ILLINOIS POLLUTION CONTROL BOARD
February 6,
1992
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and
)
THE PEOPLE OF THE STATE
)
OF ILLINOIS,
Complainants,
)
v
)
PCB 86—160
(Enforcement).
FITZ-MAR,
INC.
)
Respondent.
MICHAEL K.
FRANKLIN
AND
BARBARA
KLEIN APPEARED ON BEHALF OF
COMPLAINANTS, AND
JOHN
F. FENNIG AND THOMAS
J.
MURPHY APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J. Anderson):
This matter comes before the Board upon a complaint filed
September 30,
1986,
on behalf of the Illinois Environmental
Protection Agency
(“Agency”) and the People of the State of
Illinois (“People”), by and through their attorneys,
the State’s
Attorney of Cook County and the Attorney General
of the State of
Illinois,
against Fitz—Mar,
Inc.
(“Fitz—Mar”), located
in the
City of Chicago Heights, Cook County,
Illinois.
The complaint
alleges that Fitz—Mar has violated Sections 9(a),
12(a),
12(f),
and 21(d) (2)
of the Illinois Environmental Protection Act
(“Act”),
Ill.
Rev.
Stat.
1989,
ch.
111½,
pars.
1001,
~
~g.,
and
35
Iii.
Adm.
Code 807.202(b) (1),
807.301, 807.302,
807.304,
807.313,
807.314(e)
of the Board’s rules and regulations.
On October 20,
1986, the Hearing Officer
in this matter
filed a hearing officer scheduling order scheduling hearing for
December 16,
1986.
On November 5,
1986, the Hearing Officer
entered another scheduling order continuing the December 16, 1986
hearing to January 21,
1987.
On December 19,
1986,
the Board
received a hearing officer order cancelling the January 21,
1987
hearing and continuing the case.
On May 26,
1987,
Fitz-Mar filed
a motion to dismiss with the Board.
The Agency and the People
filed their response to the motion on June 10,
1987.
On July 13,
1987, the Board entered an order denying Fitz Mar’s motion to
dismiss.
On August 17, September 17, and October 23,
1987, the
Hearing Officer issued three Orders continuing the case and
scheduling additional status conferences.
On July 25,
1988,
the
Hearing Officer continued this matter indefinitely pending the
130—15
2
issuance of an Appellate Court decision in related litigation in
the First District Appellate Court.
On June 21, September 6,
October 12, November 20, and December 11,
1990, the Hearing
Officer filed hearing officer orders with the Board which
detailed the results of several status conferences and scheduled
of additional status conferences.
Finally, On April 19,
1991,
the Hearing Officer issued a scheduling order scheduling hearing
for June 28,
1991.
At that hearing, the parties stated on the record
that they
had readhed a settlement agreement, but were awaiting signatures
and final approval of the agreement.~ Because the parties
anticipated submission of the fully executed agreement within two
to four weeks of the hearing, the Hearing Officer stated that the
parties should submit the agreement on or before August 12,
1991.
Because the parties did not submit the agreement by August 12,
1991, the Board issued an order on September 12,
1991,
stating
that
it would set the matter for hearing if the parties did not
file the executed stipulation and proposal for settlement on or
before September 24,
1991.
On October 10,
1991,
in response to
the State’s Attorney’s request for additional time in which to
submit the executed stipulation and proposal for settlement,
the
Board issued a second order directing the Hearing Officer to set
the matter for hearing on the merits by November
11,
1991,
and to
conclude all such hearings no later than December 15,
1991.
A second hearing on this matter was held December 12,
1991,
in Chicago,
Illinois.
At the hearing, the parties submitted an.
amended Stipulation and Settlement Agreement, executed by the
parties.
Fitz—Mar denies the alleged violations.
Fitz-Mar
agrees to pay a civil penalty of ten thousand dollars
($10,000.00).
At the hearing, the Hearing Officer also asked the
parties to provide the Board with an explanation for the delay in
this case.
(R.
28—29).
In response, the attorneys representing
the Agency and the People explained that more time was needed to
obtain the necessary approval as well as a consensus on the
agreement itself in light of the fact that both the Attorney
General’s Office and the States Attorney’s Office acted as co-
counsel in representing two complainants.
(R. 30).
The
attorneys also mentioned several issues surrounding the case,
such as the Appellate court case, that may have caused the delay.
(R.
30—31,
32—34)
The Board has authority to impose a penalty where the
parties have stipulated to a penalty, but not to a finding Of
violation.
See, Chemetco,
Inc. v. Illinois Pollution Control
Board,
140 Ill. App.3d
,283,
488 N.E.2d 639,
643
(5th Dist.
1986); and Archer Daniels Midland v. Pollution Control Board,
140
Ill.App.3d 823,
489 N.E.2c1 887
(3rd Dist.
1986).
The Board finds the Settlement Agreement acceptable under 35
Ill. Adm. Code 103.180.
This Settlement Agreement in no way
130—16
3
affects respondent’s responsibility to comply with any federal,
state or local regulations, including but not limited to the Act
and the Board’s pollution control regulations.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in thi.s matter.
ORDER
1.
The! Board hereby accepts the Stipulation and Settlement
Agreement executed by the Illinois Environmental Protection
Agency and the People of the State of Illinois and Fitz-Nar,
Inc.,
concerning Fitz—Mar’s operations located in The City
of Chicago Heights, Cook County,
Illinois.
The Stipulation
and Settlement Agreement are incorporated by reference as
though fully set forth herein.
2.
Fitz-Nar, Inc. shall pay the sum of ten thousand dollars
($10,000.00) within 30 days of the date of this Order.~ Such
payment shall be made by certified check or money order
payable to the Treasurer of the State of Illinois,
designated to the Environmental Protection Trust Fund,
and
shall be sent by First
Class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
P.O. Box 19276
Springfield, IL 62794—9276
Fitz-Mar,
Inc.
shall also write its Federal Employer
Identification Number or Social Security Number on the
certified check or money order..
Any such penalty not paid within the time prescribed shall
incur interest at the rate set forth in subsection
(a)
of
Section 1003 of the Illinois Income Tax Act,
(Ill. Rev.
Stat.
1989,
ch.
120,
par. 10—1003),
as now or hereafter
amended, from the date of payment is due until the date
payment is received.
Interest shall not accrue during the
pendency of an appeal during which payment of the penalty
has been stayed.
3.
Fitz—Mar shall cease and desist from the alleged violations.
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1989,
ch. 111½, par.
1041, provides for appeal of final
Orders of the Board within
35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
130— 17
4
Board Member J. Theodore Meyer dissented.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby cert~ythat the abo~’Opinion and Order was
adopted on the
~‘
~
day of
voteof
~.~5—/
1992,
by a
Control Board
130— 18