ILLINOIS POLLUTIO~T CONTROL BOARD

February 4, 1988

ILLINOIS ENVIRONMENTM~

PROTECTION T~GE~ICY,

Complainant,

v.

)

PCB 86—27

MODINE ~4T~NUF~CTURINGCOMPANY,

Respondent.

DISSENTING OPINION (by R.C. Flemal and J.D. Durnelle):

While we agree with the majority’s holdings regarding

violations and the aoplicability of estopoel, we dissent for the

reason that the penalty imposed by the majority is inconsistent

with the mitigating circumstances found in the instant matter.

Contrary to the ?~gency’sallegations, the record shows that

Modine has exhibited good faith in its attemots at ac~hieving

compliance and in its communication with the 1~gency;

communications b-~tween Modirie and the T~gency were certainly

ongoing during the time of the noncompliant readings and the

permit aoplications, and thecns-~lve~arguably were the cause of

Modine’s failure to obtain the permits at issue.

The ~gency also conten~sthat Mo-line shoufl have applied for

a variance during the time of its intermittent noncompliance and

that Mo-5ine did not take an aggressive anoroach to achieving

compliance during that time. However, it is unrebutted that the

~gency itself lead Modine to believe that a variance would be

unnecessary. Moreover, it cannot be said that Modine did not

exhibit good faith because it was not aggressive enough. The

~gency in making that claim, did not state what more £4odine could

have done; i.e., how Mo’iine could h~vebenn more aggressive. Nor

can it be said that Modine was willfully negligent in failing to

apply for a permit when it initially apolied in June, 1983 for a

permit set to expire in October, 1983. The circumstances

mitigate against anything larger than a nominal penalty.

For these reasons, we dissent.

86—53

---

—2—

I, Dorothy M. Gunn, Clerk

Board, h~rebycertify that the

submitted on the

~/~TZ~

day of

Ràr?ald C. Flemal

J cob D. ‘Dumel’le

~~Ø’~ard Member

of the Illinois Pollution Control

above ~pissenting Statement was

- ,

1988.

Dorothy NI. nn, Clerk

Illinois Pollution Control

8 6—54