ILLINOIS POLLUTION CONTROL BOARD
July 11,
1991
PEOPLE OF THE STATE
)
STATE OF ILLINOIS,
)
)
Petitioner,
PCB 89—157
v.
)
(Enforcement)
)
CLYBOURN METAL
)
FINISHING COMPANY,
)
)
Respondent.
DISSENTING OPINION
(by J. Anderson):
I respectfully dissent from the majority’s opinion because I
believe that the imposition of costs and fees is unwarranted on
the merits and because,
in this case,
such action undercuts the
Board’s foundation for the penalty,
if not the foundation for the
finding of violation.
First though,
I wish to note that
I do not disagree with the
majority’s findings of violation.
Moreover,
I do not believe
that the size of the penalty is excessive when one considers the
fundamental importance of the permit process in the environmental
oversight arena.
It is the duty of the person being regulated,
not the Agency, to see to it that the requirement to have a
permit
is complied with.
Although there can be extenuating
circumstances, they are not persuasive here.
It is at best
irresponsible that Clybourn operated with a lapsed permit for two
years and apparently maintained no oversight whatsoever,
including not even making an inquiry of the Agency as to why it
had not received a permit renewal form.
However,
I believe that we need to recognize that some
appellate court decisions reflect a more tolerant view than ours
regarding penalties for operating without a permit.
This is true
especially where,
as here,
arguments have been raised asserting
reliance on the Agency or where, as here,
a company is not beyond
the Agency’s regulatory awareness.
See e.g. Modine Manufacturing
Company v. PCB and EPA,
193 Ill. App.
3d 643,
549 N.E.2d 1379
(2nd Dist.
1990); City of East Noline v.
PCB,
136 Ill.
App.
3d
687,
483 N.E.2d 642
(3d Dist.
1985).
Also,
it should be noted
that Clybourn has operated for many years without citizen
complaints or allegations of noncompliance with operating
standards.
If this case is appealed, the appellate court could very
well take the view that the Board’s imposition of costs and fees
constitutes a second penalty “hit”.
Underlying the penalty issue
was whether the Clybourn was fully responsible for knowing when
its permit renewals came due or, as Clybourn asserted, whether it
124—25
2
could rely,
as it had done before, on the Agency’s practice of
timely sending out permit renewal forms.
The imposition of costs
and fees was essentially based on the same argument; Clybourn was
in knowing violation because the Board held that it was
responsible for knowing.
At the very least, the majority,
by
reaching out without any precedent or any record whatsoever on
the appropriateness of imposing costs and fees,
appears punitive
and thus risks the loss of the persuasive value of the Board’s
whole penalty rationale.
Given that appellate courts already appear to take a more
tolerant view regarding penalties than the Board,
it should be no
surprise if,
on appeal,
a court were to decide that reliance on
Agency practice should control.
This would be a most unfortunate
result, not only in terms of our concerns about the permit
process, but also in terms of the potential chilling effect on
the Agency’s voluntary and commendable practice of sending out
the renewal application forms.
As to the merits of the imposition of costs and fees,
I
agree with the concurring opinions of Dr. Flemal and Dr.
Marlin.
I would add that,
since the Attorney General did not pursue the
issue, Clybourn has been deprived of an opportunity to argue
against the imposition of
(as opposed to the amount of)
the costs
and fees.
I believe that the Board’s independent analysis of the
record in support of its “knowing” conclusion has suffered
accordingly, even apart from any fairness issue that might be
raised.
For the foregoing reasons,
I respectfully dissent.
,‘7oanG. Anderson
VBoard Member
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certif~that the above
ncurring Opinion was
submitted on the
~
day of
_________________,
1991.
orothy N.
G,z?nn,
Clerk
Illinois PoMution Control Board
124—26