ILLINOIS POLLUTION CONTROL

BOARD

March

14,

1972

ENVIRONMENTAL

PROTECTION

AGENCY

AIRTEX PRODUCTS,

 INC.

)

 PCB 71—325

and

CITY

 OF FAIRFIELD

)

Dissenting Opinion by Jacob

D.

 Durnelle

On March

14

 the Board voted to vacate part of its order of

February

 3 by

 a vote of 3-i.

 I dissented in that vote because

it was wrong for the Board to have taken an unnecessary restrictive

view of its power to fashion a remedy after

 a finding of

pollution

and because it was inconsistent with the Board’s prior history and

decisions of taking

 a broad view of its authority to act.

 Vacated

as if it was never entered was

 a directive compelling Airtex to

cease and desist from discharging any and all cyanide compounds

from one of its plants in Fairfield,

 Illinois.

In a post-hearing motion Airtex contended that since the

Environmental Protection Agency

 (EPA)

 in its opening statement at

the hearing in this matter disclaimed the entry of

 a prospective

cease and desist order

 the Board was without authority

 to enter

such an order.

I emphatically disagree with the Board’s modification of its

 earlier order and hold to the proposition that the fashioning of

a

remedy is discretionary with the Board and only with

 the Board.

The EPA and other parties may suggest or recommend Board action but

they cannot set the

 limits of Board action.

 The authority for Board

exercise of discretion in deciding individual cases is clearly ex-

pressed in the Environmental Protection Act and the Board is able

to

 so structure

 a remedy that the accomplishment of the legisla-

tion’s purpose will be thereby furthered.

 Unquestionably the

4—59

legislative

 fabric was

 left to be adorned by the ad hoc adjudication

of particular situations.

 The Environmental Protection Act puts

the

respondent

 notice,

 even in the face of an EPA disclaimer,

as

 to the breadth of the remedial order which the Board may

 issue.

The Board

 in making its determination based on the evidence and

testimony adduced at the hearing has the power to “enter

 such anal

order,. .as

 it shall deem appropriate under

the

 circumstances.”

Such an order may include

 a directive

 to cease and desist from2yiola-

tions of the Act as well as the imposition of money penalties.

The

Board’s

ambit

 of authority in fashioning a remedy

is

 thus clearly

drawn

and

 cannot be circumscribed

 a party to an action or even

by the agreement of both parties in the action.

 Of the manifold

responsibilities, charges,

 and areas of authority which the General

Assembly gave to the Pollution Control Board the selection of an

appropriate remedy would appear to be

 a power especially preserved

for the exercise of administrative discretion.

I have noted before and

 I must reiterate that this Board

is too prone to issue

 a tough clean-up order with

 a follow—up

undercutting the order.

 The question of the propriety of the

cease and desist order in this case,

 if not universally agreed

upon,

 is at the very least arguable

 to the point of allowing

the

Appellate Court

 to decide the issue.

 This

 Board must retain its

statutorily granted

 prerogative of exercising discretion in adapting

remedy

 to violation.

N.L.R.B.

v.

Seven-Up Bottling Co.

 of Miami,

 Inc.31 would be

an excellent case for this Board to be guided by in this instance.

There the U.S.

 Supreme Court dealt with an administrative agency’s

authority in drawing a remedy for violations of federal

 labor

 law.

In that case the NLRB applied

 a formula with respect to payment of

back wages for which there was no precedent.

 The Supreme Court

upheld the agency’s discretion in choice of remedy and said that

“remedies must be functions of

 the purposes

 to be accomplished,” and

further that

 “in fashioning remedies to undo the effects of violations

of the Act the Board must draw on enlightenment gained from

experience.”

 How simple yet important

 is that key phrase “functions

of the purposes.”

iT

 Ill,

 Rev.

 Stat. Ch. lll—l/2~ 1033(a).

2

 Ill.

 Rev.

 Stat.

 Ch. lll—l/2~ 1033(b).

Such order may include

 a direction to cease and desist from

violations of the Act or of

 the Board’s rules and regulations

and/or the imposition by the Board of money penalties

in

accord with Title XII of this Act.

 The Board may

 also revoke

the permit

as

 a penalty for violation.

 If such order includes

a reasonable delay during which

 to correct a violation,

the

Board may require

 the posting of sufficient performance bond

or other securi?y to assure the correction of such violation

within the time prescribed.

3

 97 L.Ed.

377

 (1953)

 —60

Another consideration in this case

is

 the importance of

a

cease and desist order when dealing with a hazardous toxic substance

cyanide.

When

discharger

may

continuing

violation

or,

more generally, where it

is

desirable

that

 public right be affirmed

in a specific factual context,

 the cease and desist order

 is not only

proper but essential.

 One of

 the tests

 for entry of

 a cease and

desist order is whether the Board could reasonably conclude

 from

the evidence that it was necessary to prevent further violations.

In this

 case there was no control or treatment of cyanide discharges

and any further plating operations using any cyanide compounds would

result in

 a violation of the cyanide ban regulation.

 Use of

a

cease and desist order in such

 a case is vital

 to protect the welfare

of the public.

The Board has asserted and exercised its broad discretionary

power to mould remedies suited to the practical needs of the particular

individual situations

 in earlier cases.

 Without

 a compelling showing

it should not now pause and retrench.

/

Jacob D. Dumelle

(

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby certify the above Dissenting Opinion was submitted on

the~Ø_day of March,

 1972.

Christan L. Moffett, ~érk

Illinois Pollution Control Board