ILLINOIS POLLUTION CONTROL BOARD

October 1, 1987

IN THE MATTER OF

EUGENE FUNK

)

AC 87—99

(IEPA

Docket

No. 85—73—AC)

Respondent.

DISSENTING STATEMENT (by B. Forcade):

I respectfully dissent from todayts decision. The majority

would hold that the General Assembly’s intention was to exclude

unpermitted landfills from the scope of Section 21(p) of tne

Illinois Environmental Protection Act (“Act”). This holding

unnecessarily eliminates an effective enforcement mechanism.

do not feel that the language of Section 21(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;

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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 wastes 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 2l(p)(7).

I find nothing in the statutory language to preclude

issuance of an administrative citation against an unpermitted

landfill operation and Section 21(p)(7) seems to specifically

authorize it. Accordingly, I4issent

Member of the Board

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I, Dorothy Ni. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Dissenting Statement was

submitted on the

9~’-

day of

&_t-~_~~,

,

1987.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

82— 163