ILLINOIS POLLUTION CONTROL
BOARD
February 20,
1985
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Complainant,
PCB 84~3
84—4
CITY OF
GALVA~an Illinois
)
Consolidated
municipal
cOr:~TatiOn
)
Respondent9
CONCURRING
ST~
~4ENT
(by J D~Dumelle):
The
major~.yof 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,
Admitted~
the Environmental
Protection
Act
is silent on
settlement pro
~dures (see majority order,
p, 3)~ One must
then
look at legisi
lye intent,
The courts have long held that ‘~thelegislative declaration
of the
purpose, of the Environmental
Protection
Act
(par9
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~(~~onmouthv.Po1lu~on
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 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 ap~ializedtechnical tribunal to adjudicate
environmental
disp
~T
‘~in~
~
own rules and the ~t.
That
tribunal
is this
~
,
ntr~.
~ard,
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
6341
payment
is really not ~ordered~”
The word ~order~’merely shows
the Board~sofficial acceptance consistent wtth the sti’u’ation.
The Attorney General of Il1~noishas b~I~
is ~as~ en
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 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~ could
be reached
but neither the Board nor the public would have any
opportnnity to look into that agreement in
a public forum~
Alternatively, as the majority acknowl~daes,the same sett~.
~nt
offered here could be accomplished before the cou~tsyst?~m.
in
either case,
the Board loses
the
pportunity to oversee the
settlement process,
If the Board
is to fully operate as the stat&s specialized
technical tribunal in environmental matters,
it must have the
power
to accept all types of reasonable stipulations.
My feeling
is that it has always had that power.
The propo
d stipulation ~ou1d h~verequire& the City
of
Galva
to adopt
user charge and to fund improvements locally.
As a former ci
manager,
this seems
to me to
be an
interfcrence
with local fir ncial determinations,
What if Federal grants are
available?
Is G~lvato be forever prohibited from applying for
them?
The stipulation should be rejected for these reasons
only.
Thus,
I concur
in the rejection but not for the main
reason stated by the majo ity
—
the issue of the need to find
violations.
D: Dumelle
~hairman
I, Dorothy H,
0
r
,
Clerk of the Illinois Pollution Control
Board, hereby cert~
at
tne acop Concurring Statement was
submitted on the
*
Dorothy H,
Gunn, Clerk
Illinois Pollution Control Board