ILLINOIS POLLUTION CONTROL BOARD

October

1,

1987

IN THE MATTER OF

VILLAGE OF EAST GALESBURG,

)

AC 87—89

(IEPA Docket No. 85—60—AC)

Respondent.

DISSENTING STATEMENT

(by B.

Forcade):

I

respectfully dissent

from today’s decision.

The majority

would

hold that the General Assembly’s intention was

to exclude

unpermitted

landfills from the scope

of Section

2l(p)

of the

Illinois Environmental Protection Act

(“Act”).

This holding

unnecessarily eliminates

an effective enforcement mechanism.

do not feel that the language

of Section

2l(p)

supports this

outcome.

Additionally,

I am disturbed

that

the majority,

by so

holding, dismisses

this case

on

a theory

that was not advanced by

the respondent and has not been briefed

by either party.

Section 21(p)

reads:

Conduct

a sanitary landfill operation which

is

required

to have

a permit under

subsection

(d)

of

this

Section,

in

a manner which

results

in

any

of

the following conditions:

1.

refuse

in standing

or flowing waters;

2.

leachate

flows

entering

waters

of

the

State;

3.

leachate

flows

exiting

the

landfill

confines

(as determined by

the boundaries

established

for

the landfill

by

a permit

issued

by the Agency);

4.

open

burning

of

refuse

in

violation

of

Section

9

of

this Act;

5.

uncovered

refuse

remaining

from

any

previous

operating

day

or

at

the

conclusion

of

any operating

day,

unless

authorized by permit;

6.

failure

to

provide

final

cover

within

time

limits

established

by

Board

regulations;

7.

acceptance

of

wastes

without

necessary

permits;

82—153

---

—.~)—

8.

scavenging

as

defined

by

Board

regulations;

9.

deposition

of

refuse

in

any

unpermitted

portion of the landfill;

10.

acceptance

of

a

special

waste

without

a

required manifest;

11.

failure

to

submit

reports

required

by

permits

or

Board regulations;

and

12.

failure

to

collect

and

contain

litter

form

the

site

by

the

end

of

each

operating

day.

The

prohibitions

specified

in

this

subsection

(p)

shall

be

enforceable

by

the Agency

either

by

administrative

citation

under

Section

31.1

of

this

Act

or

as

otherwise

provided

by

this

Act.

The

specific

prohibitions

in

this

subsection

do not limit

the power

of the Board

to

establish

regulations

or

standards

applicable

to

sanitary landfills.

Section

21(p)

of

the Act applies

to sanitary landfill

operations “required

to have

a permit.”

The respondent’s

operation certainly was required

to have

a permit,

in order

to

comply with

the Act and regulations

that prohibit open dumping

and conducting disposal operations

without

a permit.

The

majority effectively rewrites Section

21(p)

so that

it only

applies

to those operations

that

“in fact,

have

a permit.”

The General Assembly’s

intent on

the scope of applicability

of

the administrative citation mechanism

is

further

reflected by

the specific types

of violations

enumerated

in Section 21(p).

Section 2l(p)(7) allows the Illinois Environmental Protection

Agency

(“Agency”)

to issue administrative

citations for

“acceptance

of hastes without

necessary permits.”

It would seem

to me that

the respondent

is charged with acceptance

of wastes

without

the required Section 21(d) permit.

Therefore,

the charge

is certainly appropriate

under Section 21(p)(7).

I find nothing

in

the statutory language to preclude

issuance of

an administrative citation against

an unpermitted

landfill operation

and Section 2l(p)(7) seems

to ~~ecifically

authorize

it.

Accordingly,

I dissent

Member

of the Board

82—154

---

I,

Dorothy

M. Gunn,

Clerk of the Illinois Pollution Control

Board,

hereby certify that

the above Dissenting Statement was

submitted

on

the

~

day

of

~

,

1987.

~zt~

~.

Dorothy

M. Gunn,

Clerk

Illinois Pollution Control Board

82—155