ILLINOIS POLLUTION CONTROL BOARD

April

20,

1995

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

v

)

PCB 92—164

(Enforcement)

BERNIECE KERSHAW

AND

DARWIN DALE

)

KERSHAW, d/b/a KERSHAW MOBILE

)

HOME PARK,

)

Respondents.

DISSENTING OPINION

(by J. Theodore Meyer):

I respectfully dissent from the majority’s order which

assesses respondents’ penalty at $35,190.69.

I find no

demonstrated reason for the drastic reduction from the Illinois

Attorney General’s suggested penalty of $250,000.

In making orders and determining an appropriate civil

penalty in a given case, the Board

is to consider various

factors,

including, but not limited to,

those outlined in Section

33(c)

and 42(h)

of the Act.

Generally, high penalties are

imposed and upheld when a violator demonstrates a lack of good

faith efforts at compliance; disregards the negative impact on

the environment caused by non—compliance;

and,

enjoys economic

gains by delaying compliance.

See Wasteland.

Inc.

v. Illinois

Pollution Control Board,

118 Ill.App.3d

1041,

456 N.E.2d 964

(3rd Dist.

1983).

See also,

Standard Scrap Metal Company v.

Pollution Control Board,

142, Ill.App.3d

655,

491 N.E.2d 1251

(1st Dist.

1986).

In fact,

since 1970,

amendments to Section

33(c)

are in the direction of increasing the amount of a penalty,

an indication of the legislative intent to favor higher penalties

which aid enforcement of the Act and deter violators and others

from future non—compliance.

In the instant case, respondents demonstrated an outrageous

lack of due diligence and good faith.

For over 14 years

respondents wilfully caused serious water pollution and violated

effluent standards, despite the availability of technically

practicable and economically reasonable means of compliance.

(complainant’s Motion for Summary Judgment, p.24).

Attempts by

the Illinois Environmental Protection Agency and the Illinois

Attorney General to seek compliance from respondents were utterly

ignored.

(Id.)

This callous behavior is a clear demonstration of

respondents’ disregard for negative impacts on humans and the

environment caused by dumping untreated sewage into the

waterways.

Moreover, respondents reaped

substantial economic

savings from their 14—year history of non—compliance,

savings

---

2

which accrued at the expense of the environment, and which

occurred despite their ability to pay for improvements to cure

the violations

(complainant’s Brief in Support of Penalty

Request, p.36-38).

Although a $250,000 penalty is unusual in Board decisions,

I

believe that the severity of the penalty should bear some

relationship to the seriousness of the violation.

Southern

Illinois Asphalt Company.

Inc.

v. Pollution Control Board,

60

Ill.2d

204,

326 N.E.2d 406

(Ill.

1975).

In addition,

a penalty

should be greater than the economic benefit enjoyed by the

violators.

Wasteland.

Inc.

V.

Illinois Pollution Control Board,

118 Ill.App.3d 1041,

456 N.E.2d 964,

976.

The economic benefit

has been estimated at $118,980.40 (complainant’s Brief in Support

of Penalty Request, p.49).

Therefore,

the imposition of a six—

figure penalty over that amount is warranted,

given the duration

and severity of the violations, respondents’

lack of due

diligence and good faith,

and the need to deter respondents and

others who may be tempted to disregard the Illinois Environmental

Protection Act.

For these reasons,

I respectfully dissent.

J.

heodore JMeyer

Bo

d Member

I, Dorothy

M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above dissenting opinion was filed

on the

~7t~

day of

_______________,

1995.

/2

~Dorothy M.~unn, Clerk

Illinois ~llution

Control Board