ILLINOIS POLLUTION CONTROL BOARD

February 20, 1985

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

Complainant,

V.

)

PCB

83—2

CHEMETCO,

INC.,

R~e~pondent~

DISSENTING

8TATEMEN~ cby 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,

Admittedly. the Environmental Protection Act is

silent on

settlement

proi dures (see majority order, p.

8). One must then

look at legisi

lye intent.

The

court,

have long held that “the legislative

declaration

of the purpose

~if

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” (~~fMonmouthj~.PQilution

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 violation~ A large penalty absent such a

finding

clearly

would be a greater deterrent than a small penalty in

conjunction

with such a firading~. 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 PolluLon Control Boards

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 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.

63~39

---

The

Attorney General of Illinois has brought this case on

behalf of

the IEPAQ~ His office is also the lawyer for the

Pollution

Control Boards Obviously, his staff saw no legal

impediment

to approval by the Board of the stipulation

here

presented

and now rejected by 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’s

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

majority acknowledges, the

same settlement

offered

here could L.. accomplished before the court

system. In

either case,

the Be”.;’: loses the opportunity to oversee

the

settlement

process~

If the Board

~‘

to fully operate as the state’s specialized

technical

tribunal environmental matters, it must

have the

power to

accept all Ttrpes of reasonable stipulations. My feeling

is that

it has alway~~had that power.

For

these reasons, I dissent

I,

Dorothy M. Gunn, Clerk of the Illinois

Pollution Control

Board,

hereby certity that the abgve Dissenting Statement was

submitted

on the ~ day of

~,

1985.

Illinois Pollution Control

Chairman

63~40