ILLINOIS POLLUTION

CONTROL BOARD

February 20,

1985

ILLINOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

)

Complainant,

v.

)

PCB 83-~23

ARNOLD~S

SEWER AND SEPTIC

)

SERVICE and

JIMMY MCDONALD

)

Respondent.

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 Procedure Act into

an assumed requirement for

admission of vJ,lations,

Admittedl\

the Environmental

Protection Act. is silent on

settlement

proc

dures

(see

~emetco

major~ty order, p.

8).

One

must then

look

~t legislative intent,

The courts have long held that

~the legislative declaration

of. the purpose

of

the

Environmental

Protectionj

Act

(par.

1002)

indicates

that the principal reason

for authorizing the

imposition of civil penalties (par~

l042~was to provid~ea method

to

aid the enforcement of the Act and

that the punitive

considerations were secondary~ (City

of Monmouth v.

Pollution

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 sniall 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 goals the

establishment of a spe~alizedtechnical

tribunal to ~$mi~cate

environmental

disputes ~nvo1ving

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

a

penalty

to

an Illinois fund, why

should the Board not accept

it

it if

it

appears reasonable?

After

the Board order has been

63~49

---

2

issued acceptinj U

stipulation, the penalty or contribution

payment

is really ro

rordered,~ The

word ~order~

merely shows

the Board~soffi

~al acceptance

consistent with the

stipulation~

The Attorney ~ereral 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

e~ectedby the

majority.

Further, rothing prevents the

Attorney General

from entering

into a contract w ~h n~iyperson

against whom he has brought

an

enforcement a

racing to dismiss

the proceeding

upon a

contribution

n ironmental

Trust Fund,

If

the Attorney

General were

sich a course,

the same “settlement” could

be reached bu

t the Board nor

the public would

have any

opportunity

t

nto that agreement

in a public

forum,

Alternatively,

maJority acknowledges, the same settlement

offered here c~o

•

accomplished

before

the court

system.

In

either case,

thr

~d loses the

opportunity to oversee

the

settlement proces

If the Board

i~

to fully operate

as the state’s

specialized

technical tribunal

i~

ewironmental

matters,

it must have

the

power

to accep

all

ypes of reasonable

stipulations.

My feeling

is that

it ha~ w~y~had that power.

Some cond

iow

in the proposed

stipulation are not

explained0

TI’

icoosed oayment

of $300 appears too low,

The

need to retair

irasdiction is not

given.

And finally, the

condition that

i

si.

cc

change its

name

is

certainly not

substantiated,

The st~.pu1ationshould

be rejected for

these

reasons only~

I

oncur

in the

rejection but not for

the

main reason atate’~

Us ‘rajority

the issue of the need to

find violat~~~

I, Dorothy M

(~ci

Clerk of the

Illinois

Pollution Control

Board, hereby cc

t ~

tlr,

he above

Concurring

Statement was

submitted on t~e

~.

,

1985.

Dorothy M.

Gunn, Clerk

Illinois

Pollution Control

Board