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

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