ILLINOIS POLLUTION CONTROL BOARD
    April 29, 1982
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
    )
    )
    Complainant,
    )
    V.
    )
    PCB 78—226
    )
    MODERN PLATING CORPORATION,
    )
    )
    Respondent.
    DTSSENTIN( OPINION (by J. Anderson):
    I dissent because I believe that the
    Board should not
    have accepted a stipulation in this case
    that did not include a
    monetary penalty.
    I fully appreciate the Board’s reluctance to further prolong
    this case,
    I
    also appreciate the Attorney General’s success in
    vigo~ous1ypursuing the criminal proceeding even though it was
    unfortunate that the issue of potential Board penalties became
    :volved, However, I believe the Board allowed itself to become
    :nappropriately entangled in the outcome of the criminal
    proceeding. This stipulation did not contain a penalty solely
    because a criminal penalty had already been imposed on the
    respondent and paid by it to the Circuit Court of Stephenson
    County.
    Nothing in the Act generally, and specifically under Title
    XII: Penalties (Sec. 42—45), provides for a superseding of
    remedies in one action over another, In fact, Section 45(a) makes
    additionally clear that “No existing civil or criminal remedy for
    any wrongful action shall be excluded or impaired by this Act.”
    Indeed, the potential liability for Board—imposed
    monetary
    penalties is even greater for a violation
    relating to
    an NPDES
    permit program (see Sec. 42(a)), And the
    violations
    in this
    case warranted a penalty. Imposition
    of a penalty in
    court for
    actions found to be criminal in nature is hardly a mitigating
    factor in a case before the Board,
    Nothing in the Act relieves the Board of any of its statutory
    responsibilities to provide remedies
    appropriate to the
    case
    before it pursuant to Section 33 of the
    Act.
    A
    plea bargain or
    any other settlement agreed to by others in a
    court
    action is no
    substitute. The Board recognized this
    distinction in an Opinion
    addressing a variance petition (Co~~y fDuP
    .IEPA, PCB
    80—160, January 22, 1981), where an
    earlier court
    settlement
    provided for phased-in connections to a treatment plant that was
    46—18 1
    2
    out-of-compliance with the Board’s regulations (People of the
    State of Illinois v. County of DuPage, 80MR422, by the Court for
    the 18th Illinois Judicial Circuit). The Board stated in part:
    “...compliance with the effluent limitations of the Court’s
    Order does not constitute compliance with the Act or the Board’s
    rules,” and
    “.
    ..non—compliance with that (court Order is of
    course independently enforceable.”
    It is inherently unfair to penalize those who, though
    violating the act, are not involved in criminal behavior, and not
    penalize those who have been involved in criminal behavior. If
    the Court settlement had exonerated Modern Plating of criminal
    behavior, I doubt that the Board would have accepted this no
    penalty stipulation. The “they have suffered enough” argument
    is misplaced. Deterrance and punishment are not the same thing.
    Finally, it should be noted that Board imposed monetary
    penalties go into the State’s general revenue fund. The monetary
    penalty in the criminal proceeding was paid to the County.
    ~~~M1
    ~
    ~.
    7/
    Joan G. Anderson
    V
    Board Member
    I, Christan L. Moffett, Clerk of the Illinois Pollution
    Control Board, her~by certify that the above Dissenting Opinion
    was filed on the
    -~‘
    day of
    ~
    ,
    1982.
    Illinois Pollution C ol Board
    46—182

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