ILLINOIS POLLUTION CONTROL BOARD
February 20,
1985
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v.
)
PCB 81—190
)
THE CITY OF CHICA~~a
Mur~:~ipa.
)
corporationr
and
jc:~
~
COREY,CommissiOner Lilicago
Department of Water and INGERSOLL
)
PRODUCT CORP., an Illinois
)
Corporation,
Respondents~
ORDER OF THE BOARD
(by J~Marlin):
On January
4,
1985,
the parties filed a stipulation and
proposal for settlement of this action.
This stipulation
is
rejected,
Pric~to discussion of the Board’s rationale for
rejection of t~
$
stipulation,
the Board will recite the
procedural his
cy of this enforcement action.
Procedural History
This matter comes before the Board on the December
2, 1981
Complaint of the
People
of
the
State of Illinois by the Attorney
General.
Count
I of the Complaint alleged that,
from at least
February 1948 until November
20,
1981 the respondent Ingersoll
Products,
Corp.
(Ingersoll) maintained a cross—connection between
Ingersoll’s mill furnace cooling water system and the Chicago
public water supply
(supply) pipe by
a removable section of pipe
and valves;
the water supply is a water of the State;
the cooling
water contains oil, unnatural turbidity and other unknown
contaminants and has an odor;
using the removable pipe section,
cooling water
flows
to the supply and, beginning on o~before
November 20,
1981, Ingersoll caused or allowed the crOss—
connection by installing
the pipe,
all in violation of Section
12(a)
of the Environmental Protection Act (Act).
Count II alleges that beginning on or before Novemoer
19,
1981 and continuing until November
20,
1981,
the cooling water
flowed into the supply, by
way
of the cross—connection; on or
about November 19,
1981,
the
supply had an obnoxious odor,
was
turbid,
tasted of~n~cive
and/or
contained oil and other unknown
contaminants
in
an
between
Haisted Street and Damen and fz~m
63-05
116th to 124th Street,
thus causing or contributing to water
pollution in violation of 12(a)
of the Act,
Count III alleges that, beginning on or before November
19
until November 20, 1981,
the cooling water flowed
into
the supply
in the area designated
in Count II and contained the odor,
turbidity,
taste and oil designated
in Count II caused or
contributed
to violations of Water Rule 203(a)
(now 35
Ill, Adm,
Code 302,203) regulating unnatural sludge,
and Section 12(a)
of
the Act,
Count IV alleges that, beginning on or before November
19,
1981, Inersoi1~a di
~harg~caw~edor contributed to a violation
of Public Water Supplies Rule 304(3) (1),
(now 35
IlL Adm, Code
604~201(a)),regulating finished water quality, and Section 12(a)
of the Act,
Count V alleges that, beginning on November
22, 1974 and
continuing until November
20, 1981,
respondents City of Chicago
(City) and Commissioner of the City Department of Water John B,
W, Corey
(Commissioner) allowed a pipe arrangement to exist
whereby an unsafe substance can enter the supply,
in violation of
Public Water Supply Rule 314(B)
(now 35 Ill. Adm. Code
607,104(b),
regulating cross~connections.
Count VI ~ leges that, from at least February 1948 until
November
20,
j(
~,
there was a
cross—connection from
the cooling
water system
&
L000 W,
120th Street to
the supply;
a portion of
the pipe betwe~
the supply and Ingersoll’s
cooling
water system
was visible;
C
~ywater Department conducted inspections at the
factory; from at least December
7,
1978 until November 20,
1981,
the City and Commissioner by their acts and omissions failed to
implement an effective cross—connection
control program
in
violation of Public Water Supplies Rule 314(D)
(noW 35 IlL Adm,
Code 607,104(d))
and the Environmental Protection Agency’s
(Agency) Technical Policy Statement
(TPS) adopted pursuant
thereto, regarding a supply~sresponsibility to control cross—
connections,
Count VII alleges that,
since on or before November
19,
1981,
the City and Commi~sionerallowed the supply to contain
odor,
unnatural turbidity and oil, and
to have an offensive taste
in violation of Public Water Supply Rule 304(B) (1)
(now 35 Ill,
Adm, Code 604,201(a)), regulating finished water guality~
On December
31, 1981,
the City and Commissioner
~
to
dismiss Counts V through VII, and on January 21,
1982 ~
Attorney General filed a Response in Opposition.
On 3!ebruary 17,
1982,
the Board denied the motion as
to Counts V and VII, and
granted the motion as to Count VI~ On March
4, 1982,
the
Attorney General moved the Board
to reconsider
its dimissal of
Count VI, which, on April 15,
1982, the
Board
granted and
reinstated Count VL,
On April
22, 1982,
the City and
Commissioner moved the Board
to reconsider
its April 15,
1982
—3—
order~ On May 13, 1982,
the Board denied the Motion,
On June
14, 1984 the Board ordered the case to go to hearing within 60
days or be subject to dismissal~
On January
4,
1985,
the parties filed a stipulation and
proposal for settlement
(stipulation),
which
was presented at
hearing on January 28,
1985,
In the stipulation’s Statement of Facts,
the parties
stipulate
in large measure to the events alleged
in
the
complaint, adding that the cross—connection was removed
on
the
evening of November
20, 1981,
It sho~Udbe emphasiz~~ere, that the respondents did not
stipulate to any violations~ The respondents specifically did
not agree
to the People of the State’s “contentions of fact and
law based on the stipulated statement of facts~”
(Stip,
unnumbered p,5),
The City agreed
to conditions generally requiring a stepped—
up cross—connection enforcement program,*
Ingersoll agreed
to a compliance
requiring submittal
of
detailed drawings,
a certification that
the cross—connection
has
been eliminate
~,
and to comply with the “City and State plumbing
codes,”
Addition~ ~y, Ingersoll agreed to
pay a penalty of
$3,000,
and a volunta:
contribution of $9,500,
both payable to the
Environmental
rust FuncL
(Stip,
11,
12).
Finally, the stipulation provides that the stipulation shall
be null and void unless the Pollution Control Board accepts” each
and every term and condition set forth,”
(Stip, l)~
ion of the Sti
U
lation
First,
the Board will address its refusal to accept a
stipulation that, by its terms, precludes the Board from making
findings of violations.
Next,
the Board will address
its refusal
to allow payment of contributions, as opposed to penalties,
in
settlement of an enforcement action,
*The Board notes that these conditions relate,
th ~rt,
to
compliance with the City’s ordinances,
Additionally,
condition waives any City cause of action
against
Ingersoll
for
costs,
(Stip~ 9,,
l0)~.
Insofar
as these conditions order
compliance with local ordinances and settlement of a monetary
dispute between the respondents, they are unrelated to the
allegations
in the complaint and,
in any event, beyond the
remedies within the Board’s power to orders
These conditions,
therefore, would also be rejEcted,
The first and funda~’ncntalbasis
for rejection of this
stipulation
is the Board
co elusion that it lacks statutory
authority to accept setti
r
rts requiring payment of stipulated
penalties and imposing compliance conditions without a Board
finding of violation, based either on admissions or evidence
contained in the record~ The legislatively—created Board derives
its enforcement powers and
u
es from the Act and the
Administrative Procedure Act
APA), IlL Rev, Stat, ch~127 §1001
et~g~ Section 33(a
of r’tle VIII:
“Enforcement” of the Act
empowers and requires the Board,
after hearing,
to “issue and
enter such final order,
as it shall deem appropriate
(and shall
file and publish
written opinion stating the facts
and reasons leiding ~
it
eec ~ion,”
The “writt
opinion”
requirement of Section 33(a)
h
s
a counterpart
in Section 14
of
the APA, requiring in contestec cases “findings of fact and
conclusions of law”,
Section 33(b) of
tIre A
t
vovides that “such
Section
32(a)
order may include a cii ~~tion to cease and desist from
violations of the Act or
of
tl’~eBoard’s rules,
,
,
and/or
the
imposition by the Board of civil penalties
in accord with Section
42 of this Act,***”
The pertinent subsection of the Section,
Section 42(a),
provides that
“Any person that violates
ny provisions of this
Act
r any
gulation adopted by the Board, or any
permit or
t
m or cordit3on thereof,
or that
violates ar
determination or order of the Board
pursuant
tr
his Act
sha)l be liable to
a civil
penalty of
t to exceed
10,000 for said violation
and an addit~ona~.
civil. p~ ity of not to exceed
$1,000
for e~chday during which violation
continues; such penalties
iiay,
upon order
of the
Board or
a court
f
o
~t jurisdiction, be made
payable to the Envi
~
~l.Protection Trust Fund,
to be used
in a’co d
cc
~i
i
the provisions of “An
Act creating the Erv ro
tal Protection Trust
Fund”, approved Septcithcr
2, 1979,
as amended,”
The Act does
r
I
mention settlement
procedures
Howeve~. p r’
to the authority granted under
Section 26 of the Act,
thc ,3o~~rdhas adopted a procedural rule,
35
Ill, Adrn~Code 103 180
peinitting and providing requirements
for submittal of a propsed ‘~et’~lementor compromises
A written
statement
is to be fl~c c
~~iing,
among other things a “full
stipulation of all uatc
~a
eta pertaining
to the nr~~
extent, and causes of the
.
~ged violation”,
a propo~~
compliance plan, are a p
~~ed
penalty~
In line with
~
hearing requirements of
ctio
a 31 and 32 of the Act,
the
written proposal
is
to be p~’esentedat public hearing for citizen
comment on the alleged violatIons and proposed settlement
terms,
The Board has prov~d~dthat
it shall
“consider such
proposed settlemen
or st~plo
on
and the hearing record” and
may “accept, suggest revisions
in,
reject the proposed sett1eme~t
a5..
or stipulation, or direct further hearings as it appears
appropriate.’
Viewing the ~j~gjo stipulation in light of these various
statutory
and
regulatory -requirements,
it
is
clear
that
the
Board
cannot
sake
any
required
findings
of
fact
and
conclusions
of
law
beyond
one
that
‘the
parties wish to settle the case for $12,500,
$3,000 of which isa penalty, payable to the Trust Fund.’
To the
extent the ‘Act authorizes
the
Board
to
order
payment
of a
penalty,
the authority is premised on a finding of violation.
As
the
respondents
resist
a
Board
attempt
to
sake
such
a
finding,
and
as
the
Act
does
not
authorize
the
Board
to
accept,
on
the
part
of the State, ‘voluntary contributions’ in settlement of
‘nuisance suits’,
the penalty portion of the stipulation must be
rejected.
As to the proposed compliance plan, in the absence of
findings of violation, the Board is placed in the position of
ordering accomplishment of ‘voluntary
remedial
activities’ to
correct ‘non—existant’ non—compliance.
The compliance plan
portion of the stipulation is also rejected.
The parties have
not
addressed the Board’s statutory
authority to accept this stipulation.
However, the Board, in
ZEPA v. Chemetco, PCB 83—2, February 21,
1985, addressed
various
policy
arguments by the Attorney General in
favor
of accepting
that stipulatio
in the absense of findings
of
flolation.
Since
the Board prest
35
that the Attorney General ~fld
sake similar
assertions her
the Board will again address
them
here.
In
Chemetco, the
I
:orney General asserted that
e in favors
settlements am
that a finding of violation destroys the essence
of
the
bargain
etc
and
protracts
litigation
and
that
the
Board
has
in
a
few cases
imposed
fines
without
a
finding
of
violation
While
not
articulated
in
Chemetco,
it
might
also
be
argued
that
the
effect
of
the
Board’s decision interferes with the Attorney
General’s
otherwise
broad
powers
of
prosecutorial discretion.
While these policy arguments might support a legislative
change, they run counter to the Board’s plain reading of the
Act.
The Board
recognizes
that
the
courts
have
accepted
settlements
between
two
parties without admissions.
The courts,
however,
have
inherent
common
law
powers
the
Board
don
not
possess.
Additionally,
the Act inherently recognises that
pollution
issues
affect
the interest of other persons, above
and
beyond the parties, as Section 2 of the
Act
makes
clear.
The
Board suggests that the Act was deliberately
framed
to
require
the
Board
to sake findings of violations, so as to assure that
compliance and
payment
of
a
penalty
is
a
compulsory,
not a
voluntary, act.
Existence or lack of findings of vio1a4~onsay
also be important in the event of subsequent filing of
enforcement actions against the same source:
previous findings
of violation say properly be considered as aggravating
circumstances affecting penalty deliberations in later cases.
The Board also notes, pursuant to Section 31,
that complaints may
be filed, and settlements reached, by citizens
who
take on the
status of ‘private attorneys general’,
and
qiuestions whether wide
aa aa
prosecutorial
discretion
also accrues
to such persons concerning
stipulated penalties
and compliance
conditions.
Regarding the
$12,500 designated
by the parties as a
“voluntary contribution”,
the Board
has earlier
in this Opinion
found that the Act does
not authorize
it to order voluntary
contributions
to the
Trust Fund,
This is true even apart from
the “findings of
violation~
issue,
Specifically regarding the
Trust Fund,
the
Board
is authorized
to order payments only of
unrecoverable
penalties
into that
Fund pursuant to the authority
to so order granted
to the Board in
Section 42(a)
of the Act as
amended by P.A.
83~06l8,effective
September 19, 1983.
Penalties
do not
encompass
voluntary
contributions.
The legislation
creating the
Trust Fund and
a Commission
to administer
it
was
P.A. 81—951
effective Thnuary
1,
1980 and codified as Ill,
Rev,
Stat.
1983,
ch,
111 1/2 ¶1061,
That
legislation provides
in
pertinent part that
“The Commission
may accept,
receive and administer
.
.
.
any
grants, gifts,
loans,
or other
funds*** provided that such
monies shall be used
only for
the purposes for which they
are contributed
and any balance
remaining shall be returned
to the contributor
,
,
The
Board wishe~
to emphasize that
it
does not construe the
quoted portions
~f
the Trust
Fund
Act as giving a potential right
of recovery for
~enaltiesordered
to be paid into the Trust Fund
pursuant to Sec
on
42(a)
of
the
Environmental Protection Act.
When the Trust
und was created,
the
legislature obviously
envisioned
that the fund was to
receive
voluntary gifts or
contributions,
to either be used for
environmental purposes or to
be returned
so as to avoid frustration
of the intention of the
donor of the
gift.
Payment of a
penalty
for violation
of the Environmental
Protection Act
is a
compulsory,
and
not a voluntary,
act.
There
is no right
of recovery for
a penalty
paid into the General
Revenue Fund,
In allowing penalty
monies
to be paid into the
Trust Fund,
the
legislature has clearly
implied that such
penalties may,
in
essence, be earmarked
for any appropriate
environmental purpose.
The Board
concludes that
to construe the
Trust Fund Act as
implying a right of
recovery for penalties
deposited into
it runs
counter
to the
intention of the
Environmental
Protection
Act.
Certification For
Interlocutory Appeal
This
“finding of
violation~
issue has applicability to every
enforcement
case
brought before the
Board.
(In fact,
the Board
has today
rejected
several proposed
stipulated settlements
requiring
payment of penalties or
other “gifts” or “sums” and
timely
performance
of compliance
plans,
in all of which cases
no
findings of
violation could be made:
IEPA
v.
Chemetco, PCB 83~2
Ifl
($20,000
penalty, compliance plan and
schedule);
IEPA v. Arno1d~s
Sewer
and Septic
Servic
&JimmyMcDonald,
PCB 83—23
($300 “sum~,
0prohibition~
from violations of the
Act); People v. Joslyn Mfg,
& Sup~1j’
Co. and Herman Zeldenrust,
PCB 83—83
($8,000 penalty,
$14,000
~payment~, ceast and desist
order); and IEPA v. City of
Galva,
PCB 84~3,
84~4(consolidated)
($3,375 penalty, complex
program of system
improvements)
In
each of these cases the
Board has
certified a
similar question
for interlocutory
appeal.
For
these reasons, as well
as the fact that a contrary
result would
have ended
this
action,
the Board on its own motion
hereby
issues a statement
(also
known as a Certificate of
Importance)
to allow for immediate
interlocutory appellate review
of the
Board’s Order pursu~tto Supreme Court
Rule
(SCR)
308.
SCR 308(a)
provides,
in pe~::tinentpart
that
“When the trial court,
in making an
interlocutory
order
not otherwise
appealable,
finds that the
order
involves a question of law
as to which there
is
substantial ground for
difference
of opinion and
that an
immediate appeal from
the order may
materially advance the ultimate
termination of the
litigation,
the court shall so
state
in
writing,
identifying
the question of law
involved.
The
Appellate
Court may thereupon
in its
discretion
allow
an
ar ~ea1 from the order,”
The Board
is authority to issue
such a statement
(see
9~j~
Synthetic Fuel
~PCB,104
Ill.
App.
3d 285
(1st Dist.
1982).
Pursuant
~ SCR 308,
the Board
finds that this Order
a)
“involves a question of law as to
which
there
is substantial
ground for
difference of opinion”,
and b)
immediate appeal
“may
materially
advance the ultimate
termination of
(this
litigation”.
The question of law certified
for appeal
is
as
follows:
Whether
the Board correctly determined
that
it
lacks
statutory authority,
pursuant
to Ill. Rev.
Stat.
ch,
ill 1/2, Sections 1032,
1033 and 1042 as
they
relate to Board acceptance of
stipulations
oe
fact
and
proposals for settlement
in
enforcement
cases,
to issue Opinions and Orders in
which any
Board
findings of violation are
precluded
by
the
terms
of the stipulation and proposal,
but
in which
respondent
is ordered to pay a
stipulated
penalty
and
a
voluntary contribution,
and
to timely perfor’~
agreed~upon
compliance activities.
Finally,
in the event of an
interlocutory appeal, the Board
will
entertain
a motion to stay its
Order
that
this
action
go
to
hearing.
Should the parties determine that
they wish to file an
amended
settlement agreement containing
sufficient
admissions
of
nfl
4 4
violation to
support the remedy,
or
to allow the
Board to modify
the agreement,
they may file
the
appropriate
pleadings within 35
days.
IT IS SO
ORDERED.
J.
ID. Dumelle
concurred.
I, Dorothy M.
Gunn, Clerk of the
Illinois Pollution Control
Board,
hereby
certify
tjiat the above Order was adopted
on
the
~t7~
day of
1985 by a vote
~tf~n,CThE~
Illinois
Pollution Control Board
