ILLINOIS POLLUTION

CONTROL BOARD

February 20,

1985

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

)

)

Complainant,

)

PCB 83—23

ARNOLD~S.SEWER

AND SEPTIC

)

SERVICE and

JIMMY MCDONALD,

)

ORDER OF

THE BOARL

y J

Theodore

Meyer):

This

matter

co~asbefore the

Board on a February

24.,

1983

complaint,

amended on July

27,

1984,

by the Illinois

Environmental

Protection Agency

(Agency).

The Amended Complaint

alleged that

Respondents caused or

allowed the open dumping of

septic wastes

upon a public highway

in violation of subsections

21(a),

21(b)

and 21(e) of the

Illinois

Environmental Protection

Act

(Act)

A

hearing

~asheld on January

17, 1985 at which time the

parties

inoorp

ated a properly

signed copy of

the

~Stipulation

and

~Proposa1

f

Settlement into

the

record.

Under

the ~ermz

of the

stipulation

the parties agreed that

Arno1d~s~

Sewer and Septic Service

is

and has been conducted under

an assumed

name

and~thatit

is owned

and operated by

Jimmy

McDonald,

It was

also agreed that

Arnold’s

Sewer and Septic

Service

is

and ha~~

been engaged in cleaning

industri~1

and

residential

septic tanks in and around Cook County,

Illinois,

pursuant

to

a license issued by the State of Illinois

Department

of Public

Hea1th~ On June 15, 1982

septic waste, contained in a

truck

owned and

used by Respondents

and

driven by its employee,

was

deliberately allowed to pour onto

a public road, namely

Nichols

and/or

Schaeffer Road in the

Village of Arlington

Heights,

Il1inois~ It was further

stipulated

that this conduct

constituted

~‘theopen dumping or

disposal of waste onto public

property,

which was not a Bite which

met

the standards required

by the

Environmental Protection Act

or

regulations thereunder.”

(Stip.

3)

The

Agency conten~uthat based

on the

stipulated

~t~ment

of

facts

this

conduct violated

subsections

21(a),

21(b)

and 21(e)

of the Act

wbich provide

in pertinent

part:

No

person

shall:

a.

Cause or allow the open

dumping

of any waste.;

---

—2—

b~

Abandon, dump or deposit any

waste upon the public

highways or other public

property, except

in a sanitary

landfill approved by the

Agency pursuant

to regulations

adopted by the Board;

e.

Dispose,

treat,

or store any

waste,

or transport any

waste into this state for

disposal,

treatment,

or

storage except at

a

site or

facility

which

meets

the

requirements of this Act and

of regulations and

standards thereunder~

The

Respondents do not admit the

violations alleged.

(Stip.

4).

However,

Respondent Jimmy

McDonald,

as owner and operatQr of

Arnold’s

Se~ ~oS Septic Service,

agrees to pay a stipulate,d sum

of $300

to the

Llhinois Environmental

Trust Fund

(Trust

Fund),

(Stip

5)

Ree?onhents also agree to

be “hereby prohibited” from

violations

of ~hbsections 21(a),

21(b)

and 21(e) of the Act and

that the

Board eh$1t retain jurisdiction

of the case

for

the

purpose

of enabling any party to

apply for further orders

to

construe,

carry ont or enforce

compliance with the terms of the

settlement,*

It

is, stipulated that in

the event the Board fails

to accept

each and ~ev’eryterm as set

forth,

the statement of

facts and

proposal ~forsättlement

shall be null and void.

Accordingly,

the Board

is precluded

from modifying the

stipulation to include findings of

violation against Respondents.

The Board.

areby rejects the

proposed stipulation.

The

parties are

or

ced to proceed to

hearing

in this matter, which

shall

be sched

ad within 30 and held

within 60 days of the date

of thisOrder,

The bases

for this

rejection are threefold.

First,

for reasons set forth

in

Illinois Environmental

~

PCR 83—2, February 20, 1985,

decided this day,

the Board finds that

it

lacks the statutory

authority

to order

the payment of

a

stipulated sum and

to order

adts

of compliance without a concomitant

finding

that

there

has

been

a violation of the Act or regulations.

Ill, Rev. Stat.

ch.

111—1/2,

Sections

1032, 1033 and 1042.

In Chemetco the Board

found

that its authority over a respondent

in an enforcement

action

stems from a finding that the

respondent has committed a

*The Board finds

these two

conditions to be superfluous.

The

Board may certain1~order a

respondent to take sts~ato

comply

with the Act an~regulations,

but

there

is

no

basis

for

ordering

that a respondent

is ‘~hereby

prohibited” from violating

the Act,

Naturally, respondents, as

well

as

all

other

persons

subject

to the Act,

are ‘~prohibited”

from violating

it.

Similarly,

should it be necessary to

compel compliance with the

terms

of the settlement,

the parties

are free to institute an

enforcement

action~ The Board can

find no reason,

in this case,

to

retain

continuing jurisdiction.

---

—3—

violation~ Where

~ violation exists,

the Board

is powerless

to

issue

orders agair

t the respondent.

Consequently, as

Respondents do no

diit the violations

alleged and the

stipulation precludes tte Board from

making this prerequisite

finding from the evidence

in the record,

the

stipulation must be

rejected

as outside the Boardvs

statutory

authority.

As

noted

in Chemetco, this

“finding

of

violation”

issue

has

previously

been argued before the

Board,

and

in

fact,

is

at

issue

in

five

other cases also decided here

today.

IEPA

V.

Chemetco,

PCB

83—2

($20,000 penalty, compliance

plan

and

schedule);

~

v.

Cit1oL~cao

PCB 81—190

($3,000

penalty,

$9,500

“voluntary

contributipn,”

s

~up

cross—connection

enforcement

program);

Peo

le

v.

Joel

n

d

~u

ply

Co.

and

Herman

Zeldenrust, PCB

83—83

(

8,

per

,

0

~ayment,w

cease

and

desist

order);

IEPA

v.C

Galva,

PCB

84—3,

84—4

(consolidated)

($3,375

penalty,

program

of

system

improvements).

In

each

of

these cas

Board has

certified

a

similar

question

for

interlocutory

~

Because

this

issue

is

potentially

applicable

in ever

~orcement case

brought

before

the

Board,

as

well

as

the fact

t

contrary

result

would

have

ended

this

action,

the Board

own motion

will

issue

a

statement

t~

allow for immediate

rlocutory

appellate

review

of

this

Order

pursuant

to

Supreme Court Rule

(SCR)

308.

Second,

t

stipulation is

deficient

in

that

it

does

not

require paymer.

of

a

penalty.

Whether

intentional

or

not,

Respondent McI

iald agrees to pay

merely the

“sum?’

of

$300

to

the

Trust Fund

wi~ ~ut stipulating that

this

sum

is

a

penalty.

Under the Act “specifc penalties

for

injury

to

public

health and welfare and the environment”

are

to

be

imposed.

Section

2(7)~ Specifically, the Board

is

empowered

to

impose

“civil

penalties~’

a f~~ement cases

under

Section

33(b),

and

may

order that

~u

~s

aLe to be paid to the Trust Fund

under Section 42(

~r,

no like authority

is

extended for

the imposition and ~an

r

of “contributions,”

The Board

suggests that th

was deliberate.

A penalty acts as a

sanction for envi

~

Ily detrimental and illegal behavior.

Payment of a sum n

as a penalty

is essentially a

“voluntary contriot

d auch contributions have no place in

a statutory regula

crc such as the Environmental

Protection Act,

To

~

ept a payment which is entirely voluntary

in

settlement of an enforcement action

woul4 be tantamount to the

Board’s

ordering payment ~In‘~ettlementof

a

nuisance suit.

Such

a

practice would be

ir

contravention

of

the

Act’s

olrn~~

intentions,

The use of voluntary payments in settlements

to be enforced

by

the

Board raises additional concerns,

Specifically, voluntary

contributions paid to the Trust Fund

may be recoverable if any

balance

thereof goes unused.

Ill.

Rev. Stat.

1983,

ch. 111—1/2

¶1061.

The statut~provides that the

Trust Fund may receive

“grants,

gifts,

~.

or other funds

provided that such monies

6345

---

—4—

shall be used

c

~r

the purposes for which

they

are

contributed and

balance remaining

shall

be

returned to the

contributor

The Board has

addressed the question

whether this lana ~ae allows for the

refund of penalties

in

Cheme~.

AS expI~inedin that case,

penalties are paid under

compulsion and

jenerally are

unrecoverable.

In providing that

penalties

may be ~ yable to the

Trust

Fund,

the legislature

merely intended

th~iruse for

appropriate

environmental

purposes.

The

BOard rejected the

construction that a penalty

would

be

refurrded

if unused.

However,

this

rationale

does

not

extend

to

a

voluntary

payment

such

as

the

one

contemplated

by

the

settlement

here

B~causethe

statute

clearly

directs

that

gifts

are

required

•turned

if unused,

Respondent conceivably has

a

potential’

recovery for

any

unused

balance

of his

voluntary

p~’

Such a

result

is insupportable under

the

Environmental

~ionAct,

Finally,

t

ye

objections

to the stipulation aside,

the

Board seriously

~ions the

adequacy

of

a $300

payment

in

view

of the

apparent

acter

and degree

of

injury involved when raw

sewage

is dump~

a

public

highway

in a suburban

area,

The

Respondents also

i

~thisact was

deliberate,

The Board

notes,

however, that ro ~

iiIc information

was provided concerning

the

extent of actual

~ jnry,

the existence

of any mitigatin~

circumstances, or

he arility of the

Respondent to pay,

~j~cation

For Interlocut~ Ap~a~

The Boarc

n

its own motion

hereby issues a statement

(also

known

as

a Ce~ ificate of Importance)

to allow for immediate

interlocutory

appellate

re iew of

the

Board’s Order pursuant

to

Supreme Court

Rule

(5CR)

308.

8CR 308(a)

provides,

in

pertinent

part

that

When

r

,

i~

making an

irte

ci

n

t

otherwise appealable,

finds

~ orde~involves a question of

lail as

oh there

is

substantial ground

for d

of opinion and that an

immed

~ I

ro’u

t e order may materially

advance

~‘ratc termination

of

the

litiga

t1c cou’~tshall

so state

in

writing,

erti. y ng the question

of law

i’~vOlved, Tb

Appellate Court

may

thereupon

ia~it4~

a’~o~a~l~an

appeal from the

The. Board ~ha

~.

ho ity to issue

such

a

statement

(see ~

~

Ill, App. 3d

285

(1st

Diet,

198a).

~

the Board

finds that this Grder

a)

~invoi~ves

a ~ c~

~S

law

ac to which there

is substantial

---

—5—

ground for

difference

of opinion,”

and b)

immediate appeal “may

r~aterially

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,

State

ch. 111—1/2,

Sections

1032,

1033

and 1042 as they relate to

Board

acceptance

of

stipulations

of 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 respondont

is ordered

to pay a

stipulated suc~

The

Board

hereby

rejects

the

Stipulation Agreement and

Proposal for .Settlement and orders

that hearing

in this matter

be

scheduled

within

30 and held within

60 days of the date of this

Order,

In the

event

of an

interlocutory

appeal,

the Board will

entertain a motion~to stay its Order

that this action

go to

hearing.

Should

th

parties

determine

that they wish to file an

amended settle~ nt agreement

containing

sufficient admissions

of

violation

to

s’

port the remedy,

or

to allow the Board

to modify

the

agreement,

hey may file within

35 days the appropriate

pleadings.

IT IS SO ORDERED,

Board Member ~

B, Bundle concurred,

I, Dorothy M~Gunn, Clerk of the

Illinois

Pollution

Control

Board,

hereby

certify

that the~

above Opinion and Order

was

adopted on the

~

day of

,

1985, by a vote

of

Q~

Illinois