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Wasteland, Inc. v. Pollution Control Bd.

RULE 23 ORDER ENTERED AUGUST 9, 1983.

WASTELAND, INC., ET AL., PETITIONERS,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



Petition for review of order of Pollution Control Board.

JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Wasteland, Inc., and Roger Pemble appeal from the administrative decisions of the Illinois Pollution Control Board (the Board) entered after hearings on alleged violations by Wasteland and Pemble in the operation of a solid waste landfill in Will County. Review is sought pursuant to section 41 of the Illinois Environmental Protection Act (the Act) (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1041). The Board found that Pemble and Wasteland, in their operation of the landfill site, had violated numerous rules and regulations applicable to them, both under the Act and under Board rules. The Board revoked their operating permit and ordered them to cease and desist from further violations and from accepting refuse at the landfill site and at a paper recovery site. It also imposed a monetary penalty of $75,000 as a result of the violations. The Board further required the posting of a $100,000 performance bond to insure compliance with other provisions of its Order. These provisions (1) required a clay covering to be applied to the site; (2) required a complete hydrogeological study of the site; and (3) required the taking of certain remedial measures or the permanent closing of the site. On appeal, Wasteland and Pemble argue that the Board's findings are not supported in the record and that the remedies imposed for the violations were improper, extreme and unwarranted. An issue is also raised respecting restrictions imposed by the hearing officer on their cross-examination of an agency witness.

Two parcels of real estate in Will County are the subject of the instant case. The principal property involved is a solid waste landfill, located in unincorporated Will County, and operated by Wasteland, Inc., and Pemble. The other parcel is used as a waste paper recycling center and is operated by Waste Resources Corporation and Pemble, as general manager of the site. The two parcels are noncontiguous. The landfill property had been issued a permit by the Illinois Environmental Protection Agency (hereinafter referred to as IEPA) for use as a solid waste landfill. In the spring of 1980, Pemble entered into a five-year lease of the property with the holder of the beneficial interest under a land trust. Wasteland was then incorporated by him to engage in the waste and refuse disposal operations at the landfill site. Wasteland succeeded to Pemble's lease of the landfill property. While some removal and deposit operations occurred at the landfill during May through August 1980, Pemble did not formally become the permit holder until after the filing and approval of a permit transfer application. Approval was granted on October 20, 1980. Under the original permit, transferred to Pemble, the landfill was permitted

"to handle brick, concrete, pavement, glass, clay, tile, ceramics, cement and other non-putrescible, non-combustible solid waste excluding all flammable general refuse, all liquids and hazardous waste, unless other authorized by supplemental permit * * *."

After operating the landfill for a time, Pemble decided it would be profitable to open a recycling center, where paper products could be separated out and resold to paper mills. Pemble had found that there was a substantial amount of paper and cardboard included in refuse deposited at the landfill. Accordingly, he leased the paper recovery site and began operations for recycling paper. Waste Resources Corporation was incorporated for the purpose of operating the recovery site in February 1981, and it took over the lease on the property and rented the buildings and equipment from Pemble. Pemble was a shareholder in the business, as well as president of the corporation and manager of the business at the site. Under the plan, when substantial loads of paper material were brought to the landfill, they would be directed to the paper recovery site, for processing there. If a load consisted of paper products and solid waste products, the load might either be directed to paper recovery or dumped at the landfill for segregation of paper products, with later transfer to paper recovery. According to Pemble's testimony, that was in fact how the operations were conducted. The IEPA's evidence, however, contradicted much of his testimony.

In pertinent part, the IEPA's complaint against Pemble, Wasteland, and Waste Resources alleged violations of the Act and Board Rules from October 20, 1980, onward, in that Wasteland: (1) accepted and disposed of unpermitted refuse at the landfill; (2) accepted a much greater amount of material than permissible under their operating permit; (3) failed to provide the required daily clay cover for the landfill; (4) modified the landfill without obtaining necessary permit modification; (5) improperly scavenged material at both the landfill and paper recovery sites; (6) created a threat of water pollution at the landfill; (7) failed to control road and dust problems attendant with the landfill; (8) improperly disposed of waste, without a permit, at the paper recovery site; and (9) engaged in open burning. The Board found that all of the above violations had been proven by the evidence submitted at the administrative hearing. No useful purpose would be served by our detailing the extensive evidence presented at the hearing. We shall note specific evidence, where necessary, in the discussion of each violation. Pemble and Wasteland argue that there was insufficient evidence to support the violations findings of the Board.

The first argument raised on appeal, however, addresses the issue of whether Wasteland's due process rights were violated by the hearing officer's failure to allow cross-examination respecting an agency witness' testimony.

The essential background facts on the cross-examination issue indicate that Jeffrey Stofferahn testified as an IEPA witness at the hearing. Stofferahn was an environmental specialist whose duties included the inspection of all landfills in Will and Kankakee counties. During his inspections Stofferahn would make notes concerning the site and observations made at the time of the inspection. Included would be activities observed, violations noted, and drawings or sketches of pertinent information. This material formed the basis for preparation of an "Inspection Report" for each inspection. On occasions, photographs of the site and its activities were also appended and incorporated into the inspection reports. Stofferahn would also prepare "Observation Reports" on follow-up visits made after full scale inspections. These were prepared in a manner similar to that followed with inspection reports. On a number of occasions between July 1980 and December 1981, Stofferahn inspected or visited the Wasteland sites, each time preparing an inspection report, or, if no full inspection was made, an observation report. At the hearing, Stofferahn testified that he was unable to recount his observations of the Wasteland site during each inspection or visit. Counsel for the IEPA inquired of his ability to recollect the contents of the reports, and then moved that certain reports, those for which he had no independent recollection of their contents, be received into evidence. Over objection by Wasteland's counsel, the reports were received, the hearing officer ruling that they qualified under the hearsay exception, as past recollections recorded and business records.

It must be noted that Wasteland's counsel conducted extensive cross-examination of Stofferahn on much of his testimony. During the cross-examination several questions were asked concerning the contents of those reports previously received under past recollection recorded. Stofferahn's response was either to read from the report or to state that he had no recollection of the circumstances set forth in the reports. The hearing officer thereafter ruled that he would permit no further cross-examination concerning those matters for which Stofferahn had no independent recollections, being primarily the contents of the reports. Objection was made by Wasteland.

• 1, 2 The right of a party involved in an administrative hearing of this type to cross-examine witnesses is firmly established (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1031(c); Golden Egg Club, Inc. v. Liquor Control Com. (1970), 124 Ill. App.2d 241, 260 N.E.2d 329) and not disputed by the Board herein. In the instant case, Wasteland was not denied the right to cross-examine Stofferhan on his testimony at the hearing. Extensive cross-examination occurred. The restriction upon Wasteland's cross-examination was narrowly limited to questions concerning the contents of prepared reports, reports which it had previously been determined the witness had no recollection concerning. Further, the restriction on further cross-examination was imposed after questions concerning the contents were answered either with a lack of recollection or based solely on those contents. While counsel should certainly be given liberal cross-examination scope, within which to probe the witness' statement that he had no recollection, and his testimony as to the manner and timing of the recordation, endless cross-examination about the contents of the reports, where no recollection is shown, would be a waste of time. The hearing officer, at the time of his ruling, noted that because the witness could not recollect the contents independently and they did not refresh his memory, any cross-examination on such matters would be futile. While, as a general rule broad cross-examination is to be allowed, we find no reversible error in the hearing officer's ruling in the instant case, where the record shows prior cross-examination on the matter to have been largely fruitless and the hearing officer had determined the witness had no recollection of the contents.

• 3 We turn then to the violations found to have been committed by Pemble and Wasteland, and to the issue of whether those Board determinations are contrary to the manifest weight of the evidence. (Wells Manufacturing Co. v. Pollution Control Board (1978), 73 Ill.2d 226, 234, 383 N.E.2d 148.) Count II of the IEPA's complaint alleged that Wasteland and Pemble had accepted and disposed of unpermitted refuse at the landfill. There is substantial evidence in the record indicating that on numerous occasions unpermitted materials were accepted and disposed of at the landfill site. The record establishes that certain combustible, nonferric auto waste (shredded interiors, rubber hoses and plastic), referred to as "Pielet Brothers" material, was deposited at the landfill. The presence of this material was detailed by Stofferahn in his testimony and confirmed by the testimony of Will County health inspectors. The inspectors testified that odors they smelled from material burning on the site was completely consistent with odors created by burning of "Pielet Brothers" material. Contrary to Wasteland's argument, the combustible nature of those materials did not need proof by scientific experts. Pemble himself admitted to health inspectors that the landfill was not permitted to take such materials. In addition to this material, the reports and testimony from agency witnesses also indicated that large amounts of paper, cardboard, garbage and other nonpermitted refuse was deposited, spread and buried at the landfill. This was indicated by inspection reports from three different inspectors, with supporting photographs. Wasteland contends that the Board ignored testimony from its personnel that this material was routinely sorted out and removed, for transfer to the paper recovery site. The record indicates that this testimony was not ignored, but disbelieved, and questions of credibility are for the fact finder. That Wasteland testimony was substantially contradicted by the agency witnesses and photographs. In addition, one of Wasteland's own employees, a bulldozer driver at the site, testified that on Pemble's instructions he regularly compacted and covered all paper and cardboard which was not worth salvaging. He also stated that over half of the refuse actually buried at the landfill was paper and cardboard, therefore unpermitted combustible material. The Board's conclusion as to count II was not contrary to the manifest weight of the evidence.

Count III alleged that Wasteland had violated applicable rules by accepting volumes of material grossly in excess of that permitted, and the Board found that a violation was committed. The 1976 permit application for the landfill estimated that it would handle 500 cubic yards per day, 3,000 per week or 150,000 per year. The permit that was granted stated that the landfill must be operated in accordance with the permit application. The Board found, based upon Wasteland's answer to interrogatories, that the landfill had accepted over 149,000 cubic yards of refuse during a 14-week period from July to October 1981. That amount would be almost three times the amount estimated in the permit application. The Board held that while minor fluctuations above estimates would not warrant a finding that a violation had occurred, evidence indicating gross exceedance of the estimates warranted such a finding. Wasteland's objection to the Board's finding focuses upon the computation of the amount accepted, and reliance is placed upon Pemble's discounted testimony that unpermitted material was routinely removed from the site. As already noted, credibility decisions were for the fact finder, and the decisions find support in the evidence. The record supports the Board's conclusion that Wasteland accepted amounts of refuse greatly exceeding its permit.

Count IV alleged that Wasteland had failed to provide the requisite daily cover of clay, six inches deep, over exposed refuse at the landfill. The IEPA evidence, in the form of reports, testimony and photographs, establishes this failure on a number of occasions. No purpose would be served by detailing that evidence. The Board's finding of a violation, under this count, is not contrary to the manifest weight of the evidence.

Similarly, the Board's finding, under count V, that Wasteland modified the landfill without the necessary supplemental permit is not contrary to the manifest weight of the evidence. There is no question that the landfill was also operated as a salvage yard and transfer facility. The Board found that such uses of the property violated the prohibition against modification of permits without obtaining supplemental permit authority. Wasteland's argument that the Board finding is in error because Waste Resources Corporation, and not Wasteland, operated the paper recovery site misses the basis for the violation. The violation was not premised upon activity by Waste Resources at the recovery site. The finding of a violation was not premised upon activity by Waste Resources at the recovery site. The finding of a violation was directed at the unpermitted activities by Wasteland at the landfill site, preparatory to ...


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