ILLINOIS POLLUTION CONTROL BOARD

February 19,

1987

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

Complainant,

)

v.

)

PCB 85—69

MAPLEHURST FARMS,

INC., AN

)

ILLINOIS CORPORATION,

Respondent.

)

CONCURRING OPINION

(by

3.

Anderson):

The Board,

in accepting this stipulated settlement,

stated:

The

Board

notes

that the

allegations

of the Agency

are

serious.

If

Maplehurst

had

admitted

to

the

violations

complained

of

by the

Agency,

the

terms

of

the

proposed

settlement would

likely have been

deemed

insufficient

to

redress

the

alleged wrongs.

(Board Opinion, p.3)

This statement reflects the

ultimate contradiction

in which

the Board

finds itself when accepting

a

settlement of this

type.

By

its terms,

the alleged violations are neither proven

nor

admitted.

By thus precluding

the Board from determining

whether

a violation has occurred, there

is no basis whatsoever

for making any determination

at

all.

This case especially sends out

an unfortunate message.

It

suggests that a person can avoid both findings of violation and

penalties

if

an after—the—fact compliance program takes place.

Put another way,

as long as monies are paid

for

the dead

fish,

a

person gets one “freebie”

spill with impunity.

And

I should note

that, even without

a penalty,

there

is

a deterrent effect where

there

is a finding

of violation, particularly since

the Board can

later

take official notice of the violation should

a subsequent

spill

occur.

These kinds of settlements

run contrary to the notion

that

voluntary “up—front” compliance

is what

is to be rewarded.

This

settlement gives no explanation

as

to why spill containment was

not implemented

long ago.

In any event, while

I do understand

the various factors that

may encourage this

type of

“no—violations”

settlement,

I

fear

that too many of

these will seriously diminish the seriousness

76.12

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—2—

with which timely compliance

is viewed by the regulated

commun ity.

For these reasons

I concur.

~

~4~/1

Joan G. Anderson

I,

Dorothy

M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above Concurring Opinion was

submitted

on the

~“~-

day of ___________________________

1987.

~\

y~

Dorothy

M.

Q~’unn, Clerk

Illinois Pollution Control Board

76-13