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