ILLINOIS POLLUTION CONTROL BOARD

February 20,

1985

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Complainant,

PCB 82~l44

CITY OF GALENA,

)

)

:Respondent,

DISSENTING STATEMENT

(ty 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 Procedure Act into an assumed requirement for

admission of violations,

Admittedlyr

the Environmental Protection Act

is silent on

settlement proc

lures

(see majority order,

p, 5)~ One must then

look at legisla

ye intent,

The courtE

ave long held that “the legislative declaration

of the purpose

the

Environmental

Protection

Act

(par.

1002)

indicates that

the principal reason for authorizing the

imposition of civil penalties

(pare

1042)

was

to provide a method

to aid the enforcement of the Act and that the punitive

considerations were secondary”

~

Control Board

(1974)

57 IlL

2d 482,

490,

313 N,E,

2d 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 vio1ation~ A large penalty absent such a finding

clearly would be a greater deterrent than a small penalty in

conjunction with such a findings

Thus,

the Board~s“principal

reason” for

imposing a penalty

is better met,

The Environmental Protection Act has as one of

its goals the

establishment of a specialized technical tribunal to adjudicate

environmental disputes involving its own rules and the Act,

That

tribunal

is

this Pollution Control Board,

Implicit

in establishing that tribunal

is the po~r to

accept

(not “order”)

settlements freely arrived at by the

parties~

And

if

a

party chooses to make

a

contribution

or

pay

a

penalty

to an Illinois fund, why should the Board not accept it

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~s

official

acceptance consistent with the stipulation.~

63~27

---

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 now ~:eje~tedby

the majority~

Further, nothing prevents the Attorney General from entering

into a contract

with

any

person

against whom he has brought an

enforcement action

agreeing to dismiss

the proceeding

upon a

contribution to

the Environmental

Trust Fund.

If the Attorney

General were to take such a course,

the same “settlement~could

he reached hut neither the Board nor

the public would have any

opportunity

to look into

that

agreement

in a public

for~im,

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~sspecializth

technical tribunal

in

environmental matters,

it must have the

power

to accept all

types of reasonable

stipulations

~,Myfeniin~

is that

it has always had that power~

For these reasons,

I dissent,

I, Dorothy M~Gunn, Clerk of the Illinois Pollution Control

Board,

hereby certify that the above

Dissenting Statement was

submitted

on the ~

day of

~

l985~

Illinois Pollution Control