ILLINOIS POLLUTION CONTROL BOARD
    October
    4,
    1973
    ENVIRONMENTAL PROTECTION AGENCY,
    Complainant,
    vs.
    )
    PCB 73—150
    BRESLER ICE CREAM COMPANY,
    )
    Respondent.
    ORDER OF THE BOARD
    (by Mr. Seaman):
    On September 24,
    1973, Respondent, Bresler Ice
    Cream Company, filed its Motion For Reconsideration
    of this Board’s Opinion and Order adopted on
    September 13,
    1973,
    in the above—captioned cause.
    Respondent prays that the Board, upon reconsideration,
    modify Paragraph
    3 of its Order with respect to the
    assessment of monetary penalty or, alternatively, with
    respect to the amount of penalty assessed.
    This cause came before the Board with a Complaint
    and a Stipulation of Facts entered into between the
    respective parties.
    It was upon consideration of these
    two documents that our disposition of the cause was
    reached.
    In Paragraph
    1.
    of the subject Motion, Respondent
    states that the only facts which the Board may properly
    consider were those submitted by Stipulation.
    Here,
    we agree;
    this
    is precisely what we did.
    Further,
    in Paragraph
    1, Respondent complains of the fourth
    paragraph of Page
    2 of our Opinion which
    is as fol1ows~
    Respondent stresses,
    in mitigation,
    that it
    unilaterally terminated the use of the subject
    incinerator prior to the date of the Agency
    complaint
    (R.6).
    This fact would carry more
    weight if Respondent had not waited approximately
    three years to take remedial action.
    Further,
    it would have been well for Respondent to
    have introduced evidence regarding the amount
    of money expended, rather than content itself
    with the bare stipulation that sums were expended.
    9— 399
    —2—
    Respondent argues as follows:
    In the fourth paragraph of Page
    2 of the
    opinion, the Board suggests that respondent
    ought to have introduced evidence in
    addition to the Stipulation.
    On the other
    hand,
    the Board imposes no equivalent burden
    on the complainant with respect to the
    facts adduced by it.
    Respondent has misinterpreted the thrust of
    our comment.
    We merely suggested that Respondent
    might have been wise to include in the Stipulation
    the specific amount of the sums expended in order
    that this Board might have considered same in mitigation.
    In Paragraph
    3.
    of the subject Motion,
    Respondent
    details alleged inaccuracies occurring in the Complaint.
    We are of the opinion that any defects
    in the allegations
    of the Complaint were cured by the Stipulation.
    Further,
    it cannot be seriously suggested that the Agency cannot
    file an enforcement action merely because the violation
    complained of has ceased.
    Paragraph 10.
    of the Stipulation
    is as follows:
    10.
    The emission of said contaminants
    constituted air pollution as defined in
    Section
    3
    (b)
    of the Environmental
    Protection Act,
    Ill.
    Rev.
    Stat., Ch. 111
    1/2 §1003
    (b)
    ,
    1971,
    in that the contaminants
    caused by said incinerator which existed
    in the atmosphere were in sufficient
    quantities and of such characteristics
    and duration as to unreasonably interfere
    with the enjoyment of
    life or property of
    those persons making complaints.
    Of Paragraph 10., the Board,
    in its Opinion stated
    as follows:
    By paragraph
    10.
    of the Stipulation, Respondent
    admits that the emission of contaminants
    from the subject incinerator constituted
    air pollution as defined in Section
    3
    (b)
    of the Environmental Protection Act.
    The
    said contaminants were emitted in sufficient
    quantities and were of such characteristics
    and duration as to unreasonably interfere
    with the enjoyment of life or property.
    9— 400
    —3—
    Respondent quarrels with our use of the term
    “admits.”
    It
    is argued that
    the
    language of Paragraph
    10.
    of the Stipulation presents only stipulated fact
    and not conclusions of
    law.
    Irrespective of the
    verbiage employed,
    the only construction of Paragraph
    10. which occurs to this Board
    is that Respondent has
    stipulated that in fact
    it
    has caused air pollution.
    Respondent has presented numerous other arguments
    in support of its Motion.
    Suffice
    to state that upon
    due consideration this Board finds no legal merit
    therein and remains convinced that Respondent has
    committed violations.
    The only issue remaining is that of the amount
    of the penalty, which Respondent argues is excessive.
    This Board assesses penalties only after thorough
    consideration of all of the circumstances surrounding
    the violation in each individual cause.
    The
    amount
    assessed in our Order will not be modified; however,
    we hereby amend the date by which the penalty must be
    paid.
    Respondent may withhold payment of the amount
    assessed until December 10,
    1973.
    IT
    IS
    SO ORDERED.
    Mr. Odell abstained.
    I, Christan L. Moffett, Clerk of the Illinois
    Pollution Control Board, certify that the above
    Order
    as adopted by the Board on the
    ~44’~
    day
    of
    ______________,
    1973 by
    a vote of
    ‘~
    to ~
    Q-~
    9—401

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