ILLINOIS POLLUTION CONTROL
    BOARD
    May
    10,
    1990
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Complainant,
    v.
    )
    PCB 38—71
    (Enforcement)
    ALLEN BARRY,
    individually and
    ALLEN BARRY,
    d/b/a
    ALLEN
    BARRY
    LIVESTOC~K,
    Respondent.
    CONCURRING OPINION
    (by J.
    Anderson):
    I fully appreciate
    the penalty analysis, particularly
    insofar
    as
    its unDrecedented compilation of cases and comparative
    data serves as
    a reference document.
    However,
    I
    do
    not believe
    that the question as
    to how the contents of
    the document will
    be
    used
    in future cases has been made all that clear,
    especially
    since
    the analysis emanates from the Board.
    I am particularly
    concerned
    that
    the conclusory phrasing of certain statements
    in
    the analysis might leave what
    I believe would be an
    incorrect
    impression,
    i.e.
    that the Board has prospectively corrLTdtte~1
    itself
    to this document
    in all future penalty considerations.
    ExamDles of
    my concerns are as follows:
    I do not believe
    that
    we
    must comoort with national
    environmental laws,
    federal court
    decisions,
    and federal oenalty
    policies ~er
    se
    in order
    to demonstrate consistency
    in our
    penalty considerations
    (See e.~. p.
    47 and
    58 of the Opinion).
    The Board
    is a creature of
    the State, and we must imole~ent,
    and
    comport
    with,
    State
    law (including
    the State
    courts)
    for our
    penalty determinations.
    If there
    is an inconsistency that,
    say,
    would
    threaten federal program authorization,
    we must
    lock
    to a
    correction
    in State
    law to cure the problem.
    Not all of
    our
    enforcement
    cases even
    involve federally authorized programs,
    and,
    in ani event,
    penalty maximums and case specific
    considerations
    a:
    the federal
    level
    have
    varied over
    t:me
    and
    between
    the various media.
    I
    agree
    that Illinois Appellate Court
    decisions have tended
    to minimize
    the dererrent effect
    of penalties
    for past
    violations,
    but,
    for the
    reasons expressed above,
    I
    don’t believe
    that we
    should imoly
    that we will
    therefore instead consider
    a
    contrary U.S.
    Supreme Court decision
    in Gwaltnev, which concerned
    federal
    law.
    (See
    p.
    49
    of
    the Opinion).
    ii
    i••~’5
    The Opinion
    (see
    P.
    52,53)
    reasons
    that the penalty
    provisions
    of Section
    42 of
    the States Environmental Protection
    Act might be construed as requiring that at
    least some penalty
    be
    imposed for
    a violation.
    The Opinion looks
    to a federal court
    interpretation of language
    in federal statutory
    law,
    and relies
    on
    its similarity
    to language
    in Section 42
    in order
    to reach
    this interpretation.
    As the Opinion notes elsewhere,
    our State
    courts do not so interpret Section
    42; they have on 4a number of
    occasions
    reduced a Board imposed penalty
    to zero.
    And to my
    knowledge there
    is no record of any legislative intent
    that
    Section 42 requires
    the imposition
    off some penalty.
    The Board
    itself on a number of occasions has
    imposed no penalty
    for
    violations,
    and
    I believe
    it
    is of dubious validity
    to use such
    reasoning
    in our penalty considerations.
    On Page
    72,
    the Ooinion states
    that the Board may also
    consider oenalties
    for similar offenses which have been imoosed
    in other
    rorums,
    feceral ano other
    stares,
    anc
    Dy
    IlilnoLs courts
    in
    similar circumstances.
    While we
    need
    to buttress our penalty
    decisions,
    I am truly concerned
    that,
    by newly singling
    this out,
    we are inviting comDlexity, delay, and potentially
    counterproductive results.
    For example, how can be consider “similar” with regard
    to
    other states,
    unless we know their
    law and penalty
    policies.,
    the
    actual record
    in a case,
    or whether any “similarity”
    stated
    is
    taken out
    of context.
    How would we consider to “similar” cases
    in other
    states, one imposing no penalty and another
    a high
    penalty?
    How do we assess other states
    distinctive experiences
    as
    to what
    it
    takes to achieve deterrence?
    Even considering cases
    in Illinois,
    I believe
    that
    we must
    resist getting caught
    in the trap of, when comparing
    cases,
    concludinc
    that
    a
    fish kill automatically requires
    a more severe
    penalty
    than
    another
    case where the damage
    is more subtle and
    chronic.
    Also,
    we have attemPted, appropriately so
    in my
    o~inion, to
    raise our penalties over
    time.
    I am concerned about
    “dated” decisions;
    a penalty
    imposed
    in
    1990 dollars does
    not
    have
    a similar deterrant effect as
    the same penalty
    imposed
    in,
    say,
    1972 dollars, even
    if
    the circumstances are similar.
    How far back do we go?
    How selective
    is our consideration
    to be?
    While
    the parties
    can, and do, make comparability
    arguments,
    it
    has been
    my
    experience
    that, particularly where
    non—Illinois cases
    are concerned,
    it
    is difficult to give much
    weight
    to such arguments
    for the purpose of penalty
    considerations,
    and risks simply giving added grounds
    for being
    ov?rturned on appeal.
    It
    is my
    firm belief
    that,
    as
    an administrative agency,
    we
    should be cautious about
    Looking
    too
    far afield from our our
    statutes
    in addressing any problem with our penalty
    ii 1_c(:,
    •1
    considerations.
    The analysis of
    the Illinois court opinions
    alone suggests that our less—than illustrious record of being
    upheld on appeal will not be improved if we do otherwise.
    It
    is
    for these
    reasons
    that
    I respectfully concur.
    Joan G.
    Anderson
    1,
    Dorothy
    M. Gunn,
    Clerk of
    the
    Illinois
    Pollution
    Control
    Board, hereby certify
    that
    the above Concurring Opinion was
    submitted on
    the
    ~
    day
    off
    ________________
    ,
    1990.
    7/~7
    ~
    /
    Dorothy M. ~unn,
    Clerk
    Illinois Pollution Control
    Board
    Ii 1—97

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