ILLINOIS POLLUTION CONTROL BOARD

August

30, 1990

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

V.

)

AC 89—227

(IEPA No. 9957-AC)

JACK WRIGHT

)

(Administrative Citation)

Respondent.

CONCURRING OPINION (by B.

Forcade):

I respectfully concur.

I agree with the majority that

Modine Manufacturing Co.

v.

Pollution Control Board,

193 Ill.

App.

3d 643,

549 N.E.2d 1379

(1990),

is

controlling and requires

us

to conclude that the Illinois Environmental Protection Agency

(“Agency”)

is estopped from prosecuting

this action.

In

all

other respects,

I disagree with the majority opinion.

The

majority finds

that “simultaneous pursuit of both pre—enforcement

and administrative citation processes”

is improper.

This

statement has no basis

in law or the facts of this case.

The

Environmental Protection Act does not limit

the Agency to either

administrative citation or

“pre—enforcernent” processes.

The Act

does not even mention “pre—enforcement.”

The Agency has no

pending enforcement proceeding against Mr. Wright.

At

most,

the

Agency

is guilty of the “threat” of

enforcement.

If the Agency

should choose

to file BOTH an administrative citation and

a

regular enforcement proceeding before this Board,

then the

exclusionary language of Section

31(a) of the Act might come into

play; but those are not the facts of this case.

In my opinion, today’s case represents another example of

this Board attempting

to improperly entangle the Agency’s

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

subsequent cleanup can obviate that fact

that on day

X

the site

was

in violation.

Additionally,

the Agency must

now

carry

the

burden of

inspecting

the property just before hearing

to

adequately respond to such allegations.

I find

no

such burden

imposed by the 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.

11

!4—~

---

Bii ~ .\~F~rpa

e

N

Board Member

I, Dorothy M. Gunn, Clerk

of the Illinois Pollution Control

Board, herebycertify that

he above Dissenting Opinion was filed

on the

~

day of

___________________,

1990.

Dorothy M.1Gunn, Clerk

Illinois Pollution Control Board

ii 4--~72