ILLINOIS POLLUTION CONTROL BOARD
    February 4,
    1988
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Petitioner,
    v.
    )
    PCB 86—108
    JOLIET SAND AND GRAVEL COMPANY,
    Respondent.
    DISSENTING OPINION (by J. Theodore Meyer):
    I dissent
    from the majority’s acceptance of
    the settlement
    stipulation and respondent Joliet Sand and Gravel’s “commitment
    to make contribution
    to the Illinois Environmental Trust Fund.”
    No standards have been promulgated by the Illinois
    Environmental Protection Agency (Agency),
    the Attorney General,
    or this Board as
    to what factors should be considered when
    negotiating and accepting
    a penalty
    (in this case,
    a
    “contribution”)
    to be
    imposed pursuant to a settlement
    agreement.
    If this enforcement action had been brought by a
    State’s Attorney or
    by the Attorney General
    in the name
    of the
    people of the State
    of Illinois, respondent could have been
    assessed costs and reasonable attorney’s fees.
    Ill.
    Rev.
    Stat.
    1985,
    ch.
    llll/2,
    par 1042(f).
    I am concerned that the instant
    “contribution” may not even cover
    the Agency’s costs
    and
    fees.
    Additionally,
    the proposed settlement included no
    information on the amount of money respondent may have saved
    by
    not complying with the Act and the Board’s regulations.
    I must
    point out that Section 33(c)
    of
    the Environmental Protection Act
    was recently amended
    to provide that
    in making
    an order or
    determination, the Board shall consider
    “any economic benefits
    accrued by a noncomplying pollution source because of its delay
    in compliance with pollution control requirements.”
    P.A. 85—
    0358.
    That amendment was effective on September
    11,
    1987
    —
    well
    before
    the date of
    the instant settlement.
    Finally,
    I am not comfortable with the characterjzation of
    the payment
    in this case
    as
    a “contribution”.
    I
    realize that the
    settlement agreement makes no finding of violation of the Act,
    but
    I do not feel that the word “contribution”,
    with its
    connotations of a voluntary gift,
    is
    a proper part of
    a
    settlement agreement
    of
    a case which alleges the operation of
    a
    facility without a permit.
    86—67
    —2—
    For these reasons,
    I dissent.
    Theodore ~eyer
    Board Member
    I, Dorothy M.
    Gunn, Clerk
    of the Illinois Pollution Control
    Board,
    hereby certify tha
    the above Dissenting Opinion was filed
    on the
    /~~—
    day of
    ~
    1988.
    Dorothy
    M.
    Gurin, Clerk
    Illinois Pollution Control
    Board
    86—68

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