ILLINOIS POLLUTION CONTROL BOARD

March21,

1996

PEOPLE OF THE

)

STATE OF ILLINOIS,

)

Complainant,

)

PCB 96-76

)

(Enforcement

RCRA)

CHEMETCO,

INC.,

)

Respondent.

)

ORDER OF THE BOARD

(by C.A. Manning):

This matter comesbefore the Board on a motion

to dismiss filed on October 20,

1995 by respondent, Chemetco, Inc. (Chemetco), requesting that the Board dismiss the

complaint filed on October 10,

1995 by the People ofthe State ofIllinois on behalfof

the Illinois Environmental Protection Agency (Agency).

The complaint alleges

violations ofSection

2 1(0(2) ofthe Environmental Protection Act (Abt) (415 ILCS

5/21(0(2) (1994)) and 35 Ill. Adm.

Code

725.190(b),

725.192(a),

725.213,

725.175,

725.1

94(a)(2)(B),

725.242(a),

725.243, 725.245, and 725.247(a)(b) which regulate

hazardous waste, closure, post-closure and financial assurance.

In the motion to dismiss,

Chemetco contends that because the parties entered

into a consent order approved by the Circuit Court ofMadison County on June 30,

1988, jurisdiction over the instant complaint continues in the circuit court rather than

the Board.

On October 27,

1995 complainant filed a response to Chemetco’s motion to

dismiss arguing that the 1988 consent order does not preclude prosecution ofany ofthe

‘The 1988 complaint filed on June 29,

1988 in the Madison County Circuit Court will

be cited to as (1988 Complaint at

The 1988 consentorder entered into between

the parties on June 30,

1988

will be cited to as (Consent Order at

The

1993

supplementary consent order entered into between the parties on October 4,

1993 will

be cited to as (Supplement at

.).

The

1995

complaint filed on October 10,

1995

presently pending before the Board will be cited to as (Complaint at__j.

Chemetco’s

motion

to dismiss filed on October 20,

1995 will hereinafter be cited to as (Mot. to

Dismiss at

.).

Complainant’s response to the motion to dismiss filed on October

27,

1995 will be cited to as (Response at

Chemetco’s memorandum in support

ofits motion to dismiss filedon December 29,

1995 will be cited to as (Memo at

Complainant’s memorandum in support ofits response filed on January

17,

1996 will

be cited to as (Response Memo at

_.).

charges in the pending complaint filed with the Board.

Chemetco filed a request for

oral argumenton November 7,

1995 in order to expand on the meaningand scope of

the 1988 consent order.

Chemetco filed areply in support ofits motion to dismiss

November 15,

1995 and complainant subsequently filed amotion to strike the reply

memorandum.

Pursuant to aDecember 7, 1995 Board order directing Chemetcoto

submitcaselawin support ofits motion to dismiss, Cheinetco filed amemorandum on~

December 29,

1995

andcomplainant filed amemorandum oflaw in support of its

response on January 17,1996.

Chemetco filed areply to complainant’s response on

January 24, 1996 andcomplainant filed amotion to strike Chemetco’s reply.

This order addresses Chemetco’s motion to dismiss, Chemetco’s motion fororal

argument, complainant’s motion to strike Chemetco’s reply memorandum in support of

its motion to dismiss and complainant’s motion to strike Chemetco’s reply to

complainant’s response memorandum.

For reasons more fully explainedbelow, the

Board denies Chemetco’s motion to dismiss,the Board denies Chemetco’s motion for

oral argumentand the Board grants bothof complainant’s motions to strike.

The

hearing officer is directed to schedule this matter for discovery and hearing.

BACKGROUND

Chemetco is a secondary copper smelter which occupies approximately twelve

acres near Hartford, Madison County, Illinois.

(Complaint at2.)

Chemetco operates

four furnaces forsmelting and refming copper-bearing and othermetal-bearing

materials.

On June 29, 1988 the Attorney General ofthe State ofIllinois filed a

complaint

inthe Circuit Court ofMadison County styled

People ofthe State of Illinois

v. Chemetco. Inc.

No. 88-CH-200 (1988 Complaint) alleging several violations ofthe

Actand associated regulations.

On June 30, 1988 the Circuit Court ofMadison County, Illinois, approved a

consent order (Consent Order) entered into

by the parties.

(Mot to Dismiss at 1.)

The

consent order included the terms of settlement and addressed Chemetco’s future

operation ofthe zinc oxide pits, floor washwater impoundments, cooling water canals

and other matters.

(Mot.to Dismiss at 1-2.)

The consent order contained several

different clauses concerning Chemetco’s agreement to cease and desist from further

violations, comply with other laws, the penalties fornon-compliance, the circuit court’s

retention ofjurisdiction, disputeresolution betweenthe parties, and a covenant not to

sue.

The consent order alsorequired Chemetcoto submit closure plans and any

allegations in the 1988 complaint included, but were not limited to, the

following:

noncompliance with daily maximum effluent concentrations in wastewater

discharges, exceeding the prescribednumerical effluent standards forvarious

constituents, exceeding water quality standards, open dumping, storage of hazardous

wastes, failureto prepare closure andpost-closureplans, failureto utilize protective

cover, and failureto manage slag.

(See Counts I-XII in the 1988 complaint.)

necessarypost-closure plans to the Agency pending subsequent review by the Agency.

(Consent Order at 17.)

As required by the consent order, on January 22, 1991 Chemetco submitted to

the Agency for its approval, closureand post-closure plans for three hazardous waste

disposal surface impoundments for zinc oxide pits; floor washwater impoundments, and

cooling water canals.

(Complaint at2.)

In aletter datedApril

19, 1991, the Agency

issued conditional approval of Chemetco’s closure and post-closure plans as long as

Chemetco agreed to implement a correctiveaction program which, amongother

matters, required Chemetco to perform quarterly groundwater sampling in all wells.

(Complaint at 3.)

On three different occasions overaperiod of several months,

Chemetcorequested that the Agency modifythe approvedcorrective action program.

On January 29,1993 the Agency issued arevisedconditional approval ofChemetco’s

closure andpost-closureplan which superseded the Agency’s April 19, 1991 previous

closureplan approval letter.

This letter modified the previous closure requirement that

Chemetco perform quarterly groundwater samplirig in all wells to allow Chemeteo to

sample only in specific wells.

(Complaint at

5.)

Subsequent to the June 30, 1988 consent order, the parties entered into two

additional consent agreements:

(1) an amended consent order on June

1-7, 1992, and

(2)a supplemental consent order (Supplement) on October 4, 1993.

(Supplement at 4-

13, 27.)

The supplement incorporated the original

1988 consent order and added new

requirements incumbent on Chemetco.

The objective ofthe supplement was to ensure

compliance with the national ambient air quality standards (NAAQS) forlead, the

particulate matter emissions limitations, andpermittingrequirements.

(Supplement at

16.)

Neitherthe amended consent order nor the supplement referredto the closure or

post-closure plans as approved in the Agency’s April

19, 1991 letter or the superseding

January 29, 1993 Agency letter.

On November 1, 1993, pursuant to Section 31(d) of the Act

(415

ILCS 5/31(d)

(1994)), the Agency sent Chemetco a noticeinforming Chemetco of the Agency’s

intention to filea formal enforcement complaint.

(Complaint at 7, Exhibit 3.)

response, Chemetco never invoked the dispute resolution pursuant to the provisions of

the consent order or supplement.

~ As aresult ofunsuccessful negotiationsbetween the

parties agreed in Section K ofthe 1988 consent order and in Section G ofthe

1993 supplementto invokedispute resolution as follows:

“1. The panics shalluse

their besteffortsto informally andin good faith resolve all disputes or differencesof

opinion.

Any dispute that arises with respect to the meaning, application,

interpretation, amendment or modification ofanyterm of this Proposal for Settlement

(Supplement Consent Order) and attachments..

or with respect to any party!s

compliancetherewith or anydelay thereunder shall,in the firstinstance, be the subject

of such informal negotiationsas set forth below.

2. If Chemetco objects to any action

taken by IEPA regarding this Proposal for Settlement, Chemetco shallnoti& IEPA in

parties, the Illinois Attorney General instituted this action.

Count One ofthe present

complaint alleges Chemeteo’s failure to perform conditions ofthe correctiveaction

program including the quarterly groundwater sampling during April 19, 1991 through

May 1992 as approved in the April 19, 1991 letter and the January 29, 1993

superseding letter.

Count Two addresses Chemetco’s failure to establish fmancial

assurance forthe cost of closure andpost-closure care of its facility and failure to

demonstrate financial responsibilityfor bodily injury and property damage to third

parties.

(Complaint at 8-9.)

PRELIMINARY MATTERS

Request for Oral Argument

Chemetco’s requestfor oral argument on the motion to dismiss was filed with

the Board on November 7, 1995.

Land & Lakes Comvanvv. Village of

Romeoville, PCB 91-7 (March

14,

1991), the Board denied a requestfor oral argument

in amotion for sanctionsbecause the Board believed oral argumentwould serve no

useful purpose in that instance.

Here, Chemetco’s requestfor oral argument is based

on a motion to dismiss where both parties have set forth their arguments in the

pleadings filed with the Board.

The Board finds that no useful purpose would result

from granting Chemetco’s requestfor oral argument andtherefore denies Chemetco’s

request for oral argument.

Motions to Strike

The Board’s procedural rules state that the moving party shallnot have the right

to reply, exceptaspermitted by the hearing officer or the Board.

35111. Adm. Code

103.140(c).

The rules also state generallythat areply is not permitted exceptto

preventmaterial prejudice.

35 Ill. Adm. Code 101.241(c).

Chemetco did not ask

leave to reply norhas Chernetco demonstrated material prejudice would result from

lack of areply.

In addition, Chemetco’s submitted replies do not state further

argumentfor consideration by the Board.

Therefore, the Board grants complainant’s

November 21,

1995 motion to strike Chemetco’s reply memorandum andthe Board

grantscomplainant’s January 31, 1996 motion to strike Chemetco’s reply to

complainant’s response memorandum.

writing of its objection, detailing its position and the basis therefor and its proposed

resolution, within fourteen (14) days ofthe action.

“

(ConsentOrder at

25,

Supplement

at34.)

ARGUMENTS OF TIlE PARTIES

Motion to Dismiss

Chemetcoargues in its motiOn to dismiss that the 1988 consent order controls

all actions between the parties.

Chemeteo states that because the complaint at issue

concerns closure, which was amatter addressed in the consent order, the 1995

complaint should be adjudicated by the circuit

court.

Chemetcocites several sections

in the consent order, including the covenantnot to sue, wherein Chemetco andthe

Agency agreed that all controversy between the parties with respectto the charges

contained in the complaint, are terminated.

(Consent Order at 22, Mot. to Dismiss at

2.)

Chemetco further cites to the retention ofjurisdictioñ provision ofthe consent•

order wherebythe court retained jurisdiction of the

1988 matter forthe purpose of

adjudicating “all matters of dispute among the parties.

“

(Consent Order at29, Mot. to

Dismiss at2.)

Chemetco also ekes to the dispute resolution provision in the consent

order which required the parties to use their best effortsto informally resolve any

differences betweenthem.

~‘

(Consent Order at 25, Mot. to Dismiss at2-3.)

Chemeteo arguesthe consent decree is a contract betweenthe parties wherein

the parties agreed to continuingjurisdiction in the circuit court.

Chemetco states that

in negotiating a contract, the parties are free to select aforum for adjudication and,

here,Chemetco argues the parties agreed that the properforumwould be the circuit

court.

(Memo at 2-3.)

Chemeteo’s position is that closure, post-closure, andfinancial

assurance are all issues stemming from the original

1988 consent order; therefore,

because the circuit court retainedjurisdiction, the circuit court remains the proper

forum foradjudication.

Consequently, Chemeteo argues that the Board is not the

proper adjudicatory forum to hear the matters at issue.

In response, complainant argues that both counts of the present complaint are

separate and distinct allegations from the 1988 complaint.

Complainant states that the

1995 complaint did not arise from the matters previously resolved by the circuit court

in 1988.

(Response Memo at 8.)

Complainant argues Count One relates to the

corrective actionprogram of the closure planwhichwas not conditionally approvedby

the Agenëy until April 19, 1991, a date long after the consent order was entered into

by the parties.

Since the 1988 complaint allegedthat Chemetco hadno closure plan

whatsoever and because the

1 988 consent order required aclosure planpending

Agency approval, the results of the 1988 complaint and consent order remain separate

from the present allegations.

(Response at 3.)

Complainant

states

that Chemetco

violated 35

Ill. Adm. Code 725.190(b), 725.192(a) and 725.213 and Section 21(f)(2)of

the Act by not performing the quarterly groundwater sampling requiredby the

approvedclosure

plan

in the letters ofApril

19, 1991

and

January 29, 1993.

4See

supranote 3 (dispute resolution clause as written in the 1988 consent order

and

1993

supplement).

Complainant argues in Count Two ofthe present complaint that Chemeteo did

not provide awritten

estimate

of closurecosts, financial assurance or financial

responsibility forbodily injury andproperty damage tothirdparties after the Agency’s

April 19, 1991

approval of Chemeteo’s closureplan therebyviolating 35 Ill. Adfn.

Code

725.242(a), 725.243, 725.245,

725.247(a) and (b) and Section 21(0(2) of the

Act.

(Response at 4.)

Complainantarguesthat Count Two differs from the 1988

complaint because the 1988 complaint refers to the period of May

17, 1982 through

June 29, 1988 at whichtime Chemetco had no closureplan.

(Response at 4.)

Complainant argues Chemetco hasnot previously beencharged with 35111. Adm. Code

725.247(a)

and (b) in any other matter.

(Response Memo at 16.)

Finally, complainant arguesthat Chemetco has waivedthe disputeresolution

provision since Chemeteo failed to timely objectto actiontaken by the Agency.

(Response at

5.)

Complainant states that Chemetco must first invoke dispute resolution

under the consent order forthe court to resolve a dispute among the parties.

Because

Chemetào failed to invoke dispute resolution; complainant argues that Chemetco bas

waived its rights under the consent order.

(Response Memo at 11-12.)

Complainant

argues that it has the discretion to filethis enforcementcase with the Board apartfrom

anypreviousconsent orders entered between the parties.

ANALYSIS

Chemetco’s motion to dismiss is based on the terms of the 1988 consent order,

the 1992 amended consent order and 1993 supplementary consent order.

~ However the

terms of the consent orders do not explicitly state the terms ofagreement betweenthe

parties with regard to closure, post closure, and

fmancial assurance.

Chemetco argues

that several provisions in the consent?rders require the Board

to release jurisdiction to the circuit court.

The Boarddisagrees forthe following

reasons.

First, Chemeteo cites to the covenantnot to sue whichstates that the consent

order terminates all

eontroversy

between the parties and that no further actions will

commence against Chemetco

with

respect to those charges.

The allegations before the

Board in the presentcomplaint do not relate backto the original

1988 controversy

bctweenthe parties.

However, the present allegations relate to violations of the

specific closure andpost-closureplans, whichthe Agency conditionally approved in a

letter dated April 19,

1991 and later modified on January 29, 1993.

The present

allegations

also

relate to

financial

assurance, amatter nut previously addressed by the

parties.

The covenantnot to suepertainsto the 1988 complaint which encompasses

violations which took place from atime period from May

17, 1982 through June 29,

~Because the 1988 consent order, the 1992 amended consent order andthe 1993

supplementary consent order are cumulative, the consent orders will hereinafter be

group-referenced

“consent orders.”

1988.

In this

instance, the

complaint addresses a separate time period from April 19,

1991

through May 1992.

Accordingly, the Board

finds

Chemetco’s argument

meritless.

Second, Chemetco arguesthat the court retained jurisdiction forthe purposeof

adjudicating matters of disputeamong the parties.

The general rule is that aparty can

not enterinto a consent order before onetribunal andthen seek to have asecond

tribunal enforce it.

W.R. Grace & Co. v. Beker Industries, Inc.

128 Ill. App. 3d 215,

470 N.E. 2d 577, 588-589 (1st Dist.

1989).

Here, complainant is not requestingthe

Board to enforce the consent order; complainant is filing aseparate enforcementaction

with the Board.

The Board acknowledges that it does not have the authority to enforce

aconsent order whenthe consent order was entered by another adjudicatory forum.

Further, the Boardcould not circumvent jurisdiction ofthe circuit courtifthe court had

retained jurisdiction fora specific matter.. The circuit court may

similarly acknowledge

the Board’sjurisdiction ifthe Board were to expressly retain jurisdiction since the

courts haveheld that the Board and circuit courts have concurrent jurisdiction under the

Act.

(See

Janson v. Illinois Pollution Control Board

69111. App. 3d 324, 387 N.E.2d

404,25

Ill. Dec. 748 (3d Dist.

1979).

On remand from the Illinois Supreme Court,

the Third District Appellate Court statedin

Janson,

“~the Pollution Control Board and

the circuit court do have some concurrent jurisdiction.

“

(Janson at407.)

Since the

Board

has

been given the express authorityto adjudicate in enforcementproceedings

and the power to perform that duty, it cannot declineto do so here.

The Board

therefore fmds that the retention ofjurisdiction section does not precludethe Illinois

Attorney General from pursuing this enforcement action before the Board.

The Board has the discretion to interpret the consent.orders to determine

whether the parties intended that the circuit court be the only foEum to adjudicate all

future enforcement questions betweenthe parties.

The parties’ intention in a consent

judgment must be determined from the language employed in the agreement for such

judgment and, wherethere is no ambiguity, from such language alone.

Carvallo v.

Carvallo, 62 Ill. App. 3d 394, 378 N.E. 2d

1288, 1291

(1st Dist.

1978).

Ifthe

complaint before the Board specificallyalleged that Chcmctco violated the provisions

ofthe consent orders, those allegations would properly come within the circuit court’s

jurisdiction.

However, this is not the situation before the Board.

As such,the Board

interprets the consent orders to allow the

court to

adjudicate

any

further matters of

disputeamong the parties whichrelate to the consent order or the 1988 complaint.

In the instant case, the Agency’s complaint before the Boarddoes not allege that

Chemetco

has

violated the consent orders.

The matters in

this

instant cause occurred

subsequent to 1988 and occurred outside the terms ofthe consent order.

Here, the

61n People cx rd. Scott v. Janson

57111. 2d 451, 312 N.E.2d 620 (1974), the Illinois

Supreme Court reversed andremanded this case to the Third District AppellateCourt

on issues ofjurisdiction.

consent orders statedthat Chemetco submitted closureplans whichwere still pending

Agency review; Chemetco ensuingly submitted closureand post-closure plan

modifications to thc Agency on January 22, 1991; the Agency approved the planand

added its own conditions andmodifications in aletter datedApril 19,

1991 and a

superseding letter dated January 29, 1993.

Accordingly, Chemetco satisfied the

consent orders since it submitted sufficient closure and post-closureplans to the

Agency.

The present allegations before the Board are separate and distinct from

Chemetco’s already fulfilled requirements regarding the submittal of aclosure plan in

the consent orders.

The instant complaint before the Boardallegesthat Chemetco did

not perform the requirements in the Agency’s approvedclosureplan.

The

Agency’s

1991 and

1993 letters are separate matters riot addressed or agreed to by the parties

anywhere in the consent orders.

Therefore, the Boardviews closure and post-closure

as separate matters from the 1988 allegations and subsequent consent orders.

Assuming that the terms ofthe consent ordcrs are applicable, Chemetco argues

thirdly, that the dispute resolution provision in the consent order bars this enforcement

action.

Prior to the filing ofthisenforcement action, complainant informed Chemetco

ofits intention to file a claim as required by Section 31(d) of the Act on November 1,

1993.

The parties unsuccessfully attempted negotiating the dispute and thisaction was

filed nearly two years later.

Chemetco did not file an objection with the Agency within

14 days ofthe filing as is required by the disputeresolution provision.

Chemetco

could have filed an objection to invoke dispute resolution when it was notified ofthe

violations, the pending enforcement actionor the filing ofthe complaint; however,

Chemetco failed to do so.

Further, since Chemetco chose not to assert its rights in

court, Chemeteo has, in effect,

shownthe consent orderdoes not apply in this

• situation.

As aresult of Chemetco’s non-action, the Board finds the dispute resolution

provision of the consent ordprwaived and inapplicable inthis matter.

Regarding CountTwo which pertainsto financial assurance, closure costs and

financial responsibility, complainant alleges

new

regulatory

sections, 35

111.

Adm.

Code 725 .247(a) and (b), which were never previously alleged against Chemetco.

This

illustrates the separation ofthe present enforcement action from previous actions

between the parties due to the new

allegations in

this case.

CONCLUSION

The Board finds that the consent orders entered into between the parties do not

apply to the violations allegedin thisenforcement action;therefore, the Board finds

this

enforcement actionto be within the jurisdliction of the Board.

In summary, the

Board denies Chemetco’s motion to dismiss and request fororal argument; the Board

grants both complainants’ motions to strike Chemetco’s reply memoranda.

Hearing

shall proceedconsistent with thisorder.

IT IS SO ORDERED.

Members 13.

Dunham and

J. Theodore Meyer dissented.

I, Dorothy M.

(iunn, Clerk of the Illinois Pollution Control Board, hereby

certify that the above order was adopted on ~

•

)~‘~)

&-&-.cZ’

1996, by avote of

-.6~2.

Dorothy M. GyrØi, Clerk

Illinois Polluth ControlBoard