ILLINOIS POLLUTION CONTROL BOARD
    July 11, 1991
    PEOPLE OF THE STATE OF ILLINOIS,
    )
    )
    Complainant,
    )
    V.
    )
    PCB 89—157
    (Enforcement)
    CLYBOURN METAL FINISHING COMPANY,
    )
    )
    Respondent.
    CONCURRING OPINION (by J.
    C. Marlin):
    I agree with the majority’s finding that Clybourn has violated
    Section 9(b)
    of the Illinois Environmental Protection Act and 35
    Ill.
    Adin.
    Code
    201.144
    and with the
    imposition
    of
    the
    $12,000
    penalty.
    However,
    I
    do not believe that the majority has set a
    proper foundation for the assessment of costs and fees.
    For this
    reason,
    I concur.
    The majority has laid no foundation for its finding that costs
    and fees should be imposed pursuant to Section 42(f) of the Act.
    The Attorney General has frequently requested costs and fees
    in
    complaints and subsequently chosen to make no further mention of
    Section 42(f)
    or any attempt to directly construct an argument or
    present evidence to support a
    42(f)
    finding of
    a wilful,
    knowing
    or repeated violation.
    Historically, the Board has not assessed costs and fees in
    cases where the Attorney General has not presented evidence
    on
    Section 42(f).
    Typically,
    as in this case,
    the Attorney General
    broadly
    alleges
    that
    the
    violation
    was
    “wilful,
    knowing
    or
    repeated”.
    In this instance, the majority independently searched
    the record to find a basis for a Section 42(f)
    finding, eventually
    settling upon “knowing” as the basis for its decision that fees and
    costs could be recovered.
    As Dr. Flemal’s concurrence points out,
    this
    is
    a departure from past Board practice.
    The decision to
    pursue costs and fees falls within the discretion of the Attorney
    General.
    Where,
    as here,
    the Attorney General has chosen not to
    pursue the matter at hearing
    or in briefs, the Board should not
    use its resources to cobble together a finding.
    124—2 1
    2
    Today’s Opinion could also lead to confusion as it seems to
    hold that simple failure to renew a permit is a “knowing” violation
    under 42(f).
    Should there be sufficient grounds for making this
    finding,
    it is only through evidence of continued operation after
    permit denial.
    ~
    ohn C. Marlin
    Board Member
    I,
    Dorothy M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    hereby
    certify~t)iat the
    above
    Cc
    Opinion
    was
    submitted on the
    /6
    ‘
    day of
    1991.
    Control Board
    124—22

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