ILLINOIS POLLUTION CONTROL BOARD

June

7,

1990

BILL ADEN,

et

al,

Petitioners,

PCB 86—193

v.

)

(Enforcement)

CITY OF FREEPORT,

Respondent.

ORDER OF

THE

BOARD

(by J.

Marlin):

This matter

comes before the Board on the City of Freeport’s

(“Freeport”)

Petition to Modify Order filed May 17,

i990.

The

petition seeks

to modify the Board’s Order entered September

8,

1988 assessing Freeport

a penalty of ten thousand dollars

($10,000.00).

Freeport wishes

to pay the penalty to

the Freeport

Water and Sewer Ccmm:ssion.

The Order presently requires the

penalty to be paid into the Environmental Protection Trust

Fund.

On May 29,

1990 the Illinois Attorney General, on behalf

of The People of the State of Illinois and the Illinois

Environmental Protection Agency,

filed

its Response

to City of

Freeport’s Petition to Modify Order.

The response objects

to the

relief

requested by Freeport.

For reasons given below,

Freeport’s motion

to modify is denied.

Freeport argues that changed circumstances justify relief

from the Board’s Order.

In addition to stating that

it has shown

good faith

in complying with the Board Order through substantial

compliance with the majority of

its terms,

Freeport argues that:

the purposes and goals of the state statute

and of this Board would be better served as

well directly benefiting

the residents of the

Respondent by permitting

the Respondent

to

utilize the funds

to pay the fine directly

to

the Respondent’s water and Sewer Comm~ssicnso

that the

fine may be promptly used

to

rehabilitate

the sanitary sewer system which

was

the purpose of

this litigation.

Petition,

p.

4

Freeport also attaches several exhibi~ in support of

its

position regarding good

faith and substantial compliance.

The

petition,

Freeport states,

is ~i1ed pursuant

to

35

Ill. Adm.

Code

101.301.

I

I 2_nc)

---

—2—

The Attorney General’s

response points out that

the Board’s

original Order

in this matter was appealed by Freeport.

The

Second District Appellate Court affirmed the Board decision

in

full.

The Attorney General further argues that Freeport’s

petition

to modify does

not comply with Board procedural rules.

Board

rules allow modification of

judgments upon “newly

discovered evidence which existed at the time of hearing and

which by due diligence could not have been timely discovered.”

35

Ill.

Adm.

Code 101.301

(emphasis

in original).

The response

also states that

the penalty statute provides

for payment

into

the Environmental Protection Trust Fund and does

not give the

authority

to designate alternative sources.

Finally,

the

response argues that any relief given for compliance

subsequent

to enforcement would violate

the penalty provisions of

the Act.

We believe

the Attorney General’s response

is well

reasoned.

To now relieve Freeport would substantially undermine

the purpose

for which the penalty was imposed:

to aid

in

enforcement

of the Act.

While Freeport’s actions appear well—

designed

to cure the violative situation which existed, we must

point out that these acts are

in response to Board order.

The

Board’s finding

that the violation deserved the penalty of ten

thousand dollars

is not affected by this subsequent conduct.

Nor

do we find support

for the notion that the Board may designate

the payment of

its penalties

to places other

than the

Environmental Protection Trust Fund other

than

that general.

authority which exists for designating payments

to the General

Revenue

Fund.

Therefore,

Freeport’s petition

to

modify the Board

Order

of September

8,

1988

is denied.

IT

IS SO ORDERED.

I,

Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board,

hereby certify t~t the above Order was adopted on

the

7~

day of

_______________

,

1990,

by

a vote

of

7—0

.

~.

orothy

M. ~(inn, Clefk

Illinois Po’llution Control Board

1 12—lfl