ILLINOIS POLLUTION CONTROL BOARD
December 20,
1990
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
AC 90—27
v.
)
(IEPA Case No.
147—90—AC)
(Administrative Citation)
JOHNSON
BLACKWELL,
)
)
Respondent.
ORDER OF THE BOARD BY
(J.
C. Marlin):
This matter comes before the Board on an October
5,
1990
motion to reconsider filed by the Illinois Environmental
Protection Agency (Agency).
In support of its motion the Agency
has four main arguments challenging the Board’s August 30,
1990
Order.
One, that the Board raised and decided a legal issue
without participation of the parties.
Two, that the Board cannot
grant a form of relief which has not been requested by the
respondent.
Three, that the Board misinterpreted the statutory
language of Section 31.1 of the Environmental Protection Act
(Act).
And four, that the Board incorrectly applied the Act to
the facts of this matter.
The Board hereby grants
reconsideration and upon reconsideration affirms the August 30,
1990 Order.
The complete facts of this case are detailed in the Board’s
August 30,
1990 Order and will not be reprinted here.
In
summary, the facts are that after an Agency inspection,
the
respondent received a Pre-Enforcement Conference Letter stating
that the Agency intended to file a formal complaint and that the
respondent could attend a conference with officials “in an effort
to resolve such conflicts which could lead to the filing of
formal action.”
Several days later an administrative citation
was received by the respondent.
As discussed below, this
contradicted the language of the Pre—Enforcement Conference
Letter stating no formal action would be taken until the
conference.
Several days after receiving the administrative
citation the respondent attended the conference where he was
informed that “no
‘formal enforcement’ action would be filed
if Respondent cleaned up the site as agreed between the
parties”
(July 12,
1990 Agency response to motion to vacate.
Emphasis in original.).
Prior to the final date agreed upon
between the parties for resolution of the matter, the Board
issued a Default Order against the respondent.
The respondent filed a timely motion for reconsideration of
the Default Order, making nine statements in support of his
117—197
2
request.
The nine statements attested to the respondent
receiving a Pre-Enforcement Conference Letter (PECL), his
attendance at the Pre—Enforcement Conference, the agreement made
at the Pre-Enforcement Conference,
respondent’s belief that no
charges would be brought against him because of his cooperation
at the Pre-enforcement Conference and his distress at having
charges against him despite the agreement and his cooperation.
Respondent finally stated that he felt “manipulated and lead down
a garden path.”
The Agency’s “Response to Motion to Vacate” admitted the
Respondent’s statements regarding the PECL, the Pre—Enforcement
Conference and the agreement but denied the statements about
“charges”.
The Agency stated that no assertions were made
concerning the filing of an administrative citation but that it
had informed the Respondent that “no ‘formal enforcement’ action
would be filed if Respondent cleaned up the site as agreed.”
The
only reply to Respondent’s final statement was the Agency’s
assertion that the Respondent failed to meet the agreement.
The
Board entered its decision on the Motion to Vacate in favor of
the Respondent in an Order of August 30,
1990.
In its motion for reconsideration of the August 30,
1990
Order,
the Agency contends that the Board raised an issue and
decided it without participation from the parties.
The Board
disagrees.
The Respondent’s motion indicates confusion,
misunderstanding and distress with the Agency’s simultaneous use
of multiple methods of enforcement and raises the issue of the
procedural correctness and fairness of these multiple
proceedings.
The Agency’s response did not address the
Respondent’s assertions that he was misled.
The Board considered
both filings in making its decision.
That the Board did not find
the Agency’s argument persuasive does not make the Board’s
finding “contrary to an adversarial system of jurisprudence”.
The Agency argues that the relief granted by the Board was
improper because it was not specifically requested by the
Respondent.
The Respondent’s motion requested reconsideration of
the matter, as the Agency has done in this case, and also
requested relief which would be favorable to the Respondent, as
the Agency has requested relief favorable to itself.
The Board
reconsidered the matter using the filings of both parties.
On
reconsideration,
in similar fashion to its original consideration
of a matter, the Board can grant the relief requested, modify the
requested relief, or grant what relief it deems appropriate and
within its statutory authority.
In the present matter, the Board
found
in its August 30,
1990 Order that certain facts concerning
the Agency’s procedures required that the matter be dismissed for
failure to comply with the Act.
The Agency next argues that the Board misinterpreted Section
31.1(a) of the Act which states that specified prohibitions of
117— 198
3
the Act “shall be enforceable either by administrative citation
or as otherwise provided by this Act.”
The Agency contends that
the “as otherwise provided by this Act” language of Section
31.1(a)
“refers to a formal complaint filed under Section 31 of
the Act” and “to the filing of a formal complaint.”
(Emphasis in
original.)
Apparently, the Agency contends that the “as
otherwise provided” language refers to and only to the filing of
a formal complaint.
In support of this contention,
the Agency
argues that a letter pursuant to Section 31(d)1 “cannot bar the
Agency from exercising its option to file a citation action.”
Also, the Agency has stated,
in a different administrative
citation proceeding, that “i)n
appropriate cases,
a matter may
be referred for both formal enforcement and issuance of an
administrative citation.”
County of Tazewell v. Steve Zimmerman,
AC 90-40,
December 20,
1990,
(Agency delegation agreement with
county).
The Board disagrees with the Agency’s interpretation of
Section 31.1(a)
for three reasons.
First, the language of
Section 31.1(a) does not express any conclusions regarding the
“formality” of the enforcement.
Second, the “or as otherwise
provided” statutory language is inclusive of all other
enforcement methods contained in the Act.
There is no exclusion
for the 31(d)
notice letter.
And, third, even if the language
referred only to the formal enforcement process of Section 31,
the Agency would still be precluded from using the Section 31(d)
letter and an administrative citation.
The Act requires that
before a formal complaint could be filed, the Agency must serve
the Respondent with written notice of the intent to file a formal
complaint and offer to meet with Respondent as part of “an effort
to resolve such conflicts which could lead to the filing of a
formal complaint.”
(Ill.
Rev.
Stat.
1989,
ch. 111 1/2,
par.
1031(d).)
The Act therefore establishes the 31(d) written notice
as both a statutorily mandated negotiation process and a
statutorily mandated preliminary administrative step within the
formal enforcement process of Section 31(a).
This dual nature of
the Section 31(d)
letter is not ignored by the Board,
as
suggested by the Agency, but is a focal point of concern when the
31(d) letter
is used simultaneously with other enforcement
methods to address a specific violation.
The Agency’s final argument contends that the Board’s August
30,
1990 Order precludes the Agency from issuing a PECL and then
proceeding with an administrative citation.
The Agency argues
that such a finding is incorrect and inconsistent with the Act
because a PECL is not the actual filing of formal enforcement.
The Agency does not regard the issuance of a PECL and an
1
The Board notes that letters
issued pursuant to Section
31(d) of the Act are titled a Pre-Enforcement Conference Letter or
PECL
by
the
Agency.
117— 199
4
administrative citation at roughly the same time to contradict
the Act because it does not consider the Section 31(d)
negotiation procedures to be either “formal enforcement” or
included in the “as otherwise provided by this Act” language of
Section 31.1(a).
The Agency believes that this “simultaneous use
of available enforcement tools has been most positive from the
environmental viewpoint.”
The Board must disagree.
The concurrent implementation of
various enforcement methods by the Agency for a specific
violation has led to vagueness, confusion and a diminished
usefulness of the administrative citation process.
The Agency’s
failure to identify the differences and connections between the
31(d)
letter, the Section 31(a)
enforcement and the
administrative citation process in its oral and written
communications with the Respondent creates a vagueness about the
procedures.
Confusion is created when the Agency refers to the
administrative citation as “informal enforcement” when it is an
expedited formal enforcement proceeding.
An average citizen
would consider the receipt of a legal document demanding five
hundred dollars per violation as formal enforcement no matter
what the Agency termed
it.
And the usefulness of the
administrative citation process is diminished when the process
which was to have had the simplicity of a traffic ticket becomes
overly complex and adjudicatory.
For these reasons, the Board disagrees that its August 30,
1990 finding was incorrect and inconsistent with the Act.
In
that Order,
the Board stated that a plain reading of the statute
indicated “that the General Assembly did not intend that a
citizen be charged for the same violation under both the
administrative citation provisions and the formal enforcement
provisions of the Act.”
The Board went on to find that since the
PECL contained “the Agency’s stated intention and notification to
the Respondent to pursue formal enforcement” and a “statement
that the letter constitutes the notice required under Section
31(d)
of the Act”, the subsequent issuance of the administrative
citation was inconsistent with Section 31.1(a).
In addition, the
PECL represented that all violations on the attached inspection
report were the subject of the intended formal enforcement
action.
The Board found that based on the language of this PECL
Johnson Blackwell could reasonably rely on the Section 31
enforcement process being the only enforcement method used
against him.
He could also have reasonably relied upon the
agreement reached at the pre-enforcemnent conference regarding the
timeframnes for corrective action.
The Board believes that its
holding supports the language of Section 31.1(a).
A Section
31(d) written notice begins both formal negotiations and formal
enforcement, either one of which is an enforcement method “as
otherwise provided by the)
Act”,
and therefore is not to be used
117—200
5
simultaneously with the administrative citation for the same
violation.
In this regard the Board is aware that a given
inspection may result in allegations of several specific,
individual violations,
each of which may be pursued independently
by
~
suitable enforcement method.
The success of the administrative citation process depends
on simplicity and a lack of ambiguity and confusion.
The Board
is not inclined to look favorably on the validity of an
administrative citation where the Agency was not specific in
handling various violations, especially where reasonable persons
may have relied on Agency documents and representations to their
detriment.
The enforcement of violations must utilize
consistent,
accurate and informative language to avoid the
complexity and resulting confusion which has recently accompanied
some administrative citation proceedings.
The Board’s action
will not “entangle” the administrative citation process,
as the
Agency believes, but will untangle it from other enforcement
methods as the Act intended.
Finally, the Board notes that the Agency has stated that the
Board’s decision was improperly influenced by the respondent’s
assertion that he had cleaned up the site.
This is not true.
The Board is aware of both parties’ assertions as to subsequent
clean up of the site but this factual dispute was not considered
by the Board in making its decision.
For the foregoing reasons, the Board affirms its Order of
August 30,
1990 in this matter.
The Board does not make any
finding with regards to the merits of the Agency’s allegations in
this case.
IT IS SO ORDERED.
Board Member Bill Forcade dissented.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify
at the above Order was adopted on the
~Zo~L
day of
________________,
1990, by a vote of
Dorothy M./J~unn,Clerk
Illinois 1~o1lutionControl Board
117—201