ILLINOIS POLLUTION CONTROL BOARD
May 11,
1989
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Complainant,
v.
)
PCB
98—201
CITY OF MARION,
a municipal
corporation,
and MARION PEPSI
COLA BOTTLING COMPANY, INC.,
)
a Missouri corporation,
)
Defendants.
INTERIM ORDER OF THE BOARD
(by J. Anderson):
On December
14,
1988,
the Illinois Environmental Protection
Agency (Agency) and the City of Marion (Marion)
and the Marion
Pepsi Cola Bottling Company
(Company)
filed
a Stipulation and
Proposal for Settlement
(Stipulation).
There
are
a number
of aspects of the Stipulation which the
Board would
like clarified and one part that the Board cannot
accept.
While
the Stipulation does not contain a condition
that
it be accepted only in
its entirety, the Board believes
it
is
preferable
to allow the parties
to explain or alter
the
provisions prior
to making
a determination on the Stipulation.
Section
IX of the 3tipulation states
that “The Board
shall
retain jurisdiction for the purposes
of
interpreting,
im~ionenting
and enforcing
the terms
and conditions o~this
consent decree and for the purpose
of adjudicating all matters
of
dispute among
the parties”
(Stip.
p.
11).
In terms of “retaining
jurisdiction” in matters of
this
type,
the Board construes such
a provision as allowing the Board
to “close” the docket
(after accepting the settlement agreement)
in terms
of handling the physical
file.
However,
if the need
should arise,
the Board would grant
leave
to “re—open” the docket
to entertain motions
or other
filings
to resolve matters
contained
in the previously accepted settlement.
Is such
a
construction consistent with
the
intention of the parties?
Inacidition, Section
IX does not specify
those matters over
which
the Board
is
to retain jurisdiction.
The Board
is,
moreover, essentially required
(“The Board shall retain
jurisdiction
...“
(emphasis added))
to retain such unlimited
99—27
—2—
jurisdiction.
The Board
is unwilling to approve such an open—
ended obligation.
The Board urges the parties
to further define
these matters over which
it
is to retain jurisdiction, and to
clarify the role of
the Board consistently with
its position as
a
non—party independent adjudicator of disputes.
The Board understands that under
the concept of “retaining
jurisdiction”
it may
be involved to some degree
in the
implementation of the decree over
a period of
time.
In this
case, that period of
time
is unspecified.
When,
for
instance,
is
the Company
to commence and/or complete the construction of
a
tank and pump system pursuant
to item
5 of Section V of
the
Stipulation
(Stip,
p.
8)?
Is
the Board expected
to sit
in review
of Marion’s enforcement effort with respect to Ordinance
#905
in
perpetuity,
as may be
inferred from item
2 of Section V of
the
Stipulation
(Stip,
p.
7)?
There
is
a provision which
allows
the Board
to. “extend the
time for performance” under the Stipulation
if the Board
determines
that a violation of terms
of the Stipulation occurred
as
a
result of circumstances beyond
the control
of either Marion
or
the Company.
(Section VII.)
However’, Section V, which details
certain commitments made by Marion and
the Company does not
provide any corresponding deadlines for keeping
those
commitments.
The Board
believes that it may be difficult to
enforce those commitments,
much less “extend the time for
performance”
of them when the Stipulation does not provide dates
for completion of
the committed actions.
The Board would like
the parties
to address
this point.
Section VIII,
Civil Penalty, provides that part of
the
penalty be payable
to the Environmental Protection Trust Fund,
and
part
payable
to
the
Hazardous
Waste
Fund.
(Stip,
p.
10.)
The
penalty provisions
in Section 42 of the Environmental Protection
Act
(Act)
empower
the
Board
to
order
penalty payments
(as an
alternative
to
the
General
Revenue
Fund)
only
into
the
Environmental
Protection
Trust
Fund.
This
alternative
was
not
available
to
the
Board
until
the
enactment
of
Public Act 83—618
(effective January
1,
1984),
amending Section 42.
Section
22.2(f)
of
the Act states that “costs of
removal or remedial
action
incurred by the State as
a result
of
a release of
a
hazardous substance” may be recovered
by the State.
In addition,
any monies so received
by the State “shall be deposited
in the
State
Treasury
to
the
credit
of
the
Hazardous
Waste
Fund”.
Although the Stipulation asserts
that the Company’s release of
sodium hydroxide subjected the Company
to Section 22.2(f),
the
Stipulation does not state
that the $3,000 penalty,
to be
deposited
in
the
Hazardous
Waste
Fund,
represented
costs
incurred
by the State
for removal
or remedial aption.
Absent additional
legislation amending,
inter
alia, Section
42,
the Board cannot
accept
that part
of the Stipulation ordering payment
of
a penalty
into the Hazardous Waste Fund.
99—28
—3—
Also,
the Stipulation
in Section VIII provides that the
penalty checks shall
be delivered to the Environmental Control
Division of the Office of the Attorney General
in Springfield.
The Agency has historically carried out the record keeping
responsibility for the payment of penalties;
in the past, penalty
payments have generally been sent to the Agency.
The Board also
calls
the attention of both the Attorney General and the Agency
to the October
17,
1988 meeting of the Environmental Protection
Trust Fund Commission,
of which both the Agency and the Attorney
General are members.
At that meeting, by unanimous vote,
the
?~gencywas redesignated
as coordinator
for the Commission
in
handling receipts, among other duties.
The
Board
requests
the
Agency and
the Attorney General
to clarify the situation.
Is the
Attorney General’s Office the agency which will now receive all
penalty
payments
or
is
this
an
isolated
incident?
The
parties
shall
file
responses
to
this
Order
within
45
days
after
the
date
of
this
Order.
IT
IS
SO
ORDERED.
I,
Dorothy
M.
Gunn,
Clerk
of the
Illinois
Pollution
Control
Board,j~reby
certi
that
the
above
Interim
Order
was
adopted
on
the
//~~-Pday
of
______________,
1989,
by
a
vote
of
7~
Illino
lu
Control
Board
99—29