ILLINOIS POLLUTION
    CONTROL
    BOARD
    February 20,
    1985
    PEOPLE OF
    THE STATE OF ILLINOIS
    )
    Complainant,
    v.
    )
    Pea 81—190
    THE
    CITY OF CHICAGO,
    a municipal
    )
    corporation;
    and JOHN B. W. COREY,)
    Commissioner Chicago Department
    )
    of ~
    and
    I GE~SOLLPRODUCT
    )
    CORPOh~TION, an Illinois corpor-
    ation,
    )
    Respondents.
    CONCURRING
    STATEMENT
    (by J
    D. Dumelle):
    The
    majority of the Board has
    examined the Environmental
    Protection
    Act,
    They
    have
    bootstrapped
    a legal requirement
    to
    publish
    an opinion containing “facts
    and reasons” via the
    Administrative ~?rocedureAct into
    an assumed requirement for
    admission of v~ lations,
    Admittedi
    the Environmental
    Protection Act is silent on
    settlement pro.
    3ures
    (see majority
    order, p.
    4).
    One must
    then
    look
    at legisi
    ~ive intent.
    The courts have long held that
    “the legislative declaration
    of the
    purpose of
    the
    (Environmental
    Protection
    Act
    (par.
    1002)
    indicates that the principal reason for
    authorizing the
    imposition of civil penalties
    (par.
    1042)
    was to provide
    a method
    to
    aid the enforcement of the Act and
    that the punitive
    considerations were secondary”
    (Cit
    of
    Monmouth v. Pollution
    Control
    Board
    (1974)
    57
    Ill~2d 482, 490,
    313 N.E.
    d
    161,
    166),
    I find no reason to conclude that
    compliance with the
    Act
    cannot
    be encouraged through settlements
    which do not allow for
    the
    finding of violation,
    A large penalty
    absent such a finding
    clearly
    would be a greater deterrent
    than a small penalty in
    conjunction
    with such a finding.
    Thus,
    the Board’s “principal
    reason”
    for imposing a penalty is better
    met.
    The
    Environmental Protection Act
    has as one of its ~~tls the
    establishment
    of
    a specialized
    technical tribunal to idj~icate
    environmental
    disputes involving its
    own rules and the Act.
    That
    tribunal
    is this Pollution Control Board.
    Implicit in establishing that
    tribunal
    is the power
    to
    accept
    (not “order”) settlements freely
    arrived at by the
    parties.
    And
    if a party chooses to make
    a contribution or pay
    o~i
    penalty
    to an Illinois fund,
    why should
    the Board not accept
    it
    2
    it
    if
    it appears reasonable?
    After
    the Board order has been
    issued accepting the stipulation, the penalty or contribution
    payment
    is really not “ordered,”
    The word “order” merely shows
    the Board~Sofficial acceptance consistent with the stipulation.
    The Attorney General of Illinois has brought this case on
    behalf of the IEPA.
    His office
    is also the lawyer
    for the
    Pollution Control Board.
    Obviously,
    his staff saw no legal
    impediment
    to approval by the Board of the stipulation here
    presented and i~owrejected by the majority.
    Further, nothing prevents the Attorney General from entering
    into a contract with any person against whom he has brought an
    enforcement acY~nngreeing to dismiss the proceeding upon a
    contribution tc
    ~he Environmental Trust Fund,
    If the Attorney
    General w~reto take such a course,
    the same “settlement” could
    be reached but neither the Board
    nor the public would have any
    opportunity to look into that agreement in a public forum,
    Alternatively, as the majority acknowledges,
    the same settlement
    offered here could
    be accomplished
    before
    the court system.
    In
    either case,
    the Board loses the opportunity to oversee the
    settlement process.
    If the Board
    is
    to fully operate as
    the
    state’s specialized
    technical tribunal
    in environmental matters,
    it must have the
    power
    to accep~ all types of reasonable stipulations.
    My
    feeling
    is that
    it has
    lways had that power.
    The major
    y order on page
    3
    (footnote)
    finds that some
    conditions
    in
    ~eproposed stipulation refer to matters beyond
    the Board~sponer
    to order~ These involve compliance with the
    Chicago plumbing code and an agreement by Chicago not to ask for
    costs against IngersqIL
    I generally agree with this position.
    The stipulation should be rejected for these reasons only.
    Thus,
    I concur
    in •the rejection but not for the main reason stated:by
    the majority
    the issue of the need to find violations,
    I, Dorothy M, Gunn, Clerk of the Illinois Pollution Control
    Board, hereby~cer~ifythat the ab9ve Concurring Stat?~n~nn~
    was
    ~‘ubmittedon the
    ~
    day of
    1985.
    ~thyM.~n~rk
    Illinois Pollution Control Board
    Chairman

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