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

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