ILLINOIS POLLUTION CONTROL BOARD
    December 5, 2002
     
    BRIAN FINLEY, individually, LOCAL 3315
    of the AMERICAN FEDERATION OF
    STATE, COUNTY, & MUNICIPAL
    EMPLOYEES (COOK COUNTY PUBLIC
    DEFENDERS ASSOCIATION), and the
    following additional individuals: LISA A.
    KOSOWSKI, QUENTIN PITLUK, MARTHA
    C. NEIRA, JOEL TOBIN, TACYE
    VERSHER, SEAN VARGAS-BARLOW,
    ROSA FLORES, DANITA KIRK, JENNIFER
    BOROWITZ-GUTZKE, OPHELIA BARNER-
    COLEMAN, KARIN WENZEL, BARBARA
    A. BLAINE, VALLERIA FORNEY, JAMES
    BURTON, AMANDA LAMERATO,
    JENNIFER HOMBURGER, THOMAS
    GRIPPANDO, KATE HAARVEI, K. MARY
    FLYNN, CHRIS WILLIAMS, ALPA J.
    PATEL, PAMELA D. MOSS, LILIANA J.
    DAGO, PATRICIA CINTRON-BASTIN,
    TAMMY EVANS, CELESTE K. JONES,
    WILLIAM A. GOMEZ, KAREN MAHER,
    TRESA LOUISE JACKSON, MARCIA G.
    HAWK, MARIZOL RODRIGUEZ,
    MODHURI K. PATEL, JOSE A. PEREZ,
    NICHOLAS A. YOUNGBLOOD,
    CATHLEEN REYNOLDS, DAWN M.
    ROESENER, KIMBERLIE BOONE, AMY E.
    McCARTHY, QUENTIN HALL,
    GWENDALYN GRANT, GAIL DAILY,
    COREY E. MYERS, MARIA DI
    CRESCENZO, MARIBEL RODRIGUEZ,
    FELICIA BATES, DARNELL TROTTER,
    HATTIE MARTIN, AUGUSTUS
    PINCKNEY, GEORGE SANCHEZ, LIZETTE
    U. McBRIDE, DEBORAH BUFFKIN,
    RONALD JACKSON, JOANNE
    MORRISON, VALARIE M. COURTO-HILL,
    KIMBERLY TURNER, CONSTANCE L.
    HARRIS, STEPHANIE FLOWERS, B.
    YVONNE YOUNGER, DORIS J. YUFUF,
    LUCRETIA ROGERS, DANA N. LOCKETT,
    TAMARA BRASS, JAMES COLEMAN,
    SIDNEY TYUS, JACK L. McBRIDE,
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    2
    PHYLLIS RYAN, DORIS LOPEZ, SHIRLEY
    A. VESSEL, MARY PEARSON, ANGELINE
    RECANDEZ, DELORES WASHINGTON,
    PATRICIA M. SALORIO, MICHELLE E.
    HOLMES, RY HANNAH, ADDIE
    HAWKINS, RONALD DOZIER, BARBARA
    GORDON, RALPH LEAKES, WILLIE
    LEAKS, JR., THEORDORE SHORTER, JR.,
    QUDALLA WARD, MICHAEL JONES,
    PEARLIE MAE MOSS, SHEILA DUNN,
    SHARON LEE, LAVERNE BULLOCK,
    HELEN CHARLES, EDWARD J. POE,
    ANTHONY BINGHAN, RENETTA GLASS
    WARD, LILLIAN OWENS, FREDDIE
    JOHNSON, MINNIE HORTON, CARL
    TRIBBLE, SR., CLAY APPLETON, SAM
    JOHNSON, GENEVA L. CHARLES and
    NATHANIEL CHARLES,
     
    Complainants,
     
    v.
     
    IFCO ICS-CHICAGO, INC.,
     
    Respondent.
     
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    ) PCB 02-208
    ) (Citizens Enforcement – Air)
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    DISSENTING OPINION (by C.A. Manning and M.E. Tristano):
     
    We respectfully dissent from the Board’s decision today. The parties to this citizen
    enforcement action have reached a settlement. They ask that the Board accept it
    without
    holding
    a public hearing. The proposed settlement calls for respondent IFCO ICS-Chicago, Inc.’s
    (IFCO) air permits to be revoked and for IFCO to permanently close its used drum
    reconditioning plant in Chicago. It is not disputed that these steps would eliminate the emissions
    of chemicals, odors, and smoke that resulted in the alleged air pollution.
     
    The majority holds, admittedly consistent with Board precedent, that the Board is
    required to hold a hearing before it can accept a proposed settlement in any citizen enforcement
    action. The parties challenge this position, providing, we believe, an ideal opportunity for the
    Board to critically review whether its approach is required and whether it works. In retrospect,
    we believe this Board precedent has ultimately proven misguided.
     
    Under close scrutiny, it is evident that the Board’s approach is not legally required.
    Given its plain meaning, nothing in the language of the Environmental Protection Act (Act) (415
    ILCS 5/31(c), (d) (2000),
    amended by
    P.A. 92-0574, eff. June 26, 2002) or the Board’s
    procedural rules (35 Ill. Adm. Code 103) requires the Board to hold a hearing in every citizen
     
      
     
    3
    enforcement action, let alone when the parties want to settle. The Board has already
    acknowledged that the “Act does not address settlement of citizen enforcement actions.”
    Revision of the Board’s Procedural Rules: 35 Ill. Adm. Code 101-130, R00-20, slip op. at 11
    (Dec. 21, 2000).
     
    The Board’s position also fails to take into account the fundamentally different purposes
    of State and citizen enforcement actions under the Act’s provisions. When the State files an
    enforcement action on behalf of the citizens of Illinois and a settlement is proposed, the General
    Assembly saw to it that the citizens have an opportunity to serve as a “watch dog” by
    commenting on the proposed settlement at a hearing.
    See
    415 ILCS 5/31(c)(2) (2000),
    amended
    by
    P.A. 92-0574, eff. June 26, 2002. This provides an important “check” on the State
    prosecutor—the citizens can see that their interests are being represented by ensuring that the
    State is adequately enforcing the Act.
     
    This rationale does not apply to citizen enforcement actions. The State prosecutor is not
    involved. A citizen complainant does not, and cannot, represent the People of this State. The
    complainant
    is
    the “watch dog” and the
    citizen action
    is the means of ensuring that the Act is
    enforced. It is irrelevant that the General Assembly created no “hearing exception” for citizen
    settlements—there is no hearing requirement from which to be excepted, and no policy reason to
    provide the State settlement procedural safeguard.
     
    Manifest in the Board’s position is that the Board lacks the authority to accept a proposed
    citizen settlement without hearing. Twice before the Board has held it was without power to
    accept proposed settlements only to be reversed on appeal.
    See
    People v. Archer Daniels
    Midland, 140 Ill. App. 3d 823, 489 N.E.2d 887 (3d Dist. 1986); Chemetco, Inc. v. IPCB, 140 Ill.
    App. 3d 283, 488 N.E.2d 639 (5th Dist. 1986). In each case, based on an unduly narrow reading
    of the Act, the Board perceived that it lacked the necessary authority to accept a proposed
    settlement. For example, in Archer Daniels Midland, the parties before the Board argued that
    “the Board’s role in approving settlement agreements is to determine whether the goals of the
    Act are met.” Archer Daniels Midland, 140 Ill. App. 3d at 824, 488 N.E.2d at 888. In reversing
    the Board, the court held:
     
    We find that, under the Act, the Board is empowered to resolve enforcement
    actions brought before it under the Act. As an administrative agency, the Board
    has the inherent authority to do all that is reasonably necessary to execute its
    specifically conferred statutory power.
    * * *
    [T]he public interest is better served by a procedure which encourages
    respondents to enter into settlement discussions and negotiations by which
    respondents may avoid the stigma of finding a violation and assist the State in
    effectuating the goals of the Act . . . . [T]he result will conserve resources which
    would otherwise be expended in litigation. Archer Daniels Midland, 140 Ill. App.
    3d at 825, 488 N.E.2d at 888-89;
    see also
    Freedom Oil v. IPCB, 275 Ill. App. 3d
    508, 514, 655 N.E.2d 1184, 1189 (4th Dist. 1995) (“In performing its specific
    duties, an administrative agency has wide latitude to accomplish its
    responsibilities.”); Chemetco, 140 Ill. App. 3d at 286-87, 488 N.E.2d at 642
     
      
     
    4
    (“[W]here there is an express grant of authority, there is likewise the clear and
    express grant of power to do all that is reasonably necessary to execute the power
    or perform the duty specifically conferred.”).
     
     
    Far from encouraging settlements, the Board’s approach raises hurdles to settlement,
    contrary to the law’s preference for litigating parties to settle.
    See
    Chemetco, 140 Ill. App. 3d at
    288, 488 N.E.2d at 643. Practically speaking, when faced with the prospect of having to go to
    hearing on their proposed settlements, citizen parties have simply moved to voluntarily dismiss
    the case, potentially depriving the matter of any State scrutiny. This is borne out time and again
    in the Board’s dockets. Those citizens who do not have the means to go to hearing are therefore
    denied a Board order codifying the settlement. A Board order, unlike a private settlement
    agreement, is enforceable by the
    State
    or
    any
    person, not solely by the parties. In short, the
    Board’s approach is not working.
     
     
    This result runs counter to the Board’s statutory role to ensure environmental protection.
    The Board has viewed its role under the Act as follows:
     
    [T]he Board was designed to be the final interpreter, subject to judicial review, of
    what is required to effectuate the policies of the Environmental Protection Act;
    not merely a disinterested arbiter, the Board is entrusted with affirmative
    responsibility to see to it, through appropriate orders in matters brought before it,
    that the policies of the Act are carried out. GAF Corp. v. IEPA, PCB 71-11, slip
    op at 3 (Oct. 3, 1972).
     
    The Board missed an important opportunity today to renew that commitment by changing a
    position that has not aged well. Rare are the circumstances when an administrative agency
    should reach a holding that is inconsistent with its past precedent, but this principle does not
    condemn an agency to propagate a broken process.
     
     
    Of course, the Board, in its discretion, can order a hearing on any proposed settlement if
    it is unclear whether it furthers the purposes of the Act. The complainants here have reached an
    agreement with IFCO that serves the purposes of the Act by
    eliminating
    alleged air pollution
    through facility shutdown. It is difficult to conceive how holding a public hearing could improve
    on this, but easy to see that ordering a hearing will impose numerous additional costs on both the
    parties and the Board, assuming the parties do not move to dismiss. The context of this case
    makes clear that the Board’s myopic view of its own authority has led to unintended, negative
    ramifications. Holding a hearing on this proposed settlement seems especially superfluous in
    these difficult economic times.
     
     
    We believe that time has revealed the Board’s position, requiring a hearing before being
    able to accept a settlement in a citizen enforcement action, is both legally unwarranted and so
    ineffective from a practical perspective as to interfere with the Board’s duty to effectuate the
    policies of the Act. The Board should have availed itself of this excellent opportunity to
    establish new precedent that would make the Act work and better protect the environment.
     
     
      
     
     
      
    5
    For these reasons, the Board erred today by not using its authority to accept the proposed
    settlement without hearing. Therefore, we respectfully dissent.
     
     
    Claire A. Manning
    Chairman
     
     
    Michael E. Tristano
    Board Member
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the above
    dissenting opinion was submitted on December 9, 2002.
     
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     
      
      
     

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