ILLINOIS POLLUTION CONTROL BOARD
August 30, 1990
PEOPLE OF THE STATE
OF ILLINOIS,
Complainant,
PCB 90—84
v.
)
(Enforcement)
WE-TOAST BREAD
COMPANY, INC.,
Respondent.
DISSENTING OPINION (by J. Anderson and R.C. Flemal):
We dissent from the order of the majorit7 directing that
further information be provided a) by the parties explaining why
the agreed penalty is so low and, b) from the Attorney General
alone, why no costs were assessed.
The matter before us is a settlement agreement. If the
Board is again going to attempt to review penalty agreements, the
least we can do is wait until we can use the Board initiated
“penalties legislation” in 532253, which specifies the factors to
be considered in determining penalties. It has been difficult
enough with a record of a full blown enforcement proceeding for
the Board itself to select and articulate the factors it
considered and weighed in setting the penalty amount, and then
only later to find out that the courts disagree with the Board
and lower, and sometimes eliminate, the penalty. How does the
Board expect the parties, or the Board to do better with a
settlement agreement?
Where the limited record of this settlement agreement is
involved, even if the parties now, after the agreement is signed,
tried to articulate how the penalty was calculated, exactly on
what basis does the majority intend to weigh it? The majority
used only comparative prorated mathematical calculations as the
single factor to support questioning the small amount of the
penalty, and then gave no further specific guidance as to what
factors to address, except for what appears to be an arbitrary
singling out of an ability to pay factor. For these reasons, we
do not believe that the majority’s action was advisable.
Finally we are at a loss to understand what authority the
majority is exercizir.g by directing the Attorney General to
explain why he omitted costs. We believe the directive is
inappropriate, particularly insofar as it can imply that the
Board believes that it has the statutory authority to require
costs.
l4-7~)
It is for these reasons that we respectfully dissent.
~oan G. Anderson
Flemal
~A~
I, Dorothy M. Gunn, Clerk of the Illinois POllution Control
Board hereby certify that the above Dissening Opinion was
submitted on the
~
day of
~
/~
,
1990.
/
I
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
hA
.~(~I)