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09/02/94 ROCHELLE DISPOSAL SERVICE v. ILLINOIS

September 2, 1994

ROCHELLE DISPOSAL SERVICE, INC., PETITIONER,
v.
THE ILLINOIS POLLUTION CONTROL BOARD, COUNTY OF OGLE, AND THE CITY OF ROCHELLE, RESPONDENTS.



Petition for Review of the Illinois Pollution Control Board. Case No. AC 91-45, AC 92-26. Dockets A & B. (Administrative Citation)

McLAREN, Inglis, Geiger

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The petitioner, Rochelle Disposal Service, Inc., appeals two orders of the Illinois Pollution Control Board (Board), which found the petitioner guilty of violating the Environmental Protection Act (Act) (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1001 et seq. (now codified, as amended, at 415 ILCS 5/1 et seq. (West 1992))). The petitioner appeals pursuant to section 41(a) of the Act (415 ILCS 5/41(a) (West 1992)), which provides for direct appeal of Board decisions to the appellate court. We affirm.

The petitioner operates a landfill in Rochelle under a contract with the City of Rochelle (City), which owns the facility and holds a permit from the Illinois Environmental Protection Agency (Agency). The permit requires the operator of every landfill to compact waste in layers and cover all refuse at the end of each collection day with six inches of "suitable material," typically dirt. The Agency inspects and investigates the landfills; it has delegated this authority for sites in Ogle County to the county's health department.

CASE AC 91-45

On September 27, 1991, the Ogle County State's Attorney filed an administrative citation against the petitioner and the City, alleging that they permitted garbage at their landfill to remain uncovered overnight on August 1, 1991, in violation of section 21(o)(5) of the Act. (415 ILCS 5/21(o)(5) (West 1992).) The petitioner and the City filed a petition for review with the Board, and a hearing was conducted on April 29, 1992.

Stephen Rypkema, of the Ogle County health department, testified at the hearing that he arrived at the landfill at 6:58 a.m. on August 2, 1991, two minutes before the facility was to open for the day. He said that when he arrived, the landfill's bulldozer was in a shed and not at the "fill area." He said that he found an area of garbage in the "daily fill area" of approximately 60 feet by 120 feet that was not adequately covered.

Rypkema said that he met with Clyde Gelderloos, president ofRochelle Disposal, at 7:30 that morning and told Gelderloos that it appeared that garbage was being covered on a weekly basis, rather than daily as required. Rypkema said that Gelderloos did not respond to the accusation.

Rypkema said that landfill operators typically remove the previous day's cover soil before new refuse is accepted and that the cover material typically is pushed to one side of the work area or on top of the "working face." Rypkema said that in this case, however, the cover could not have been scraped off prior to his arrival that morning because he did not see any cover soil piled on either side of the landfill, and he did not notice any activity when he arrived that would appear to be removal of cover soil.

Gelderloos testified that he did not see the area in question on the morning that Rypkema inspected the site until after additional garbage had been received for the day. Gelderloos said he was not at the site the previous evening when the landfill closed, and he did not know whether the cover was applied. He said that he assumed the cover was applied at the end of the day on August 1 and that it had been removed prior to Rypkema's arrival the next morning. Gelderloos said it was normal procedure at the site for the equipment manager to remove as much cover as necessary before the first load of refuse is received for the day. Gelderloos said that when the cover is removed, it is usually pushed to one side of the area or on the side of the refuse slope.

Ray Hartman, the equipment operator at the site, testified that he usually leaves the equipment shed at the site by 6:15 each morning and drives the bulldozer to the area where garbage will be accepted that day. He said he then removes the dirt cover and makes an opening for new refuse. He said that he worked on August 1, 1991, and covered the refuse with dirt at the end of that day. He said he arrived at the site at 6 a.m. the next day and removed all of the dirt cover, then went back to the equipment shed to repair a hose on the bulldozer before Rypkema arrived. Hartman said he was unable to remove all of the dirt cover and that patches of cover were left in the fill area. Hartman was unable to identify where in photographs of the site that were offered into evidence he had placed the dirt cover after removing it from the fill area. He was also unable to remember where he placed the cover after removing it.

On June 4, 1992, the Board denied a motion to dismiss, which the petitioner brought on the contention that it was not a proper party to an administrative citation action because the operating permit for the landfill was issued to the City and not to the petitioner. On January 7, 1993, the Board issued an opinion and order finding thatthe petitioner and the City violated section 20(o)(5) of the Act and holding the defendants jointly and severally liable for a penalty of $500. The Board's opinion indicated that it was persuaded by Rypkema's testimony and photos of the area, which tended to corroborate his testimony. The petitioner filed a motion for reconsideration on February 8, 1993, which was denied on April 8, 1993. The petitioner filed a timely notice of appeal on May 7, 1993.

CASE AC 92-26

The Ogle County State's Attorney filed an administrative citation against the petitioner and the City on April 2, 1992, alleging that the defendants violated section 21(o)(12) of the Act by not containing and collecting litter at the site at ...


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