ILLINOIS POLLUTION CONTROL BOARD

July 19,

1990

ILLINOIS ENVIRONEMNTAL

PROTECTION AGENCY,

)

Complainant,

V.

)

PCB 90-64

(Enforcement)

JEFFREY KILGUS, d/b/a INDIAN

)

CREEK MATERIALS COMPANY,

)

Respondent.

DISSENTING OPINION

(by

3.

Theodore Meyer):

I dissent

from the majorityts

acceptance

of the settlement

stipulation in this case.

Neither the Illinois Environmental Protection Agency (Agency)

nor the Attorney General have articulated any standards as to what

factors should be considered when negotiating a fine to be imposed

pursuant

to a settlement agreement.

Additionally,

although the

proposed

settlement agreement

states that Kilgas’

noncompliance

was economically beneficial

in

that he

operated

the unpermitted

mining facility without the delay of applying to and waiting for

the Agency to issue permits, there is not any specific information

on the amount

of

that economic

benefit.

Section

33(c)

of

the

Environmental Protection Act specifically

requires the Board to

consider any economic benefits accrued by noncompliance.

I believe

that this provision contemplates a consideration of the amount of

the economic benefit,

not just

a statement that that an economic

benefit was realized.

Without more specific

information,

it

is

impossible to know if the penalty of $3,500 even comes close to any

savings realized by Kilgus.

Finally,

I am frustrated that this case was not brought in the

name of the people of the State of Illinois. If it had been, costs

and

fees

could

have

been

assessed

against

Kilgus.

Ill.Rev.Stat.l989,

ch.

111

1/2,

par.

1042(f).

113--343

---

2

For these reasons,

I dissent.

3./Theodore Meyer

Board Member

I,

Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that jpe above Dissenting Opinion was filed

on the

/9~i

day of

_________________,

1990.

7

-

~

/

Dorothy N.

;~Uflfl,

Clerk

Illinois Pollution Control Board

ii

3-344