ILLINOIS POLLUTION CONTROL BOARD

August 30, 1990

PEOPLE OF THE STATE

OF ILLINOIS,

Complainant,

PCB 90—84

v.

)

(Enforcement)

WE-TOAST BREAD

COMPANY, INC.,

Respondent.

DISSENTING OPINION (by J. Anderson and R.C. Flemal):

We dissent from the order of the majorit7 directing that

further information be provided a) by the parties explaining why

the agreed penalty is so low and, b) from the Attorney General

alone, why no costs were assessed.

The matter before us is a settlement agreement. If the

Board is again going to attempt to review penalty agreements, the

least we can do is wait until we can use the Board initiated

“penalties legislation” in 532253, which specifies the factors to

be considered in determining penalties. It has been difficult

enough with a record of a full blown enforcement proceeding for

the Board itself to select and articulate the factors it

considered and weighed in setting the penalty amount, and then

only later to find out that the courts disagree with the Board

and lower, and sometimes eliminate, the penalty. How does the

Board expect the parties, or the Board to do better with a

settlement agreement?

Where the limited record of this settlement agreement is

involved, even if the parties now, after the agreement is signed,

tried to articulate how the penalty was calculated, exactly on

what basis does the majority intend to weigh it? The majority

used only comparative prorated mathematical calculations as the

single factor to support questioning the small amount of the

penalty, and then gave no further specific guidance as to what

factors to address, except for what appears to be an arbitrary

singling out of an ability to pay factor. For these reasons, we

do not believe that the majority’s action was advisable.

Finally we are at a loss to understand what authority the

majority is exercizir.g by directing the Attorney General to

explain why he omitted costs. We believe the directive is

inappropriate, particularly insofar as it can imply that the

Board believes that it has the statutory authority to require

costs.

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It is for these reasons that we respectfully dissent.

~oan G. Anderson

Flemal

~A~

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

Board hereby certify that the above Dissening Opinion was

submitted on the

~

day of

~

/~

,

1990.

/

I

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

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