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