ILLINOIS POLLUTION CONTROL BOARD
February
16,
1995
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
)
PCB 94—275
)
(Enforcement
-
Water)
BOYD BROTHERS, INC.
)
an Illinois Corporation,
Respondent.
)
BOYD BROTHERS, INC.
)
an Illinois Corporation,
)
Complainant,
)
v.
)
PCB 94—311
)
(Enforcement
-
Water)
ABANDONED MINED LANDS
RECLAMATION COUNCIL, an Illinois
)
(Consolidated)
state entity,
)
Respondent.
ORDER OF THE BOARD
(by C.A. Manning):
This matter is before the Board on a motion to dismiss
Docket No. PCB 94-311, Boyd Brothers v. Abandoned Mined Lands
Reclamation Council,
one of the cases
in this consolidated
docket.
On January 17,
1995, the Office of the Illinois Attorney
General filed the motion on behalf of the Abandoned Mined Lands
Reclamation Council
(AMLRC) arguing that the ANLRC,
as a state
agency,
is protected by sovereign immunity from this cause of
action.
Boyd Brothers filed
a response on February
1,
1995 and
on February 9,
1995, the Board received a motion to file
instanter the Attorney General’s January 17 motion to dismiss.
For reasons more fully set forth below,
the motion to dismiss is
denied.
PROCEDURAL
AND
FACTUAL BACKGROUND
On September 28,
1994, the Illinois Attorney General on
behalf of the People of the State of Illinois filed a formal
enforcement action against Boyd Brothers alleging violations of
Section 12(a)
of the Environmental Protection Act
(Act)
(415 ILCS
5/12(a))
and 35 Ill.
Adm. Code 406.106.
The complaint alleges
that Boyd Brothers discharged acid water into a tributary of Crab
Orchard Creek during the course of reclamation activities at the
Peabody Utility Coal mine site in Williamson County.
The Board
2
accepted the case for hearing and docketed the matter as People
v. Boyd Brothers,
Inc., PCB 94-275.
Thereafter, on October 31,
1994,
Boyd Brothers filed a
private citizen’s enforcement action against the
AMLRC
which
alleged similar violations of Section 12(a)
of the Act and
Section 406.106 of the regulations.
Boyd Brothers claims that
AMLRC contracted with Boyd Brothers to perform reclamation
activities at the Peabody mine site and pursuant to the contract,
AMLRC retained the right to sample and authorize the acid water
releases, which AMLRC did in this case.
According to Boyd
Brothers,
if the release violated the Act and the regulations,
it
was the
AMLRC
that authorized the discharge, and the AMLRC should
be held similarly liable.
The Board docketed the private citizen enforcement action as
Boyd Brothers,
Inc.
v. Abandoned Mined Lands Reclamation Council,
PCB 94—311 and because both cases concern the same set of
operative facts,
the Board consolidated it with PCB 94-275 on
December
1,
1994.
Accordingly on January 17,
1995, ANLRC filed
the instant motion to dismiss PCB 94-311, Boyd Brothers’ private
citizen enforcement action against AMLRC.
MOTION TO DISMISS
In support of the motion to dismiss,
AMLRC
argues that the
Board
is without subject matter jurisdiction to hear the citizen
suit and the matter should be dismissed.
It is ANLRC’s position
that as an Illinois state agency,
the State Lawsuit Immunity Act
(SLIA)
(745 ILCS 5/1)
controls this case and prohibits a lawsuit
against the State of Illinois except in the Court of Claims.
AMLRC argues that such “sovereign immunity” includes a private
citizen enforcement complaint under the Environmental Protection
Act on the basis that if the cause of action is successful, ANLRC
may be subjected to, among other things,
a monetary penalty.
AMLRC argues that only the Court of Claims may adjudicate the
validity of a monetary claim against the State of Illinois.
The
AMLRC further contends that because the allegations of the Boyd
Brothers’ complaint are based on the contract between ANLRC and
Boyd Brothers, this issue is more properly before the Court of
Claims.
In response, Boyd Brothers distinguishes ANLRC’s argument
regarding sovereign immunity on the grounds that
1) the SLIA only
prohibits states from being made “a defendant or party in any
court” and that since this is an action before an administrative
agency, the Board has jurisdiction;
2)
the SLIA only prohibits
lawsuits which are “claims against the state” and in this case,
this
is not a “claim” or a lawsuit for a money judgment as AMLRC
contends;
it is instead,
a citizen complaint filed pursuant to
the Act’s specific authorization that citizens may themselves
come forward to enforce the Act; and
3)
while the Court of Claims
3
may be a proper forum to litigate a contract or tort lawsuit
seeking a money judgment,
it is not the proper forum to determine
whether the ANLRC violated the Environmental Protection Act.
Boyd Brothers believes this adjudicatory power lies squarely with
the Illinois Pollution Control Board as set forth
in the
Environmental Protection Act.
APPLICABLE STATUTORY LAW
Section 31(b)
of the Act provides:
Any person may file with the Board a complaint, meeting
the requirements of subsection(a)
of this Section,
against ~y
person allegedly violating this Act or any
rule or regulation thereunder or any permit or term or
condition thereof.
***
(415 ILCS 5/31(b).)
(Emphasis
added.)
Section 3.26 of the Act defines
a “person” as
any individual, partnership, co-partnership,
firm,
company, corporation, association, joint stock company,
trust,
estate, political subdivision, state agency, or
any other legal entity, or their legal representative,
agent or assigns.
(415 ILCS 5/3.26.)
(Emphasis added.)
Section 47(a)
of the Act:
The State of Illinois and all its agencies,
institutions, officers and subdivisions shall comply
with all requirements, prohibitions,
and other
provisions of the Act and of regulations adopted
thereunder.
(415 ILCS 5/47(a).)
Section 42(a)
of the Act:
Except as provided in this Section, any person that
violates any provision of this Act or any regulation
adopted by the Board,
or any permit or term or
condition thereof, or that violates any determination
or order of the Board pursuant to this Act,
shall be
liable to a civil penalty of not to exceed $50,000 for
the violation and an additional civil penalty of not to
exceed $10,000 for each day during which the violation
continues; such penalties may, upon order of the Board
or a court of competent jurisdiction, be made payable
to the Environmental Protection Trust Fund,
to be used
in accordance with the provisions of “An Act creating
the Environmental Protection Trust Fund”, approved
September 22,
1979.
(415 ILCS 5/42(a).)
(Emphasis
added.)
4
DISCUSSION
The Board,
early in its history, examined the issue of
whether a private enforcement action may be brought against a
state agency.
In IEPA v.
City of Champaign (September 16,
1971)
PCB 7l-5lC,
2 PCB 411, rev’d on other grounds 12
Ill. App.3d 720,
299 N.E.2d 28, we found that the Board, and not the Court of
Claims,
is the proper forum to hear citizen suits alleging
violations of the Act.
In City of Champaign, the Illinois
Environmental Protection Agency (Agency) had filed an enforcement
action against the City for discharging contaminants into
Boneyard Creek and the City cross-complained against the
University of Illinois on the grounds that the University’s power
plant had contributed to the pollution.
In seeking to have the
City’s complaint dismissed, the University argued that it was
exempt from the Act and if the Board were to find the University
in violation,
the state
(via the Pollution Control Board)
would
be in the illogical position of levying a fine against itself.
The University also argued that even if
it was subject to the
lawsuit, the Court of Claims was the proper jurisdiction because
the case “sounded in tort.”
Relying on the clear language of Section 47
of the Act
which charges all state agencies with compliance with the
provisions of the Environmental Protection Act, we rejected the
notion that a state entity is exempt from the Act.
We did not
reach the issue of the penalty in the case,
because we believed
a penalty was unwarranted.
On the issue of whether the proper
forum was the Board or the Court of Claims, we determined that
this case was not a “tort” action and that the Board was vested
with jurisdiction under the Environmental Protection Act to hear
cases concerning violations of the Act.
(City of Champaign,
2
PCB at 416.)
We stated,
In actuality, these proceedings are neither criminal in
nature nor are they actions in tort. This is an
administrative adjudication under authority of the
Illinois Environmental Protection Act, which quite
clearly states, as we have indicated above,
that all
state agencies must comply with all the provision of
the Act and Rules adopted thereunder.
Exclusive
jurisdiction of “tort” claims against the University
may well be in the Court of Claims, but the action we
are dealing with here is not a “tort” claim but rather,
a new,
statutory action, which did not exist at common
law.
The Pollution Control Board is the proper body to
hear this matter,
as the Environmental Protection Act
plainly provides.
(City of Champaign,
2 PCB 416.)
On appeal, the court nullified our order finding the University
in violation of the Act but did so on evidentiary grounds.
The
5
court’s decision thus left the Board’s jurisdictional finding
intact.
(City of Champaign, 299 N.E.2d at 29.)’
While we squarely addressed whether the University of
Illinois could be named as a respondent in a private enforcement
action, City of Champaign did not however, analyze the issue of
sovereign immunity which is presented by the Attorney General’s
motion to dismiss.
After reviewing the Attorney General’s
arguments, we can reach no conclusion different from that in City
of Champaign.
The sovereign immunity fails to consider the
statutory scheme and specific effect of the Environmental
Protection Act.
While sovereign immunity may require parties
with contract or tort actions to pursue a lawsuit in the Court of
Claims, or will prevent certain types of actions from being heard
in circuit court,2 sovereign immunity is not a bar when the
legislature has provided a mechanism for the state to be made a
party.
This is the case here.
The plain and unambiguous
language of the Environmental Protection Act includes state
agencies in the group of responsible parties that may be enforced
against for violations of the Act before the Illinois Pollution
Control Board.
Specifically, Section 31(b)
of the Act authorizes
a private citizen to file an enforcement action against “any
person” and the Act includes “state agency” within the definition
of “person”
in Section 3.26.
‘Though
not posited specifically
as
a sovereign immunity claim, there
is
at
least one other Board case on the issue of a state agency’s capacity to be
sued for violations of the Environmental Protection Act which warrants
mentioning in this case.
In Envirite v.
IEPA and Peoria Disposal Co.
(December
19,
1991)
PCB 91—152,
128 PCB 279,
282,
rev’d
in part 239 Ill.App.3d
1004,
607 N.E.2d 302,
180 Ill.Dec.
408
(3rd Dist.
1993),
the Board dismissed
the Illinois Environmental Protection Agency as
a defendant
in
a citizen suit,
but did
so on the basis that
a citizen cannot bring an enforcement action
which is tantamount to challenging the Agency’s performance of its statutory
duties.
Envirite did not address the specific issue of whether a lawsuit
could be maintained when a state agency
is alleged to have affirmatively
violated provisions of the Act, e.g.,
cause or allow the discharge of
contaminants.
(C.f. Landfill,
Inc.
v.
PCB,
74 Ill.2d
541,
387 N.E.2d 258,
264,
25 Ill.Dec.
602, wherein the Supreme Court held that
a Board rule
allowing the Agency to be a respondent to
a private enforcement action was
improper. The court determined that
“prosecution under the Act... is
against
polluters, not the Agency.”)
2The courts have barred tort,
contract,
garnishment,
injunctions and
quiet
title actions from being litigated in civil
court on the basis of
sovereign immunity and in the case of claims for monetary reimbursement,
found
that the proper and exclusive jurisdiction is
before the Court of Claims.
(See e.g.
Liebman
v.
Board of Governors of State Colleges and Universities
(let Dist.
1979)
78 Ill. App.3d 89,
398 N.E.2d 305,
34
Ill.
Dec.
630 and Board
of Education
v.
Cronin (1st Dist.
1977)
54 Ill. App.3d
584,
370 N.E.2d
19,
12
Ill.
Dec.
396.)
6
Our finding, that the legislature has provided a specific
statutory scheme for the state to be made a party
in a private
enforcement
action,
is consistent with the caselaw on sovereign
immunity.
Illinois courts have on several occasions found that
sovereign immunity is not a bar to actions where statutory
language specifically contemplates the state as a party.
(~
e.g. People ex rel. Conn v. Randolph
(1966)
35 Ill.2d 24,
31,
219
N.E.d 337
(reimbursement for court-appointed attorney costs);
Martin v. Giordano
(4th Dist.
1983)
115 Ill. App.3d
367,
369,
450
N.E.2d 933,
71
Ill. Dec 245
(additional payments of 50
for
vexatious and unreasonable delay under the Workers’ Compensation
Act;
~ji~
City of Springfield
v. AlIphin,
(1980)
82
Ill.
2d 578,
413 N.E.
394;
45 Ill.
Dec. 916 (recoup 1
interest on the state’s
unpaid bills).)
We further disagree that we cannot assess a penalty against
a state agency under the Environmental Protection Act.
Section
42(a) provides that “any person that violates any provision of
this Act or any regulation adopted by the Board
***
shall be
liable for
a civil penalty
***
payable to the Environmental
Protection Trust Fund.”
(415 ILCS 42(a).)
It may be that,
to have
the penalty directed to the Trust Fund or to exact payment
if the
ANLRC does not have the resources to allocate for the payment of
a penalty,
an action may need to be pursued in the Court of
Claims; however, we do not believe such action would serve to
divest the Board of jurisdiction to assess the penalty.
While
the Board has rarely addressed the issue of awarding a penalty
against a state agency, we have assessed sanctions against a
state agency, the Illinois Environmental Protection Agency,
pursuant to our procedural rule,
35
Ill.
Adm. Code 101.280.
Such
sanction authority was specifically required by the court in
Grigoleit Company v. IPCB and IEPA,
(4th Dist.
1993)
245 Ill.
App.3d 337,
613 N.E.2d
371, appeal denied
(1993)
152 Ill.2d
558,
622 N.E.2d 1205.
DECISION
AND
ORDER OF THE BOARD
We find that the doctrine of sovereign immunity does not
deprive the Illinois Pollution Control Board of subject matter
jurisdiction to hear a private citizen enforcement action filed
against the Abandoned Mined Lands Reclamation Council.
The
motion to dismiss filed by
ANLRC
is denied.
7
IT IS SO ORDERED.
I,
Dorothy H. Gunn, Clerk of the Illinois Pollution Control
Boa~d,~J1erebyce~tif~y
that the above order was adopted on the
1~-
day of
-~-~
,
1995, by a vote of
7
0
Dorothy M.
Illinois
P0,
Control Board