ILLINOIS POLLUTION CONTROL BOARD
    November 15, 2001
     
    PEOPLE OF THE STATE OF ILLINOIS,
     
    Complainant,
     
    v.
     
    PANHANDLE EASTERN PIPE LINE
    COMPANY,
     
    Respondent.
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    PCB 99-191
    (Enforcement - Air)
     
    DISSENTING OPINION (by T.E. Johnson):
     
    I respectfully dissent from the majority opinion. I agree with the majority’s finding that
    Panhandle Eastern Pipe Line Company (Panhandle) violated the Environmental Protection Act
    (Act) (415 ILCS 5/1
    et seq
    . (2000)), and I would also order that Panhandle cease and desist from
    further violation. However, I find that the imposed penalty is excessive.
     
    As discussed in the majority opinion, the Board is authorized to consider the impact of
    any matter of record in determining an appropriate civil penalty, including, but not limited to the
    factors set forth in Section 42(h) of the Act. I feel that an appropriate civil penalty in this case
    must reflect the Illinois Environmental Protection Agency’s (Agency) issuance of inspection
    reports finding no violation at Panhandle’s facility from 1989 to 1996.
     
    The Agency inspected Panhandle’s facility annually after the permit was issued in 1988.
    After each inspection, the Agency issued an inspection report finding no violations. During or
    shortly after each inspection, Panhandle provided its records of fuel use and hours of operation to
    the Agency. The Agency does not dispute that it possessed the information necessary to find the
    violations well before it did. In addition to the data on fuel use and hours of operation, the
    Agency was in receipt of annual emission reports. The Agency could have identified the excess
    emissions problem by reviewing the reports or by calculating emissions from the provided data.
     
    I agree that the Agency’s acts did not cause the violations, nor is Panhandle absolved of
    the responsibility for determining its own compliance status. However, if the Agency had
    reviewed the available information, the violations would have been brought forward as many as
    seven years before they were. Although I agree with the majority that the Agency actions do not
    rise to the level of an affirmative defense, I feel that it would be inequitable not to consider the
    Agency’s actions in determining a penalty.
     
    As stated, pursuant to Section 42(h) the Board may consider the impact of any matter of
    record in determining a penalty. However, the Agency’s actions may also be considered under
    specifically included factor Section 42(h)(2) which directs the Board to consider the presence or
    absence of due diligence on the part of the violator in attempting to comply with the
     
     
     
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    requirements of this Act. 415 ILCS 42(h)(2) (2000). Panhandle’s diligence in attempting to
    comply with the Act was clearly impacted by the Agency’s actions in this matter.
     
    It is the responsibility of all companies doing business in Illinois to determine whether
    they are complying with Illinois’ environmental laws. I want to stress that by dissenting I am not
    intending to make the Agency responsible for failing to monitor a permitees’ emissions.
    However, for the reasons articulated in this dissent, I believe that any penalty assessed must be
    mitigated because the Agency’s actions impacted Panhandle’s belief that it was in compliance.
    Where there is reliance on an inspection report with a finding of no violation, a corresponding
    mitigation in penalty is appropriate.
     
     
    For the above stated reasons, I respectfully dissent.
     
     
      
      
      
      
      
      
     
    Thomas
    E.
    Johnson
     
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that I
    received the above dissenting opinion on November 19, 2001.
     
     
     
     
      
      
      
      
      
      
     
    Dorothy
    M.
    Gunn
    Illinois
    Pollution
    Control
    Board

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