ILLINOIS POLLUTION CONTROL BOARD
October 10, 1991
PEOPLE OF THE STATE OF
)
ILLINOIS,
)
Complainant,
v.
)
PCB 90—112
(Enforcement)
CHICAGO HEIGHTS REFUSE
)
DEPOT,
INC.,
)
)
Respondent.
CONCURRING OPINION
(by B. Forcade):
I respectfully Concur in today’.s Opinion and Order.
I
disagree with the majority on one legal issue and would have
preferred a more comprehensive evaluation on another point.
First,
I disagree with the majority finding that notice was
defective under Section 31(d)
of Illinois Environmental
Protection Act
(“Act”)
for all Counts except Count I.
The
majority dismisses those remaining Counts.
I would have
considered them.
Section 31 of the Act provides in relevant
part:
Section 31
a.
If such investigation discloses that a violation may
exist, the Agency shall issue and serve upon the person
complained against a written notice, together with
a
formal complaint, which shall specify the provision of
this law or the rule or regulation or permit or term or
condition thereof under which such person is said to be
in violation,
and a statement of the manner
in, and the
extent to which such person is said to violate this law
or such rule or requlation or permit or term or
condition thereof and shall require the person so
complained against to answer the charges of such formal
complaint at a hearing before the Board at a time not
less than 21 days after the date of notice, except as
provided in Section 34 of this Act.
Such complaint
shall be accompanied by a notification to the defendant
that financing may be available, through the Illinois
Environmental Facilities Financing Act, to correct such
violation....
b.
Any person may file with the Board a complaint, meeting
the requirements of subsection
(a)
of this Section,
against any person allegedly violating this Act or any
126—44 7
2
rule or regulation thereunder or any permit or term or
condition thereof.
The complainant shall immediately
serve a copy of such complaint upo~.the person or
persons named therein.
Unless the Board determines
that such complaint is duplicitous or frivolous,
it
shall schedule a hearing and serve written notice
thereof upon the person or persons named therein,
in
accord with subsection
(a)
of this Section.
*
*
*
*
d.
Notwithstanding the provisions of subsection
(a)
of
this Section. prior to issuance and service of a
written notice and formal complaint under subsection
(a)
of this Section, the Agency shall issue and serve
upon the person complained against a written notice
informing such person that the Agency intends to file a
formal complaint.
Such written notice shall notify the
person of the char~esalleged and offer the person an
opportunity to meet with appropriate agency personnel
in an effort to resolve such conflicts which could lead
to the filing of
a formal complaint.
Such meeting
shall be held within 30 days of receipt of notice by
the person complained against unless the Agency agrees
to a postponement,
or the person complained against
fails to respond to the notice or such person notifies
the Agency that he will not appear at a meeting.
Nothing in this subsection is intended to preclude the
Agency from following the provisions of subsection
(a)
of this Section after the provisions of this subsection
are fulfilled.
(Emphasis Added)
*
*
*
*
*
*
None of this language operates to bar a suite by the People
as represented by the Attorney General or the State’s Attorney.
The Agency is not the complainant in this proceeding,
so Section
31(d)
does not apply.
These Counts should not have been
dismissed.
The second matter where I differ with the majority concerns
the discussion of the penalty amount.
I support the general
magnitude of the penalty imposed in this proceeding but believe
the penalty discussion should be expanded.
In Illinois
Environmental Protection A~encvv. Allen Barry d/b/a Allen Barry
Livestock, PCB 88-71
(May 1,
1990), the Board issued an Opinion
and Order, with
,.
of over 85 pages.
That document
recounted the history of penalties within the federal
environmental program as well as the environmental programs in
Illinois and other states.
It compared the magnitude of the
various penalties imposed at each level of government and the
126—448
3
legal precedents that guide penalty determinations.
That Opinion
noted that in their 1989 treatise, “State Environmental Law”,
Professors Selmi and Manaster observed that the body of state
case law is relatively limited on the issue of civil penalties
for environmental violations.
They noted that Illinois cases
represent the bulk of state decisions discussing penalty
determinations.
The Opinion stated:
The review process is not generally predictable,
how’ever,
Selmi and Manaster note that the degree of
deference given to agency penalty assessments can vary
widely.
They cited Fee Plan,
Inc.
v. Dept.
of Envtl.
Conservation,
118 A.D.2d 855,
500 N.Y.S.2d 344, 345
(1986)
for the New York Court’s position that the
courts will not overturn an Agency’s penalty unless “so
disproportionate to the offense as to shock one’s sense
of fairness”.
They noted in contrast that Illinois
courts have engaged in some intensive reviews of Board
decisions based on the Illinois Supreme Court’s
holdings in Southern Illinois Asphalt,
Case
No.
4,
and
City
of Monmouth,
Case
No.
2,
that the penalties
should primarily “aid in the enforcement of the Act”
and that “punitive considerations” are secondary.
The
authors observed this consequence of the review process
in Illinois:
This standard has allowed the lower courts
considerable freedom in their review
—-
freedom that in some instances plainly
amounts to a de novo review of the agency’s
penalty assessment.
The result has been a
series of decisions in which the Pollution
Control Board’s assessments have been
overturned by reviewing courts which have
concluded that the assessments will not aid
in the enforcement of the Act.
At the same
time, however, the opinions in that state on
this issue have an ad hoc quality to them and
provide the penalty decisionmaker with very
little guidance on whether a ~enaltv
assessment will be upheld on review.
Selmi and Manaster, at 16—69
(emphasis added).
Opinion and Order at p. 63.
For this reason,
I believed the Board would attempt to follow the
guidance of Barry and attempt to provide a mathematical precision
to our penalty determinations.
Today’s decision represents
a
small but significant retreatfrom the determination process
articulated in Barry,
if
fact, the majority opinion does not even
reference Barry.
126—449
4
Since
I still believe Barry is not only good law, but the
best example of how to make a penalty determination, I must
concur with any Opinion which attempts to abandon its guidance.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, her~ certify tha
he above Concurring Opinion was filed
on the
/
day of
__________________,
1991.
Dorothy M./’~unn,Clerk
Illinois ~9llution Control Board
Board Member
126—450