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Baker v. Pollution Control Board

OCTOBER 6, 1975.

EARL BAKER ET AL., PETITIONERS,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board.

MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 29, 1975.

Petitioners, Earl Baker (now deceased) and Harold Broverman, were at the time of the filing of the complaint on January 4, 1972, joint owners along with two others of the Taylorville Landfill in Christian County. This landfill has for many years accepted all kinds of refuse, including household wastes from the city of Taylorville and offal from a slaughter-house. The complaint and amended complaint charged the petitioners with numerous violations of the Environmental Protection Act and of the Environmental Protection Agency's Refuse Disposal Rules and Regulations. A former part-owner, Robert Rink, was also charged in the complaint. Rink, however, is not a party to this appeal. The board discharged a fourth party.

A hearing officer of the Pollution Control Board conducted public hearings on May 24 and 31, 1972. On September 12, 1972, the Board found petitioners Baker, Broverman and Rink to be in violation of several statutory provisions as well as numerous refuse disposal rules and regulations of the Board. The Board ordered the three to cease and desist from dumping and burning and forthwith to compact, spread, and apply final cover to the refuse until such time as petitioners obtained an operating permit. Petitioners were assessed civil penalties in the amount of $5,000 each. Rink was penalized $2,000. It is from the Board's order and assessment of penalties that this appeal is taken pursuant to section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1041).

Petitioners present the following questions for review:

(1) whether the Pollution Control Board properly considered the guidelines enumerated in section 33(c) of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1033(c)) in rendering its decision; (2) whether the order against petitioner Baker should be dismissed because of his death; (3) whether the penalties imposed were excessive.

Between July, 1970, and March, 1972, various inspectors from the Environmental Protection Agency made on-sight inspections of the 62-acre landfill operated by the petitioners. During several inspections open fires were seen, and on two occasions rats were observed. At times a heavy fly population was present, and on most visits a strong, nauseous odor pervaded the air. On many occasions the refuse had not been spread, compacted, or covered in a manner required by the regulations. Unloading was unsupervised, and inadequate or inoperable landfill equipment was noted. All of the foregoing conditions or activities at the landfill constituted violations of statutes and the landfill rules and regulations. During the period in question the landfill did not possess the required operating permit.

During many inspections, Environmental Protection Agency personnel spoke with either Baker or Broverman regarding the lack of compliance with landfill rules and regulations and the means for correcting the violations. The petitioners were notified of their violations by letter on several occasions.

The petitioners contend that the Pollution Control Board's decision is arbitrary because the opinion failed to consider guidelines enumerated in section 33(c) of the Environmental Protection Act. In particular, the petitioners argue that the arbitrariness of the Board's decision is evidenced by its failure to cite violations of specific regulations or statutes in its opinion and order.

• 1 Reviewing the instant record, we have determined that the findings of the Pollution Control Board were clearly supported by the evidence. Even though the Board in its opinion and order failed to specify the particular statutes and landfill regulations violated, it stated the following: "We find that the evidence in the record overwhelmingly supports the various allegations of the amended complaint. The amended complaint alleged various violations of the Environmental Protection Act and also of the Rules and Regulations for Refuse Disposal Sites. In particular the violations alleged were section 21(e) of the Environmental Protection Act (failure to have a permit); section 9(c) of the Act and Rules 3.05 and 5.12(d) (open burning); section 21(b) of the Act and Rule 3.04 (open dumping); Rule 5.06 (failure to spread and compact); Rule 5.07(a) (failure to apply daily cover); Rule 5.07(b) (failure to apply final cover); Rule 4.04 (failure to provide for fire protection); Rule 5.04 (failure to supervise unloading to prevent blowing litter); Rule 5.05 (failure to provide sufficient equipment in operational condition); Rule 5.09 (failure to control insects and rodents); Rule 5.10 (improper salvage operations). The Board's findings of fact and the record clearly support its determination that all of the above statutes and landfill rules and regulations were violated by the petitioners.

• 2 Until the recent Illinois Supreme Court decision in Incinerator, Inc. v. Pollution Control Board, 59 Ill.2d 290, no decision had suggested that the Pollution Control Board is required to make specific written findings regarding each of section 33(c) criteria, which are set forth below:

"(c) In making its orders and determinations, the Board shall take into consideration all the facts and circumstances bearing upon the reasonableness of the emissions, discharges or deposits involved including, but not limited to:

(i) the character and degree of injury to, or interference with the protection of the health, general welfare and ...


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