ILLINOIS POLLUTION CONTROL BOARD
September 8,
1988
IN THE MATTER OF:
WASTE MANAGEMENT OF
)
AC 88-53
ILLINOIS,
INC.,
)
(IEPA Docket No. 8995—AC)
Respondent.
ORDER OF THE BOARD
(by J. Anderson):
On September
2, 1988, WMI moved
to withdraw its petition for
review of this administrative citation, further
requesting that
“the Agency accede to and
the Board
enter
a consent order
in this
matter without a finding of violation”.
In support of this
motion, WMI asserts
that Section 31.1(d) does not specifically
address the situation
in which respondent agrees
to pay the
proposed
fine without admitting or denying the facts alleged, and
further asserts that in “standard enforcement cases” arising
under
Section 31,
the Board can issue an Order accepting
a
penalty which does not contain a finding or admission of
violation.
WMI’s motion
is supported by affidavit and other
documentation indicating that it has already paid
the civil
penalty.
Although the time for
response
to this motion has not yet
run,
the Board believes
it
is appropriate to respond
to this
Order
today,
to avoid delay in resolution of this action.
In summary, the Board finds that
it lacks statutory
authority to grant WMI’s motion as framed.
In the “standard enforcement action” established by Section
31(a),
Section 33 prescribes
the content of final orders of the
Board: generally, the Board may enter
final orders or make final
determinations,
“as
it shall deem appropriate under
the
circumstances”.
Among
the Orders the appellate courts have
interpreted
as being appropriate pursuant
to are these Sections
Orders accepting stipulated settlements which accept penalty
payments but which do not contain findings or admissions of
violations.
E.g. Chemetco,
Inc.
v. PCB and IEPA,
488 N.E.2d 639,
140 Ill. App.3d 283
(5th Dist.
1986).
By contrast,
in the administrative citation cause of action
established by Sections 21(p)
and Section 31.1,
Section 31.1
alone prescribes the content of final orders of the Board.
Just
as Section 21(p)
circumscribes the discretion of the Agency
in
terms of the type of cause of action which may be brought,
92—
199
—2—
Section 31.1(d) circumscribes the discretion of the Board
in
terms of the final Order which may be entered.
While WMI
is
correct that Section 31.1(d)
does not specifically address the
exact scenario
it proposes,
the Board
notes that the Section
otherwise does make clear
that “appropriate” Orders
to be entered
(assuming jurisdiction has vested) are orders finding that
violations did occur
(Section 3l.l(d)(1))
or violations did not
occur
(Section
31.1(d)(2)).
While
a respondent
is not by the
terms of Sections
3l.,l(d)(1)
required to admit
to violations if
it does not wish
to contest
a violation,
the Board
is required
to
make
a finding of violation.
The only real distinction between
that situation and the one here presented
is that the Board and
the Agency have already expended resources processing
an appeal
which WMI may choose
not
to pursue;
to hold that such
a filing
extends the Board’s statutory discretion would
be to encourage
the very sort of enforcement delay and paperwork proliferation
the legislature sought
to prevent
in creating the administrative
citation action.
WMI’s motion
is denied.
WMI
is
free
to pursue its appeal,
or
to move
to withdraw its action unconditionally.
IT
IS SO ORDERED.
I, Dorothy M.
Gunn,
Clerk
of the Illinois Pollution Control
Board,ji~rebycerti y that the above Order was adopted on
the
~‘—~
day of
______________,
1988,
by
a vote of
7—~
Dorothy M.
Gixqn, Clerk
Illinois PolYution Control Board
92—200