ILLINOIS POLLUTION CONTROL BOARD

November

29,

1990

PEOPLE OF THE STATE

)

OF ILLINOIS,

Complainant,

PCB 90—160

v.

JOHN BOOS

& COMPANY,

a Illinois Corporation,

Respondent.

DISSENTING OPINION (by J.D. Dumelle):

I dissent from the Board’s action today for many of the same

reasons articulated in People

v. We Toast,

PCB 90—84,

October

25,

1990.

The Board is under an affirmative duty to be an active

participant rather than an administrative rubberstamp when

it

ratifies stipulated settlements.

In Chemetco v. Pollution

Control Board 140 Ill. App.

3d

283

(5th Dist.

1986),

the court

held that

“it

is undeniable that settlements are of the Board’s

own making.”

Id.

at 287.

Yet

in this case,

how

can anyone

ascertain what statutory factors were considered

in assessing

this penalty?

Instead,

the record is supplied with all of the

possible factors without any comment as

to their applicability.

Because

I am unable to determine the reasons which lead

to this

stipulated settlement,

the mandate of Chemetco as well

as the

Board’s procedural rules cannot be followed.

While there exists a lack of information regarding which

statutory factors were considered,

the only information which

is

provided

in this case leads me to believe the agreed fine

is

inadequate.

In this case,

the State alleged not only violations

of the permit process,

but excess emissions

as well for

a period

of five years.

The stipulated penalty

is $10,000 without any

admission of violation.

I am unable to see how such a settlement

contributes

to enforcement of the Act.

There

is little doubt

in my mind that such meager penalties

for violations which extend over such a long time sends

a message

to

industry that the regulatory permit system is a paper tiger.

If there

is no great incentive to comply,

then why do so?

In the

meantime,

it

is those who do comply who bear the burden of the

scofflaws.

The regulatory permitting system exists

in order

to

ascertain pollution sources and amounts which then helps to set

1 16—297

---

—2—

limits.

When companies are caught

in violation and the

stipulated fines they agree

to are minuscule relative

to their

entire budget,

there

is no great risk associated with non-

compliance.

That being the case,

regulatory enforcement loses

any leverage which

it claims to possess.

For these reasons,

I dissent

I, Dorothy M.

Gunn, Clerk

of the Illinois Pollution Control

Board hereby certify that t~ieabove Dissen~ngOpinion was

submitted on the

_______________

day of

~

~-~~J;.’’

,

1990.

!7~.

J74_~Z_,~~

Dorothy M.

9’unn,

Clerk

Illinois Po~LlutionControl Board

cob D. Dumelle,

1CDR-CEC-USNR (Ret)

Board Member

116—298