ILLINOIS POLLUTION CONTROL BO1~RD
    ~1arch
    5,
    1981
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
    Complainant,
    v.
    )
    PCB 79—41.
    CALVIN GEISS,
    d/b/a
    C
    & A DISPOSAL
    COMPANY, AND FRED
    D, BENNITT,
    Respondents.
    CONCURRING
    OPINION
    (by
    J.
    Anderson):
    I
    generally
    agree
    that
    the
    Board’s
    decision
    to
    approve
    the
    Stipulation and Proposal for Settlement in
    this
    case
    was
    the
    most:
    acceotable option now available.
    However,
    I am concerned
    that
    such approval might be misread as approval of the flawed course
    this case has taken.
    A summary of the history of the proceedinq~
    should,
    in large measure, make this concern self—evident.
    The Agency,
    after filing a formal complaint on February
    28,
    1979,
    filed the first Stipulation and Proposal for Settlement on
    August
    7,
    1979.
    This first Proposal’s penalty provisions,
    in effect, were
    as
    follows:
    a) No penalty
    if the Respondent came into compliance
    before October
    1,
    1979,
    b)
    $2,500 if the respondent came into
    compliance between October
    1,
    1979 and November
    1,
    1979,
    and
    c)
    $10,000 if compliance was not achieved by the November
    1,
    1979
    deadline.
    The Board,
    in response to an Agency Motion for Expedited
    Decision,
    on August
    8,
    1979 issued an Interim Order finding these
    “suspended” provisions unacceptable.*
    It was not until January
    20,
    ——
    *The Act does not provide for a “reward” for compliance.
    It
    expects
    it.
    The “suspended” penalty as an enforcement tool
    looks
    good at first glance.
    It isn’t.
    Had the first Proposal contained
    a penalty properly based upon the violations,
    as the Act provides,
    and had the Board adopted the order,
    failure of the Respondent to
    meet the agreed compliance deadlines would then have placed him in
    violation of
    a Board Order,
    and thus exposed him
    to further and
    more serious court action.
    Also, compliance before the end of the
    proceedings may be a mitigating factor when considering a penalty
    in an enforcement action;
    however,
    it does not forgive the
    violations.
    If such were the case, violators could abuse
    the
    environment with impunity until they are caught,
    and only then
    “voluntarily” comply.
    41—25
    1981 that a hearing was held on the second Stipulation and Pro-
    posal
    for Settlement,
    this in response
    to another Board order,
    of
    November
    20,
    1980,
    that noted no activity in the case and makinq
    it subject
    to dismissal.
    On January 20,
    1981,
    the Board received this second Propos~1
    from the Agency.
    This Proposal recommended a penalty of $1,100 a~
    a “fair estimate of the economic benefit which accrued to Respon-
    dents
    by
    failure to comply with the law and permits as aileqed
    herein, and to be a fair amount based upon the nature and extent
    of violations and upon Respondent’s ability
    to pay”
    (Stip.
    5—6).
    In addition,
    the Agency withdrew none of its allegations in
    the
    Proposal
    (although the summary list of the alleged facts and
    cited regulations were inconsistent with the original complaint),
    and the respondent made no admission of violations
    (Stip.
    ¶6,
    r•
    4).
    Nevertheless, both parties agreed that this proposal settled
    the controversy and the Agency noted that the respondent was by
    then in substantial compliance
    (although
    the
    times when comt1iancc~
    was reached were not specified)
    (Stip.
    ¶5,
    p.
    4).
    This contradictory pattern neither makes
    sense nor
    is it a
    proper record when using the stipulation and settlement mechanisri
    embodied
    in Procedural Rule
    331.
    The Board has great difficulty
    in determining the violations
    on which the penalty was based,
    in
    •waluatirig the sufficiency of the penalty according
    to Sec.
    33(c)
    of the Act,
    and evaluating
    the stated rationale used by the Agency
    when recommending the penalty.
    The Board’s decision, accepting the penalty and finding the
    respondent in violation of some of the allegations and dismissinq
    the others, while inconsistent, at least serves as a final reso-
    lution of this complaint, and recognizes that no public purpose
    would be served by prolonging this action.
    ~/
    I
    /
    ~
    Joan G. Anderson
    Board Member
    I,
    Christan L. Moffett,
    Clerk of the Illinois Pollution
    Control Board, hereby certify that the above Concurring Opinion
    was
    filed with the Board on the
    /7~’
    day of
    4~~t~j
    ,
    19~1.
    -~-~:
    /~)(.V:•Y~
    Christan L. Mof~t, Clerk
    Illinois Pollutjdri Control Board
    41—26

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