ILLINOIS POLLUTION CONTROL BOARD
May 10,
1990
ST.
CLAIR COUNTY,
Complainant,
AC 89-18
(Dockets A
&
B)
v.
)
Administrative Citation)
County No.
89-1 SC
J
&
P.
LANDFILL,
INC.,
An Illinois Corporation,
Respondent.
DISSENTING OPINION FROM COUNT A (by J.
Anderson,
J.
Dumelle,
and
M. Nardulli)
We respectfully dissent
from the finding by the majority of
a violation regarding Count
A.
We would have dismissed Count
A.
We do not believe that Count A constituted a violation of Section
21(p) (5)
of the Act as alleged, and thus
we believe that the use
of the Administrative Citation “ticket” process
for enforcement
was inappropriate.
In an area where two feet of final cover has been applied,
refuse subsequently exposed by loss of cover is a violation for
failure to maintain closure/post closure care,
not a violation of
the six inch daily cover operating requirement listed
in Section
21(p) (5)
of the Act.
We believe that the distinction
is
important.
The Board has recognized
in prior proceedings that the
violations
listed
in Section 21(p)
are a subset of the Board’s
larger landfill regulations,
and the statute itself clearly
restricts the use of the expedited “ticket type” Administrative
Citation enforcement alternative to violations contained on that
list.
When construing the violations listed
in Section 21(p)
in
an Administrative Citation enforcement setting, the Board has
looked to the nexus between those listings in the Act and the
related Board regulations.
Moreover,
the Board has already
identified the daily cover requirement
in its regulations,
35
Ill. Adm.
Code 807.305(a),
as the nexus with Section 21(p)(5).
Section 807.305(a)
requires that six inches of cover
“shall be
placed on all exposed refuse at the end of each day of
operation”.
Based on this reasoning,
the Board has held that the
amount of cover required by Section 21(p) (5)
is six inches.
~
the Matter of: Dan Heusinkved, County Clerk,
County of Whiteside,
State
of Illinois,
AC 87—25,
85 PCB 247;
In the Matter of:
Village
of Rantoul, AC 87-100,
92 PCB 539).
We also emphasize that the Board has,
from the time
it
first adopted
its landfill regulatory scheme
in R72-5,
always
distinguished the daily,
intermediate,
and final cover operating
ill
requirements found
in Section 807.305 from its
closure/postclosure maintenance requirements.
St. Clair County
makes no allegation
that two feet of final cover had not been
timely applied
(which
in any event would not have been
a
violation of Section 2l(p)(5)), but rather a violation of
21(p) (6) whose nexus
is with Section 807.305(c), not 807.305(a)).
Rather,
the violation in this case
is
a closur~/postclosure
care maintenance violation for failure to re-apply the two feet
of cover that was lost,
and not failure to daily apply six inches
of cover to refuse “remaining from any previous operating day or
at the conclusion of any operating day.
.
.
~
as
is required by
Section 21(p)(5).
We of course share the majority’s concern that the Act and
all
Board regulations be complied with.
However, we believe that
the Board should not over-reach,
as we think the majority did
here,
when construing the scope of the statutory limitations on
the use of the
Administrative Citation provisions. We believe
that the
effectiveness
of the citation process rests
on its
avoidance of complicated issues of
fact and law; unlike regular
enforcement actions, the proofs and Board determinations are
quite limited.
We also believe our conclusions are supported as
a matter
of precedent
(see IEPA v.
Pressnall,
AC
87-6,
81 PCB 307), and
the historical interpretation of 2l(p)(5)
as
a daily cover
requirement.
Because the citation legislation
is constructed to
be restrictive as an enforcement tool,
we believe that the Board
should be cautious about construing its provisions.
We also do
not believe that selectively isolating specific words,
as the
majority has done with Section 2l(p)(5)
in order to assert a
“plain language” conclusion actually achieves that end.
A
careful reading shows that,
by focusing on other words,
such as
“previous”,
“conclusion of” and “operating,” different readings
can be surmised; we suggest that the language,
standing alone,
is
not clear on its face.
In conclusion, when the legislature provides
a specific
listing as
a subset of an overall regulatory scheme
as eligible
for the Administrative Citation enforcement process,
it
is the
legislature that should clearly expand the subset;
it
is the
legislature that
is the appropriate entity to add
closure/postclosure activities such as abating gas, water or
settling problems to the Administrative Citation list if
it
wishes.
Since Section 21(p) (5)
is not applicable to the violations
alleged,
the citation as regards Count A should have been
dismissed.
111-1 5~
For the foregoing reasons, we respectfully dissent.
~
an G. Anderson
~ ~
~
cob D.
Dumelle
~W~
/hL~
Michael
L.
Nardulli
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above Dissenting Opinion was
submitted on the /~Z- day of
77—~.
,
1990.
I
/2
Dorothy M/ Gunn,
Clerk
Illinois ~Pollution control Board
ii1~157