ILLINOIS POLLUTION CONTROL BOR~RD
    November
    3,
    1988
    IN THE MATTER OF:
    )
    )
    WASTE MANAGEMENT OF
    )
    AC 88-54
    ILLINOIS,
    INC.,
    )
    (Case No.
    88—EH
    9)
    )
    Respondent.
    ORDER OF THE BOARD
    (by
    3.
    Anderson):
    On October
    24, 1988, Tazewell County (County)
    and Waste
    Management of Illinois,
    Inc.
    (WMI)
    jointly moved
    the Board
    to
    enter
    a finding of
    no violation
    in this matter.
    The joint motion recites
    that:
    1.
    Tazewell County finds
    it
    is not economically
    reasonable
    to expend public resources
    in
    pursuing a finding of violation
    in this matter
    due to the fact that the Tazewell County
    Landfill operated by Waste Management of
    Illinois,
    Inc.
    does not have
    a history of non-
    compliance with Section 21(p)
    of the
    Environmental Protection Act and has not
    otherwise operated
    in a manner
    adversely
    affecting the residents of Tazewell County.
    2.
    Waste Management of Illinois, Inc.,
    finds that
    it
    is not economically reasonable
    to go to
    hearing
    in this matter.
    3.
    Waste Management of
    Illinois,
    Inc.
    has agreed
    to make
    a contribution of $250 to the Illinois
    Environmental Trust
    fund and $250
    to the
    Tazewell County Environmental Trust Fund.
    The joint motion
    is denied.
    The Board finds that
    it lacks
    the statutory authority to grant the joint motion as framed.
    As
    the Board previously stated in ?~C 88—53, and as
    is equally
    applicable here:
    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
    93~-325

    —2—
    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
    this
    case
    the
    County
    in
    terms
    of
    the
    type
    of
    cause
    of
    action
    which
    may
    be
    brought,
    Section
    31.1(d)
    circumscribes
    the discretion
    of
    the Board
    in terms
    of
    the
    final Order
    which
    may
    be
    entered.
    (Waste
    Management
    of Illinois,
    Inc.
    Respondent,
    AC
    88—53,
    September 8,
    1988,
    p.
    1.2).
    Section 3l.l(d)(2)
    of
    the Environmental Protection Act
    (Act)
    states:
    “If
    a petition for review
    is filed before the Board
    to contest
    an administrative citation
    issued
    under
    subsection
    (b)
    of
    this Section,
    the Agency
    or
    unit
    of
    local
    government
    shall appear
    as
    a
    complainant
    at
    a
    hearing
    before
    the
    Board
    to
    be
    conducted
    pursuant
    to Section
    32
    of
    this Act
    at
    a
    time
    not
    less than
    21 days after notice
    of
    such hearing has
    been
    sent
    by
    the
    Board
    to
    the
    Agency
    or unit
    of
    local
    government
    and
    the
    person
    named
    in
    the
    citation.
    In
    such
    hearings,
    the burden
    of
    proof
    shall
    be
    on
    the
    Agency
    or
    unit
    of
    local
    government.
    If,
    based
    on
    the
    record,
    the
    Board
    finds
    that the alleged violation occurred,
    it shall
    adopt
    a
    final
    order
    which
    shall
    include
    the
    administrative
    citation
    and
    findings
    of
    violation
    as
    alleged
    in
    the
    citation,
    and
    shall
    impose
    the
    penalty
    specified
    in subdivision
    (b)(4)
    of Section
    42.
    However,
    if
    the
    Board
    finds
    that
    the person
    appealing the citation has shown that the violation
    resulted
    from
    uncontrollable
    circumstances,
    the
    board
    shall
    adopt
    a
    final
    order
    which
    makes
    no
    findings
    of violation and which imposes no penalty.”
    In the instant joint motion,
    both the relief requested and
    the underlying grounds and reasons are
    in conflict with the
    Act.
    The express procedural requirements of 3l.1(d)(2),
    including the requirement for
    a hearing, that must occur before
    the Board can make
    a determination have not occurred here.
    Even
    if the procedural requirements were met,
    the Board
    is restricted
    in its determination, based solely on the issue of uncontrollable
    circumstances, either
    to find
    a violation and impose
    a Section
    42(b)(4) penalty or find
    no violation and impose no penalty.
    Again,
    the joint motion of the County and WMI
    is denied.
    Regarding the assertion of economic reasonableness contained
    in
    q3—32~

    —3—
    the motion, WMI
    is free
    to move to withdraw its action
    unconditionally,
    or the County
    is free to move
    to dismiss its
    action,
    also unconditionally.
    The Board also notes that the
    matter
    of donations
    to the Environmental Protection Trust Fund is
    not properly before the Board
    in this proceeding.
    IT
    IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk
    of the Illinois Pollution Control
    Board,
    hereby certify that the above Order was adopted on
    the
    ~f~(
    day
    of
    ~
    ,
    1988, by
    a vote
    of
    ~‘
    °
    ~
    Dorothy M./Gunn, Clerk
    Illinois Pollution Control Board
    93—32 7

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