ILLINOIS POLLUTION CONTROL BOARD

December 20,

1990

TAZEWELL COUNTY

AND

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY

)

)

Complainant,

)

AC 90—40

v.

)

(Administrative Citation)

)

(Tazewell Docket No. 90—EH-3)

STEVE ZIMMERMAN and WASTE

)

LTD.,

INC.,

)

)

Respondents.

ORDER OF THE BOARD

(by J. Anderson):

On July 27,

1990,

Steve Zimmerman and Waste Ltd., Inc.

(“Z

& W”)

filed a Motion to Dismiss.

On August 30,

1990 the Board

issued an order directing the Tazewell County (“Tazewell”)

and

the Illinois Environmental Protection Agency (“Agency”)

to file

their responses to the Motion to Dismiss by September 20,

1990.

The Board also stated that it would allow

Z

& W to file a reply.

Such reply was to be filed by October

1,

1990.

The Agency filed

a Motion for Additional Time to File its Response on September

20,

1990.

Tazewell filed its response to the Motion to Dismiss

on September 21,

1990.

On September 27,

1990, the Board granted

the Agency’s motion and directed it to file its response by

October 31,

1990.

The Board also gave

Z

& W a corresponding

extension, until November 11,

1990,

in which to file its reply.

On October 30,

1990, the

Agency filed its response to the

Board’s August

30,

1990 Order.

Z

& W did not file a reply.

On

November 29,

1990, the Board issued an Order directing the Agency

to clarify its response and provide it with a copy of its

Delegation Agreement with Tazewell.

The Agency filed its

response to the Order on December

12,

1990.

The Board will not provide a comprehensive summary of the

Motion to Dismiss or the various responses,

but will reiterate

those portions of the documents that are relevant to our

determination in this matter.

In its Motion to Dismiss,

Z

& W aver that Tazewell lacks

standing to issue an Administrative Citation for Z

& W’s failure

to submit reports and fees pursuant to the above regulatory

sections because the Agency acquiesced in its late filing of the

reports and fees via a May 9,

1990 settlement agreement between

the Agency and Z

& W, and thereby waived its rights under the

above regulatory sections on the dates for which the

Administrative Citation alleges that

Z

& W was in violation, and

thereafter until May 23,

1990.

In response, Tazewell first argues that

Z

& W waived the

117—203

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2

above objection to the issuance of the Administrative Citation

because it failed to raise the argument prior to or

simultaneously with its Petition for Review.

Specifically,

Tazewell argues that

Z

& W admitted that Tazewell had authority

to issue the citation when it filed its Petition for Review.

Finally, Tazewell argues that the Agency,

in effect, repealed

Tazewell’s authority to levy a local solid waste disposal fee and

prosecute those who violate reporting requirements when it

allowed

Z

& W to delay the filing of reports, and that it is

without authority to do so.

In its October 30,

1990 response, the Agency states that it

would not have brought this action because the violations charged

in the Administrative citation (i.e., violations of 21(9) (11)

of

the Illinois Environmental Protection Act

(“Act”) for failure to

timely submit reports and fees) are the subject of an agreement

between it and Z

& W.

Specifically,tn the Agency contends that,

prior to the filing of the complaint in this case,

it determined

that

Z & W failed to file the reports and fees required by 35

Ill. Adm. Code 858.307B, 858.308B, and 858.401(a).

On March 15,

1990,

it sent a second notice of the violations to

Z & W.

On May

17,

1990,

the Agency completed the execution of its agreement

with Z

& W with regard to the delinquent reports and fees.

In its December 14,

1990 response, the Agency adds that,

although it is not recommending dismissal of this case because of

a belief that no violation occurred as a result of the Agency

agreement with

z

&

W,

it disapproves of this case because

it had

negotiated an agreement with

Z

& W prior to the filing of the

case.

When a delegated county files an administrative citation,

a copy of the complaint

is transmitted to the Agency for its

review.

In this case,

Mr. William Seltzer, the Agency’s attorney

in this matter, asserts that he reviewed the complaint and

telephoned Mr. Stewart Umholtz, Assistant State’s Attorney for

Tazewell, and informed him that the Agency did not approve of the

action.

We hereby grant

Z

& W’S Motion and dismiss this case in

light of the Agency’s actions in this matter and because we

cannot state that Z

& W’s reliance on its agreement with the

Agency’s was misplaced or unreasonable.

If the Board were to do

otherwise,

it would be unfairly punishing Z

& W for such

reliance.

Illinois Environmental Protection

Agency v. Johnson

Blackwell,

AC 90-27

(December 20,

1990).

Finally, we wish to take special note of the following

language in the Delegation Agreement:

“In appropriate cases, a

matter may be referred for both formal enforcement and issuance

of an administrative citation”.

We note that this statement is

in direct contravention of Section 31.1(a) of the Act as well as

the Board’s interpretation of that section.

Specifically,

Section 31.1(a) provides that specified prohibitions of the Act

117—

204

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3

“shall be enforceable either by administrative citation ~

as

otherwise provided by this Act”

(emphasis added).

Moreover,

in

the Blackwell case (cited above), we stated that the language of

Section 31.1(a) prevents the use of both a formal enforcement

action and the administrative citation process for the same

violation.

IT IS SO ORDERED.

I, Dorothy N.

Gunn, Clerk of the Illinois Pollution Control

Board, hereby certi

that the above Order was adopted on the

c,?O~ day of

________________,

1990, by a vote of

7~

~.

4~

Dorothy N.~$unn,Clerk

Illinois Pollution Control Board

117—