ILLINOIS POLLUTION

CONTROL BOARD

March21,

1996

PEOPLE OF THE STATE OF ILLINOIS,

)

)

Complainant,

)

)

PCB 96-76

v.

)

(Enforcement

-

RCRA)

)

CHEMETCO INC.,

)

)

Respondent.

)

DISSENTING OPINION (by J. Theodore Meyer):

In

1988

the

parties

in

this

case

signed

a

consent

decree

as

a

resolution

to

charges

brought

before the

Circuit

Court

of Madison

County

in

1982

which

included

the

following:

noncompliance

with

daily

maximum

effluent

concentrations;

exceedence

of

daily

effluent

standards

and

water

quality

standards;

open dumping;

storage of hazardous wastes;

failure

to

use protective cover and manage

slag; and

failure to prepare

closure and post-closure plans.

(See

1988

complaint,

counts

I-XII

(Emphasis added.)

The

action

before the

Board

involves

violations for failure

to properly

implement the

closure and

post-closure

plans.

The

majority

believes

that

these violations

are distinct

from

those

contemplated

in

the

consent decree

and

therefore accepts jurisdiction in this matter.

I disagree for the following reasons.

The majority’s first argument is that

the present allegations contained in the complaint

before the Board do not relate backto the original

1988 controversy.

As proofthe majority

points to the 1988 complaint “covenant not to sue” to claim that it only pertains to a time period

from May 1982 to June 1988, while the complaint before the Board involves a time period from

April

1991

to May 1992.

I disagree.

Covenant-not-to-sue provisions

in consent decrees are applied prospectively,

not for a

certain time period, especially if the consent decree

directs parties to complete certain

actions

in the future.

(Comet

Casualty Co.

v.

Schneider, 98

Ill. App.3d 786,

424 N.E.2d 911,

914-915

(1st Dist.

1981).)

If charges are brought

in

1982

and

six years

later the parties sign a

consent decree,

the parties are agreeing not

to

sue under the same charges not only

during that

time period, but also

in the future.

If a dispute regarding matters

covered by the consent decree

occurs

in

May

1992,

the

consent

decree’s covenant-not-to-sue

still

applies

and

the parties

are

bound by it.

The majority’s second argument states that the consent order did not include a specific

closure agreement between the parties and did not mention financial assurance at all; therefore,

the complaint before the Board is

a separate enforcement action.

However, I believe several

terms in the consent order do include the concept ofclosure plans,

post-closure plans, financial

---

2

assurance and the actual closure itself.

Specifically, the terms involving settlement, dispute

resolution and

retention ofjurisdiction were set forth as follows:

C.

TERMS

OF SETTLEMENT

10.

Chemetco submitted closure plans covering all ofthe units that are to be

closed and any necessary post-closure plans on May 6,

1988.

Such submittal is

under IEPA review.

IEPA review and modification of plans by Chemetco to

remedy any deficiencies cited

by IEPA shall proceed in accordance with 35

Ill.

Adm. Code 725.212(d)(4).

K.

DISPUTE RESOLUTION

1.

The parties shall use their best efforts to informally and in good

faith resolve

all disputes or differences of opinion.

Any dispute which arises

with respect of

the meaning, application, interpretation, amendment, or modification ofany

term ofthis Proposal for Settlement and attachments or any plan orreport

thereunder or with respect to any party’s compliance therewith or any delay there

under...shall, in the first instance, be the subject ofsuch informal negotiations as

set forth

below.

N.

RETENTION

OF JURISDICTION

The court shall retain jurisdiction ofthis matter forthe purposes of interpreting,

implementing, and enforcing the terms and conditions ofthis Proposal and

Settlement and for the purposes ofadjudicating

all matters of dispute among

the parties.

(1988 Consent Decree.

Emphases added.)

It is well-settled law in Illinois that “consent decrees, which are utilized to

effectuate settlement, are considered contracts between parties to litigation, and

accordingly, the law ofcontracts controls their interpretation”.

(Clark v.

Standard Life &

Accident Insurance Co., 68 Ill. App.3d 977,

386 N.E.2d 890 (1979).)

In construing

contracts,

“the primary objective is to determine and give effect to the intentions ofthe

parties”.

(Dayan v.

McDonald’s Corp.,

138 Ill. App.3d 367, 485 N.E.2d 1188

(1st Dist.

1985).)

It is the language ofthe contract that

is the most reliable indicator ofthe parties’

intent; therefore “~courts

may not rewrite a contract to

suit one ofthe parties, but must

enforce the terms as written”.

(Id. at 490, 485 N.E.2d. at 1193.)

In looking at the four corners ofthe consent decree, I believe the circuit court not

only

was aware that closure plans were a part ofthe ongoing dispute, but also

specifically

anticipated that disputes might arise from an amendment or modification ofsuch a plan.

The Agency brought these charges before the Board because itbelieved that Chemetco

was violating the modifications ofthe closure plans it had approved in 1991

and 1993,

closure plans specifically referred to in the consent decree.

Although the term “financial

---

3

assurance” is not per se mentioned in the consent decree,

it is such an integral part of

closure and post-closure plans that it would be unreasonable to conclude that it was not

contemplated by the parties when signing the consent decree.

(See 35

Ill.Adm. Code

724.243.)

Finally, the language of the provision regarding jurisdiction is unequivocal:

“The court shall retain jurisdiction ofthis matter for the purposes ofinterpreting,

implementing, and enforcing the terms and conditions ofthis Proposal and

Settlement

and for the purposes ofadjudicating

all

matters ofdispute among the parties.”

(See

Consent Decree. (Emphasis added).)

As such, since the charges in the present complaint

involve matters that relate back to the consent order, the charges are improperly before

the Board because the circuit court retained jurisdiction~of

them.

In its final argument, the majority interprets Chemetco’ s failure to invoke dispute

resolution when the Agency

filed its complaint before the Board as a waiver ofthat

provision and therefore the Agency properly instituted this action before the Board.

I

disagree.

Although a party’s non-action has been interpreted as an “intentional

relinquishment ofa known right” (Sexton v. Smith,

112 Ill.2d

187, 492 N.E.2d 872

(1985)),

it does not serve as a relinquishment ofthe court’sjurisdiction.

In otherwords,

Chemetco’s failure to invoke a dispute resolution provision served as a waiver of its right

to expect that informal resolution will be attempted prior to any court action.

It does not

mean that Chemetco’s

nonaction divested the court of its jurisdiction of issues covered by

the consent decree.

I believe that the charges brought before the Board in this matter stemmed directly

from the issues contemplated by the consent decree signed in

1988, and supplemented in

1991

and

1993.

I also adhere to the general principle that forums with concurrent

jurisdiction should respect a court’s prior jurisdiction.

Therefore, to err on the side of

caution, I would have referred this matter to the circuit court.

It is equally important for a

forum to stay vigilant against possible attempts ofone party to harass another by way of

instituting multiple actions in different forums.

For these reasons, I believe that the

Circuit Court ofMadison County retainedjurisdiction in this matter and the Board should

have granted Chemetco’s motion to dismiss.

For these reasons,

I respectfully dissent.

J.

Theodore Meyer

I,

Dorothy M.

Gunn,

Clerk of the Illinois

Pollution Control Board, hereby

certify

that

the

above

dissenting

order

was

filed

on~Jhe

‘~‘7~

day

of

,Zi

‘-~--~/~-“

,

1996.

~

~.

4~

Dorothy

M.4inn,

Clerk

Illinois

Po1Iu~on Control Board