ILLINOIS POLLUTION CONTROL BOARD
    October 25, 1990
    PEOPLE OF THE STATE
    OF ILLINOIS,
    Complainant,
    v.
    )
    PCB 90-84
    (Enforcement)
    WE-TOAST BREAD
    COMPANY, INC.,
    Respondent.
    PAMELA CIARROCCHI APPEARED FOR COMPLAINANT
    ROBERT MELTZER, ROBERT MELTZER & ASSOCIATES APPEARED FOR
    RESPONDENT
    CONCURRING OPINION (by
    3.
    Anderson):
    As the Board’s Opinion of this same day recites, on August
    30, 1990, the Board requested additional information from the
    People, to which Board Members Ronald Flemal and I voted in
    dissent. The Opinion then states that the Attorney General1s
    October 15, 1990 response “assisted the Board in resolving this
    matter.”
    I have concurred here so as to make clear that the reason
    that I believe that the Attorney General’s response was of
    assistance is because it verifies the views expressed in our
    earlier dissent as to why the additional information should not
    have been requested in the first place.
    For example, specific questions articulated in the Board’s
    August 30, 1990, request for information still remain
    unanswered. We still have no idea why Wee—Toast went so long
    without getting a permit. Nor do we know whether it got the
    permit after it got a “Section 31(d)” notice (I consider delaying
    compliance until threatened as an aggravating factor; the
    response says only that Wee—Toast complied “prior to initiation
    of the enforcement action.” (AG response, p. 5)). If we are to
    assume that “genuine” efforts toward compliance have been made
    (AG response, p. 5), what does that mean here? Also, we have no
    idea of the nature of Wee—Toast’s financial difficulty, including
    the length of time Wee—Toast has been operating at a loss (six
    months?, six years?). (AG response, p. 5) “Operating at a loss”
    can mean many things.
    As the Attorney General points out, he considered mitigation
    “in the context of negotiations”, (AG response p. 3) including
    115—431
    —2—
    court precedent; he also points out that the penalty was three
    times what this Board was able to get in the recent Modine
    case. Modine Manufacturing Company v. Pollution Control Board,
    193 Ill. App. 3d 643, 549 N.E.2d 1379 (2nd Dist. 1990).
    Additionally, he got admissions of the violations (which might
    here be more important in terms of deterrance than the
    penalty). In any event, one still can only speculate as to how
    the Attorney General balanced the factors he selected so as to
    end up with the $3000 amount. I don’t believe it makes sense
    ——
    and it is certainly not fruitful
    ——
    to rely on the method of
    inquiry and response used here; it purports to, but really can’t,
    elicit from the negotiated settlement process the kind of
    information the Board really needs to determine whether the
    penalty is appropriate. What if there had been no admissions and
    thus no findings of violation; how would we evaluate that in
    relation to a “penalty”? If we have real concerns, we should
    shift into the full hearing record process and then exercize our
    own independent judgment.
    Most all of us share the belief that our penalties are
    generally much too low to assure that compliance, not
    noncompliance, is rewarded; however, I don’t believe we should
    fail to recognize that the Attorney General and we share the same
    problem, the state courts. With rare exception the courts
    continue to believe that operating without a permit is no big
    deal unless the environmental equivalent of bodily injury has
    occurred. Maybe we need to articulate better the reality of what
    happens to the system of environmental protection when persons
    operate outside a permit setting and why it is so important to
    deter this kind of activity. In any event, I hope that the new
    “penalty powers” legislation as well as the earlier amendments to
    Section 33(a) and (c) of the Act regarding compliance will
    succeed in achieving a turnaround.
    It is for these reasons that I respectfully concur.
    ~
    ~-/~/~
    ~ /
    ,~oanG. Anderson
    Board Member
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Concurring Opinion was
    submitted on the .3crtZ day of ~
    ,
    1990.
    Dorothy ~
    Clerk
    Illinois ~llution Control Board
    115—4 32

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