ILLINOIS
POLLUTION
CONTROL
BOARD
May 23,1974
CITIZENS FOR A BETTER ENVIRONMENT,
An Illinois Not—for-Profit Corp.,
Coninlainant,
PCE 7~—1O3
DR. RICHARD BRICELAND,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
)
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY,
and
HARVEY
H.
SHELDON,
Respondents.
ORDER
OF
THE
BO2~.RD (by
Mr.
Henss)
Complainant
has
filed
a
~Citizen’s
Complaint”
against
certain
officials
and
agencies
of
the
State
and
Federal
~Tovernment
w~o
are
principally
charged
with
enforcing
the
env~.ronmentai
orotection
laws.
It
is
alleged
that
the
Illinois Environmental Protection Agency and its Director,
Dr.
Picharc~
Briceland,
have
failed
to
orosecute
companies
which
are
reasonably
believed
tobe
discharging
contaminants
into Illinois waters
in violation of
the
Environmental
Pro-
tection
Act
or
in
violation
of
the
T~aterPollution Regulations.
Complainant
contends
that
the
Agency
has
a
mandatory
duty
ij~der
Section
31
of
the
Environmental
Protection
Act
to
file
enforcement
actions
against
those
dischargers
who
may
be
in
violation.
That
Statute
provides
tha.t
if
an
Agency
investi-
gation
“discloses
that
a
violation
may
exist,
the Agency
shall”
(emphasis
supplied)
file
an
enforcement
action
before
the
Illinois
Pollution
Control
Board.
Complainant
further
alleges
that
Dr.
Briceland,
as
Director
of
the
Agency,
has
established
a
policy
of
not
filing
enforcement
actions
“which
were
mandated”
by
the
Statute.
The
United
States
Environmental Protection Agency and its
Regional
Counsel,
Harvey
Sheldon,
are
made Respondents in Count
II
on
the theory that they “conspired” with the
Illinois
EPA
to violate the Illinois Statute and Rules.
All of the
allegations which were made against the IllInois EPA are
incorporated into Count II.
In addition, Count
II alleges that
there was
a conspiracy
to issue Federal NPDES permits
to
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Illinois companies which are violating Illinois effluent and
water quality standards.
This alleged conspiracy is said to
be in violation of Section 401(a) (1)
of the 1972 Amendments
to the Federal Water Pollution Control Act and Rule 951 of
the Board’s Rules which are intended to prevent the issuance
of waste water discharge permits where the discharge would
violate the Illinois Regulations.
Complainants ask that this
Board order the Respondents
to cease and desist from their
alleged violations.
Under Section 31(h)
of the Environmental Protection Act
we are required to schedule this matter for hearing unless we
determine that the Complaint
is duplicitous or frivolous.
The
Board has heldthat
a Complaint is frivolous
“if we could not
grant relief even were all the allegations proved’~.
(Farmers
vs. Illinois State Toll Highway Authority,
PCB 71—159)
.
If we
determine that we have
no authority or jurisdiction in the
matter the Complaint should be dismissed.
The Complaint against
the Illinois Agency and its Director
is essentially a charge that they have failed to perform an
allegedly non-discretionary duty,
i.e.
the filing of enforcement
actions against dischargers who,
as indicated by EPA investi-
gation, may be violating the Act or Regulations.
Historically
the method of forcing
a public official to perform a non-
discretionary duty is through writ of mandamus.
This
is the
method adopted by the same Complainant, Citizens for a Better
Environment,
in a recent action against Russell Train, Adminis-
trator of the United States Environmental Protection Agency
(CBE vs. Russell Train,
73C2849
E.D.
Ill.).
We are not a court of general jurisdiction.
We have only
the powers conferred upon us by statut~,but the statute does
indicate that we have some authority over public officials.
Section 33(b) (4) states that our cease and desist orders may be
enforced by injunction or mandamus in a court of
law.
However that does not answer the ultimate question here:
Do
we have authority to order the EPA and its Director to file
prosecution cases before us or to coerce the Agency and Director
into doing so by issuing an “advisory” opinion?
We hold that
we lack such authority.
It is significant that the Statute creating this Board also
created the Environmental Protection Agency and designated the
functions of this Board and the Agency.
The functions were
carefully separated.
A key separation of
functions
is the dele~—
gation to the Agency of the power
to prosecute violators and
the
delegation
to the Board of the power to adjudge whether a
violation has occurred and to assess penalties where appropriate.
12—394
—3—
This separation of functions was one of the factors considered
by the Illinois Supreme Court in its recent decision upholding
the authority of this Board to impose monetary penalties.
City
of Waukegan vs. Pollution Control Board
Ill.
(March 1974).
The Court upheld the Statute because of the checks and balances
which were built into it.
The whole power of two or more de-
partments
(Legislative,
judicial, executive)
was not lodged in
the same hands.
The Supreme Court said that the separation of
the investigative and prosecuting body, the Environmental
Protection Agency,
from the adjudicative body,
the Board, was
one of the devices built into the Act as
a protection against
arbitrariness.
The Appellate Court has held that we cannot impose monetary
penalties in a variance case.
Citizen’s Utilities Company of
Illinois vs. Pollution Control Board,
et al
Ill.
App.
(November 1972).
The Court said that prior to the Board’s
imposition of penalties “the Agency ~ould
have filed a Complaint
and followed proper enforcement procedures”
(emphasis supplied)
It is clear that we cannot bypass the function of the EPA in an
enforcement case.
We do not have the authority to order the Agency or its
Director
to file more enforcement actions before us, nor do we
have authority to issue an “advisory opinion” which, although
falling short of a direct order, might coerce the Agency into
the filing of enforcement actions.
To do
so would violate the
principle built into our enabling Statute that the newly created
Agency and the newly created Board are to have different functions
in the disposition of prosecution cases.
Since we lack authority
to require or coerce the filing of additional enforcement actions
before us we therefore will dismiss the action which has been
brought against the Illinois EPA and its Director.
Count II, the conspiracy charge brought against the United
States EPA and its Regional Counsel,
is also dismissed.
Count
II incorporates all of the allegations which had been made against
the State Agency in Count
I and is in large measure based upon
Count
I.
Count II falls with Count
1.
Our decision today does not mean that we will never enter-
tain actions commenced against the Agency and its Director.
Such actions could be entertained where consistent with the
separation of functions which has been built into the Statute.
For example,
this same Complainant, Citizens for a Better
Environment, recently filed a Complaint before this Board
against the same Respondents,
Illinois EPA and Dr. Richard
Briceland
(PCB 74-29)
alleging that the Agency had failed to
file annual Waste Discharge Reports as required by Section 1001
12—395
—4--
of the Water Pollution Regulations.
The Reports are to be
filed annually with this Board for informational purposes.
We do have jurisdiction to decide that case since
it does
not involve the separation of functions which is essential
between prosecutor and judge.
We do not decide whether the Illinois Environmental Pro-
tection Agency has been mandated by Statute to prosecute every
discharger who, according
to an investigation, may be violating
the Act or Regulations.
We make no comment about the timing of
such prosecutions or the right of the Director as opposed to
a private citizen to decide when a prosecution shall he commenced
by the Agency.
If the decision to prosecute is discretionary
with the Director,
one might ask whether an action will lie
for abuse of that discretion or failure to exercise that
discretion.
These are issues which might be considered by a
court of general jurisdiction but not by us.
This Board has been vigorous in its enforcement of the
Legislative mandate to protect the environment.
Our decision
is not a retreat from positions previously taken nor does it
indicate any change of attitude regarding the necessity for
enforcing the Statute and Regulations.
Our decision simply
stated is that the Illinois system does not authorize us to
order the commencement of the prosecution cases.
As an arm
of the State vitally interested
in cleaning up the environment
we would welcome a court decision on these issues,
since it is
our desire to exercise our complete jurisdiction.
For the reasons specified
in this Opinion we find that
this Board lacks
jurisdiction to require the EPA and its Director
to file enforcement actions.
The Complaint is dismissed.
I, Christan
L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify the above Order was adopted this
~
day of
__________,
1974 by a vote of
~
to
~
IY)
~Jt
12—395