ILLINOIS POLLUTION CONTROL BOARD
    January 10, 2002
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
    Complainant,
     
    v.
     
    KIM JOINES,
     
    Respondent.
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    AC 02-23
    (IEPA No. 440-01-AC)
    (Administrative Citation)
    DISSENTING OPINION (by G. T. Girard):
     
    I respectfully dissent from the Board’s opinion and order issued today in this matter.
    Although I agree that the respondent should be found in violation of Sections 21(p)(1) and
    21(p)(3) of the Environmental Act (Act) (415 ILCS 5/21(p)(1) and (p)(3) (2000)), I disagree
    with the assessed penalty.
    In July 1999, the General Assembly adopted and the Governor signed HB 2011, which
    became Public Act 91-82. Among other things, Public Act 91-82 amended Section 42(b) of
    the Environmental Protection Act (415 ILCS 5/1
    et seq
    . 2000) (Act) to raise the penalty for
    violations of Section 21(p) of the Act. Prior to the amendment, Section 42(b)(4) provided in
    part that, “any person found to have violated any provision of subsection (o) or (p) of Section
    21 of this Act shall pay civil penalty of $500 for each violation of each such provision, plus
    any hearing costs incurred by the Board and the Agency.” 415 ILCS 5/42(b)(4) (1998). The
    amendment in Public Act 91-82 deleted “or (p)” from Section 42(b)(4) of the Act and added
    Section 42(b)(4-5). Section 42(b)(4-5) of the Act provides in part that, “any person found to
    have violated any provision of subsection (p) of Section 21 of this Act shall pay a civil penalty
    of $1,500 for a first offense and $3,000 for a second or subsequent offense, plus any hearing
    costs incurred by the Board and the Agency.” 415 ILCS 5/42(b)(4-5) (2000). Significant in
    this change is the decision not to carry forward the phrase “for each violation of each such
    provision”.
    Section 42(b)(4-5) provides that the civil penalty of $1,500 is for “a first offense” for
    violating “any provision of subsection (p) of Section 21.” The common definition of any is an
    indeterminate number or amount, or, in other words, one or several. The common definition
    of each is one of two or more considered individually. By leaving out the phrase, “for each
    violation of each such provision”, the appropriate penalty is $1,500 for violations of any of the
    provisions of Section 21(p) of the Act and not $1,500 for a violation of each provision of
    Section 21(p) of the Act. Therefore, the appropriate penalty in this case should be $1,500.
     
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    For these reasons, I respectfully dissent.
     
     
     
    G. Tanner Girard
    Board
    Member
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above dissenting opinion was submitted on January 16, 2002.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     
     

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