ILLINOIS POLLUTION CONTROL BOARD

August

30,

1990

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v.

)

AC 89—304

(IEPA No.

10085—AC)

G

& M WRECKING CO.,

INC.,

)

(Administrative Citation)

Respondent.

DISSENTING OPINION

(by B.

Forcade):

I

respectfully dissent from today’s decision.

The majority

concludes

that

a burning pile of rubber coated copper wire does

not constitute open dumping and open burning.

Open dumping

is

defined at

Section 3.24

of the Environmental Protection Act as,

“the consolidation of

refuse from one or

more sources

at

a

disposal site that does not fulfill

the requirements of a

sanitary landfill.”

I certainly believe that

a burning pile of

rubber coated copper wire constitutes consolidated

refuse, and

that the burning pile of

refuse does not meet the requirements of

a sanitary landfill.

The definition of

“open dumping” does not

require

that we establish where

the waste came from or

the

identity of who placed the material at

that location.

Will

this

Board reject all future administrative citations or enforcement

actions for open dumping where the source of the waste and the

identity of the

“dumper” are not proven

?

I believe

that

“open dumping” and “open burning” are

statements of observable fact which were proven

in this case.

The only question was whether G

&

M’s

actions

(or inactions) had

caused or allowed such

facts.

After reviewing the record,

I

believe G

& M had caused

or

allowed such facts

to occur.

In my opinion, today’s case represents another example

of

this Board attempting

to improperly entangle the Illinois

Environmental Protection Agency’s

(“Agency”)

administrative

citation process.

There

is

a growing

trend by

the majority

to

find some method of absolving

a respondent

of the administrative

citation penalty where

there

is an allegation at hearing

that the

site has been cleaned up.

I disagree.

No subsecuent cleanuo c~n

obviate

that

fact

that

on day X the site was

in violation.

Additionally,

the Agency must now carry

the burden of

inspectinc~

the property

just before hearing

to adequatey respond

to such

allegations.

I

find

rio

such burden imposed

by the Er.vironme:~:al

Protection Act.

Sections

21(p)

and

(q) are

not

intended

to

give

respondents the choice of EITHER paying the civil penalty

of $500

OR cleaning up

the site.

Second,

this Board seems overly

inclined to find that the Agency field

inspectors

(or

the

---

associated paperwork) created a bar to prosecution, either by

confusing the respondent

or committing the Agency to a course of

conduct.

I must conclude that the majority simply dislikes the

administrative citation process.

B 1

1

S~ ~F6x~cMd

e

~

-

Board Member

I,

Dorothy M.

Gunn, Clerk of the Illinois Pollution Control

Board, her~~tcertify that t~e~~ve

Dissenting Opinion was

filed

on the

~i

-i-

day of

,~c-,~-(a-,-7--e-~ti

,

1990.

Dorothy M.,/Qunn, Clerk

Illinois Po’Ilution Control Board

11 4—

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