ILLINOIS POLLUTION CONTROL BOARD
    December
    4, 1975
    PEOPLE OF THE STATE OF ILLINOIS,
    )
    Complainant,
    v.
    )
    PCB 75—116
    CITIZENS UTILITIES COMPANY OF
    )
    ILLINOIS,
    an Illinois Corporation,)
    Respondent.
    Mr. James
    K.
    Jencks, Assistant Attorney General, appeared on
    behalf of Complainant.
    Mr.
    Daniel
    J. Kucera, Chapman and Cutler, appeared on behalf
    of Respondent.
    INTERIM OPINION
    AND
    ORDER OF ThE BOARD
    (by Mr. Goodman):
    This matter comes before the Pollution Control Board
    (Board)
    upon the March 13, 1975, Complaint filed by the
    People of the State of Illinois
    (State)
    against Citizens
    Utilities Company of Illinois
    (Citizens)
    charging a con-
    tinuing violation of Section 18 of the Environmental Pro—
    tection Act
    (Act)
    from July 1,
    1970 to the filing of the
    Complaint.
    In particular,
    the Respondent is charged with
    failing to direct and maintain its public water facilities
    so that water shall be safe in quality,
    clean, adequate in
    quantity and of satisfactory mineral character for ordinary
    domestic consumption in that the water supplied contained
    offensive odor, oil, a residue,
    is discolored and unpala-
    table due to the presence of iron and has been without
    adequate pressure.
    On October 20,
    1975,
    a hearing was held at which time a
    “Settlement Stipulation” was filed with the Board.
    While
    the facts,
    as stipulated, support a finding of violation of
    Section 18 of the Act, and while the plan of compliance,
    on
    the whole,
    is adequate, the Board must reject the stipulation.
    The Board does so for two reasons.
    On page eight of
    the stipulation, the parties provide for the flushing of the
    distribution system at least twice per year.
    Nowhere do the
    parties provide for notice to be given to the consumers of
    the time of said flushing.
    The Board feels this notice to
    be mandatory.
    Secondly,
    the stipulation,
    at page nine, provides that
    Citizens pay “in lieu of a civil penalty,” the sum of $1,000.00
    to the general revenue fund of the State of Illinois.
    The
    Board finds that on the basis of the stipulation, Citizens
    19
    -
    366
    —2—
    has violated Section lB of the Act.
    No reason is furnished
    for
    permitting
    Respondent
    to
    pay
    said
    amount
    in
    lieu
    of
    a
    penalty.
    The Board welcomes stipulations which provide for
    the future protection of the environment and an adequate
    money penalty, EPA v. Custom Farm Services
    3 PCB 310
    (1971).
    However, the parties can only enter into binding stipula-
    tions with regard to facts and not to legal conclusions,
    EPA v. Soil Enrichment Materials
    Corporation
    3
    PCB 239
    (1971).
    The Board considers the term in this settlement order
    which provides for a payment in lieu of penalty to be
    a
    stipulation to a legal conclusion.
    The Board finds that a
    penalty is appropriate here,
    considering that the compliance
    program is one of general upkeep and that the reason for
    violation was apparently the result of Respondent’s failure
    to properly maintain its public water supply facility.
    Therefore,
    the stipulation will be rejected by the
    Board.
    This Opinion constitutes the findings of fact and
    conclusions of law of the Board in this matter.
    ORDER
    It is the Order of the Board that the October 20,
    1975,
    Settlement Stipulation be and is, hereby, rejected.
    The
    parties are herewith ordered to hearing or amendment of
    their settlement proposal not inconsistent with today’s
    Interim Opinion.
    I, Christan
    L. Moffett, Clerk of the Illinois Pollution
    Control Board, hereby certify the above Opinon and Order
    were adopted on the
    ______________
    day of
    1975
    by
    a
    vote
    of
    4..~
    Oh~dd~&/fl
    WLA~
    Christan
    L.
    Moff~’t,~’C1erk
    Illinois Pollution~ontrolBoard
    19
    -
    367

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