ILLINOIS POLLUTION CONTROL BOARD

June

3,

1976

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

v.

)

PCB 75—356

HAROLD

K.

FASSETT, HENRY W. FASSETT,

)

and

J. P.

WETHERBY CONSTRUCTION CORP.,

)

a Delaware Corporation,

Respondent.

DISSENTING OPINION (by Mr. Zeitlin):

I disagree with the conclusions reached

by

the Board in

Mr.

Dumelle’s Order entered today. I find that it is unduly harsh,

prejudicial, beyond the Record, and overly formalistic.

Mr. Dumelle’S Order is correct in stating that the fact of

present compliance does little to mitigate this type of violation.

However, the other matters alleged by the Respondents in their

respective motions do raise serious issues which could well supply

considerable mitigation for what I now feel may be a high penalty.

The proper course here would be to reopen the Record and receive

appropriate evidence on the issues raised therein.

The Board’s Principal Opinion and Order in this matter dismissed

summarily the issue of economic and social importance. Now that

these issues have been properly raised, they should be settled.

This would seem particularly appropriate where the Record also

fails to show any significant environmental damage resulting from

the violations which have been found. In this case, to avoid the

additional evidence which might be generated by reopening the Record

is to avoid the balancing which the General Assembly mandates under

§ 33(c) of the Environmental Protection Act.

The Board’s statement concerning the Wetherby penalty seems

plainly prejudicial.

Finally, to state that the matter is not properly reopened

under the instant Motions places form before reality. This is a

situation where form and legal niceties should not prevent an

expeditious and just result.

Member

Board

22—17

---

—2-

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the foregoing Dissenting Opinion

was submitted on the ~ day of June, 1976.

Illinois Pollution

:rol Board