ILLINOIS POLLUTION CONTROL BOARD

July

3,

1990

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

v.

)

PCB 88—199

(Enforcement)

SEEGERS GRAIN,

INC.

Respondent.

DISSENTING OPINION

(by J.

Anderson and J. Dumelle):

This case certainly underscores

the wisdom of the

requirement in the Boardts procedural rules

that

a settlement

proposal

be signed prior

to presentation

at hearing.

The Board

has, possibly unfortunately, gotten

into the habit of accepting

hearing records

containing agreements which were

not signed until

after they were presented at hearing.

At

least,

though,

there

was no substantive post—hearing change

in the agreement

in those

instances.

In this case, however,

there was a highly substantive post—

hearing change

in the signed agreement;

the penalty was cut

in

half from that presented at

hearing.

It then became worse.

In

response to

.a Board inquiry about

this,

the Complainant requested

that decision be deferred for

30 days because

of other

inconsistencies and the need to amend the settlement.

The

Respondent objected.

The Board granted the

30 days, which

elapsed without

further

response.

It seems apparent that the

Board was receiving little enlightenment.

Nevertheless,

the

Board

then proceeded

to accept the signed version of the

settlement.

The majority

off

the Board asserted that its decision

was based on its conclusion

that the executed settlement set

forth

“a full stipulation of all material facts pertaining

to the

nature,

operations and circumstances surrounding

the claimed

violations”,

that the agreement was freely signed,

and neither

party requested relief from its terms.

We do find the Board’s conclusion somewhat ironic.

What

is

distressing,

however,

in our opinion, was that the Board put its

imprimatur

not only on a violation

off

the letter of its

procedural

rules,

but on the spirit

as well;

the majority

accepted the notion that

it

is perfectly all right

to present one

version of an agreement, and a tentative one at

that,

at

the

public hearing,

and then present

a different agreement

later

directly

to the Board.

By accepting the latter agreement,

the

Board was essentially allowing the act of signing

an agreement to

supersede the requirement

that

it be presented at hearing.

We

note that the majority didn’t even rely for

their decision on

the

113—21

---

fact that

no members of

the public were present

at the earlier

hearing.

This proceeding should have been sent back

to hearing,

certainly at

this juncture,

if not earlier

(see

3. Anderson

dissent

of May

10,

1990).

We believe

that the agreement was

improperly before the Board.

In environmental enforcement

proceedings,

the public has always had a right

to testify at

hearings.

It

is especially important that

this

right

be

carefully preserved when

a stipulated settlement

is being

presented.

The record

for

the Board’s

revie;;

:s limited

in this

setting, and the Board

needs to

know

if

there are aspects of

the

proposed agreement with which

the public disaarees,

and why.

It

might not occur

often,

but

it does occur.

And

in

this instance,

we cannot assume

that,

because no public was present

at

the

first

settlement

hearing,

it would not show up at the second,

particularly

if

it became aware of the fact

that

the penalty was

cut

in half.

Generally speaking,

the danger

in not sticking to the

established procedures

in presenting

settlement proposals

is

that

the public at best could lose confidence

in

the process, and at

worst could come to believe that

it was being subjected

to

a kind

of “bait and switch” scenario.

It

is for these

reasons

that we

respectfully dissent.

~

‘7

Joan

G. Anderson

(

~

y1~~:/

~

--~

3.

D.

E~umelle

I,

Dorothy M.

Gunn,

Clerk

of the Illinois Pollution Control

Board, hereby certify that

the above Dissenting Opinion was

submitted on the

/r~.

day of

~-

1990.

~

Dorothy M.4Gunn, Clerk

Illinois

PoIL1ution Control Board

I

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