ILLINOIS POLLUTION CONTROL BOARD
    April
    6,
    1989
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Complainant,
    V.
    )
    PCB 86—27
    MODINE MANUFACTURING CO.,
    Respondent.
    CONCURRING OPINION
    (by 3.
    Theodore Meyer):
    I concur
    in the findings of the majority,
    and
    I reluctantly
    concur
    in the amount
    of the penalty imposed.
    However,
    I must
    again voice my concern about
    the manner
    in which penalties
    for
    violations
    of the Environmental Protection Act
    (Act)
    are set by
    the Board.
    The majority opinion,
    upon remand from the appellate
    court, does address
    the guidelines
    of Section
    33(c)
    of the Act,
    as
    I asked
    in my February
    4,
    1988 concurring
    opinion.
    There
    is
    no discussion, however, of any economic benefit
    to Modine because
    of its delay
    in complying with the Act.
    (As pointed out by the
    majority,
    this factor has been recently added
    to Section 33(c)
    Assuming arguendo that the Board cannot consider
    this addition
    to
    the statute,
    I still believe that economic benefit should be
    taken
    into account.
    Section 33(c)
    sets forth
    some factors
    to
    consider, but states that the Board’s consideration
    is “not
    limited
    to”
    the articulated
    factors.)
    Allowing Modine
    to benefit
    economically by its non—compliance penalyzes Modine’s competitors
    who have complied with the Act,
    and may even encourage others
    to
    view penalties
    for violations as costs
    of doing businesses.
    In
    other words,
    it may be cheaper
    for
    a company
    to violate
    the Act
    and
    later pay a relatively small penalty, than
    to comply with the
    Act and
    the Board’s
    regulations
    from the beginning.
    I believe
    that it
    is
    of utmost importance,
    both to
    the environment
    and
    in
    fairness
    to those companies which do comply with the Act,
    that
    a
    violator’s economic benefit from non—compliance be strongly
    considered
    when imposing
    a penalty.
    3. ~fieodore Jleyer
    t3oarc~
    ~1ernber
    98—13
    I,
    Dorothy M.
    Gunn, Clerk of the Illinois Pollution Control
    Board, hereby cert~,f~ythatthe above Concurring Opinion was
    submitted on the
    (~~“—4
    day of
    ______________________,
    1989.
    ~
    ~7,
    Dorothy
    M.
    Cu/in, Clerk
    Illinois Po~ution Control Board
    98—14

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