ILLINOIS POLLUTION CONTROL BOARD

September 20,

1979

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

PCB 78—88 and

v.

)

PCB 78—225

)

Consolidated

SUNDALE

SEWER

CORPORATION, an

Illinois corporation,

Respondent.

DISSENTING OPINION

(by Dr.

Satchell)

In this case and in response to an Agency motion for recon-

sideration

on October

4,

1979

(EPA and MSDGC

v.

IHC, PCB 75—12),

the majority of the Board rejected the concept of contingent and

suspended penalties in stipulated proposals for settlement.

When the penalty is:

(1)

for past violations;

(2)

given in

an amount warranted considering the nature of the violations;

and

(3)

contingent on an expeditious program for compliance, the

stipulation should be accepted.

The stipulation should provide adequate mechanisms:

(1)

to

determine when a breach of condition has occurred and

(2)

to

provide relief in the unforeseen event of impossibility in meeting

the conditions.

The majority contends that the contingent or suspended penalty

serves no useful purpose.

It

is doubtful if the Enforcement Div-

ision would argue so forcefully for a useless enforcement tool.

The

contingent or suspended penalty represents another option in

negotiating settlements.

By adding flexibility to the settlement

process, more settlements are encouraged.

35—367

---

—2—

I, Christan L.

Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the above Dis

n ing Opinion

was submitted on the

__________

day of

______________,

1979.

~sJm4Id2iJ

Christan

L. Mof

,

Clerk

Illinois

Polluti

ontrol Board