at hearing, “[w]hen I was there, I sampled discharges. And as
the weather warmed that month, there, in my opinion, were bound to be additional
discharges.” Tr. at 135.
In his testimony, Mr. Jones admitted that he reported no discharge for the February
1994 DMR, but said he did so because he believed the discharge was too small to be a
“monitorable discharge.” Then, he admitted that this information was not entirely accurate
stating, “I filled it out incorrectly.” Tr. at 882. Mr. Jones also admitted that he never
monitored outfall 002. Tr. at 879; see also Resp. to New Violations at 3. In not monitoring
outfall 002, Mr. Jones stated, “[i]t was basically ignorance on my part. Looking at it, we
should have been doing that.” Tr. at 802. He contested his obligation to have monitored
outfall 001. He believed that the landfill was only obligated to report and monitor a discharge
when they were actively pumping from outfall 001 (Tr. at 879-881). Apparently, the landfill
never reported a discharge from outfall 001 whenever water flowed naturally from a rain
event. Testimony from ESG Watts landfill employee Mr. Grothus indicated that the landfill
personnel would pump stormwater into outfall 001 “routinely” and “whenever we needed to.”
Tr. at 660-661, Tr. at 114.
After February 14, 1994, Mr. Kammueller visited the landfill several more times to
check on the extent and quality of the water leaving the landfill. On August 7, 1995, Mr.
Kammueller inspected the landfill pursuant to a complaint from Mr. Whitley concerning the
quality of water in his ponds. Mr. Kammueller’s investigation showed that the small pond was
filled with sediment originating from landfill runoff and contained six inches of water at its
deepest point. Water was discharging from the small pond into a stream going to the Whitley
large pond. Tr. at 140-142; Comp. Exh. 9. On August 30, 1995, Mr. Kammueller again
visited the landfill, this time to sample water that needed to be discharged from a large
impoundment in the northeast corner of the landfill. At that time the sample met applicable
21
discharge limits of the NPDES permit, but Mr. Kammueller observed that the pumping had
stopped and litter was evident. Tr. at 143-46; see Comp. Exh. 10. On September 5, 1995,
Mr. Kammueller made a subsequent visit to inspect the progress since the August 30, 1995,
inspection. Comp. Exh. 11. A sample of the discharge taken on that inspection revealed a
high concentration of suspended solids and iron in violation of the NPDES permit limits (see
table below). Tr. at 147. Subsequent DMRs for the month of August 1995 also showed a
high concentration of suspended solids present in the discharge. Tr. at 149.
As a follow-up to previous inspections, Mr. Kammueller again inspected the facility on
February 7, 1996, and found muddy, brown, turbid runoff at various points in the landfill
which were later determined to be exceedences of the suspended solids and total iron NPDES
permit requirements as shown below. Tr. at 154; Comp. Exh. 12. Two days later, on
February 9, 1996, Kammueller inspected the site and found “millions of gallons a day easily”
of runoff leaving the facility. Tr. at 157. The water sampled was muddy, brown, turbid and
an oily sheen was present. Tr. at 159. The DMR submitted by ESG Watts for the month of
February 1996 showed exceeding levels of solids and iron leaving the site in the stormwater
runoff. See Comp. Exh. 8; Comp. Exh. 13.
The following tables show the NPDES permit requirements and also show when
discharges were reported and analyzed. The samples show a higher-than-permitted
concentration of the following parameters on the following dates at the stated sample points.
The samples taken should be measured against the “daily average” requirements as listed in the
NPDES permit. Also, note that manganese does not always exceed the limits.
NPDES PERMIT REQUIREMENTS (see Comp. Exh. 6)
SUSPENDED SOLIDS
TOTAL IRON
MANGANESE
12 mg/L daily average
2.0 daily average
1.0 daily average
24 mg/L daily maximum
4.0 daily maximum
2.0 daily maximum
22
DATE OF
DISCHARGE
SAMPLE
POINT
SUSP. SOL.
TOT. IRON
MANGANESE
2/14/94 (Comp.
Exh. 7)
001
362 mg/L
15 mg/L
.33 mg/L
002
107 mg/L
2.8 mg/L
.098 mg/L
9/5/95 (Comp.
Exh. 11)
property line
1400 mg/L
98 mg/L
2.2 mg/L
2/7/96(Comp.
Exh. 12)
001
116 mg/L
7.7 mg/L
.26 mg/L
southwest
corner
202 mg/L
4.7 mg/L
.13 mg/L
southeast
corner
420 mg/L
11 mg/L
.32 mg/L
2/9/96 (Comp.
Exh. 13)
upstream of
runoff
194 mg/L
1.3 mg/L
.47 mg/L
east-gate house
1,412 mg/L
79 mg/L
4.3 mg/L
southeast
corner
2,148 mg/L
156 mg/L
11 mg/L
southwest
corner
2,344 mg/L
120 mg/L
6.6 mg/L
south side
receiving
stream (100 ft
away)
1,420 mg/L
147 mg/L
7.7 mg/L
south side
receiving
stream (350 ft
away)
2,160 mg/L
137 mg/L
7.4 mg/L
outfall 001
1,024 mg/L
127 mg/L
8.5 mg/L
1,200 ft.
downstream of
outfall 001
5,480 mg/L
121 mg/L
7.1 mg/L
northwest
corner -
entering small
pond
744 mg/L
54 mg/L
1.8 mg/L
discharge from
small pond to
large pond
456 mg/L
2.8 mg/L
N/A
23
ESG Watts’ NPDES permit expired on August 1, 1991, and, by its terms, ESG Watts
was to seek a renewal and modification within 180 days prior to that expiration date. ESG
Watts applied for a permit renewal on February 18, 1991, approximately 18 days past the
deadline. After a considerable amount of time, the Agency denied the requested permit
renewal and modification. Eventually, on April 16, 1996, the Agency renewed ESG Watts’
NPDES permit for Taylor Ridge. The new permit now recognizes eight discharge points, as
opposed to the two discharge points which were originally authorized in the first NPDES
permit issued by the Agency. Also, the renewed permit required ESG Watts to compile a
stormwater pollution prevention plan which was due to the Agency by September 16, 1996.
Tr. at 176. As of the date of the hearing on October 29-30, 1996, a formal stormwater
pollution prevention plan had not yet been submitted, and stormwater was continuing to
discharge from the site.
15
Tr. at 174-75.
Groundwater Contamination
Based on the groundwater samples taken by the Agency and ESG Watts, the
groundwater quality data has shown groundwater exceedences. As the table below indicates,
the data confirms exceedences of both class I and class II groundwater requirements as set
forth in 35 Ill. Adm. Code 620.410 and 620.420 for, at least, the parameters of sulfate, iron,
and, at times, manganese. See also Comp. Exh. 55.
The Agency believes that groundwater at the Taylor Ridge landfill should be classified
as class I groundwater. Tr. at 460; Comp. Exh. 55 at 1. ESG Watts believes that the
groundwater at the facility warrants classification as class II groundwater. Comp. Exh. 55 at
1. Mr. Liss, Agency Manager of the Groundwater Unit for the Permit Section in the Bureau
of Land, testified that groundwater could be classified at the landfill as class I, and class II in
some areas. Tr. at 450, 460. The table below indicates the required standards for both class I
and II groundwater, as set forth in 35 Ill. Adm. Code 620.410 and 620.420.
Wells G116, G117, and G118 are upgradient of the landfill. All other wells are either
downgradient or sidegradient. In its testimony and exhibits, the Agency specifically mentions
sulfate, iron, and manganese as inorganics that exceed groundwater standards, so the following
chart will focus on these contaminants. There has not been any data submitted for any of the
organics listed in either the 35 Ill. Adm. Code 620.410 or 620.420 groundwater standards.
The Agency submitted data for some organics, but there are no groundwater standards for
these contaminants.
Groundwater
Standards
Sulfate
Iron
Manganese
Class I*
400 mg/L
5 mg/L
0.15 mg/L
Class II*
400 mg/L
5 mg/L
10 mg/L
*Standards above are taken from 35 Ill. Adm. Code 620.410, 620.420.
15
The Board notes that ESG Watts was in the process of drafting a stormwater pollution
prevention plan. See Resp. Exh. 2; Tr. at 836-37.
24
IEPA Groundwater Inspection Reports from August 23-25, 1994
Sample Date
Well #
Sulfate
Iron
Manganese
08/23/94
G113
510 mg/L
7.39 mg/L
6.22 mg/L
G117*
34 mg/L
19.4 mg/L
.948 mg/L
G118*
74 mg/L
10.8 mg/L
.387 mg/L
08/24/94
G103
270 mg/L
23.3 mg/L
3.09 mg/L
G116*
59 mg/L
8.79 mg/L
.505 mg/L
G112
240 mg/L
5.11 mg/L
.467 mg/L
G120
143 mg/L
16.0 mg/L
6.9 mg/L
G102
N/D
N/D
N/D
08/25/94
G111
129 mg/L
21.1 mg/L
3.69 mg/L
G121
30 mg/L
3.34 mg/L
.643 mg/L
G13(D)
87 mg/L**
3.47 mg/L**
.767 mg/L**
* = Upgradient
** = Dissolved metals
Note: All concentrations represent total metals in sample except for well G13(D).
N/D = No Data
ESG Watts’ Quarterly Groundwater Sampling Reports 1992-1996
Sample Date
Well #
Sulfate
Iron
Manganese
11/12/91
G102
708 mg/L
.03 mg/L
N/D
G103
560 mg/L
.03 mg/L
N/D
G116*
40 mg/L
.11 mg/L
N/D
G117*
30 mg/L
.03 mg/L
N/D
08/18/92
G111
62 mg/L
.03 mg/L
N/D
G112
225 mg/L
.03 mg/L
N/D
G116*
40 mg/L
.06 mg/L
N/D
G117*
34 mg/L
.03 mg/L
N/D
08/30/93
G111
93 mg/L
3.3 mg/L
N/D
G112
227 mg/L
.29 mg/L
N/D
G117*
17 mg/L
.19 mg/L
N/D
G118*
133 mg/L
3.8 mg/L
N/D
08/08/94
G103
267 mg/L
17.6 mg/L
N/D
G113
590 mg/L
8.16 mg/L
N/D
G116*
52 mg/L
.19 mg/L
N/D
G118*
92 mg/L
3.19 mg/L
N/D
03/19/96
G103
340 mg/L
.1 mg/L
3.37 mg/L
G111
.002 mg/L
5.74 mg/L
2.75 mg/L
G116*
54 mg/L
.31 mg/L
.73 mg/L
G117*
28 mg/L
10.2 mg/L
.86 mg/L
* = Upgradient
N/D = No Data
25
In the Agency’s denial of the significant modification on February 16, 1995, ESG
Watts was notified that the groundwater data submitted showed exceedences of class I and
class II water quality standards for inorganic parameters. Resp. to New Violations at 2.
When the Agency denied the sig mod permit to ESG Watts, it listed nine denial points. One
of those denial points was that ESG Watts lacked a groundwater assessment monitoring
program. Tr. at 37. The Agency views groundwater assessment as significant since such
information is used to make a determination as to whether or not groundwater is impacting the
environment. Tr. at 37.
During the Section 31(d) (415 ILCS 5/31(d) (1994)) meeting held with the Agency in
October 1995, ESG Watts agreed to perform groundwater assessment and monitoring.
16
On
January 9, 1996, the Agency issued permit number 1995-374-SP (Comp. Exh. 56) to ESG
Watts requiring the landfill to perform groundwater assessment and groundwater monitoring.
17
Tr. at 464-65. The last set of groundwater sample results contained in the record were from
April 1996. Comp. Exh. 55 at 2. Based on those samples, Mr. Liss testified that the organic
contamination detected in the wells was a result of releases from the landfill. Comp. Exh. 55
at 2. As of the date of the hearing, the landfill had not performed any groundwater
assessments. Tr. at 464. Moreover, ESG Watts had not complied with the requirements in its
groundwater monitoring permit. Tr. at 465.
Mr. Liss testified that landfill gas can contribute to contamination of groundwater by
putting additional pressure within the landfill itself. Tr. at 462. The gas can migrate through
permeable sediments and cause gas contamination to groundwater. Tr. at 462-63. Mr. Liss
believes that the landfill is producing gas at a rate of 2,000 cubic feet per minute. Therefore,
Mr. Liss testified that the landfill gas is putting pressure inside the landfill. Tr. at 463. This
pressure increases the chances of the gas contributing to the groundwater contamination. Tr.
at 464.
Gas Emissions and Air/Odor Violations
Gas Management System. Gas emissions, especially methane, have caused several
issues to arise at the landfill. The Agency testified that landfill gas can manifest itself to cause
a malodorous situation. Tr. at 46. Additionally, the constituents of gas may be harmful or
may contain toxic compounds. Tr. at 47. Also, gas can migrate off-site and cause significant
environmental effects such as distress to vegetation and gas explosions in private homes. Tr.
at 48.
Where financially practical, the Agency encourages the collection and use of landfill
gas through the gas management system. Tr. at 49-50. Mr. Child testified that this facility
has had a need to control its gas management for quite a while. Tr. at 50. Mr. Child testified
16
Pursuant to Section 31(d), the Agency is required to meet with a party in an effort to resolve
conflicts before filing a formal complaint.
17
Such permit has been appealed and is currently pending before the Board (see ESG Watts,
Inc. v. Illinois Environmental Protection Agency, PCB 97-210).
26
that, as the volume of wastes increase in the landfill, gas production increases. Tr. at 51.
Landfill gas production peaks within five to ten years of the first placement of waste, but will
probably begin to slow down after about 20 years. Tr. at 51. Mr. Child testified that this
landfill is probably very close to peak gas production. He could not calculate specifically how
much gas is produced by the landfill. Tr. at 51, 55.
On June 13, 1996, the Agency issued a supplemental permit to ESG Watts
(Supplemental Permit No. 1996-087-SP) for a gas management system. Tr. at 43; see Comp.
Exh. 2. The supplemental permit was issued to control the gas problem that was found at the
landfill, not to allow acceptance of more waste or a different kind of waste. Tr. at 43.
Further, the supplemental permit was issued because the Agency agreed that a gas management
system was a good idea for the environment. Tr. at 44-49. ESG Watts did not pay for the
landfill gas management system but contracted with RTC to install such system. Tr. at 573,
579.
As of the date of hearing, Mr. Fortelka testified that the gas management system had
been partially installed. Tr. at 574. He stated that the gas collection wells were currently in
place. Tr. at 574. The cost estimate for installation of the Taylor Ridge processing of gas is
$4,500,000. Tr. at 576. RTC paid for all capital costs of the gas management system,
including permits and application fees. Tr. at 579-80
.
.
If the current gas output of the plant
meets expectations, ESG Watts will receive about $15,000 to $25,000 per month in royalties.
Tr. at 579.
In that the plant may operate for 10 to 15 years, the royalty amounts will decrease
as the output of the facility decreases over time. Tr. at 579. Mr. Fortelka stated that RTC
had a projected timeframe to begin operating the facility by mid-1997. The design will be able
to handle as much gas as 2,000 cubic feet per minute. Tr. at 577. Mr. Fortelka could not
estimate how much gas will be generated once the gas management system is in place, but
stated that prior to installation of such system, the gas simply would escape into the
atmosphere. Tr. at 577.
Odor. Odor from the landfill has been a source of problems for the landfill’s neighbors
and has been detected on a number of occasions by Agency personnel. Mr. Whitley testified
that he has experienced problems with odors from the landfill. Tr. at 267. He believes that
his life has been negatively impacted as a result of the odors. As an example, Mr. Whitley
testified that he and his family cannot even go outside due to the smell at times. They have to
shut the doors, close the windows, and turn on the air conditioner. Tr. at 268. With regard to
the landfill gas emissions, Mr. Whitley has not observed any environmental impacts
attributable to such emissions, although Mr. Whitley testified that he does have some dead
trees on his property. Tr. at 269-70; see Comp. Exh. 21, photos 9, 11; Comp. Exh. 20,
photo 26. On September 19, 1996, Mr. Whitley observed some excavated waste which had
been left uncovered or exposed, which created an offensive odor. Tr. at 274.
Mr. Martens and his family, who live to the north of the landfill, are bothered by
odors. Tr. at 329. Mr. Martens smells odors from the landfill year-round and has kept a
written log of the odors (see Comp. Exh. 24), most notably during July and August 1995. Tr.
at 334. The log showed the odors were consistently rated as a 10 on a scale of 1 to 10 (10
27
being the worst). Comp. Exh. 24 at 1-2. He claims the odors smell like “rotten garbage” and
“raunchy smells,” and that the odors have unreasonably interfered with his enjoyment of life
and property. Tr. at 330, 339. Though the landfill personnel have attempted to place cover
on the landfill to prevent the odors, the odors have eventually returned. Tr. at 335.
Ms. Schultz lives about a half a mile from the landfill and experiences odors from the
landfill strong enough to cause her and her family to move indoors and close the windows.
Tr. at 374, 376. Ms. Schultz testified that while the odors disperse after a few days, they
inevitably return. Tr. at 373.
Mr. Mehalic and Mr. Kammueller also testified to offensive odors at the landfill,
caused variously by gas, exposed refuse, and leachate. Mr. Mehalic, on April 13, 1994,
noticed an odor problem at the southwestern portion of the landfill, the same spot where he
had previously noticed some leachate seeps. He concurrently noticed a gas hole in the area of
the odors.
18
Tr. at 386; see Comp. Exh. 37, photo 8. During a subsequent inspection, on
May 25, 1994, the gas holes had been remediated. Tr. at 390.
The malodorous problems continued into 1995 and 1996. On February 9, 1995, Mr.
Mehalic made an inspection due to complaints by neighbors. Tr. at 398. The odor seemed to
be strongest on the western slope of the landfill. Tr. at 399. The landfill made an attempt to
cover the odor with soil from the borrow pit; however, the odor continued to linger. Tr. at
399. Further, on May 18, 1995, Mr. Mehalic noticed odors around the areas at the
southwestern and western portion of the landfill. Tr. at 404. Such odors were emanating
from gas holes at those locations. Tr. at 404; see Comp. Exh. 43; photos 16, 17. The smell
was malodorous. Tr. at 404
During an inspection on July 12, 1995, Mr. Mehalic observed another gas hole which
was “audible and odorous.” Tr. at 405-06; Comp. Exh. 44, photo 10. There was stressed
vegetation in the area around the gas hole which Mr. Mehalic believed was caused by the gas.
Tr. at 406. On August 7, 1995, Mr. Kammueller smelled an odor of landfill gas, which he
smelled during a previous inspection in February 1994. Tr. at 177-78. On August 23, 1995,
Mr. Mehalic observed malodorous odors on the western portion of the landfill. Tr. at 410.
Further, on October 26, 1995, Mr. Mehalic detected a malodorous odor at the western side of
the landfill. He analogized it to “four-week-old garbage sitting in the sun for weeks.” Tr. at
414. The landfill was trying to address the odor problems that day by completing four
borings. Tr. at 415. Next, on January 23, 1996, there were continuing odor problems. Tr. at
415. On May 23, 1996, Mr. Mehalic again observed stressed vegetation which he believed
was caused by a gas hole. Tr. at 420-21; see Comp. Exh. 49, photos 5, 10, 16. On July 18,
1996, Mr. Mehalic noticed an odor on the southeastern corner of the landfill accompanied by
stressed vegetation. Tr. at 422-23.
18
A gas hole is created by decomposition of the waste in place. As it decomposes, it creates
methane and other odors associated with it. When the pressure increases, it seeks a path of
least resistance and protrudes in that area. Tr. at 387.
28
In the site-inspection reports compiled by Mr. Chenoweth at the Taylor Ridge landfill,
odor problems were reported frequently. Tr. at 431. Mr. Mehalic never conducted any off-
site inspections to determine whether or not odor was a continuing problem on the neighbors’
property. Tr. at 447. Long-term odor problems still need to be addressed by the landfill. Tr.
at 432.
It is expected that once the gas management system is fully operational, much of the
gas odor will dissipate. The installation of the system itself caused an odorous situation. The
drillings pertaining to the landfill gas management activities have worsened the odor problems.
Tr. at 276. According to the requirements of the permit for the gas recovery system, the
landfill personnel is supposed to dispose of any waste extracted from a drilled boring in the
active working area of a particular day. Tr. at 425; see Comp. Exh. 2. However, on July
18, 1996, Mr. Mehalic observed uncovered refuse removed from the borings which caused the
same malodorous odor he had noticed during earlier inspections. Tr. at 425-26. Additionally,
Mr. Whitley believes that the well drilling operation, which took place at the landfill in July
1996, caused the landfill personnel to leave a truck sitting completely full of borings, and
drillings after closing hours. Tr. at 273-74; see Comp. Exh. 21.
ANALYSIS OF ALLEGED VIOLATIONS
General Considerations
The eight-count complaint alleges violations of the Act and Board rules that touch all
three environmental media: land, water, and air. The Board has reorganized those allegations
into media-oriented sections, with appropriate subsections. For example, in the land section,
the Board discusses all alleged violations of landfill regulations and statutory provisions:
financial assurance and cost estimate failures; operational violations; failure to maintain
adequate cover; and failure to control leachate. In the water section, the Board discusses the
issues of runoff and erosion, NPDES permitting and effluent violations, and groundwater
contamination. In the air section, the Board discusses complainant’s allegation that odor from
the landfill has caused air pollution.
This section focuses on the legal issues which form the underpinning of each violation
and does not indicate the Board’s specific weighing of Section 33(c) (415 ILCS 5/33(c)
(1996)) factors to each and every violation alleged. While the latter approach is appropriate in
some enforcement cases (see, comparatively, People v. ESG Watts (February 5, 1998), PCB
96-233), in this case the Board believes that it is most appropriate to apply the Section 33(c)
factors to the totality of circumstances and to the requested penalty of permit revocation, as
styled and argued by the parties. See
infra
at 48-50. While the Board has considered the
Section 33(c) factors as they relate to each alleged violation, in this section the Board only sets
them forth in assessing the air violation, because of the inherent questions of reasonableness
therein. See
infra
pp. 44-47.
29
LAND: Alleged Violations of Section 21 of the Act
and the Board’s Waste Disposal Regulations
Regarding land violations specific to the operation of landfills, complainant generally
alleges violations of the following sections of the Act: Sections 21(d)(1) (operation of a
landfill in violation of a permit condition); 21(d)(2) (operation of a landfill in violation of a
Board regulation), 21(e) (unlawful acceptance of waste at a site which fails to meet Board
regulations); 21(o)(13) (failure to submit cost estimates, performance bond or other security
for the landfill); 21.1(a) (failure to provide post closure and post-closure financial assurance);
21(o)(5) (failure to cover refuse from a previous day’s operation); 21(o)(6) (failure to timely
provide final cover). See 415 ILCS 5/21(d)(1), 21(d)(2), 21(e), 21(o)(5), 21(o)(6), 21(o)(13),
21.1(a) (1994).
Complainant also alleges various permit violations and violations of the following
sections of the Board’s Waste Disposal Regulations: Section 807.623 (failure to provide cost
estimates every two years or by permit condition); Section 814.104 (failure to timely file sig
mod application); Section 807.305(a)(b) and (c) (operation of a landfill without adequate
cover); Section 807.314(e) (operation of a landfill without adequate measures to monitor and
control leachate). See 35 Ill. Adm. Code Sections 807.305(a)(b)(c), 807.314(e), 807.623,
814.104.
For ease of discussion, the Board divides these various allegations into three categories:
Cost Estimates and Financial Assurance Violations; Operation of a Landfill Without an
Approved Sig Mod; and Operational Violations Concerning Cover and Leachate.
Cost Estimates and Financial Assurance Violations
Argument. Complainant contends that ESG Watts failed to file current cost estimates
as required by permit and regulation on November 28, 1992, and again on November 28,
1994, and, accordingly, is in violation of two permit conditions
19
and Section 807.623(a) of
the Board’s Waste Disposal Regulations.
20
Although ESG Watts included cost estimates in its
sig mod application in September 1994, the sig mod application was denied and, therefore, the
complainant believes the cost estimates must be considered untimely. Also, complainant
19
Special Condition 8 of Supplemental Permit No. 1991-292-SP issued December 24, 1991,
provides: “The operator shall file revised cost estimates for closure and post-closure care at
least once every two years . . . . The revised cost estimates are due on or before November
28, 1992.” Special Condition 2 of Supplemental Permit No. 1993-167-SP, issued provides:
The operator shall file revised cost estimates for closure and post-closure care at least every
two years . . . . The next revised cost estimates are due on or before November 28, 1994.”
20
Section 807.623(a) provides that “[t]he operator must revise current cost estimate at least
once every two years. The revised current cost estimate must be filed on or before the second
anniversary of the filing or last revision of the current cost estimate.” 35 Ill. Adm. Code
807.623(a).
30
argues that ESG Watts is in violation of its financial assurance obligations by failing to
increase its trust fund to $1,299,464 by September 11, 1996, as required.
ESG Watts does not deny that it is in violation of its financial assurance funding
obligations, but points to its alleged good faith efforts to satisfy all statutory and regulatory
requirements. Resp. Br. at 13. With regard to the funding, ESG Watts provided testimony
that it is looking into the issue of fully funding its obligations. With regard to the alleged
permit violations regarding cost estimates, ESG Watts does not deny that it did not file cost
revisions prior to November 28, 1992. However, ESG Watts depends on its subsequent
compliance to argue that such untimely submittal does not warrant a significant penalty. ESG
Watts relies on its submission of the cost estimates, in conjunction with its requested sig mod
permit application in September 1994, to establish compliance with the cost revision
requirements, which it argues would have been due on the permits’ two-year anniversary date,
in April 1995.
Discussion and Findings. The obligation to biannually file cost estimates for closure
and post-closure care, as well as the obligation to fully provide the requisite amount of
financial assurance, is an obligation every owner of a landfill in Illinois owes the taxpayers of
this State and is part and parcel of the cost of doing business here. This is because these
estimates and financial assurance form the basis for our reliance on the landfill owner’s
commitment that, upon a landfill closure, the environment will be protected and, if necessary,
made whole.
Section 807.623, Permit Condition 8 of Supplemental Permit No. 1991-292-SP, and
Sections 21(d)(1), 21(d)(2), 21(o)(13).
The facts clearly show that ESG Watts ignored its
obligation to file revised cost estimates in 1992, as required by Supplemental Permit No.
1991-292-SP, and by Board rule. Those costs were due to be filed on November 28, 1992.
They were not filed until April 30, 1993. As argued by the complainant, the failure to file
cost estimates as required by Section 807.623 of Board regulations and the established permit
condition constitutes a violation of Sections 21(d)(1) and (d)(2) of the Act, as ESG Watts is
operating a waste-disposal operation which is in violation of both permit conditions and rules.
It also is a violation of Section 21(o)(13) which clearly makes it a specific violation to fail to
submit “any cost estimate for the site or any performance bond or other security for the site as
required by this Act or Board rules.”
While the violation of the cost estimate requirements is uncontested for the 1992 cost
estimate submittal, ESG Watts contests the complainant’s argument that it did not timely
submit the cost estimates in accordance with its November 28, 1994, obligation. Indeed,
complainant admits that cost estimates were included in ESG Watts’ sig mod permit
application that was filed in September 1994. However, complainant argues that since that
permit application was rejected, the cost estimates should not or could not be considered
“filed.” We disagree. In 1994, ESG Watts timely submitted its revised cost estimates.
Accordingly, the Board finds ESG Watts in violation of Permit Condition 8 of Supplemental
Permit No. 1991-292-SP, Sections 21(d)(1), 21(d)(2), 21(o)(13), of the Act, and 35 Ill. Adm.
31
Code 807.623 for failing to timely file its 1992 cost estimate, but finds ESG Watts in
compliance with respect to its 1994 cost estimate obligation.
Permit Condition II.7 of Supplemental Permit No. 1996-087-SP and Sections 21(d)(1),
21(o)(13), 21.1(a).
The obligation to file cost estimates for closure directly keys to the
obligation to have sufficient money available in the landfill’s financial assurance fund so that,
upon closure, the State is assured that enough money is available for the landfill owner or
operator to properly close and to negate whatever environmental impacts the landfill may have
caused. Taylor Ridge landfill is scheduled to close in the year 2000. The cost estimate for
closure, as reflected in the record, is $1,299,464. That cost estimate was submitted by ESG
Watts and approved by the Agency when it approved Supplemental Permit No. 1996-087-SP
in June 1996. In accordance with that permit, ESG Watts was to have posted the requisite
$1,299,564 within 90 days of the issuance of that permit, on or before September 11, 1996.
At the time of hearing in this matter, the financial assurance fund for Taylor Ridge landfill
contained only $435,000.
Failure to maintain the requisite amount of money in a landfill owner’s financial
assurance fund is a violation of the specified permit condition as listed in II.7 and II.8 of
Supplemental Permit No. 1996-087-SP. As complainant correctly points out, this failure
constitutes violations of Sections 21(d)(1), 21(o)(13) and 21.1(a) of the Act. 415 ILCS
5/21(d)(1), 21(o)(13), 21.1(a) (1994). Accordingly, the Board finds ESG Watts in violation of
each of those provisions for failing to timely provide the requisite amount of financial
assurance for closure.
Operation of Landfill Without an Approved Sig Mod
Argument. Complainant argues that ESG Watts’ continued operation of the Taylor
Ridge landfill is in violation of Section 21(e)
21
of the Act because the landfill does not meet the
requirements of the Act and Board regulations. Specifically, the complainant argues that
Section 814.105(b)
22
of the Board’s Waste Disposal Regulations only authorizes an owner or
operator to continue operations under existing permits where the sig mod application has been
timely filed. While ESG Watts did eventually file a sig mod application, the denial of which
is pending before the Board, complainant argues that ESG Watts’ late-filed sig mod permit
21
Section 21(e) of the Act provides that: “[n]o person shall: 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.” 415 ILCS 5/21(e) (1994).
22
Section 814.105(b) provides that: “[a]n owner or operator who has timely filed a
notification pursuant to Section 814.103 and an application for significant permit modification
pursuant to Section 814.104 shall continue operation under the terms of its existing permits
until final determination by the Agency on its application and any subsequent appeal to the
Board pursuant to Section 40 of the Act. During this time, the owner or operator will be
deemed to be in compliance with all requirements of this Part.” 35 Ill. Adm. Code
814.105(b).
32
(and appeal thereof) cannot be used as a defense to the charge that this landfill is operating
outside of the relevant law. Accordingly, complainant argues that “unauthorized waste
disposal has been ongoing since September 1, 1993, due to the lack of an approved sig mod or
the pendency of an appeal of the denial of a timely filed application.” Comp. Br. at 4.
ESG Watts does not dispute that its filing of the sig mod permit was untimely and,
accordingly, constituted a violation of Section 814.104 of the Board’s regulations. However,
it argues that it has already been adjudicated in violation for its failure to timely file its sig
mod application (see People v. ESG Watts (May 4, 1995), PCB 94-127), and it cannot be
again held in violation for the same offense in this matter. ESG Watts further argues that the
Board, in its decision in PCB 94-127, held that ESG Watts’ submission of the sig mod, albeit
late, was tantamount to compliance. Resp. Br. at 14. ESG Watts points out that, subsequent
to that adjudicated violation, it has twice submitted a sig mod permit application, has twice
been denied those permits, and has filed appeals to the Board of each denial.
A related issue is the groundwater monitoring allegation in Count II. Complainant
argues that ESG Watts is in violation of Special Condition 1 of Supplemental Permit 1993-
167-SP and Section 807.502 of the Board’s Waste disposal Regulations. ESG Watts argues
that is has submitted a groundwater monitoring plan in its sig mod application which resulted
in the permit which has been appealed in PCB 95-110.
Discussion and Findings. ESG Watts is correct that, in our case People v. ESG Watts
(May 4, 1995), PCB 94-127, the Board has already found it in violation of Section 814.104 of
the Board’s rules and Section 21(d)(2) of the Act. The Board will not again hold ESG Watts
in violation of those sections for its untimely filed sig mod. Further, complainant’s ancillary
argument is misplaced in the context of this case. If indeed Section 807.105 only allows
continued operation of landfills by those who have timely filed sig mods, complainant should
have made that argument earlier: in the context of PCB 94-127 or prior to discussions with
ESG Watts over the two sig mod applications it ultimately did file. As it is, this argument is
untimely made and the Board will not find a violation of Section 21(e) based only on the
continued operation of Taylor Ridge without a sig mod permit or an approved groundwater
monitoring program.
Operational Violations Concerning Cover and Leachate
Argument. Complainant argues that the testimony of Mr. Mehalic, as well as the
inspection reports of Mr. Chenoweth, establish violations of Sections 807.305(a), (b) and (c)
regarding daily cover, intermediate cover, and final cover.
23
Complainant also argues that
these regulatory violations constitute violations of Sections 21(d) (2) and 21(o)(5) and (6) of
the Act. Complainant argues that these cover violations have contributed to the landfill’s
problems with contaminated runoff, leachate, and erosion.
23
Complainant struck, at hearing, all allegations pertaining to alternate daily cover.
33
Complainant also argues that ESG Watts has operated Taylor Ridge landfill in a manner
that has not controlled leachate, in violation of Section 807.314(e) of the Board’s regulations.
Regarding cover, ESG Watts denies that the evidence presented by complainant proves
as many violations as complainant argues. Further, ESG Watts points to the testimony of Mr.
Brao, which indicates that “final cover is in place on the vast majority of the landfill.” Resp.
Br. at 22. Regarding leachate, ESG Watts argues it has taken many steps to control leachate.
Discussion and Findings. Providing adequate cover at a landfill helps ensure that the
landfill will not develop problems with leachate, refuse, runoff, and odor. The evidence
clearly indicates that, at various points in time, the landfill has violated all three cover
requirements: daily cover, intermediate cover, and final cover.
Section 807.305(c) and Sections 21(d)(2) and 21(o)(6).
Section 807.305(c) of the
Board’s Waste Disposal Regulations requires that two feet of suitable material be placed over
the entire surface of the final and inactive portion of a landfill, within 90 days of that portion
being placed in the final lift. While ESG Watts is correct that Mr. Brao testified that a
majority of the inactive portion of the landfill has adequate final cover, he importantly also
testified that an area of approximately one-half acre of the inactive portion of the landfill
clearly shows insufficient final cover. Accordingly, ESG Watts is in violation of Section
807.305(c) of the Board’s Waste Disposal Regulations and also Sections 21(d)(2) and 21(o)(6)
of the Act.
Section 807.305(a) and Sections 21(d)(2), 21(o)(5).
Section 807.305 (a) requires that a
compacted layer of at least six inches of suitable cover material (daily cover) must be placed
on all exposed refuse at the end of each operating day. Also, Section 21(o)(5) of the Act
makes it unlawful for a landfill to leave uncovered refuse remaining from any operating day at
the end of the day. Regarding daily cover, the record shows that problems were recognized,
documented, and testified to by Agency personnel from December 3, 1992, through May 23,
1996. Accordingly, the Board finds ESG Watts in violation of Section 807.305(a) of the
Board’s Waste Disposal Regulations and, derivatively, Section 21(d)(2) of the Act. Further,
the Board finds ESG Watts in violation of Section 21(o)(5) of the Act, which specifically
prohibits uncovered refuse from remaining from any previous operating day.
Section 807.305(b) and Section 21(d)(2).
Section 807.305(b) of the Board’s Waste
Disposal Regulations requires that 12 inches of suitable material shall be placed on all surfaces
of the landfill where no additional refuse will be deposited within 60 days, but which is not yet
a “final” or “inactive” area of the landfill. This requirement is known as “intermediate
cover.” Regarding intermediate cover, the record shows that problems were recognized,
documented, and testified to by Agency personnel from December 3, 1992, through May 23,
1996. Accordingly, the Board finds ESG Watts in violation of Section 807.305 (b) of the
Board’s regulations and, derivatively, Section 21(d)(2) of the Act.
Section 807.314(e) and Section 21(d)(2).
Since leachate is a special problem for
landfills, Board Waste Disposal Regulations specifically require landfills to monitor and
34
control leachate. Section 807.314(e) of the Board’s Waste Disposal Regulations requires that
“no person shall cause or allow the . . . operation of a sanitary landfill which does not provide
. . . adequate measures to monitor and control leachate.” The record is replete with examples
of leachate problems experienced by this landfill. Virtually every inspection conducted by Mr.
Mehalic from December 3, 1992, to July 18, 1996, showed leachate seeps through the landfill.
Testimony from Mr. Kammueller, as well as neighbors, corroborated Mr. Mehalic’s evidence
regarding leachate seeps. Mr. Chenoweth himself admitted that leachate was a problem, and
that he has taken several positive steps to attempt to deal with it, by flagging and repairing the
affected area. However, the short-term attempts taken to alleviate the problem have clearly
not been effective. The failure to take adequate measures to monitor and control leachate
violates Section 807.314(e) of the Board’s Waste Disposal Regulations. The Board finds ESG
Watts in violation of that provision and, accordingly, in violation of Section 21(d)(2) of the
Act.
WATER: Violations of Section 12 of the Act
and the Board’s Water Pollution Regulations
Regarding water violations specific to the operation of Taylor Ridge landfill,
complainant generally alleges violations of the following Sections of the Act: Sections 12(a)
(cause or allow discharge of contaminants into the environment so as to cause water pollution);
12(d) (deposit contaminants upon the land so as to create a water pollution hazard) and 12(f)
(cause or allow discharge of contaminants into the environment in violation of an NPDES
permit condition) and, again, Sections 21(d)(1) (operation of a landfill in violation of a permit
condition) and 21(d)(2) (operation of a landfill in violation of a Board regulation). See 415
ILCS 5/12(a), 12(d), 12(f), 21(d)(1), 21(d)(2) (1996).
Complainant also alleges violations of the Section 807.313 of the Board’s Waste
Disposal Regulations (operation of a landfill so as to cause or allow discharge of contaminants
so as to cause water pollution) and the following sections of the Board’s Water Pollution
Regulations: Section 302.203 (failure to keep waters of the State free from offensive
conditions); Section 304.120(c) (effluent standards for deoxygenating wastes); Section
304.124(a) (effluent exceedances for iron, total suspended solids, and manganese); Section
304.141(a) (discharge contaminants in violation of NPDES permitted standards); Section
305.102(b) (failure to monitor and report as required by NPDES permit conditions) and
Section 309.104(a) (requirement that NPDES permit holder apply for a renewal not less than
180 days from expiration date). See 35 Ill. Adm. Code 807.313, 302.203, 304.120(c),
304.124(a), 304.141(a), 305.102(b), 309.104(a).
Further, complainant alleges a violation of Special Condition 18 of Supplemental
Permit No. 1993-167-SP, as well as violations of the effluent standards and monitoring
obligations set forth in NPDES Permit No. IL0065307.
For ease of discussion, the Board divides these various allegations into two categories:
Surface Water Pollution/NPDES Violations and Groundwater Contamination.
35
Surface Water Pollution/NPDES Violations
Argument. Complainant argues that it has proven that the Taylor Ridge landfill has
caused significant water pollution in violation of the Act. Specifically, complainant argues
that ESG Watts has not controlled runoff and leachate discharges. Complainant points to the
two impoundments of surface waters, the retention pond and the Whitley pond, which it
considers waters of the State and which ultimately discharge into the Mississippi River.
Further, complainant argues that the ESG Watts’ operation of the landfill is in contravention of
the operating permit issued on August 27, 1993, because it does not meet the mandate therein
that site surface drainage shall not adversely effect adjacent property.
Complainant also asserts that it has proven ESG Watts guilty of violations of effluent
and water quality standards and NPDES permit conditions resulting from runoff discharges.
Complainant argues that the violations have occurred since the effective date of the NPDES
permit in September 1986 and exist to this day. Moreover, complainant argues that ESG
Watts has failed to properly monitor the discharges from outfalls 001 and 002, as set forth in
the NPDES permit and also has failed to file accurate DMRs as required by the permit.
Complainant also asserts that ESG Watts’ NPDES permit renewal application was untimely
filed, in that it was not filed within the 180 day advance time required by 35 Ill. Adm. Code
309.104(a).
ESG Watts questions complainant’s evidence regarding adverse impact on receiving
streams and suggests that the NPDES-permitted outfall on the north side of the landfill (outfall
001) is not a stream at all but a naturally occurring ravine which has a steep slope and which
has no more than a trickle “50% [to] 75% of the time.” ESG Watts argues that the stream on
the south side of the landfill (outfall 002) has water flowing in that stream only approximately
60% of the time and flows into a farm lot approximately 1,500 to 2,000 feet from the landfill.
Tr. at 772-74. Accordingly, ESG Watts asserts that any reference complainant makes to
adverse effect on fish habitat is speculative.
Regarding the alleged violations of permit conditions concerning monitoring and
reporting, ESG Watts basically argues that the landfill employees were honestly mistaken
about their obligations. ESG Watts asserts that though they had been wrongly reporting “no
discharge” on the DMRs, such a responsibility should be borne by the Agency since they
accepted the DMRs at face value for approximately nine years without ever communicating
concerns to the landfill operators. See discussion regarding
laches,
supra
at
6-7
. Also, ESG
Watts argues that the evidence of water pollution based upon the 1986 inspection report is too
old to be of use and that the Board should, as a matter of law, find that a nine-year
unexplained delay in bringing an enforcement action is patently unreasonable. Resp. Br. at 7.
Discussion and Findings. Pollution of the State’s waters is a violation of Section 12 of
the Act. See 415 ILCS 5/12(a) (cause or allow discharge of contaminants into the
environment so as to cause water pollution), (d) (deposit contaminants upon the land so as to
create a water pollution hazard) and (f) (cause or allow discharge of contaminants into the
environment in violation of an NPDES permit condition). In order to protect the waters of the
36
State from degradation by the operation of landfills, Board Waste Disposal Regulations set
forth at 35 Ill. Adm. Code 807.313 specifically require that:
No person shall cause or allow operation of a sanitary landfill so as to cause or
tend to cause or threaten or allow the discharge of any contaminants into the
environment in any state so as to cause or tend to cause water pollution in
Illinois, either alone or in combination with matter from other sources, or so as
to violate regulations or standards adopted by the Pollution Control Board under
the Act. 353 Ill. Adm. Code 807.313.
Water pollution, as defined by Section 3.55 of the Act states:
“WATER POLLUTION” is such alteration of the physical, thermal, chemical,
biological or radioactive properties of any waters of the State, or such discharge
of any contaminant into any waters of the State, as will or is likely to create a
nuisance or render such waters harmful or detrimental or injurious to public
health, safety or welfare, or to domestic, commercial, industrial, agricultural,
recreational, or other legitimate uses, or to livestock, wild animals, birds, fish,
or other aquatic life. 415 ILCS 5/3.55 (1994).
Waters of the state, as defined by Section 3.56 of the Act states:
“WATERS” means all accumulations of water, surface and underground,
natural, and artificial, public and private, or parts thereof, which are wholly or
partially within, flow through, or border upon this state. 415 ILCS 5/3.56
(1994).
Permit Condition 18 and Section 21(d)(1).
Testimony of the landfill neighbors shows a
clear violation of Special Condition 18 of Supplemental Permit No. 1993-167-SP. That
condition provides that “[s]ite surface drainage, during development, during operation and
after the site is closed, shall be such that no adverse effects are encountered by adjacent
property owners.” Site surface drainage, or stormwater runoff, from the Taylor Ridge landfill
appears from the evidence to be virtually singularly responsible for the silt accumulation in
Mr. Whitley’s pond, accumulation which has cost Mr. Whitley time, money, and enjoyment
of his property. Accordingly, the Board finds ESG Watts in violation of Special Permit
Condition 18 of Supplemental Permit No. 1993-167-SP. Having found ESG Watts in
violation of a permit condition, the Board accordingly finds ESG Watts in violation of Section
21(d)(1) of the Act.
Section 302.203 and Section 21(d)(2).
Section 302.203 of the Board’s Water Pollution
Regulations also requires that waters of the State be free from offensive conditions, specifically
defined as “sludge or bottom deposits, floating debris, visible oil, odor, plant or algae growth,
color or turbidity of other than natural origin . . . .” Testimony provided at hearing by the
neighbors of the landfill, in particular the stark testimony of Mr. Siebke and Mr. Whitley, as
well as the Agency’s inspectors, provides clear and consistent examples that stormwater runoff
37
contained refuse and debris of all sorts and sizes. Also, Mr. Mehalic observed quantities of
refuse in standing water on February 14, 1996, and again on May 23, 1996. Tr. at 419-20;
Comp. Exh. 48, photos 15, 16; Comp Exh. 49, photo 11. Accordingly, the Board finds ESG
Watts in violation of Section 302.203 and, consequently, in violation of Section 21(d)(2) of the
Act.
Section 305.102(b) and Sections 21(d), 12(f).
Section 305.102(b) of the Board’s Water
Pollution Regulations requires that all holders of NPDES permits comply with the monitoring,
sampling, recording, and reporting requirements set forth in the permit. NPDES Permit No.
IL0065307, which permitted the discharge of stormwater through designated outfall 001 and
outfall 002 at Taylor Ridge landfill, required ESG Watts to monitor the outfalls and file DMRs
showing the results. The permit obligation was to take samples of outfall 001 when
discharging and of outfall 002 one time per month. Yet, ESG Watts personnel admittedly did
not monitor outfall 002 since the issuance of the NPDES permit in 1986, and the evidence
suggests that ESG Watts failed to monitor outfall 001 for at least one year prior to 1994. On
their DMRs, ESG Watts would routinely report “no discharge” when stormwater flowed
naturally through the outfalls. While the evidence does not prove that the employees intended
to willfully mislead the Agency, ESG Watts’ defense of mistake or
laches
is not compelling.
Accordingly, the Board finds ESG Watts in violation of Section 305.102(b) of the Board’s
Water Pollution Regulations and, derivatively, Section 21(d) of the Act. Also, Section 12(f)
of the Act separately prohibits any person from violating an NPDES permit condition or Board
rule implementing the NPDES program. The Board finds ESG Watts in violation of that
statutory provision as well.
Sections 304.120(c), 304.124(a), 304.141(a), NPDES Effluent Conditions, and
Sections 21(d), 12(f).
The failure to monitor violations is especially egregious in that the
evidence suggests that, while ESG Watts saved time and money by not monitoring the
stormwater discharges as required, the environment has suffered. Once monitoring was done
routinely, the waters have shown routine exceedences of suspended solids, iron and, to a lesser
extent, manganese, all originating from the landfill. As evident from the table (see
supra
at
21-22), these exceedences constitute violations of Sections 304.120(c), 304.124(a) and
304.141(a) and applicable NPDES permit conditions. Violations of these provisions also
constitute violations of Sections 21(d) and 12(f) of the Act.
Section 807.313 and Sections 12(a), 12(d).
The operation of a landfill in a manner that
causes water pollution is a violation of Section 807.313 of the Board’s Waste Disposal
Regulations. Additionally, Section 12(a) of the Act specifically declares it a violation to
pollute waters of the State and Section 12(d) of the Act declares it a violation to “deposit any
contaminants upon the land in such place and manner so as to create a water pollution hazard.”
Regardless of the ESG Watts’ arguments concerning the constancy of the flow of water from
the outfalls into the “ditches” and ponds which surround the landfill, the ultimate receiving
body of the stormwater runoff from Taylor Ridge landfill is the Mississippi River, a water of
the State. Further, Mr. Whitley’s pond, and the pond on the ESG Watts property, are
considered waters of the State. Testimony established that the volume of water flowing
through the landfill property, basically due to rain and snow, is considerable. The landfill is
38
literally eroding onto neighboring property and, obviously, beyond. The record is also replete
with convincing testimony that the stormwater runoff contains silt, leachate, contaminants and,
often, refuse. The combined evidence of runoff, leachate, monitoring violations, and water
quality exceedences causes the Board to determine a violation of each of these provisions.
Section 309.104(a).
Complainant also cites ESG Watts for violation of Section
309.104(a) of the Board’s Water Pollution Regulations for the untimely filing of the NPDES
permit renewal. See Comp. Exh. at 15. The facts show that ESG Watts’ permit application
for a renewal filed on February 18, 1991, was about 18 days late. In that it took the Agency
until April 16, 1996, to re-issue ESG Watts’ NPDES permit, the Board believes a violation
under this Section is unjustified. Accordingly, the Board does not find ESG Watts in violation
of Section 309.104(a) of the Board’s Water Pollution Regulations.
Groundwater Contamination
Argument. Complainant argues that the operation of Taylor Ridge landfill has resulted
in the contamination of groundwater underlying the landfill in violation of the Act and the
Board’s groundwater quality regulations. Specifically, the complainant asserts that the
operation of the landfill resulted in release of contaminants to groundwater so as to cause
exceedences of the groundwater quality standards. In support of its claim, complainant cites
the groundwater monitoring data submitted by the respondent and the analytical results of the
groundwater sampling conducted by the Agency. Based upon the groundwater monitoring
data, complainant states that the concentrations of sulfate, iron, and manganese in the
groundwater underlying the landfill have exceeded the groundwater quality standards set forth
in 35 Ill. Adm. Code 620.410(a) for class I, Potable Resource Groundwater.
ESG Watts disagrees with complainant’s allegations that the operation of the landfill
caused groundwater contamination. ESG Watts disputes complainant’s conclusion that
groundwater underlying the facility is class I groundwater. Regardless of the groundwater
classification, ESG Watts contends that, in order to show violation of the Board’s groundwater
quality standards, complainant must demonstrate that the concentrations of the contaminants of
concern in the groundwater are not present due to natural causes. In this regard, ESG Watts
argues that all the three contaminants identified by complainant as exceeding the groundwater
are naturally occurring. ESG Watts notes that concentration of iron in groundwater upgradient
of the landfill exceed regulatory limits.
Discussion and Findings. Both ESG Watts’ and the Agency’s groundwater sampling
reports indicate exceedences of the Board’s groundwater quality standards set forth in 35 Ill.
Adm. Code 620.Subpart D for sulfate, iron, and manganese. However, before discussing the
specific violations, the Board will address the issue of whether the exceedences were caused by
natural background.
ESG Watts correctly notes that the groundwater quality standards set forth in 35 Ill.
Adm. Code 620 may not be exceeded except due to natural causes. See Sections 620.410(a)
and 620.420(a). However, in order to show that the exceedences were caused by background,
39
ESG Watts has to characterize the groundwater quality upgradient of the landfill for all the
three contaminants of concern. In this regard, ESG Watts has not provided any analysis of its
groundwater sampling results of the upgradient wells to establish the upgradient groundwater
quality for the three contaminants to show that the exceedences were not caused by the
landfill.
24
The monitoring data from the Agency’s and ESG Watts’ groundwater monitoring
reports show that the contaminants identified in the complaint were detected in the upgradient
wells and in some cases the levels for iron were above the groundwater quality standard.
However, both the Agency’s and ESG Watts’ groundwater monitoring reports show that the
concentrations of sulfate, iron, and manganese were significantly higher in the downgradient
wells. See table
supra
at 24. Thus, it is clear from the groundwater monitoring data that the
landfill was impacting the underlying groundwater. In light of this, the Board finds that the
exceedences of the Board’s groundwater quality standards were caused by the landfill.
Having found that the exceedences of the Board groundwater quality standards were
caused by the landfill, the Board will now examine the specific violations alleged by the
complainant, starting with the violation of groundwater quality standards.
Sections 620.405 and 620.410.
Section 620.405 prohibits causing a release of
contaminants into groundwater so as to violate groundwater quality standards. Section
620.410, which ESG Watts is also alleged to have violated, sets forth groundwater quality
standards for class I groundwater. To determine whether a violation has occurred, the Board
must first determine which classification applies to the groundwater in the vicinity of the
Taylor Ridge landfill.
All groundwaters of the State are designated as one of four classes of groundwater. 35
Ill. Adm. Code 620.201. Further, within any class of groundwater, a groundwater
management zone may be established as a three dimensional area containing groundwater
being managed to mitigate impairment caused by the release of contaminants. There is no
claim or evidence here that this case involves a groundwater management zone, so we review
the classifications of groundwater. Groundwater can only fall into classes I, III, and IV,
involving “potable resource” groundwater, “special resource” groundwater, and “other”
groundwater, respectively, if certain criteria are met; all other groundwater is considered class
II, “general resource” groundwater. See 35 Ill. Adm. Code 620.220(a). There has been no
assertion that the groundwater beneath the landfill might be class III or class IV groundwater.
The complainant has, however, alleged that the groundwater underlying Taylor Ridge landfill
is classified as class I groundwater. In this regard, complainant states that it is the
responsibility of the owner/operator to propose to the Agency that the groundwater is anything
other than class I groundwater. Tr. 460-61.
The criteria for classification of groundwater as class I are set forth in 35 Ill. Adm.
Code 620.210, which provides:
24
Because the Board has not accepted post-hearing evidence pertaining to ESG Watts’ sig mod
application (see discussion
supra
at 4-5), any information pertaining to background
groundwater quality information included in ESG Watts’ sig mod application has not been
considered.
40
Except as provided in Sections 620.230, 620.240, or 620.250,
Potable Resource Groundwater is:
a)
Groundwater located 10 feet or more below the land
surface and within:
1)
The minimum setback zone of a well which serves
as a potable water supply and to the bottom of
such well;
2)
Unconsolidated sand, gravel or sand and gravel
which is 5 feet or more in thickness and that
contains 12 percent or less of fines (i.e. fines
which pass through a No. 200 sieve tested
according to ASTM Standard Practice D2488-84,
incorporated by reference at Section 620.125);
3)
Sandstone which is 10 feet or more in thickness, or
fractured carbonate which is 15 feet or more in
thickness; or
4)
Any geological material which is capable of a:
A)
Sustained groundwater yield, from up to a
12 inch borehole, of 150 gallons per day or
more from a thickness of 15 feet or less; or
B)
Hydraulic conductivity of 1 x 10
-4
cm/sec
or greater using one of the following test
methods or its equivalent:
i)
Permeameter;
ii)
Slug test; or
iii)
Pump test.
b)
Any groundwater which is determined by the Board
pursuant to petition procedures set forth in Section
620.260, to be capable of potable use.
Although Mr. Liss, complainant’s witness, stated that the groundwater in question
would be classified as class I, there is no evidence before the Board from which it can find that
the groundwater under the landfill is in fact class I groundwater. There is no information in
the record to show that the landfill is within the setback zone of potable water supply wells.
There was no evidence submitted as to the geological makeup of the strata underlying the
landfill to demonstrate that geologic makeup beneath the site meets the class I groundwater
41
classification criteria.
25
The Board’s records reflect no determination of the status of this
groundwater pursuant to a petition under Section 620.260. Accordingly, the Board cannot find
that the groundwater under the landfill is class I Potable Resource Groundwater. The Board
thus finds no violation of 35 Ill. Adm. Code 620.410.
However, since complainant has alleged that ESG Watts has violated 35 Ill. Adm.
Code 620.405, the Board will examine whether ESG Watts has violated that Section.
35 Ill. Adm. Code 620.405 provides:
No person shall cause, threaten or allow the release of any
contaminant into groundwater so as to cause a groundwater
quality standard set forth in this Subpart to be exceeded.
As noted above, absent proof that the groundwater falls into one of the more specific
categories,
i.e
. class I, III or IV, the groundwater is considered class II. 35 Ill. Adm. Code
620.220(a). The Agency’s groundwater monitoring reports show that the sampling results
exceed the class II groundwater quality standards for sulfate and iron. The Board accordingly
finds that ESG Watts has violated Section 620.405, by causing the release of contaminants into
groundwater so that the standards for class II groundwater are exceeded. As noted in the
complaint, the concentrations of sulfate and iron in groundwater underlying the landfill have
exceeded the class II groundwater quality standard set forth at 35 Ill. Adm. Code 620.420
since at least November 12, 1991, and August 30, 1993, respectively. The Agency’s
monitoring reports indicate that as of August 25, 1994, levels of sulfate and iron still exceeded
class II groundwater quality standard. The Board accordingly finds ESG Watts in violation of
Section 620.405, from November 12, 1991, to at least August 25, 1994.
Section 620.301(a).
Complainant alleges that ESG Watts has violated Section
620.301(a), which provides:
a)
No person shall cause, threaten or allow the release of any
contaminant to a resource groundwater such that:
1)
Treatment or additional treatment is necessary to continue
an existing use or to assure a potential use of such
groundwater; or
2)
An existing or potential use of such groundwater is
precluded.
Having found that sulfate, iron, and manganese are present in the groundwater around
the landfill, and having found the landfill to be the source of the contaminants, the Board
concludes that ESG Watts has caused the discharge of contaminants into groundwater. Having
25
Because the Board has not accepted post-hearing evidence pertaining to ESG Watts’ sig mod
application (see discussion
supra
at 4-5), any information pertaining to groundwater
classification included in ESG Watts’ sig mod application has not been considered.
42
also found that treatment would be necessary before the groundwater could be used for
consumption (
i.e
, to assure a potential use), the Board concludes that Watts has violated 35 Ill.
Adm. Code 620.301(a). As noted in the complaint, the concentrations of sulfate and iron in
groundwater underlying the landfill have been detected at levels above the class II groundwater
quality standard set forth at 35 Ill. Adm. Code 620.420 since at least November 12, 1991, and
August 30, 1993, respectively. The Agency’s monitoring reports indicate that as of August
25, 1994, sulfate and iron were still present in the groundwater at levels above class II
groundwater quality standard. The Board accordingly finds ESG Watts in violation of Section
620.301(a) from November 12, 1991, to August 25, 1994.
Section 620.115 and Section 12(a).
Section 620.115 of the Board’s groundwater
protection standards prohibits any person from violating the Act or the Board’s groundwater
quality standards. Violations of the Board’s groundwater quality standards may constitute a
violation of Section 12(a) of the Act. See International Union
et al.
v. Caterpillar, Inc.
(August 1, 1996), PCB 94-240,
aff’d.,
Ill. App. Ct. No. 3-96-0931 (Third Dist.) (September
10, 1997) (unpublished order under Supreme Court Rule 23). As noted previously, the
concentrations of sulfate and iron in groundwater underlying the landfill have exceeded the
class II groundwater quality standard set forth at 35 Ill. Adm. Code 620.420 from November
12, 1991 to August 25, 1994. The Board finds that Watts has allowed the discharge of
contaminants into the environment in violation of Board regulations and standards and has
caused water pollution. Accordingly, the Board finds ESG Watts in violation of Section 12(a)
of the Act and 35 Ill. Adm. Code 620.115.
AIR: Alleged Violation of Section 9 of the Act and
Section 807.312 of the Board’s Waste Disposal Regulations
Argument. Complainant argues that ESG Watts has operated its Taylor Ridge landfill
in such a way as to cause air pollution in violation of Section 9(a) of the Act (415 ILCS 5/9(a)
(1994)), Section 807.312 of the Board’s Waste Disposal Regulations (35 Ill. Adm. Code
807.312), and derivatively, Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (1994)).
Complainant argues that the methane gas generated by Taylor Ridge landfill “not only
contains contaminants which give it a malodorous odor, but it also contains contaminants
which can interfere with the normal growth and development of nearby vegetation and plant
life.” Comp. Br. at 29. Complainant believes that the effects of gas emissions on the
neighboring landowners and on the surrounding vegetation are “well documented.”
Complainant also points to emphysema and lung problems experienced by Mrs. Whitley as
“conditions that the Board may properly find to be exacerbated by the landfill gas emissions.”
Comp. Br. at 29. The complainant argues that odor at the landfill is not a new problem, but
has been “occurring for the better part of ten years.” Tr. at 340. Complainant points to the
testimony of Agency employees Mr. Mehalic and Mr. Kammueller as well as neighbors Mr.
Whitely, Mr. Martens, Mr. Seibke, and Ms. Schultz, to establish the intensity of the odor
from gas, refuse and leachate and its effect on the neighboring property owners.
Complainant admits that the gas collection system will likely result in improvements in
overall gas emissions and odors emanating from the landfill. Complainant agrees that the
43
installation of the system was a sound environmental decision. It also posits it as a decision
ESG Watts made in its own economic interest. Further, complainant argues that ESG Watts
should have sought a permit for such a system much earlier than June 1996.
ESG Watts acknowledges that the landfill “from time to time, emits odors.” Resp. Br.
at 24. However, ESG Watts argues that the complainant has not established that the emissions
or odors resulted in any injury to human, plant, or animal life, or to property. ESG Watts
argues that the complainant’s arguments regarding injury to plants and vegetation due to odor
is speculative. ESG Watts vehemently denies that any evidence exists to support complainant’s
allegations regarding the poor health of Mrs. Whitley.
As to whether the odors have unreasonably interfered with the neighbor’s enjoyment of
the property, ESG Watts would weigh the testimony of the neighbors differently than does
complainant. Specifically, ESG Watts points to testimony from the neighbors which suggests
that the odor comes and goes, is dependent on wind direction, is not weekly, has not
interrupted entertainment, and has not forced neighbors inside. Further, ESG Watts points out
that three of the four witnesses regarding odor moved to their property knowing that the
landfill was in operation.
Discussion and Findings. Section 9(a) of the Act (415 ILCS 5/9(a) (1994)) makes it
unlawful for any person, including a landfill operator, to:
Cause or threaten or allow the discharge or emission of any contaminant
into the environment in any State so as to cause or tend to cause air
pollution in Illinois, either alone or in combination with contaminants
from other sources, or so as to violate regulations or standards adopted
by this Act;
Specifically regarding landfills, the Section 807.312 of the Board’s Waste Disposal
Regulations, 35 Ill. Adm. Code 807.312 (1994), prohibits the operation of a landfill in such a
way that it would cause air pollution. Air pollution is defined in Section 3.02 of the Act as:
the presence in the atmosphere of one or more contaminants in sufficient
quantities and of such characteristics and duration as to be injurious to
human, plant, or animal life, to health, or to property, or to
unreasonably interfere with the enjoyment of life or property. 415 ILCS
5/3.02 (1994).
The Board agrees with ESG Watts that scant, if any, record evidence exists which
connects the landfill gas emissions with any injury to human health. Though complainant
argues that Mrs. Whitley suffered from emphysema which may have been exacerbated by the
gas emissions (Comp. Br. at 29), there is no medical or scientific testimony demonstrating that
the odors have had this effect. Without medical or scientific testimony of causation, the Board
cannot find that complainant has shown any injury to health from the odors. See Draper and
Kramer Inc. v. Pollution Control Board, 40 Ill. App. 3d 918, 921-22, 353 N.E.2d 106, 109
44
(1st Dist. 1976) (reversing finding of air pollution violation based on injury to health when no
scientific testimony introduced on causation); State of Illinois v. Forty-Eight Insulation’s, Inc.
(September 30, 1976), PCB 74-480, slip op. at 7, (finding no injury to health in air pollution
case where no medical testimony was submitted to verify or quantify the injury); IEPA v.
W.F. Hall Printing Company (September 15, 1977), PCB 73-30, slip op. at 7, (finding no
injury to health in air pollution case where the Agency “brought no expert testimony to link
alleged physical ill effects to [respondent’s] emissions”). See also Donetta Gott
et al.
v.
M’Orr Pork, Inc. (February 20, 1997), PCB 96-68, slip op. at 13.
Likewise, evidence is lacking that odor from the landfill harmed plant life or property.
While there is some testimony which implied that the gas emissions from the landfill have
created problems in development of its vegetative cover, there is no concrete evidence or
testimony in the record which demonstrates a nexus between the gas emissions and loss of
vegetation or dead trees. Therefore, the Board will not find that the harm to vegetation that
was discussed in the record is attributable to landfill gas.
Nonetheless, ESG Watts will be found to have caused air pollution in violation of the
Act and Board regulations if it is proven that odors from the landfill caused an “unreasonable
interference with the enjoyment of life or property.” Testimony from neighbors and Agency
inspectors (from inspections performed by both Mr. Mehalic and Mr. Kammueller on various
dates from 1994-1996) clearly establish that there is an odor which emanates from the landfill.
Whether that odor constitutes an “unreasonable interference with the enjoyment of life or
property,” requires the Board to analyze the extent and nature of the evidence against the
factors found at Section 33(c) of the Act. See M’Orr Pork (February 20, 1997), PCB 96-68,
slip op. at 12; see also Sangamo Construction Company v. Pollution Control Board, 27 Ill.
App. 3d 949, 953, 328 N.E.2d 571, 574-75 (4th Dist. 1975). These are the same factors that
the Board must consider in determining the appropriate civil remedy for the violations found in
this section. Those factors are:
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
in 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. 415 ILCS 5/33(c) (1996).
45
The burden of proof lies with the complainant to show that, by a preponderance of the
evidence, a “substantial interference” with the “enjoyment of life or property,” excluding
“trifling inconvenience, petty annoyance and minor discomfort” has occurred. See Processing
and Books, Inc. v. Pollution Control Board, 64 Ill. 2d 68, 77, 351 N.E.2d 865, 869 (1976);
see Incinerator, Inc.v. Pollution Control Board, 59 Ill. 2d 290, 297, 319 N.E.2d 794, 797
(1974); see also M’Orr Pork (February 20, 1997), PCB 96-68, slip op. at 14. The Board need
not find against ESG Watts on each of the criteria of Section 33(c) in order to find a violation.
See Wells Manufacturing Co. v. Pollution Control Board, 73 Ill. 2d 226, 233, 383 N.E.2d
148, 151 (1978).
Below is a discussion of each of the 33(c) factors as applied to the facts and
circumstances in this matter to determine whether the odor from Taylor Ridge landfill
constitutes an unreasonable interference with the life and property of the four landfill
neighbors who testified in this proceeding.
Character and Degree of Injury
. The Board considers the testimony provided by the
witnesses as to the degree of odor to be convincing in its sincerity and detailed in its
description. In weighing the character and degree of injury, in this case the injury of
offensiveness, the Board has considered the following explicit record descriptions of the odor:
“rotten garbage”; “raunchy smell”; “audible gas hole and odorous”; and “four-week old
garbage sitting in the sun for weeks.” Although the odors are worse sometimes than they are
at other times, the testimony clearly showed that the odors consistently returned. The
testimony of the four landfill neighbors, especially the log kept by Mr. Martens, show more
than a mere “trifling inconvenience” but rather show an offensive, annoying nuisance. The
odors affected the neighbors’ way of life, and have caused them to close windows, stay inside,
and turn on the air conditioning. The nuisance is made more onerous because the testimony
clearly showed that the odors were not limited to landfill gas, but were the result of other
manifestations of a poorly designed and maintained landfill: leachate and exposed refuse. On
this factor, the Board finds that the character and degree of interference weighs in aggravation.
Social and Economic Value of the Pollution Source.
For the same reasons set forth
(see
infra
at 48-49) the Board finds that this factor weighs in aggravation.
Suitability of the Pollution Source to the Area.
This factor requires the Board to look
at the location of the landfill and determine its suitability to the area. Given the nuisance
nature of the alleged air pollution violation, the Board will also look to the question of priority
of location (basically, who was there first). See Decatur Auto Auction v. Macon County Farm
Bureau (June 15, 1995), PCB 93-192, slip op. at 7, citing Wells Manufacturing, 73 Ill. 2d
226, 383 N.E.2d 148-152. In this case, the Taylor Ridge landfill has been in its present
location for over 30 years, prior to at least three of the four neighbors who testified at hearing.
While an important factor, the Board does not deem the question of priority of location
dispositive on the question of nuisance. See Decatur Auto Auction v. Macon County Farm
Bureau (June 15, 1995), PCB 93-192, slip op. at 7, citing Wells Manufacturing, 73 Ill. 2d
226, 383 N.E.2d 148-152. In this case, the neighbors had a right to expect that its landfill
neighbor would be observing all relevant laws. If that were the case, the odor emanating from
46
the landfill would no doubt be much less than that experienced. Accordingly, the Board finds
that this factor weighs neither in aggravation or mitigation.
Technical Practicability and Economic Reasonableness of Reducing the Emissions.
In
applying this factor, the Board must consider whether technically practicable and economically
reasonable means of reducing or eliminating odor from the landfill were readily available to
ESG Watts. See Incinerator, Inc., 59 Ill. 2d at 298, 319 N.E.2d at 798; Sangamo
Construction Company, 27 Ill. App. 3d at 954-55, 328 N.E.2d at 575; see also M’Orr Pork
(February 20, 1997), PCB 96-68, slip op. at 18-19. Certainly, as ESG Watts found in its
eventual installation of the gas management system, a technically practicable and economically
advantageous system for capturing methane emissions was available to reduce odors caused
from those emissions. The Board agrees with the Agency that ESG Watts could have
incorporated such technology sooner, given the serious characteristics of the odor and the
dangerous nature of landfill gas. Further, landfill design has advanced considerably since the
original permitting of Taylor Ridge landfill in the 1970’s and with such advances have come
technically practicable and economically reasonable solutions to dissipate leachate and to
obviate problems with exposed refuse. ESG Watts has not incorporated long-term solutions to
these problems at the Taylor Ridge landfill, which result in odorous situations. The Board
finds that this factor weighs in aggravation.
Subsequent Compliance.
Under this criterion for the Section 33(c) factors, the Board
must examine whether ESG Watts has subsequently come into compliance with the
requirements allegedly violated. See Dennis Manarchy v. JJJ Associates, Inc. (July 18, 1996),
PCB 95-73, slip op. at 13. The installation of the gas management system will no doubt
reduce the odors emanating from landfill gas, such that there may no longer be an
unreasonable interference from that source. The fact that ESG Watts installed the system,
whatever its motivation, weighs in mitigation. Nonetheless, ESG Watts’ continued
noncompliance with the statutory and regulatory provisions requiring good landfill
management practices in the areas of leachate and refuse weighs in aggravation. Accordingly,
the Board finds that this factor weighs neither in aggravation nor mitigation.
Having weighed the Section 33(c) factors as required, the Board finds that ESG Watts
has caused air pollution in violation of Section 9(a) of the Act and Section 807.312 of the
Board’s Waste Disposal Regulations, by emitting odors which caused an unreasonable
interference with the life and property of the neighbors of Taylor Ridge landfill, thereby
causing air pollution as defined by the Act.
PENALTY ANALYSIS
Position and Arguments of the Parties
Complainant seeks to have the operating permits revoked for the Taylor Ridge landfill.
In addition, the complainant seeks an order imposing monetary penalties ($700,000 if the
permit is not revoked; $100,000 if the permit is revoked), awarding attorney fees and costs,
and requiring ESG Watts to cease and desist from further violations. The complainant asserts
47
that revocation of operating permits “is the only remedy available that would ensure
compliance with the Act and Board regulations.” Comp. Br. at 38.
The complainant asks that the Board consider the past history of noncompliance in
support of the “severe but warranted remedy.” Comp. Br. at 38. Complainant argues that,
while ESG Watts has been previously charged with high penalties, violations have not ceased.
The complainant argues that the Board should look at the totality of the circumstances when
fashioning the appropriate remedy in this case: ESG Watts’ lack of a sig mod permit, ESG
Watts’ failure to adequately fund its financial assurance, and ESG Watts’ lack of adequate
operational controls. Complainant also points to the water and air pollution violations, the
adverse effect on its neighbors, and the history of ESG Watts’ previous violations.
Further, the Agency believes that ESG Watts’ continued operation of the landfill poses
a significant environmental threat:
We are talking about issues that directly affect human health and the
environment, issues such as gas leaving the landfill, run-on and runoff of
contaminated water from the landfill, leachate control systems from the
landfill, which can impact groundwater, and the groundwater
assessment, which is necessary to determine whether the landfill is
actually being operated as a sanitary landfill or an open dump . . . the
longer that we let this facility operate, the more potential damage that is
done.” Testimony of Bill Child, chief of Bureau of Land. Tr. at 27.
While Mr. Child admitted that revocation of the landfill’s permit is indeed a severe sanction,
he believed that it was less severe than seeking a monetary penalty beyond the ability of the
operator to recover. Tr. at 67. Alternatively, if the Board does not revoke the permits, then
complainant requests that the Board provide the Agency with funding to maintain a full-time
inspector who will oversee operations at Taylor Ridge landfill, in addition to assessing a
$700,000 penalty.
While ESG Watts admits that while certain violations have occurred which may warrant
a penalty, it argues that the proven violations are few. As to the lack of financial assurance
fund, ESG Watts argues that ESG Watts’ “failure to fully fund its closure trust at this time
does not warrant a significant penalty.” Further, ESG Watts argues that the $700,000 penalty
proposed by complainant is unwarranted and not supportable based upon the facts of this
matter. Resp. Br. at 29.
Permit Revocation
Section 33(b) of the Act specifically allows the Board to consider the revocation of a
permit in fashioning an appropriate order:
(b) Such order may include a direction to cease and desist from
violations of the Act or of the Board’s rules and regulations or of
any permit or term or condition thereof, and/or the imposition by
48
the Board of civil penalties in accord with Section 42 of this Act.
The Board may also revoke the permit as a penalty for violation.
(Emphasis added.) 415 ILCS 5/33(b) (1996).
Section 33(c) of the Act directs the Board to consider certain factors in making our
orders and determinations. While the Board often applies the Section 33(c) to each and every
alleged violation (as we have done with the air violation (see
supra
at 44-47), the Board does
not do so in every case. Rather, the circumstances often require, as these circumstances do, an
application of the factors to the totality of the alleged violations. Accordingly, the Board will
weigh each of the factors as to the requested civil remedy of permit revocation.
Character and Degree of Injury to or Interference with the Protection of the Health,
General Welfare, and Physical Property of the People. The testimony of the four neighbors to
Taylor Ridge landfill serves to convince the Board that the leachate, exposed refuse, odor,
runoff, and water violations that we found in this case are not minimal, as argued by the ESG
Watts, but have seriously impacted neighboring property and, to a lesser extent, the livelihood
of at least four citizens of the State. Further, the character of the potential injury to the people
of this state as a result of ESG Watts’ callous and long-term failure to provide financial
assurance so that environmentally sound closure of this facility is guaranteed, is most severe.
The Board concludes that this factor weighs in aggravation of the penalty to be imposed.
The Social and Economic Value of the Pollution Source. Normally, this factor weighs
in favor of a respondent. Normally, a pollution source, albeit a “source” of pollution, has a
social and economic value that must be weighed against the source’s potential effect on the
environment. Clearly, the source here has some economic value; certainly it employs the five
individuals and two consultants who testified in our proceeding on its behalf. Also, as pointed
out by ESG Watts, it provides fees to the county and the State for its continued operation.
However, it is one of three landfills in Rock Island County and the Board is not
convinced by ESG Watts vice president’s, Mr. Eilers, testimony that the closure of this
landfill will result in a significant increase in rates because of heightened competition between
the two remaining landfills. Tr. at 527-528. Moreover, such testimony is inconsistent with
Mr. Eiler’s prior testimony that ESG Watts’ waste hauling parent company, ESG Watts
Trucking, projects hauling much of the waste it normally would haul to Taylor Ridge landfill
across the border to landfills in Iowa. Tr. at 526-527.
Further, Mr. Eilers’ testimony of economic impact to the county is obviously not
shared by Mr. Mehall. Although Mr. Mehall’s budget is now about 50% funded as a result
of ESG Watts tipping fees to the county, he believed that closure of the landfill would only
result in a slight decrease “if any” on tipping fees. Tr. at 520. As Mr. Mehall testified,
competition from revocation and closure of Taylor Ridge landfill might have some impact on
hauling rates. However, he did not believe it would be “an extremely great impact at the
present moment.” His belief was based upon his observation of the consolidation which is
going on in the waste industry in the area, particularly regarding Allied Waste Systems which
owns the upper Rock Island County landfill. Tr. at 518.
49
Further, in considering the social and economic value of the pollution source, the
Board would be remiss if it did not observe, as complainant requests, that a pollution source’s
value depends in part on its ability to achieve overall compliance with the Act. In this case,
that social and economic value is undermined by ESG Watts’ continued failure to make the
technical improvements necessary to control leachate, runoff, and contamination, as well as
underfunding of its financial assurance obligation. Yet, that company is owned by a parent
company who has an approximately $1,000,000 loan outstanding to the single shareholder of
these companies.
Further, while the methane recovery system, and the landfill gas itself, no doubt has
substantial economic potential, that system is not owned by the owner/operator of the facility
and, accordingly, should not be factored into our decision. For all the above reasons, the
Board concludes that this factor weighs in aggravation of the penalty to be imposed.
The Suitability or Unsuitability of the Pollution Source to the Area.
This factor
requires the Board to look at the location of the Taylor Ridge landfill and determine its
suitability to that area, including the question of priority of location. As to priority of
location, Taylor Ridge landfill has been in its present location since the 1970’s and certainly is
incapable of moving. However, while it may have been a suitable location in the early days of
landfills, record testimony shows that its location on a bluff near the Mississippi River is not
an ideal location for a landfill and indeed its location may contribute to its problems with
stormwater runoff and erosion. In the context of this case, and the requested permit
revocation, the Board concludes that this factor weighs in aggravation of the penalty to be
imposed.
Technical Practicability and Economic Reasonableness of Reducing or Eliminating
Pollution. Complainant argues that compliance with the applicable rules and regulations would
significantly reduce or eliminate the emissions, discharges and deposits from landfill
operations. Complainant points out that compliance with the Board’s regulations are
technically practicable and compliance is being achieved at numerous landfills throughout the
State. While compliance is costly, the expenses are reasonable in light of the income derived
from landfill operations. Complainant argues that ESG Watts has generated substantial income
while deferring, delaying, or avoiding compliance expenditures.
ESG Watts argues that the only emissions, discharges, or deposits alleged by
complainant are stormwater runoff and landfill gas. ESG Watts argues that it cannot control
storm events or landfill gas, but ESG Watts admits that measures can be taken to control these
emissions. ESG Watts does not dispute the technical practicality or economic reasonableness
of these measures, but suggests that such measures have been taken. With respect to landfill
gas, ESG Watts has taken measures which it has found to be both technically practical and
economically reasonable.
The Board agrees with complainant that measures to control pollution at landfills are
both technically practicable and economically reasonable. The Board acknowledges that ESG
50
Watts has taken such measures as to landfill gas. However, the Board also acknowledges that,
for years, instead of invoking such measures for the benefit of the environment, ESG Watts
has deferred, delayed, and avoided expenditures, and continues to do so. The Board concludes
that this factor weighs in aggravation of the penalty to be imposed.
Subsequent Compliance. ESG Watts argues that it “has been making significant strides
towards compliance on all issues since at least 1993.” Resp. Br. at 32. The complainant
acknowledges that the landfill has recently made efforts at compliance, but declares that those
efforts are “too little, too late.” Comp. Br. at 7. While ESG Watts has indeed taken some
steps to arrest runoff and leachate, through the perhaps conscientious efforts of the Taylor
Ridge landfill employees, those efforts have only been short-term band-aid solutions. Long-
term financial commitment is necessary to protect the environment from the problems of this
landfill, and that commitment is lacking. This factor, subsequent “compliance” requires just
that: compliance. Here, compliance is sporadic at best. On some issues, there is simply no
compliance. Whatever compliance has been achieved, it has only been achieved after
significant legal action was initiated by the State. The Board concludes that this factor weighs
in aggravation of the penalty to be imposed.
Determination of Penalty
In fashioning any remedy, the Board must consider what action is best designed to
achieve compliance with the Act. As to this landfill owner, administrative citations have not
worked, circuit court actions have not worked, prior Board orders have not worked, and prior
monetary penalties have not worked. We do not believe that complainant’s alternative
remedy, the hiring of an Agency employee for the sole purpose of overseeing operations at the
Taylor Ridge landfill, will serve the purposes of the Act. Accordingly, we agree with
complainant that the requested remedy, that of revocation of ESG Watts’ operating permit for
Taylor Ridge landfill, is warranted in this matter. Based upon our weighing of the Section
33(c) factors above, the Board finds that revocation of ESG Watts’ permit to operate the
Taylor Ridge landfill is the best remedy available to ensure compliance with the Act.
Complainant’s requested monetary civil penalty, given the Board’s decision to revoke
ESG Watts’ operating permit, is $100,000 (Comp. Br. at 49-50). The Board observes that
given the number and duration of the violations determined herein, that amount at first blush
appears to be well-within the statutory maximum of $50,000 per violation and $10,000 per day
of violation as set forth in Section 42(a) of the Act. See comparatively, People v. Watts
(February 5, 1998), PCB 96-233. The Board does not make its determinations, however,
based upon “first-blush” opining but upon a well-considered analysis of the statutory factors
found at Sections 33(c) and 42(h) of the Act. The Board has considered the factors set forth in
Section 33(c) as those factors related to the question of permit revocation. The Board now
considers the factors found at Section 42(h) of the Act as they relate to the $100,000 penalty
requested by the complainant. Section 42(h) provides:
[T]he Board is authorized to consider any matters of record in mitigation or
aggravation of penalty, including but not limited to the following factors:
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1. the duration and gravity of the violation;
2.
the presence or absence of due diligence on the part of the
vilator in attempting to comply with the requirements of
this Act and regulations thereunder or to secure relief
therefrom as provided by this Act;
3.
any economic benefits accrued by the violator because of
delay in compliance with requirements;
4. the amount of monetary penalty which will serve to deter
further violations by the violator and to otherwise aid in
enhancing voluntary compliance with this Act by the
violator and other persons similarly subject to the Act;
and
5.
the number, proximity in time, and gravity of previously
adjudicated violations of this Act by the violator. 415
ILCS 5/42(h) (1996).
Application of Section 42(h) Factors
The Duration and Gravity of the Violations. While many of these violations appear to
have been occurring throughout the landfill’s 30-year history, the Board carefully considered
the arguments of ESG Watts and, accordingly, did not consider any of the evidentiary facts
regarding water violations which could and should have been raised in the context of preceding
circuit court actions. Rather, based upon the evidence, the Board considers the beginning of
1993 as a legitimate point of reference for most of the violations we have found herein. From
that time until the filing of the complaint (and the motion to conform regarding the financial
assurance violations), the Board estimates that a maximum penalty in the range of millions of
dollars would be statutorily permissible.
Regarding gravity, the violations found herein, in quality and quantity, are grave
indeed. The two violations the Board finds most grievous are ESG Watts’ failure to provide
financial assurance, and ESG Watts’ violation of NPDES permit violations and Board water
quality standards. ESG Watts’ failure to provide the financial assurance necessary for an
environmentally sound closure of this facility smacks of arrogant circumvention of legitimate
State business requirements. As we stated earlier in this opinion, the funding of the financial
assurance is an obligation every owner of a landfill in Illinois owes the taxpayers of this State
and is part and parcel of the cost of doing business here. Further, ESG Watts’ operation of a
landfill with utter disregard for its NPDES monitoring and reporting obligations has
contributed to the water pollution problems discussed herein. Section 42(b)(1) of the Act itself
suggests the gravity the legislature suggested the Board import to NPDES violations. That
section sets forth an additional statutory maximum in the amount of $10,000 per day for every
52
day of violation of Section 12(f), an NPDES permit condition, or a Board regulation
implementing the NPDES program. We have found that such violations have occurred. These
violations are weighty indeed.
The Board finds that this factor weighs in aggravation of the penalty to be imposed.
Due Diligence on the Part of the Violator. The Board appreciates the attempts made
by ESG Watts’ counsel to paint the respondent as making strides at compliance and, indeed,
the Board recognizes that ESG Watts has appeared to attempt to solve various problems
(especially regarding runoff and leachate) at the landfill. However, in the context of this case,
the attempts of landfill employees (conscientious though they may be) to cap leachate seeps,
plug gas holes, and put straw bales out to control runoff, are not the same thing as “due
diligence” on the part of the violator. The violator here, ESG Watts, has not shown due
diligence on the violations of consequence, nor has ESG Watts shown the long-term
commitment necessary to solve the problems at the landfill.
The Board finds that this factor weighs in aggravation of the penalty to be assessed.
Economic Benefit. While this factor requires that the Board consider any economic
benefits accrued by the violator because of a delay in compliance with the requirements, the
Board could not possibly analyze the entirety of the economic benefit that has seeped into the
corporate account of ESG Watts while leachate, contaminants, and litter have seeped into the
land and water of the surrounding properties. The economic benefit ESG Watts incurred for
its failure to fund the financial assurance fund alone is significant. Further, ESG Watts
economically benefited for over a decade by avoiding its effluent monitoring and testing
requirements. In the context of this case, economic benefits to ESG Watts from its non-
compliance or delayed compliance were great.
The Board finds that this factor weighs in aggravation of the penalty to be assessed.
Monetary Penalty Which Will Serve to Deter Further Violations. Perhaps the most
difficult question before the Board in this matter is what penalty dollar amount would best
serve to deter further violations of the Act by this or other potential violators. Certainly, in
similar cases, a higher dollar amount is more than justified. Indeed, the Board today decides
another ESG Watts case, which deals with violations of the closed Viola landfill and assesses
penalties in the amount of $680,200. See People v. ESG Watts (February 5, 1998), PCB 96-
233. Also, we have pending before us People v. ESG Watts, PCB 96-237, which deals with
violations at the Sangamon Valley landfill and also seeks penalties.
This case is different, however, because we are ordering a revocation of ESG Watts’
permit to operate this landfill and, essentially, require that it cease operations there and go
through appropriate closure procedures. In this case, we are persuaded by the testimony of
Mr. Child that, in the context of this case, the State is more interested in protecting the
environment than it is in assessing a penalty beyond the ability of the operator to recover.
53
The Board finds that this factor weighs in mitigation of the penalty we would normally
assess.
Number, Proximity in Time, and Gravity of Previously Adjudicated Violations by the
Violator. It is indeed uncanny that ESG Watts has actually been the recent subject of rather
serious previously adjudicated violations, the most recent of which assessed a $60,000 penalty
for, among other things, failing to timely file a sig mod application as required under the
State’s new federally-derived landfill program. See ESG Watts, PCB 94-127,
aff’d.
, 282 Ill.
App. 3d 43, 668 N.E.2d 1015 (4th Dist. 1996). Further, it is unlikely that any one violator
has been the subject of so many adjudicated violations. Indeed, it was ESG Watts’ history of
previously adjudicated violations which led the Board to uphold, in a case of first impression,
the Agency’s denial of waste stream permits for this very landfill. See ESG Watts, PCB 94-
243,
aff’d.,
286 Ill. App. 3d 325, 676 N.E.2d 299 (3rd Dist. 1997).
The Board finds that this factor weighs in aggravation of the penalty to be assessed.
Penalty Assessment
Based upon the above, the Board would find that a much greater penalty than that
requested by complainant would be warranted upon the facts of this case. Nonetheless, the
Board respects that the complainant has sought a more than reasonable monetary amount in
this matter, given the Board’s decision to revocate and given the uncertainty regarding the
specific dollar amount which would most likely result in compliance with the Act and Board
regulations. Accordingly, the Board orders, as requested by the complainant, a penalty in the
amount of $100,000 to be paid to the Environmental Protection Trust Fund.
54
Attorney Fees
Section 42(f) of the Act allows the Board to award attorney fees if it finds that the
violations are “willful, knowing or repeated.” Various violations found herein would fall into
one or more of those categories. Accordingly, attorney fees are allowed in this matter and are
warranted. The complainant has provided an “Affidavit of Fees” which allege expenses in the
amount of $26,567.01. The Board has reviewed that affidavit, and finds that it sets forth
reasonable expenditures for the prosecution of this matter, at a rate found appropriate in prior
Board cases. See People v. Watts (May 4, 1995), PCB 94-127, slip op. at 18. Accordingly,
the Board orders $26,567 to be paid to the Hazardous Waste Fund.
ORDER
1.
The Board finds that ESG Watts violated Sections 9(a), 12(a), 12(d), 12(f), 21
(d)(1), 21(d)(2), 21(o)(5), 21(o)(6), 21(o)(13), and 21.1(a) of the Act (415
ILCS 9(a), 12(a), 12(d), 12(f), 21 (d)(1), 21(d)(2), 21(o)(5), 21(o)(6),
21(o)(13), and 21.1(a) (1994)).
2. The Board finds ESG Watts in violation of 35 Ill. Adm. Code 302.203,
304.120(c), 304.124(a), 304.141(a), 305.102(b), 620.115, 620.301, 620.405,
807.305(a), 807.305(b), 807.305(c), 807.312, 807.313, 807.314(e), and
807.623. The Board finds ESG Watts in violation of various permit
requirements including Special Condition 8 of Supplemental Permit No. 1991-
292-SP, Special Conditions 2 and 18 of Supplemental Permit No. 1993-167-SP,
and Special Conditions II.7, II.8 of Supplemental Permit No. 1996-087-SP.
3. The Board revokes ESG Watts’ operating permit No. 1972-72-DE/OP.
Accordingly, ESG Watts must not accept any more waste at the Taylor Ridge
landfill.
4.
ESG Watts must, in accordance with the supplemental permits issued by the
Agency, perform the compliance requirements including the initiation and
timely completion of closure and post-closure care, groundwater assessment
monitoring, and gas and leachate extraction.
5.
The Board orders ESG Watts to pay a penalty in the amount of $100,000,
within 60 days of the date of this order. This payment must be made by
certified check or money order payable to Treasurer of the State of Illinois,
designated to the Environmental Protection Trust Fund, and should be sent by
first class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
1021 N. Grand Avenue East
Springfield, IL 62702
55
6.
The certified check or money order shall clearly indicate on it ESG Watts’ federal
employer identification number and that payment is directed to the Environmental
Protection Trust Fund.
7.
The Board orders ESG Watts to pay attorney fees and costs in the amount of
$26,567 to the Attorney General’s Office. Such payment shall be made within
60 days of the date of this order by certified check or money order payable to
the Treasurer of the State of Illinois, designated for deposit to the Hazardous
Waste Fund, and must be sent by first class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
1021 N. Grand Avenue East
Springfield, IL 62702
8.
The certified check or money order shall clearly indicate on its face, the case
name and number, ESG Watts’ federal employer identification number and that
payment is directed to the Hazardous Waste Fund.
9.
Any such penalty not paid within the time prescribed shall incur interest at the
rate set forth in Section 1003(a) of the Illinois Income Tax Act, (35 ILCS
5/1003 (1996)), as now or hereafter amended, from the date payment is due
until the date payment is received. Interest shall not accrue during the pendancy
of an appeal during which payment of the penalty has been stayed.
10. ESG Watts must cease and desist from violations of the Act and the Board’s
regulations.
IT IS SO ORDERED.
Board Member K.M. Hennessey abstained.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 145 Ill. 2d
Resp. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 5th day of February 1998, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
