ILLINOIS POLLUTION CONTROL BOARD
July 11,
 1985
ILLINOIS ENVIRONMENTAL
 )
PROTECTION AGENCY,
v.
 )
 PCB 83—61
MISSOURI PORTLAND
 )
CEMENT COMPANY,
 )
Respondent.
ORDCR OF THE BOARD
 (by J.
 Theodore Meyer):
This matter comes before the Board on a November
 3, 1983
complaint filed by the Illinois Environmental Protection Agency
(Agency)
 against the Missouri Portland Cement Company (Missouri
portland).
 The complaint alleges that Missouri Portland caused
the emission of particulate matter
 into the atmosphere
 in
violation of Sections 9(a)
 and 9.1(f)
 of the Illinois
Environmental Protection Act
 (Act)
 and former Air Pollution Rules
203(b), 203(d)(2)(B), 904,
 105(a)
 and 105(d), now recodified at
35
 Ill.
 Adm. Code 212.322, Illustration C;
 212.422;
 230.160;
201.149; and 201.263 respectively.
A hearing was held on January 11,
 1985 at which time the
parties stated their
 intention to enter
 into a settlement
agreement.
 The parties summarized
 the terms of the agreement at
hearing and filed a properly signed copy of the Stipulation and
Proposal for Settlement on June 19,
 1985.
The Stipulation and Proposal for Settlement provide the
 Board with a statement of facts which the parties agree
represents a fair summary of the evidence which would be
introduced
 if a full hearing were held.
 Specifically,
 the
evidence concerns two kilns owned by Missouri Portland which
 the
kgency contends were operated on various dates during
malfunctions
 so as
 to emit particulate matter
 in excess of
 the
allowable hourly emission rate.
 The terms of settlement provide,
however,
 that with the exception of the admission
 to a single
violation on one date,
 Missouri Portland denies the violations as
alleged
 in the Agency’s complaint.
 Nonetheless, Missouri
Portland agrees to pay a penalty of Twenty Thousand Dollars
($20,000.00)
 “but without admitting that any penalty is
appropriate or
 that it has violated applicable provisions of the
Act,
 Board Regulations or
 its operating permits, except
 for
 the
violation admitted
 to
.“
 (Stip.
 at
 11,
 as corrected July 2,
1985).
In recent months,
 the Board
 has rejected stipulated
settlements requesting the Board
 to impose penalties and
 to order
65-07
compliance actions absent a Board
 finding of violation,
 e.g.,
 IEPA
V.
 Chemetco,
 Inc., PCB 83—2, February 20,
 1985.
 Although
Missouri Portland does admit
 to one violation
 so as to support
the imposition of
 a penalty, Section 42 of the
 Act. provides for
 a
“civil penalty of not to exceed $10,000
 for
 each
 violation and
an additional civil penalty of not to exceed $1,000
 for each day
during which violation continues,”
 Ill.
 Rev. Stat.
 1983,
 Ch.
ill
,
 par.
 1042(a),
 The admitted violation concerns
 a
 20 to 30
minute period
 on March 26, 1981 during which
 a malfunction
occurred
 in the air pollution equipment controlling
 the No.
 1
Clinker Cooler,
 Missouri Portland admits that it failed
 to
immediately report this “malfunction”,
Because only one violation
 is admitted and this violation
took place on a single day,
 the Board is statutorily precluded
from imposing the stipulated $20,000 penalty.
 Since
 the
agreement requires that
 it shall be “null
 and void” unless each
and every one of
 its terms
 is approved by the Board,
 the Board
hereby rejects the Stipulation Agreement and Proposal for
Settlement.
 The Board orders that hearing
 in this matter
 be
scheduled within 30 and held within 60 days of
 the date of
 this
order.
Should
 the parties determine that they wish
 to file an
amended settlement agreement containing sufficient admissions
 to
support the remedy,
 or
 to allow the Board
 to modify the
agreement,
 they may file within 35 days the appropriate
pleadings.
IT
 IS SO ORDERED,
J.
 D.
 Dumelle,
 R.
 Flemal
 and W, Nega dissented.
I,
 Dorothy
 M. Gunn, Clerk of the Illinois Pollution Contro.l
Board, hereby certify th
 t
 the above Order was adopted
 on
 the
the
 //-~
 day of
____________________,
 1985,
 by a vote
of
 ~.
 (
//~
~-tfL~
 ~
 /L~
,~
Dorothy M.
 Gunn, Clerk
Illinois Pollution Control Board
65-08