ILLINOIS POLLUTION CONTROL BOARD

September

5,

1985

iLLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

Complainant,

~LORENCE

FARMER,

Complainant—Intervener,

v.

)

PCI3

78—233

GRAN I

i~

CITY

STEEL,

DIVISION

OF

NATIONAL

STEEL

CORPORATION,

Respondent.

ORDER

OL~

THE

BOARD

(by

B.

Forcade):

On July 12,

1985,

the Agency moved

the Board

to disni~sits

complaint in this action without prejudice.

The complaint

~il1egesviolations of

the Act arising out of emissions during

the

~i1ne

period

of September

through November,

1977.

The motion

asserts

that

the plant has not been operated

since 1982,

that the

Hcompany

does not know when it will operate again”, and

that it

is

“virtually impossible

to determine whether

the sinter

plant

was

the source of

1977

‘white

ash’ emissions without

the plant

operating.”

The Agency asserts

that,

in the event Granite City

seeks

to reopen the plant, conditions would be imposed

in a new

permit

to allow

for future identification of

the source oE

the

“white

ash” emissions.

No response has been filed by Granite

City or by the

Intervenor, who had received extensions

of

time

until August 30

in which

to do

so pursuant

to August

1

and August

15 Orders of

the Board.

On July 30,

1985, Granite City moved

to dismiss the

Intervenor’s complaint with prejudice,

alleging

in the motion and

supporting memorandum, “refusal

to comply with Orders of

the

Hearing Officer

(and Board

rules;

failure to diligently pursue

her claims;

consistent efforts

to delay

a hearing

on

the

merits;

and improper motive

in maintaining her action”

——

the “desire

tn

extract monetary damages and attorney’s fees from

the

Respondent”.

No response has been filed by the Agency or by the

Intervenor, who had received an extension of time until August

30

to do

so pursuant

to an August

15 Order of the Board.

65-375

---

—2--

ti

The

Board

notes

Lh.~it this

action

commenced

in

A;:igust,

19

~

The

oariies

first proposed

a

stipulated

penn1~y

in

1979

Thi~h was

rejected

by

the

Board

by

Order

of

A~u~L 2.~,

1979.

h.

~tt

Lement

would

have

allowed

the

“$10, 000

proposed

pena I

Ly’

to

h~

reduced

by

the

amounts

paid

to

citizens

in

settlement

of

their

property

damage

claims”.

The

proposal

was

rejected

because

the

~~ard disfavored contingent penalties,

and because

the

penalty

:~~pOSaL

“does

not

aid

in

enforcement

of

the

Act

or

induce

~onpliance

with

regulations.

It

is

not

the

Board’s

duty

to

expedite

the

settlement

of

private

claims

and

the

Board

does

not:

now

intend

to

extend

its

authority

over

this

area”.

The

Board accepted

a

second

proposed

stipulation

b~ Order

o~

:~iiy

10,

1980.

This

required

payment of

a $10,000 penalty and

required

institution

of

an

emission

control program calling

for

•~pIacement of

the

old

baghouse

on

its

sinter

plant

with

~

new

o~ie.

The Board

had affirmed

the hearing officer’s denial

of

Mrs.

~arme.r’spetition

to

intervene,

on

the grounds that

a pet:ition

Ciled one week after

the last hearing was untimely.

~irs.

Farmer appealed this Order.

By Order

of March

19,

1982,

the Board reopened the record

in this matter

and

acknowledged Mrs.

Farmer’s status as Intervenor pursuant

to

the

mandate

issued March

9, 1982 by the Fifth District Appellate

Court

in

Florence

Farmer

v.

IPCB,

No. 80—337.

Granite

City

asserts that prior

to the entry of

this Court Order,

it

had

complied with the

terms of the settlement,

including payment

of

the $10,000 penalty.

It additionally asserts that

it ceased

operations at this plant

at

the beginning

of April,

1982.

An amended complaint was filed June

3,

1982.

By Order

o~:

September

2,

1982,

the Board denied

a motion to dismiss,

hut

struck

claims

against

the

Agency.

A

motion

for

reconsideration

nf

this

ruling

was

denied

by

Order

by

December,

1982.

Discovery

commenced

in

1983.

In

its

motion

to

dismiss,

Granite

City

cites

entry

of

a

Hearing

Officer

Order

on

June

20,

1985 requiring

a)

compliance with

a previous December

14,

19U3

Or(ler

requiring

completion of answers

to Granite City’s

first Je

of

Interrogatories,

and

b)

answers

to

Granite

City’s

June

18,

1985

Second

Set

of

Interrogatories.

No

responses

to

this

Order

were

filed

as

of

July

30.

By

Orders

of

June

5

and

July

2,

the

Hearing

Officer

scheduled

a

prehearing

conference

for

July

15

and

required

ftih~

of

a

prehearing

statement

by

July

9,

hearings

in

the

matter

be~.n;

schenuled

for

July

18—19.

(Hearings

had

been

previously

scheduled for June 13—14, but were cancelled at intervenor’s

request.)

No

prehearing

statements

were

filed.

The

intervenor

was

“not

ready”

to

discuss

the

issues

at

the

July

15,

1985

prehearing

conference

(7—15—83

transcript,

p.

68).

The

July

18—

19 hearings were cancelled.

65-376

---

—3—

At that

prehearing

conference,

there was considerable

discussion among counsel

for

the parties concerning Mrs.

Fanner’s

desire

to collect damages and attorney’s fees as

a result of

this

action,

in addition to obtaining

a finding of violation (see Id.,

p.

19—24,

52—55).

It

is the position of

the Attorney General

that dismissal of

its complaint,

is

a “more than acceptable

resolution

to

this enforcement

case”, given

the

Agency’s ability

to impose monitoring

and testing conditions in any permit

allowing future plant operations

(Id.,

p.

21).

Counsel

for

the

.~\gencystated

that personnel and copying resources would he

available

to Mrs.

Farmer even

if

the Agency

is dismissed

as

a

party

(Id.,

p.

24),

opining that a circuit court action might

be

more

appropriate than an action before

the Board

if monetary

claims

are

at.

issue

(Id.,

p.

21—22).

Resolution

The Board grants

the Agency’s motion

to dismiss

its

complaint without prejudice.

In so doing,

the Board accepts

the

Attorney General’s discretionary determination that

the

enforcement resources of its Office

and the Agency are better

expended elsewhere;

there

is

no settlement before the Board

to

accept or reject.

This ruling leaves Florence Farmer

as sole complainant.

Mrs.

Farmer

has repeatedly failed

to proceed

in her prosecution

of this matter

since March

19,

1982 when

the Board reopened

this

docket.

~hi1e the Board

has repeatedly attempted to hold

a

hearing,

it has been unable to do so.

Despite repeated

extensions

of

time,

Mrs.

Farmer

has even

failed

to respond

to the

motions

to dismiss under consideration here.

As

a result of Mrs.

Farmer’s failure

to diligently pursue

the prosecution of her claims

for well

over

two years,

this

action

is dismissed from the Board’s docket.

The

result of these rulings

is the dismissal

of this action

in its entirety,

and the closing

of the Board’s docket

in this

matter.

The Board nots

that it lacks statutory authority

to

award monetary damages

to Mrs.

Farmer.

Board Member

J.

Anderson concurred.

IT IS SO ORDERED.

I,

Dorothy

M.

Gunn,

Clerk of the Illinois Pollution Control

Board hereby certify that ~he above Order was adopted on

the

-

day of

4~

~

,

1985

by a vote

o f

d

/

Illinois

Pollution

Control

Board

65-377