ILLINOIS POLLUTION CONTROL BOARD

August

30,

1990

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v.

)

AC 90—27

(IEPA No.

147-90-AC)

JOHNSON BLACKWELL,

)

(Administrative Citation)

Respondent.

DISSENTING OPINION

(by

B.

Forcade)

I respectfully dissent

from today’s action.

The majority

states,

“in

light of

the Agency’s stated intention and

notification to the respondent

to pursue formal enforcement, the

administrative citation was issued improperly.”

This statement

has

no basis in law or the facts

of this case.

The Illinois

Environmental Protection Agency

(“Agency”)

has no pending

enforcement proceeding against Mr. Blackwell.

At most,

the

Agency

is guilty of the “threat” of enforcement.

The

Environmental Protection Act does not limit

the Agency

to either

administrative citation or

“the threat of enforcement”

processes.

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 Environmental Protection Act

(“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.

I

~

---

Board Member

I,

Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereb~ycertify that

he above Dissenting Opinion was filed

on the

~

day of

___________________

,

1990.

/2~.

Dorothy M~Gunn, Clerk

Illinois ~o11ution Control Board

II

~