ILLINOIS POLLUTION CONTROL BOARD

February 2,

1995

PEOPLE OF THE

)

STATE OF ILLINOIS,

)

Complainant,

V.

)

PCB 94—123

(Enforcement-Air)

ARCHER DANIELS

)

MIDLAND

COMPANY,

)

a foreign corporation,

)

)

Respondent.

CONCURRING OPINION (by J. Theodore Meyer):

While I agree that Archer Daniels Midland Company

(ADM)

violated 415 ILCS 5/25b-2,

I concur with the majority’s February

2,

1995 opinion and order for two reasons.

First,

I regret that the People did not request an award of

costs and attorneys’ fees pursuant to Section 42 of the Act.

The

People have often requested costs and attorneys’ fees in their

complaint,

but failed to pursue that request by providing

evidence that the alleged violation was wilful, knowing,

or

repeated.

In this case,

the People pursued a civil penalty that

excluded prosecution costs.

As I have repeatedly stated,

I

believe that those who violate the Act should pay the costs of

prosecution, when the General Assembly has made specific

provisions for recovering those costs.

I hope that pursuing

costs and attorneys’ fees will become the norm, when allowable,

in enforcement cases.

Second,

I concur because I believe that the penalty imposed

in this case should have been higher.

As the majority states,

ADM’s failure to comply with the regulations lead to a conclusion

that the penalty must be sufficient to deter continuing and

future violations at sites owned by ADM.

Given that the Act

allows for penalties of up to $50,000 per violation, with an

additional $10,000 for each day that a violation continues,

I

believe that $6,400.00 is insufficient to deter continuing and

future violations.

For these reasons,

I concur.

3. Th~odoreMeyer

Board’ Member

---

2

I, Dorothy N.

Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above concurring opinion was filed

on the

~-~--

day of

1995.

~,

Clerk

~llutionControl Board

I