ILLINOIS POLLUTION CONTROL BOARD

July 30,

1992

SIIEREX CHEMICAL COMPANY,

INC.,

)

Petitioner,

v.

)

PCB 91—202

)

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

ONCURRING OPINION

(by B.

Forcade):

I respectfully concur in today’s action.

I support the

r~ajority’sconclusion that because the Agency has entered into a

consent decree agreeing to the corrective action measures to be

performed at the SRAPL HPA reactor site as a result of the

release of cadmium and copper,

it is barred from imposing

different correctiwe actions at that site through the permitting

process.

If the Agency were free to impose totally new

conditions, then the consent agreement language, “they hereby

release each other.. .from any and all claims of any party to the

disposal of spent nitric acid wash from the HPA reactor at the

Mapleton site,

including all claims which were raised or which

could have been raised with respect thereto.” would be

meaningless.

However,

I am less certain that the Agency could not impose

corrective action measures developed under the consent agreement

as valid permit conditions.

In other words,

can the Agency

duplicate the consent agreement corrective action measures in the

permit?

This issue

is of significance because permit conditions are

enforceable by other people.

Usually, consent agreements are

only enforceable by the parties.

Has the Agency negotiated away

the right of USEPA and the public to enforce clean up at the

SRAPL HPA reactor site as a result of the release of cadmium and

copper?

Board Member

OI35-OJ~3

---

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Concurring Opinion was filed

on the

.~“-~-

day of

_________________

1992.

Dorothy I.~Gunn,Clerk

Illinois ‘t~o1lutionControl Board

O135-OI~4L~