hearing,

ILLINOIS POLLUTION CONTROL BOARD

February 20,

1985

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Complainant,

PCB 82—144

)

CITY OF GALENA,

)

)

Respondent~

ORDER OF THE BOARD

 (by ~

 Anderson):

On September

17,

 1994,

 the parties filed a stipulation and

proposal for settlement of this action.

 This stipulation

is

rejected.

 Prior

 to discussion of the Board’s rationale for

rejecting this stipulation, the Board will recapitulate the

history of this enforcement action,

Procedural History

This matt

 comes before

 the Board on the December 15,

1982

Complaint brou~

 by the Illinois Environmental Protection Agency

(Agency).

Count

I

 o.~. the Complaint alleged that,

 from July 1,

1977

until December

15,

 1982, the Respondent maintained and operated

its municipal wastewater

 and sludge handling equipment contrary

to the terms of its NPDES Permit

 Not.

 IL 0020249,

 arid in violation

of 35 Ills Adm, Code 309~i02and Section 12(f)

 of the Illinois

Environmental Protection Act

 (Act)

 Count

 I also alleged that,

from November

 22, 1976 to October

23,

 1977,

 the Respondent

operated its municipal wastewater and sludge handling equipment

contrary to the terms of its Illinois EPA Permit No. 1976—SC—

1780,and

 in violation of Section 12(b) of the Act.

Count II alleged that, during the months of August,

 1979 and

September, 1979,

 the Respondent discharged effluent into the

Galena River

 which exceeded applicable numerical limitations for

both five—day biochemical oxygen demand

 (BOD)

 and total suspended

solids

 (TSS)

 in violation of its NPDES permit,

35

 Ill. Adm. Code

304.120,

35

 Ills ~

 Code 309~i0land Sections 12(a)

~3

 12(f)

of the Act.

Count III alleged that the Respondent discharged effluent

into the Galena River which exceeded five times the numerical

standard prescribed

 in 35 I11~Adm, Code 304,120(a) with respect

to BOD during the months of June,

 1979; October,

 1979 and

January,

 1980; and discharged effluent which exceeded five ti~s

63-19

the appropriate

 nurn r ca

 ~idard for suspended solids during

the months of June,

197

 Au~ut,

 1979; October,1979; January,

1980; April,

 1980;

 June

8

 D cernber,1980; November, 1981;

and

October,

 1982 in violati

r

of

 5 IlL Adm~Code 304~l20(a)and

Section 12(a)

 of the Act

Count

 IV alleged that

 from July 1,1979 to

December

 15, 1982,

 the Respondent failed to meet the reporting

requirements prescrib~din t~eterms and conditions of

 its NPDES

Permit by failing

to

 subrni

 the requisite quarterly Industrial

Users Reports to the Agency in violation of its NPDES Permit and

35

 Il1~Adm.~

Code 3O5~l02(b); 35 IlL Mm, Code 309~1O2,and

Section 12(f) of the Act

Count V alleged that

 c~ January 16, 1980, February 21,

1980, and February 22,

19

0,

 respondent caused or allowed a

bypass

 of discharge and

 f ~1~d to notify the Agency,

 and failed

to submit a plan to pre;e

 recurrences

 in violation of its NPDES

permit and reporting requireriie

 s of 35 Ill, Adm~Code 305~l02~

Count VI alleged tha’~ since at least August,

 1976, the

Respondent failed to chlorinate the water

 in its public water

supply system (which Respondent operates in

 addition

 to its

wastewater treatment system)

 so as to

 assure that the water

is

clean and safe ~n quality for ordinary domestic consumption in

violation of 35

 ~l1.Adm~Code 604~40l

and

 Section 18

of

 the Act~

On June I~ 1984,

 the Board entered an Order which noted

that there was

 activity in this case since March

1,

 1983 and

expedited mattc

 by mandat ng t~ata hearing be held within 60

days~ On July

1984

tI~

 gency filed a Motion to Postpone

the Hearing and Affidavit which indicated that settlement

negotiations were in progress

 i~dnearing resolution,

 OnJuly 19,

1984, the Board ent

ed

 ar Or~r

 i~ichordered the hearing to be

rescheduled and h~d ro ~a’cr t’-a~’ ~eptember 28,

 1984,

A stipulation and pi

o a

 ftr settlement was presented at a

hearing held on Septeiib

1

 198 ,and filed on September

17,

l984~ At hearing, (,a1e~

s

a

 Mnsweiler made a statement~

The Respondent,

t

 of Galena

 (City),

 owns and operates

a municipal wastewater

 t ea ment facility (WWTP),

 located in

Galena,

 Jo Daviess County~

 e WWTP discharges wastewater into

the Galena River,

 navigabic water of the State, pursuant to an

NPDES

 Permit issued on

~‘

J

 977~

 (Stip, 2)~ One portion of

the Respondent~sfacility inclides sludge handling equ~ ~t

 which

 is used

 to rtmove and tand~ethe sludge which

 :e~rated

at the

 WWTP~ The Respondent also operates

a

 public

 water

 supply

system which includes drilled wells,fluoride treatment equipment,

an

 elevated water storage

 if cility,

 a standpipe, and a

distribution system to serve about 4,000 persons,

 (Stip~

7)~

In reference

 to its WWTP, sludge handling equipment and

operations are conducted p is ant to an Illinois EPA Permit

issued on

 November

 22, 1976,

 and a supplemental Illinois

EPA

Permit issued

 on July 19,

1978

 (See:

 Exhibits B and C

 which are

attached to

 the StipuIation~)

In the

 settlement agreement, the

 parties stipulated

 to a

statement

 of facts, only insofar

as

 they represent

a

 summary of

evidence

 which would be introduced ~‘ifa

 contested hearing were

held.”

 (Stip~1)~ The statement

 includes allegations that the

 City of

 Galena has failed to meet the

 requirements of all three

of its permits

 pertaining to both the

 operation and maintenance

of its

 municipal wastewater and sludge

 handling equipment;

by

failing

to:

(1)

 perform routine

 preventative maintenance on

its

operating

 equip~n;t; (2)

 promptly repair inoperative equipment

within a

 reaso~

e

 time;

 (3) buy new

 operating equipment to

replace

 worn—or

 ~guipment;

(4)

 install

new

 equipment after such

equipment

 has b~~i

 purchased;

 (5) maintain a sufficiently

adequate

 operati~gstaff for its WWTP;

(6)

 remove solids

collected

 on bar screens at regular intervals;

(7)

 remove

 sludge

from drying

 beds

 at regular intervals;

(8)

 develop

and

 adhere

to

any type of

 coordinated sludge management program adequate to

allow the

 City’ WWTP to meet the appropriate standards delineated

 in the

 permits governing its operation;

and

(9)

 equip

 its WWT

with adequate

 backup or emergency

 equipment to keep the

 facility

in operation

 in case of power

 failures,

 natural disasters,

or

other similar

 e~’ergencies~ (Stip~

 3—4),

 Additionally,

it

is

stated that

th?

 Iischarge monitoring

 reports submitted by the

Respondent

 indi

 tte that the

 violations alleged in the Complaint

did,

in

 fact,

 ~ur (Stip~5—6), and

 the City’s failure to

chlorinate

the

 iter

 in its public

 water supply system before the

water entered

e

 distribution system

 constituted a clear

violation

 of Section 18 of the Act and 35 Ills

 Adm, Code

604.401.

 (Stip~7)~

The

 City of Galena agreed to a penalty of $4,000, to be

deposited

 into the Environmental Protection Trust Fund*

 and in

*This penalty is to be made payable to the Environmental

Protection

 Trust

 Fund (Trust 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—0618, effective September 19,

 1983.

The

legislation

 creating the Trust Fund and a Commission to

administer

 it was P~A,81—951 effective January

1,

 1980 and

codified

 as IlL Rev~Stat~1983, ch~lii 1/2 111061.

 That

legislation

 provides

 in pertinent part that

“The

 Commissim may accept,

 receive

 and administc;

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

 wishes to emphasize that

 it does

 not construe the

quoted

 portions ~f the Trust Fund Act as giving

 a potential

 right

(continued)

-4—

addition agre d t

 cowl4

and

its NPDES Pe

v

operating, mainte a

However,

U-

i

y

facts is for ‘thc pa pos

herein contained

tal

as to any violati nr

or the Pollutiot

n

o

(Stip. 1—2)

Ia

d t

Settlenent is ezpr

,~c

‘in

respect’

‘

I-h

 t’w. Act, the Board’s regulations

er

 c. with various detailed

• g conditions.

 (Stip. 8—13).

d t at the agreed—upon statement of

ttlement

 only’ and

that

‘nothing

‘rued

 as an admission by Respondent

Illinois Environmental Protection Act

 s Rules

and

Regulations

.‘

~eStipulation

and

Proposal for

tioned

 upon approval by the Board

30

Stipulation

3

has

for

p

 this stipulation is the Board’s

concl

t

t-

te

 y authority to accept

settle

 ante

 z q tring

it

 stipulated penalties and

imposirg

corpi.

 arc.

 but which preclude the Board ft

making a fi dug o

 bared either on admissions or

evidence conta

ed

t

r

•

 The legislatively—created

Board derives

 t’ en

 oowers

and duties from the Act and

the Adn’nistzat

P

O~e

 A’

 (APA), Ill. Rev. Stat. ch. .2

51001 et ~n

 tion

3

 £ Title

VIII:

 ‘Enforcement’ of tie

Ac

 empowers

 r qu re.

 c B’ard, after hearing, to ‘issue and

c.’er surh ft

 order

 as it shall deem appropriate

an

 stall

f

 and pu

 s’i a written opinion stating the facts

aid reasons lc

 ing ‘o its decision.’

 The ‘written opinion’

requirement o

 r ~3 a) has a counterpart in Section 14 of

the APA,

requ

i

ii

 ~ d cases ‘findings of fact and

conclu’Lou

Secti

2(a)

ord

v olat or

ofrecvr

pursuan t

 S c’

When

rn

u

envis

ored

a

t

contributi

bereturndsoa’

donor

 ft°gif

Protec ion

ct

no right

 f recov

Fund.

 In all

i

g

the legisl

re

essence, be e

purpose.

TIe

o

asimp

ing

runs count

Act

4•

pr

 6des that ‘(sjuch Section

3

 to cease and desist from

flard’s rules,

 and/or the

-

 to bc paid into the Trust Fund

n ironmental Protection Act.

‘t. legislature obviously

ccc ye

voluntary

 gifts or

ed (or environmental purposes

r

 ‘on of the intention of the

-

 ation of the Environmental

 ard not voluntary,

 “here is

c

 ‘y paid into the

~

 evenue

aries to

 paid into the Trust Fund,

i

uiied that

such penalties may, in

a o oariate environmental

iat

 construe the Trust Fund Act

r

 Lor penalties deposited into

 i’

ti

 Environmental Protection

—5—

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 any provisions of this

Act or

 any regulation adopted by the Board,

 or any

permit

 or term or condition thereof, or

 that

violates any determination or order of the Board

pursuant

 to this Act,

 shall be liable to a civil

penalty of not

 to exceed $10,000 for said violation

and an additional civil penalty of not to exceed

$1,000

for each day during which violation

continues;

 such penalties may, upon order of the

Board or

 a court of competent jurisdiction, be mace

payable to the Environmental Protection Trust Fund,

to be used

 in accordance with the provisions of “An

Act

 creating the Environmental Protection Trust

Fund”, approved September

 22, 1979, as amended,”

The Act does not specifically mention settlement

procedures.

 However, pursuant to the authority granted under

Section 26 of the Act,

 the Board has adopted a procedural rule,

35

 Ill.

 Adm, Code l03~l80,permitting and providing requirements

for

 submittal of a proposed settlement~or compromise.

 A written

statement

is

tr

 be filed containing,

 among other things a “full

stipulation of

 11 material facts pertaining to the nature,

extent, and ca

 es of the alleged violation”,

 a proposed

compliance pla

 and a proposed penalty.

 In line with the

hearing

 requir

 ~entsof Sections 31 and 32 of the Act,

the

written

 propos

 is to be presented at public hearing for citizen

comment on the alleged violations and proposed settlement

terms.

 The Board has provided that

 it shall “consider such

proposed settlement or stipulation and the hearing record”

and

may “accept, suggest revisions

 in, reject the proposed settlement

or stipulation, or direct further hearings as

 it appears

appropriates”

Viewing the Galena stipulation in light of these various

statutory and regulatory requirements,

it

 is clear that the Board

cannot make any required findings of fact and conclusions of law

beyond one that ~the parties wish to settle the case for $4,000

payable

 into the Trust FundS.”

 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 Galena stipulation

resists a Board attempt to make such a finding, and as the Act

does

 not authorize the Board to accept, on the part

 of: ~te State,

“voluntary contributions” in settlement of “nuisance au~s”, 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

~o

 dd es~e the Board~sstatutory

authority to accept tb

 ru ation,

 However

 the Board,

in

IEPA

V.

 Chemetco

 PCB 83~

b

 ry 21,

 1985, addressed various

policy arguments by ~I~e L

~i

 eneral

 in favor of accepting

that stipulation

 ir the ab° s~of findings of vio1ation~ Since

the Board presumes that

h

 A to ney General would make similar

assertions here, the Board

ill

am

 address them here,

In

Chemetco,

 the Attorney Gen’~ra1 aserted that the law favors

settlements and that a

 i~n rg of violation destroys the essence

of the bargain here and

 otracts litigation and that the Board

has

 in a few eases imposed f~cc without a finding of violation

While not articulated in Ch iretco,

 it might also be argued that

the effect of the Bo=*r

 ~s d

 on interferes with the Attorney

General~sotherwise

 oad p

 r’ of prosecutorial discretion.

While these policy a

 te might support

 a legislative

change, they run counte

 Board~splain reading of the

Act,

 The Board recognize

t

 ~e courts have accepted

settlements between two p

 iithout admissions~ The courts,

however, have inheren’ ~ormo

a

 powers the Board does not

possess~ Additionally,

h

1~

t

 nhcrently recognizes that

pollution issues affect

t

 ~ ezest of other persons,

 above and

beyond the parties

 as S

 t on 2 of the Act makes clear,

The

Board suggests tbat the A

w

 s deliberately framed to require

the Board to ma~ finding

 of violations, so as to assure that

ompliance and

 inc t o

 o ~al’y is a compulsory,

 not a

voluntary,

 acts

 xistenc~o

 ack of findings of violation

may

 also be importa

 in the evert of subsequent filing of

enforcement act

 s against the same source:

 previous findings

of violation ma

 roperly

 e cons dered as aggravating

circumstances aft

 e ~l

 d Lberations

 in later cases.

The Board also notes, pu~uait

 ‘o S c

 ion 31,

 that complaints may

be

 filed, and settlunen

 eic~ed,by citizens who take on the

status of “privat

a

 r r~l’,ar

 questions whether wide

prosecutorial disc

ti

a

es

 to such persons concerning

stipulated penaltie’

n

)i

 coiditions~.

Thi~“fird

g

f

‘~

bas here twice been

argued, and pote

I

 li’y to every enforcement

case brought before

 ~r B

 act,

 the Board has

 today

rejected several prop

t

 d settlements requiring

payment of penal’ie~

“

 t~”or ~sums” and timely

performance of ~uru

 all of which cases no

findings of violatL

‘~

 ~~~itoLj

PCB 83—2

 ($20,000 ptn~l’~

 rim iance plan and schedule); j~l~

y~~c~hicao,

PCB

0

 ~ ,000 penalty, $9,500 ~‘voluntary

contribution”, stepped

 s connection enforcement program);

IEPA v~Arno1dv5See

 ~t~e&JimmM2~ona1d,

PCB

83—23

 ($300 ~sum~, ~pro

1

o

 from violations of the

 Act);

~

 S~p ~ Co

 and Herman Zeldenrust,

PCB

83~

83

 ($8,000 penalty

 ~l1,

 jmint”, ceast and desist order).

In each of these ~

 bee 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 moti

 he~ebyissues

 a statement

 (also known

as

 a Certificate

 of Imp rtanes~to

 allow for immediate

interlocutory

 appellate review of the

 Board’s Order pursuant

to

Supreme Court

 Rule

 (8CR) 308~ SCR

 308(a) provides,

 in pertinent

part that

“When

 the trial court

ir~

making

 an interlocutory

order

 not otherwir’

 a~oealable,

finds that the

order

 involves a que tion of law as to which there

is

 substantial

 grouni for difference

 of opinion and

that an ~imediat

 t~ornthe order may

materially advan~ethe

 ttimate

 termination of the

litigation,

the

 ‘ourt

 s all so state

 in writing,

identifying the question of law

 involved.

The

Appellate Court may thereupon

 in its discretion

allow

 an appeal from the o der,”

The Board has authority to issue such a statement

 (see

Syflthetic Fuel v.PCB,

 104 Ill~App~ 3d 285

 (1st Dist,

 1982).

Pursuant to SCR 30

 t e Board finds that this

 Order

a)

“involves a

 question of law as to which

 there

 is substantial

ground

 for dif’ rence of opinion”, and b)

 immediate

 appeal “may

materially adv

 Ce the ultimate

 termination of

 (this

litigation”.

 e question of law

 certified for appeal

 is as

follows:

Whether

th

 Board correctly determined that

it

lacks statutory authority

 pursuant to Ill. Rev.

Stat,

 ch, 111 1/2, Sections 1032,

1033

and

 1042, as

they

 relate to Board acceptance of

 stipulations of

fact and propo ale

or

 tlesent

 in enforcement

cases,

 to issue Opini n°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

 to timely pert rr ag ced—upon

 compliance

activities

Finally,

 in the event

 t 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

 ft~ ~

amended

 settlement agreement containing

 sufficient admias~ons

of

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~

D~Dumelie

i.

sen

I, Dorothy M~Gunn

 i’rk of the Illinois Pollution

 Control

Board,

 hereby ceftiiy ~h~1 ~e

 above Order was adopted on

the

~

 day of

 1985 by a vote

of

~—/~

ILlinois Pollution Control

Board