83~66

ILLINOIS POLLUTION CONTROL BOARD

February 20,

1985

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

)

Complainant,

PCB 84~3

84—4

CITY OF GALVA,

 an Illinois

)

 Consolidated

municipal

corporation,

)

Respondent.

ORDER OF THE BOARD

 (by B. Forcade):

This matter comes before

 the Board

 on an

 eight—count

complaint filed by the Illinois

 Environmental

 Protection Agency

(“Agency”) on January

 6, 1984,

 in PCB

 84—3

 pertaining

 to the City

of Galv&s

 (“Galva”) southwest

 wastewater treatment

 plant and ou

a seven—count complaint filed

 by the Agency on January

6,

 1984,

in PCB 84—4 rearding Galv&s

 northeast wastewater treatment

plant.

 Essent

 illy,

 the complaints

 charge,

 for the

 respective

facility,

 that 3ince 1978 Galva

 has violated various

 provision3

of the Enviror

 ~ita1Protection Act

 (“Act”), Board

 regulations,

and their NPDE

 permits which were

 intended to

 prevent wat~r

pollution.

On January 23, 1984,

 the parties filed an Agreed Motion for

Consolidation which the Board granted on February 9,

 1984,

 thus

consolidating the two enforcement actions.

 A hearing was held

April 18,

 1984,

 in Cambridge,

 Illinois, at which counsel for the

parties introduced a Stipulation and Proposal for Settlement,

No

witnesses were presented at hearing and no sworn testimony was

received.

 On May 3,

 1984,

 the Board entered an order

 requesting

additional information on the current status of sewer system

work;

 that information was supplied June 18,

 1984.

 On October

19,

 1984,

 the parties filed an Agreed Motion to withdraw the

previously filed Stipulation and Proposal for Settlement,

 stating

their intention to file a revised document within 60 days.

On

October

 25, 1984,

 the Board granted the motion, and on December

18, 1984,

 the par

 ~~~1ed

 a Revised Stipulation and Proposal

for Settlement

 C”

~tt.

 Agreement”).

The Settlement Agreement,

 after

 reciting that

 it shall be

null and void and of no effect in the

 event

 the Board fails

to

accept each and every term and condition

set

 forth,

 is divided

into three parts.

 The first part, entitled “Statement of Facts,”

contains 29 numbered paragraphs recounting the situation

respecting Galva and its facilities,

 Both parties agree to t~i~

part.

The

second

 part, entitled “Contentions of Law,” contai~,s

83~5

2

15 numbered paragraphs where the Agency contends that various

previously agreed facts constitute a violat4cr of certa~’

provisions of the Act, Board regulations,

or

 ~~EP

~

i’

requirement.

 Galva has not specifically agre ~

to

t

~

part of the Settlement Agreement.

 The third part of the

Settlement Agreement, entitled “Proposal for Settlement,”

contains

 a lengthy and detailed plan for design and construction

affecting Ga1va~sfacilities,

 interim effluent limitations, a

requirement for Galva to adopt and enforce a sewer use ordinance

regulating industrial discharges

 to the system,

 a requirement

that Galva adopt a user charge system to fund operation,

maintenance and irrprovements

 to Galva’s system,

 a progress report

schedule,

 t that Galva fund improvements locilly, and

finally,

a

$

 I penalty.

 Galva has agreed to this third

part of the

 t Agreement.

 Finally1 the parties p ~v that

the Bosrd ace

 document “as writtsn

“

The above

t

 Lgs all reqiest that the ~t~m~tion

be

accepted exactly

~tB

originally prrposed,

 thus eliminating the

Board~smodifieat’on of the stipulation

to

 include findings of

violation against (~a1vaand a certificate of acceptance.

The Settlement Agreement presents

the

 Board with two

fundamental problems

 First, the Board

is

 being asked

 to impo~e

a $3,375 civil

 enalty and to order

 completion

 of a detailed

twelve page

pr

 ram of improvements to

the

 existing system

without an adm

 sion of violation,

 Wh~le

the

 Board believes tc

agreed facts a

 sufficient

 to support

 certain

 violations,

 such

a

finding would

 nder

 the agreement null and void

 if the Board

fails

 to aceep

 it ~as written.”

 Second,

 the Board

 is concerned

with paragraph V of the Settlement Agreement, regarding user

 charges.

 There are absolutely no facts in the record before

the

Board to support imposition of

 a specific mode of financing for

the improveme

t

~ n

 ~ent1y, the Board must reject the

Settlement ~

~

 entirety.

The ba~i

or

r

 ectior of this stipulation

 is the Board~s

conclusion that

 it lucks statutory authority

to

 accept

settlements requ~

 ng payment of stipulated penalties and

completion of comp1~ximprovement programs without

 a Board

finding of violation based either on admissions or evidence

contained

 in the

 ecord

 The legislatively—created Board derives

its enforcement powers and dutius from the Act and tte

Administrative Procedure Act (“APA”),

 Ill, Rev,

 Stat,

 ch, 127

S100l ~

Sc.

 ‘~(a)cf Title VIII:

 “Enforcement” of the

Act empowers and

~iIe

 Board, after

I

~ing,

t~~

and

enter

such

final

 ~t shall deer

 propri

 (and

shall)

 file and pub1i~ha written

 opinion stating

 the facts and

 reasons

leading

its

decision,”

 The “written opinion”

requirement

tion

33(a)

has

 counterpart

 in Section 14 of

the

APA,

requirin

contested

cases

 “findings of facts and

conclusions

lee’.”

Seetio

t~e Act

provides

that

“such

(Section

 32(~

83~66

3

order may inclu e a direction

 to cease and desist from violations

of the Act or of the Board~srules and

 regu

F4~r~

or c~ ny

permit or term or condition thereof,

 and/or

Board of civil penalties

 in accord

 with Secti~r

Act,***~ The pertinen

 ~ubsection

 of the Section,

 Bection

4

 (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,

therefore,

or

t

 it violates

 any determination

 or order of the Board

 pursuant

 to this Act,

st~

 able to a civil penalty of not to

cxc

 0,000

 for said violation and an

addi

 al civil penalty of not to exceed

$1,0

 ar each day

 during

 wtich vio~tion

cont

 a; such penalties may, ao. o

the

I

 5 or

 a court of competent

june

 tion,

 be made pa’ able

 to the

Envir

 e~talProtection

 Trust Fund,

 to be

used

 accordance with the provisions of “An

Act cr~uting

 the Environmental

 Protection

Tr at

und

 approved

 September

22,

 1979, as

amended

“

The Act d

 a not specifically

 mention settlement

procedures.

H

 ever, pursuant

 to the

 uthority

 generated unde.

Section 26 of

 Act, the Board has

 adopted a

 procedural

 rule,

35 Ill, Adm, C

 103.l8C., permitting, and providing requi”ements

for submittal

 a proposed settlement

 or compromise.

 A written

statemert

is

 to be filed containing, among other things,

 a “full

stipulation of

 material facts pertaining to the nature,

extent,

 and causes of the alleged violation,”

 a proposed

comp1ia~i

p

p

 osed p nalty.

 In line with tie

h~r~ng~

n

 ~cns ~l and 32 of the Act

th~

writtea pi

a

e

 resented at public hearing for citizen

comme

 t on

 o at ons and proposed settlement

terms

 The Board

e

 p ovided that

 it shall “consider such

proposed sett euort or

t

 u ation and the hearing record” and

may “ac~ept,

ug

re

r

a

i

 reject the proposc.d se’tleneet

or stipulatior,

o

 lirec

 urthe

 hearings as

 it appears

appropriate

Viewing

tee

 be tlement ?grecment in light of these various

statuto

ard

r

at

 ~‘cu1rements~ it

 is clear

 that the Board

cannot make

ny

 idings of fact ar~~ionclus~

 -f law

beyond

t’eat

 ~h to settle

 case

 i,375

payable into th~iru ~ ~‘undand

a

 complex improvement program.”

 To the extent the

P.c

 iutn rizes the Board

 to order payment of

a

penalty

 the cut

r

 ~ emised on a finding of violation.

As

the Se tiement Agrø

 r~r’siets such

 a Board finding, and as the

Act does not authoni e the Board

 to accept, on the part of the

State, “voluntar

t

 utions”

 in settlement of “nuisance

suit~,”the

~i.

 n mus~. be. rejected,

 As to the proposed

4

compliance

 plan,

 ~he absence of

 findings of

 violation,

the

Board

is

 placed

er

 cc position of

 ordering

 ~‘-co~ip1ishr~tof

“voluntary

 remedial

 ctivitiea”

to

 correct

~

re~

 nor~

compliance.

 The compliance plan portion of t~’e ~tip ~atio

is

also rejected.

The parties have not addressed

 the Board~sstatutory

authority

 to accept this stipulation.

 However,

 the Board,

in

IEPA

 Chemetco, PCB 83—2, February

 21, 1985,

 addressed

 various

policy arguments by the Attorney General

 in favor

 of accepting

that stipulation

 in the absense of

 findings violation,

 Since the

Board

 presumes th

 h~’Attorney

 General would make similar

assertions

 i’~

rd

 ‘gill

 again address them

her

In

Chemetco,

 the At~

 General

 asserted that the law

 favors

settlements

and

t

 tinding of

 violation

 destroys the

 e’ssence

of the bargain

bet

 protracts litigation and th~.the

-d

has

in

 a few case~

 sed fines withouc

 f~.~ing

c.

violation.

 Whil

 orticul~cedinChewe’~co,

 t r~ghtali~c~

argued

 that the e

 of the Boa:d~sdecision interferes with

the Attorney Gener

 otherwise broad

 powers

 of prosecutorial

discretion,

While these o

c

 arguments might

 support a

 legislative

change,

 they run cou ten to the Board~s

plain

 reading of the

Act,

 The BoaL

 re~ugn~esthat the

 courts

 have accepted

settlements b

 ~entwo parties without

 admissions.

 The courts.

however, have

 herent common law powers

the

 Board does not

possess.

Add

 nally,

 the Act inherently recognizes that

pollution iss

 affect

 he interest of other persons, above and

beyond the pa

 es, as Section

 2 of the Act makes clear.

The

Board suggeat

t

a

th

A

 a°deliberately framed

 to require

the Board

 to make findings of violation,

 so as

 to assure that

compliance and payment of

 a penalty

is

 a compulsory,

 not a

voluntary,

a

t

r

 1 ck of findings of vi lation may

also be imporw

 su.sequent filing o~

enforcement act

‘

the

 ame source:

 previoua findings

of violatior may

b

 ‘onsidered

as

 aggravating

circumstances af

 caity deliberations in later cases,

The

 Board also

c

t

 ~uaet to Section 31,

 that comp aints

may

be

 filed,

and

et

c

d

 by citizens who take on the

statue of “priva

~ g

 ceral,” and questions whether wide

prosecutorial

 dint

 a’crues

 to such persons corcerning

stipulated penal

ol

 nec conditions.

Generally

 cc objection

 to parties filing

stipulated fact

a

 t~ementcondit~

a,

 witi”

Board,

 The B a’~

 ~h stipulati~ beeau~

y

reduce

 the numbaL

ot

r

 steo issues

 to be

 addressed at

hearing.

On

 an addic

‘

 ile the

 Board discourages such

action as

 poor pub

 c policy in environmental matters,

 the Boar~

cannot prever

~

 of a litigant~slegal rights

 in a

contested c~

~

~it

 c judicial agreements,

5

contractual

 or otherwise,

 followed

 by a complainant’s

 motion for

voluntary dismissal.*

 In such

 circumstances,

 the Board

 should

not be called upon,

 and as

 a practical matt~r

 ‘~asno dower,

to

review the propriety or

 wisdom

 of such an

 agreeaent.

 ~IiPAV.

Schlie, PCB

 82—155

 (December

6,

 1984).

The difficulty

 arises when the Board

 is called upon to

review and act upon a settlement agreement which

 contains a

determinative order of the Board.

 In such circumstances,

the

Board must be

 provided with

 sufficient information

to

 make a

ruling on the merits

 of the case

 (did a violation

 occur or

 not)

and sufficient

 information to

 determine that the

 remedy is

appropriate to th’

 “iolation.

In

 five other

 cases

 today,

the

 Board has addressed

the

problems of a

 determinative order resulting from

a

 settlem~

,t

agreement where

 there

 is no

 admission of

 vio1n~tion,and

modification renders

 the agreement

 null

 and vo~’~ IEFA v~

Chemetco,

 PCB 83—2

 ($20,000 penalty,

 compliance plan

and

schedule); !2

 CityofChi2ao,

 PCB 81—190

 ($3,000

 penalty,

$9,500 “voluntary

 contribution,”

 stepped—up cross—connection

enforcement program); IEPA

v.

 Arnold’s Sewer and

S

 Service

and Jimmy McDonald,

PCB

 83—23

 ($300 “sum,” “prohibition”

 from

violations of the Act); People

 v. Joslyn Mfg.

 and Supply

Co.

and

Herman Zeldenrist, PCB 83—43

 ($8,000 penalty, $14,000 “payment,”

cease and desi

t

 order),

 In each of these cases

 the Board has

certified a

Si

 ilar question for interlocutory appeal.

rtification

 for Interlocutory Appeal

This

 “finding of violation”

 issue

 is before the Board today

in six cases, and

 potentially has

 applicability

 to every

enforcement

 case brought before the

 Board.

 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 apppellate review

 of the

 Board~sOrder

pursuant to Supreme Court Rule (“SCR”)

 308.

SCR

 308(a)

 provides,

in pertinent

 part 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 diff

 of opinion

 and that an

immediat

‘

 rom the

 order m~

 ~‘aateria1lt

advane’

 ~aittc

~euunation

ca

~he

*The Board

 notes that certain

 governmental litigants may ha

unable to

 engage in contractual

 agreements without specific

legislative

 authorization,

63~69

6

litigation,

 the court shall so state

in

writing, identifying the question of ~w

involved,

 The appellate court may

in its discretion allow an appeal iron t~e

order,”

The Board has authority to issue such a statement

 (see

~~~ic,elv.PGB,

 104 Ill. App.

 3d 285

 (1st Diet,,

 1982).

Pursuant to 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 advar~the ultin’ate termination of

 (this)

litigation.”

 The question of law certified ior appeal

is

as

follows:

Whether the Board correctly dot~rentned

hcit’~’

lacks statutory authority, pursuenc

to

 Ill.

Rev, Stat,

 ch. lii

 Section 1032,

 1033 and

1042,

 as they relate

 to Board acceptance of

stipulations of fact and proposals

for

settlement in enforcement cases, to issue

Orders and Opinions

 in which any Board

findings of violation are precluded by the

terms

tf

 the stipulation and proposal but

which

 espondent

 is ordered to pay a

stipu

 ted penalty and adhere ‘Ce

to

 a complex

progr

 of system improvements.

The Board cereby rejects the Stipulation Agreement and

orders that hearing in this matter be scheduled within 60

 days

and held within 90 days.

 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

violation 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,

Board Member J,

 D. Dumelle concurred,

I, Dorothy

~

 ~ne Illinc

 Pollut

 antrol

Board, hereby certify that the above

 pinion and Order was

adopted on

the

 day of

 1985, by a

~hyM.nn,Clerk~

Illinois Pollution Control Board

63~70