ILLINOIS POLLUTION CONTROL BOARD
    October 16,
    1992
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    )
    )
    Complainant,
    )
    AC 92-5
    Dockets A
    & B
    v.
    )
    (Administrative CitatIon)
    )
    (IEPA No.
    63—92—AC)
    RONALD D. RAWE and
    )
    RETHA N. RAWE,
    )
    Respondents.
    CONCURRING OPINION (by J.
    C. Marlin):
    In a strictly legal context, the Board has correctly decided
    this case.
    However,
    as evidenced by the number of dissents and
    concurrences, the case raises troubling questions in the policy
    arena.
    The administrative citation
    (AC) statute is designed to
    quickly handle specific violations at landfills and open dumps.
    The listed violations are generally believed to be straight
    forward and require little effort to verify.
    Accordingly, the
    statute provides that on appeal the issues before the Board are
    (1) did the violation occur and
    (2)
    if so, was it due to
    uncontrollable circumstances.
    There is no specific provision in
    the statute for the Board to exercise judgement in matters
    relating to mitigating circumstances and size of penalty.
    In the instant case, two sites with obvious open dumps were
    inspected by the Agency and an administrative warning notice
    (AWN) was issued.
    Subsequently, an AC was issued following
    another inspection.
    During this final inspection,
    a third site
    was “discovered” containing between three and five mostly—buried
    cars in a ravine.
    Testimony established the cars had been placed
    there by the respondent’s father in the late 1960’s to control
    erosion.
    It is also worth noting that the Rawes were never
    notified of site three prior to the AC issuing, since it was not
    included in the warning notice.
    The
    AWN
    was issued against sites
    on land they claim to neither own or exert control over.
    At hearing the issue of ownership and control of sites one
    and two was unresolved,
    leaving site three as the sole remaining
    viable “count” in the AC.
    Several questions are raised:
    The first is whether there would be any regulatory interest
    in a few partially buried cars if the obvious problems at sites
    one and two had not existed.
    0 I36-0~’~5
    2
    Second, what is a reasonable “clean up” option for this
    situation?
    The ravine is now so overgrown that the inspector did
    not walk up to it.
    The usual options of covering or removal are
    likely to completely destabilize the ravine, kill established
    vegetation and recreate the erosion problem.
    Then there are the policy issues.
    Thousands of similar
    sites exist in Illinois today as this erosion control practice
    was widespread in the past (though it is unacceptable today).
    In
    the face of other priorities,
    are cars in such ravines worthy of
    regulatory interest absent a showing that they pose at least as
    serious a threat to the environment as traditional open dumps?
    Sites which raise issues such as this are perhaps best dealt
    with by the regular enforcement process where a much wider range
    of factors can be considered.
    These would include mitigating
    circumstances, the appropriateness and amount of any penalty and
    what remedial action,
    if any,
    is necessary given the specifics of
    the site.
    The AC process is too limited in scope to address such
    complexities.
    For these reasons I
    I, Dorothy
    14. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby~certify th t the above concurring opinion was filed
    on the ~3~-day
    of
    _____________,
    1992.
    Dorothy M,4dunn,
    Clerk
    Illinois ~óllution Control Board
    U
    I 36-0~6

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