ILLINOIS POLLUTION CONTROL BOARD
    July 13,
    1989
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Complainant,
    V.
    )
    PCB 88—201
    CITY OF MARION, a municipal
    corporation, and MARION PEPSI
    COLA BOTTLING COMPANY,
    INC.,
    a Missouri corporation,
    Respondents.
    OPINION AND ORDER OF THE BOARD (by J.
    Anderson):
    On December 14,
    1988,
    the Illinois Environmental Protection
    Agency (Agency) and the City
    of Marion
    (Marion) and the Marion
    Pepsi Cola Bottling Company
    (Company)
    filed
    a Stipulation and
    Proposal
    for Settlement
    (Stipulation).
    On May 11,
    1989, the Board issued an Interim Order directing
    the parties
    to explain certain aspects of
    the Stipulation,
    namely:
    1.
    The intention of the parties regarding the effect of the
    clause providing that
    the Board
    is
    to “retain
    jurisdiction” for certain purposes;
    2.
    The enforceability of the provision allowing the Board
    to “extend
    the time for performance”
    of obligations
    under
    the Stipulation;
    3.
    The statutory and factual justification for the
    provision
    in the Stipulation that $3,000 of
    the total
    $14,000 penalty
    is
    to
    be deposited
    into the Hazardous
    Waste Fund;
    and
    4.
    Clarification of the provision that the penalty checks
    be delivered
    to the Environmental Control Division of
    the Office of the Attorney General,
    rather than
    to the
    Agency.
    Responses
    to the Board’s Interim Order were timely filed
    by
    all three parties.
    The responses are
    in general accord on all
    of
    the aspects under scrutiny.
    As
    to the provisions
    for
    the Board to “retain jurisdiction”
    and
    to “extend the time
    for performance”,
    the parties advise the
    101—5°
    —2—
    Board
    that, performance having already been achieved in a timely
    manner “retention of jurisdiction by the Board is not necessary”
    (Agency Resp.,
    p.
    1).
    As to payment of the $3,000 penalty into the Hazardous Waste
    Fund,
    the Attorney General, on behalf of the Agency,
    states that
    this “reflects the costs of a removal/remedial action incurred by
    the Agency which the Board may order paid into the Hazardous
    Waste Fund pursuant to Section 22.2(f) and
    (1) of the Act”
    (Agency Resp.,
    pp.
    1—2).
    The other parties do not object to this
    characterization, or to the disposition of the funds accordingly
    (City of Marion Resp.).
    With respect
    to the delivery of checks
    to the At?orney
    General’s Office rather than to the Agency,
    the Attorney General,
    on behalf of the Agency, specifies that this requirement of the
    Stipulation was inserted “to allow the Attorney General
    to
    respond more quickly to failure to make penalty payments by the
    required date by eliminating the need for IEPA to inform the
    Attorney General that a payment had not been received”,
    rather
    than to “usurp the IEPA’s authority as coordinator
    for handling
    receipts for the Environmental Protection Trust Fund”
    (Agency
    Resp.,
    p.
    2).
    The Board is satisfied that the Stipulation, as clarified,
    is an acceptable basis
    for resolution of this matter.
    However,
    insofar as the responses indicate that all obligations under
    the
    Stipulation, including payment of penalties and reimbursement of
    costs, have already been performed,
    those aspects of the
    Stipulation relating
    to continuing Board oversight appear
    to be
    unnecessary; further,
    the deposit into the Hazardous Waste Fund
    should be correctly referred to as
    a
    reimbursement, rather than
    a
    penalty.
    The Board accordingly construes the responses to its
    Interim Order of May 11,
    1989,
    as a
    joint revision
    to the
    Stipulation.
    This revision consists of deletion of
    item
    3 of
    Article VII
    (which item provides
    that the parties may under
    certain circumstances request
    the Board to extend the time for
    performance), deletion of all of Article
    IX (Retention of
    Jurisdiction), and reclassification of
    the deposit into the
    Hazardous Waste Fund as reimbursement
    for costs,
    not as a
    penalty).
    The Board finds the Stipulation,
    as thus revised, acceptable
    under
    35
    Iii. Adm. Code
    103.180.
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    It is the Order of the Illinois Pollution Control Board
    that:
    101—60
    —3—
    1)
    The Board hereby accepts the Stipulation and Proposal
    for Settlement executed by the City of Marion,
    the
    Marion Pepsi Cola Bottling Company and the Illinois
    Environmental Protection Agency,
    filed with the Board on
    December
    14, 1988,
    and revised by the parties
    in their
    responses to the Board’s Interim Order
    of May 11,
    1989.
    The Stipulation and Proposal for Settlement,
    except
    for deletion of item
    2 of Article VII, deletion
    of all of Article
    IX,
    and reclassification of the
    deposit into the Hazardous Waste Fund
    to reimbursement
    for costs
    rather
    than as payment of
    a penalty
    is
    incorporated by reference as though set forth herein.
    2)
    Marion Pepsi Cola Bottling Company shall pay
    a civil
    penalty of eleven thousand dollars
    ($11,000) for
    its
    violations of the Illinois Environmental Protection Act
    and the applicable regulations.
    Marion shall pay
    a
    penalty of one thousand dollars
    ($1,000.00)
    for
    its
    violations of
    the Illinois Environmental Protection Act
    and applicable regulations.
    Each penalty shall be paid
    within ninety
    (90) days
    of the date of entry of this
    order
    by certified check made payable to the
    Environmental Protection Trust
    Fund.
    In addition,
    Marion Pepsi Cola Bottling Company shall pay three
    thousand dollars
    ($3,000)
    as reimbursement for
    costs
    incurred by the State of Illinois for removal/remedial
    action as a result of
    a release
    or substantial thread of
    release of hazardous substance.
    Payment shall
    be made
    within ninety
    (90) days of the date
    of entry of this
    order
    by certified check made payable to the Hazardous
    Waste Fund.
    Each check shall be delivered to:
    Environmental Control Division
    Office of the Attorney General
    500 South Second Street
    Springfield,
    IL
    62706
    Attn.:
    James
    L.
    Morgan
    Assistant Attorney General
    3)
    This docket
    is hereby closed.
    Section
    41 of
    the Environmental Protection Act,
    Ill.
    Rev.
    Stat.
    1987 ch.
    111 1/2 par.
    1041,
    provides for appeal of Final
    Orders of the Board within 35 days.
    The Rules of the Supreme
    Court of
    Illinois establish filing requirements.
    IT IS SO ORDERED.
    J.
    T. Meyer dissented.
    101—61
    —4—
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby cer~ij.ythat the a~oveOpinion and Order was
    adopte~on the
    ~
    day of
    _____________,
    1989,
    by a vote
    of
    &2/
    .
    ~1.
    Dorothy M.4unn, Clefk
    Illinois Pdllution Control Board
    101—62

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