ILLINOIS

POLLUTION CONTROL BOARD

February

20,

1985

PEOPLE OF THE STATE OF ILLINOIS,

)

Complainant,

v.

)

PCB 83—83

JOSLYN MFG.

& SUPPLY CO.,

an

)

Illinois

corporation, and

)

BERMAN ZELDENRUST,

)

)

Respondents.

CONCURRING STATEMENT

(by 3.

D.

Dumelle):

The

majority of the Board

has examined the

Environmental

Protection Act.

They have

bootstrapped a legal

requirement

to

publish an opinion containing

~factsand reasons~

via the

Administrative Procedure Act

into an assumed

requirement

for

admission of violations.

Admitted

,

the Environmental

Protection

Act is silent on

settlement prc ~dures (see majority

order, p.

3),

One must then

look at legis

~ive intent.

The court~have long held that ~t~e

legislative

declaration

of the purpose of the (Environmental

Protection

Act

(par.

1002)

indicates that the principal rea~onfor

authorizing

the

imposition of civil penalties

(par.

1042)

was

to.

provide

a

method

~

a+d the enforcement of th.~

Act ai~d~

that th~

punftive

considerations were secondary~ (C

fMonm2tithv. Pollution

Control Board

(1974)

57 Ill.

2d 482,

490,

313

N.E.

2d 161,

166).

I

find no reason to conclude that

compliance

with

the Act

cannot be

encouraged through

settlements

which do

not allow for

the finding of violation.

A large

penalty absent.

such a finding

clearly would be a greater deterrent

than a sma1~.

penalty in

conjunction with such a finding,

Thus,

the Board’s

~principal

reason~for imposing a penalty is

better met.

The Environmental PrQtection

Act has as one

of its goals the

establishment of

~~1alized

technical tribunal to

adjudicate

environmental

dir

~

~~olving

its own ru~~and

th~

~

That

tribunal

is thi~~1L~~i

Control

Board.

Implicit in establishing that

tribunal

is the

power

to

accept

(not ~order~) settlements

freely arrived at by

the

parties.

And if a party chooses

to make a contribution or pay a

penalty to

an Illinois fund,

why should the Board not accept ~t

it if it

appears reasonable?

After the

Board order

has been

issued

accepting the stipulation,

the penalty or

contribution

---

payment

is really not ~‘ordered,~ The word “

~r~’mere~

the Board’s official acceptance consistent ~th

tie at ‘u~at~

~,

The A~torneyGene

~.

of Illinois has brought this case on

behalf of

the IEPA.

His office

is also the lawyer for the

Pollution Control Board,

Obviously,

his staff saw no legal

impediment to approval by the Board of the stipulation here

presented and now rejected by the majority.

Further

nothing prevents the Attorney General from entering

into a

ontract with any person against whom he has brought an

enforcement action agTeeing to

dismiss

the proceeding upon a

contribution

to the En”trcnmental Trust Fund,

If the

~torney

Gener4.

were to

a~esuch a course,

the same ~settlement

could

be reauhed but neither the Board nor

the public would hs~

~

opportunity to look into that agreement

ifl

a public fo~un,

Alternatively,

as the majority acknowledg~,

~

same settlement

offered here could be accompliuhed before the court system.

In

either case,

the Boai~dloses ~he opportunity to oversee the

settlement process.

If the Board

is

to fully operate as the state’s specia1~ec1

technical tribunal in environmental matters,

it must have the

power

to accept all types of reasonable stipulations.

My feeling

is that

it has always had that power.

The propo

~condit~onmaking payments contingent upon a

Circuit Court

tion renders the stipulation unacceptable.

~

final o der of

he Boar~1should be final.

Also,

it appears

possible that

ne same paFties are pursuing the same action in

two forums simultaneously which should not be allowed

to occur,

The stipulation shouTh be rejected for these reasons only~ T~ius,

I concut in the ~ejed’tion~S~utnot for the main reason stated by

the majority

the

issue cf the need to find violations.

I, Dorothy N

cu~, Clerk of the Illinois Pollution Con~rol

Board, hereby cer

:

t the above Concurring Statement was

submitted on the

~

~

of

_____

~thyM.G~n~rk

Illinois Pollution Control Board