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