ILLINOIS POLLUTION CONTROL
    BOARD
    November 18,
    1983
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    Complainant,
    v.
    )
    PCB 83~28
    TOP CHOP,
    INC., an Illinois
    )
    corporation,
    Respondent.
    ORDER OF THE BOARD
    (by W.
    3,
    Nega):
    On June
    2,
    1983, the Board issued an Opinion and Order in
    this enforcement action, accepting a stipulated settlement of
    this matter provided that the parties would agree to modification
    of the penalty figure from $1500.00 to $5000.00.
    The Order
    provided that Top Chop was to certify its acceptance in writing
    within 30 days
    (i.e., by July 2), or “the Stipulation and Proposal
    for Settlement
    would)
    be rejected in toto by the Board and the
    case
    would
    be remanded to the parties for appropriate action”
    (Opinion,
    p.
    4).
    No written certification of acceptance of the
    $5000.00 penalty was filed.
    On June 30,
    1983,
    Top Chop submitted a letter to the Board
    containing information relating to its financial condition,
    The
    Attorney General, on behalf of the Agency, requested that the
    letter be stricken on several grounds:
    1)
    as being an ex parte
    contact,
    2)
    as containing information of a mitigating nature
    which the Agency had not “had the opportunity to investigate...
    and obtain.. .through discovery procedures”, and to which “the
    Agency had not been given the opportunity to respond..
    .
    or to
    subject.. .to the scrutiny of cross examination”,
    (July 15 Motion,
    p,2),
    3)
    as being a procedurally improper motion
    for reconsider~
    ation, and 4) as being inconsistent with the terms of the Board’s
    Order providing that if the $5000 penalty were not accepted,
    that the case would be remanded to the parties.
    In the latter
    context, the Agency noted that it intended “to initiate discovery
    of
    Top
    Chop’s financial condition to evaluate whether a
    substantial penalty will impose an undue financial hardship on
    Top Chop.”
    The
    Board granted the Agency’s motion to strike on
    July 26,
    1983.
    54-363
    2
    On October 24,
    1983, Top Chop filed what it has called a
    “Resolution
    for Reconsideration and Modification of the Order
    of the Board”.
    (The cover letter from Senator Vince Demuzio will
    be included in the record as a public comment,
    as
    is the Board’s
    usual practice with communications from the public,
    including
    elected officials,)
    The motion,
    submitted assertedly on the advice
    of the Agency~requests the Board to reconsider
    its rejection of the
    $1500 penalty.
    Appended thereto are answers to Agency interroga—
    tories.
    Top Chop’s motion does not contain proof that service was
    made on the Attorney General; however, the Clerk of the Board pro—
    vided a copy to the Attorney General.
    On November 16,
    1983, the
    Attorney General filed a Response to Top Chop’s motion, requesting
    that the motion be stricken,
    The essence of the Attorney General’s
    response is that Top Chop has again presented “evidence” which
    has not been subject to Agency cross—examination or rebuttal, and
    that Top Chop’s “resolution raises several issues which would
    bear on the appropriate penalty that should be imposed and to which
    the Agency should be allowed to respond at a public hearing after
    additional discovery”
    (Agency Response,
    p.
    1).
    Top Chop’s October 24,
    1983 “Resolution” is stricken from
    the record.
    To set this matter once again on a proper track and
    consistent with the Board’s Order of June
    2,
    1983,
    the Stipula-
    tion and Proposal for Settlement submitted by the parties April
    28,
    1983 is rejected by the Board in_toto,
    and the case is remanded
    to the parties for further action,
    In so ordering,
    the Board
    is not implying that the parties are foreclosed from the stipulat-
    ing
    to uncontested
    facts.
    However, any such subsequent stipula-
    tion(s),
    as well as any contested penalty or other issues, must be
    fully presented at an additional hcaring.
    IT IS SO ORDERED.
    Board Member
    3. Marlin abstained.
    I,
    Christan L,
    Moffett,
    Clerk of the Illinois Pollution
    Control Board, hereby certify that the above Order was adopted
    on the
    ~
    day of
    ~
    1983
    by
    a vote of
    Illinois Pollution
    ~tro1Board
    54-364

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