ILLINOIS POLLUTION CONTROL BOARD
March 20, 1997
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
BELL SPORTS, INC., a California
corporation, WASTE HAULING
LANDFILL, INC., an Illinois corporation,
and WASTE HAULING, INC., an Illinois
corporation,
Respondents.
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WASTE HAULING LANDFILL, INC.,
an Illinois corporation, AND WASTE
HAULING, INC., an Illinois corporation,
Cross-claimants,
v.
BELL SPORTS, INC., a California
corporation,
Cross-respondent.
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PCB 95-91
(Enforcement - Land)
THOMAS DAVIS AND MARIA MENOTTI OF THE ILLINOIS ATTORNEY GENERAL’S
OFFICE, AND GREGORY RICHARDSON OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, APPEARED ON BEHALF OF COMPLAINANT;
BYRON F. TAYLOR AND IRA JACK NAHMOD OF SIDLEY AND AUSTIN APPEARED
ON BEHALF OF BELL SPORTS, INC.;
PHILLIP R. VAN NESS OF WEBBER & THIES, P.C., AND STEPHEN O.
WILLOUGHBY AND K. MICHAEL LATSHAW OF WILLOUGHBY, LATSHAW &
HOPKINS, APPEARED ON BEHALF OF WASTE HAULING LANDFILL, INC. AND
WASTE HAULING INC.
2
INTERIM OPINION AND ORDER OF THE BOARD (by C.A. Manning):
This matter comes before the Board upon a seven-count complaint filed on March 14,
1995 by the Attorney General of the State of Illinois, on behalf of the Illinois Environmental
Protection Agency (Agency) and the People of the State of Illinois, against Bell Sports, Inc.
(Bell Sports), Waste Hauling Landfill, Inc. and Waste Hauling, Inc. (collectively
WHLI/WHI). The complaint concerns Bell Sports’ alleged generation and shipment of drums
containing hazardous waste from its business located in Rantoul, Champaign County, Illinois,
to a landfill owned by WHLI/WHI, and located west of Decatur, just north of Rockspring
Road, approximately two miles west of Wyckles Road in the northwest quarter of Section 26,
Township 16 North, Range 1 East (the landfill). The complaint also contains several alleged
violations against WHLI/WHI for, generally, the transport, storage and disposal of hazardous
waste.
1
Complaint alleges that Bell Sports violated Sections 21(f)(1), 21(f)(2) and 21(i) of the
Environmental Protection Act (Act) (415 ILCS 5/21(f)(1), (f)(2), (i) (1994)) and several
sections of the Board’s regulations including 35 Ill. Adm. Code 703.121(a) and (b), 722.111,
722.112(c), 722.120(b), 722.132(b), 723.111, 723.121(a)(1), 724.113(a), 724.115(a),(b), and
(d), 724.173(a) and (b), 724.212(a)(1), 724.242(a), and 724.243 (1994). These sections
generally pertain to the performance of routine inspections of a facility, documentation of
inspections, maintenance of appropriate operating records, records of hazardous waste, closure
plan for hazardous waste management units, written closure cost estimate, hazardous waste
determination, marking of hazardous waste, inspection logs, permitted container storage area,
shipping of hazardous waste, permitted treatment storage, financial assurance, chemical and
physical analysis on generated waste, and providing records to Agency personnel.
Pursuant to Section 31(a)(2) of the Act (415 ILCS 5/31(a)(2) (1994)), complainant filed
a motion requesting relief from the Act’s hearing requirement on August 26, 1996.
Concurrently, complainant and Bell Sports filed a stipulation and proposal for settlement
(stipulation). The stipulation sets forth facts relating to the nature, operation, and
circumstances surrounding the claimed violations against Bell Sports. Bell Sports denies the
violations alleged by complainant, as well as any violations alleged by complainant against
WHLI/WHI, to the extent that any such violations might provide a basis for a finding that Bell
Sports was in violation of the Act or the Board’s rules. However, Bell Sports agrees to pay a
civil penalty $69,427 to the Environmental Protection Trust Fund.
On September 4, 1996 WHLI/WHI filed a motion requesting that this matter be set for
hearing. Pursuant to Section 31(a)(2) of the Act, the Board denied the stipulating parties’
request for relief and set this matter for hearing. The hearing was held on the stipulation
1
On September 11, 1995 WHLI/WHI filed a cross-claim against Bell Sports requesting that
Bell Sports be found liable for civil penalties due to the release or threatened release of
hazardous substances on the premises of WHLI/WHI. Both complainant’s enforcement action
against WHLI/WHI and the cross-claim between WHLI/WHI and Bell Sports are still pending.
3
before the Board’s Chief Hearing Officer Michael Wallace on December 4, 1996, at the
Board’s office located at 600 South Second Street, Springfield, Illinois. At hearing, each of
the attorneys for the respective parties gave preliminary remarks with regard to the stipulation
proposed between complainant and Bell Sports. Mr. Robert Krimmel, a consulting engineer
and “engineer of record” for Waste Hauling Landfill, testified on behalf of WHLI/WHI with
regard to his opinions and beliefs as to the content of the proposed stipulation. Aside from the
parties present at the hearing in this matter, no members of the public were present.
The issues before the Board today are whether the Board may accept a stipulation
between a complainant and one of several party respondents, and whether the acceptance of
such a stipulation affects a cross-claim between two of the respondents. For reasons more
fully explained below, the Board accepts the stipulation and proposal for settlement between
complainant and Bell Sports. However, this matter shall proceed to hearing with regard to the
remaining issues in the original enforcement case filed by complainant against WHLI/WHI,
and the cross-claim filed by WHLI/WHI against Bell Sports.
ARGUMENTS OF THE PARTIES
WHLI/WHI argues that the Board should reject the stipulation since it does not comply
with the settlement procedure set forth in Section 103.180 of the Board’s procedural rules. (35
Ill. Adm. Code 103.180(a).) WHLI/WHI further objects to the stipulation because it believes
that any such settlement will impair WHLI/WHI’s likelihood of succeeding in its cross-claim
against Bell Sports. Complainant argues that it has properly met the requisite obligations for a
settlement procedure under the Board’s rules and, therefore, complainant believes that the
stipulation is valid. Likewise, Bell Sports argues that the stipulation satisfies both the
procedural and substantive requirements of 35 Ill. Adm. Code 103.180(a). Neither
complainant nor Bell Sports believe that the stipulation will affect the cross-claim between
WHLI/WHI and Bell Sports, and both complainant and Bell Sports argue that the burden of
the cross-claim rests with WHLI/WHI. The following sections specifically discuss the
arguments of all the parties in this matter.
Arguments Opposing the Stipulation
WHLI/WHI. WHLI/WHI objects to the stipulation arguing that it fails to comply with
the procedural elements required for a settlement procedure as set forth in 35 Ill. Adm. Code
103.180(a).
2
(WHLI/WHI Pre-hrg. Br. at 4; WHLI/WHI Post-hrg. Br. at 6.) First,
WHLI/WHI contends that 35 Ill. Adm. Code 103.180(a) requires that all parties to any case
must sign the settlement agreement. (
Id.
) Because WHLI/WHI has not signed the stipulation,
WHLI/WHI argues that the Board should not accept the stipulation filed by complainant and
Bell Sports. Second, WHLI/WHI maintains that the stipulation fails to contain a “full
2
WHLI/WHI’s case statement filed with the Board on November 15, 1996 will hereinafter be
referred to as (WHLI/WHI Pre-hrg. Br. at __); the transcript of the hearing held on December
4, 1996 will hereinafter be referred to as (Tr. at __);WHLI/WHI’s post hearing comments
filed with the Board on December 23, 1996 shall hereinafter be referred to as (WHLI/WHI
Post-hrg. Br. at __).
4
stipulation of all material facts pertaining to the nature, extent and causes of the alleged
violations” as required by Section 103.180(a)(1) of the Board’s procedural rules.
(WHLI/WHI Post-hrg. Br. at 6.) Third, WHLI/WHI asserts that the stipulation fails to
contain “any explanation for past failure to comply.” (WHLI/WHI Pre-hrg. Br. at 9-10;
WHLI/WHI Post-hrg. Br. at 7-8.) WHLI/WHI asserts that neither complainant nor Bell
Sports indicate why Bell Sports failed to comply with Board regulations. Fourth, WHLI/WHI
argues that the stipulation fails to set forth any details as to future compliance plans.
(WHLI/WHI Pre-hrg. Br. at 10; WHLI/WHI Post-hrg. Br. at 8-10.) Therefore, WHLI/WHI
argues that, because complainant and Bell Sports fail to meet the conditions required by
settlement procedures set forth in 35 Ill. Adm. 103.180(a), the Board should not accept the
filed stipulation.
Additionally, WHLI/WHI further objects to the stipulation asserting that it would likely
impair its chance of succeeding in the cross-claim against Bell Sports. Specifically,
WHLI/WHI contends that the acceptance of the settlement between complainant and Bell
Sports “invites the Board to leap to the conclusion, without factual information of any kind,
that the charges against Bell Sports are wholly distinguishable from those levied against WHI
and WHL.” (WHLI/WHI Pre-hrg. Br. at 5.) Moreover, WHLI/WHI argues that the Board’s
acceptance of the stipulation will shift the burden of proof to WHLI/WHI in the cross-claim
against Bell Sports. Consequently, WHLI/WHI argues that it, rather than complainant, will
then have to prove Bell Sports’ liability for the alleged hazardous waste violations in the cross-
claim. (WHLI/WHI Pre-hrg. Br. at 12, 13.) WHLI/WHI contends that all of the hazardous
waste violations alleged against them are solely due to the wrongful acts of Bell Sports.
(WHLI/WHI Pre-hrg. Br. at 12.) For all of the aforementioned reasons, WHLI/WHI urges
the Board to reject the stipulation.
Arguments In Favor of the Stipulation
Complainant. Complainant argues that it does not need the consent of WHLI/WHI in
order to settle with Bell Sports in the original enforcement case. Complainant argues that the
Board’s rules do not allow a nonconsenting party to veto an agreement between the People of
the State of Illinois and a consenting party. Complainant also contends that it has met its
obligation under 35 Ill. Adm. Code 103.180(a) and, therefore, the stipulation is valid.
3
(Comp. Pre-hrg. Br. at 1; Comp. Post-hrg. Br. at 2.) Complainant further asserts that the
burden is on WHLI/WHI to prove that the stipulation does not meet the requirements of 35 Ill.
Adm. Code 103.180(a). (Comp. Pre-hrg. Br. at 1-2; Comp. Post-hrg. Br. at 3.)
3
Complainant’s position regarding the public hearing on the stipulation filed with the Board on
November 6, 1996 shall hereinafter be referred to as (Comp. Pre-hrg. Br. at __.);
Complainant’s reply to WHLI/WHI’s post-hearing comments filed with the Board on January
6, 1997 shall hereinafter be referred to as (Comp. Post-hrg. Br. at __.)
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Moreover, complainant argues that the stipulation does not attempt to resolve the cross-
claim filed by WHLI/WHI against Bell Sports. (Comp. Post-hrg. Br. at 4.) Complainant
asserts that it is not responsible for proving the cross-claim which was filed by WHLI/WHI
against Bell Sports. (
Id.
) Complainant argues that WHLI/WHI simply wants complainant,
rather than WHLI/WHI, to utilize its resources to prove up the case against Bell Sports.
However, complainant argues that the cross-claim filed by WHLI/WHI against Bell Sports
must be proved by the cross-claimant, rather than the complainant, since such a cross-claim
goes beyond the bounds of the prosecutorial function in the originally filed enforcement
matter. (
Id
.)
Finally, complainant contends that, according to the Board’s procedural rules set forth
at 35 Ill. Adm. Code 103.180(c), the Board has the discretion to “accept, suggest revisions in,
reject the proposed settlement and stipulation, or direct further hearing as it appears
appropriate.” Complainant asserts that in the past, the Board has accepted stipulations in a
multiple respondent situation where the complainant settles a claim with one respondent and
not another. (Comp. Post-hrg. Br. at 5.) Complainant further argues that the Board has, in
the past, accepted and approved settlements involving complainant and less than all
respondents. (
Id
.) Complainant also believes that its settlement with Bell Sports does not
affect complainant’s remaining duty to carry the burden of proof in complainant’s case against
WHLI/ WHI. (Comp. Post-hrg. Br. at 4-5.) For the above reasons, complainant requests that
the Board accept and approve the stipulation.
Bell Sports. Bell Sports maintains that the stipulation is a fair and equitable resolution
of the enforcement action brought by complainant against Bell Sports.
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(Bell Sp. Reply at 3;
Bell Sp. Pre-hrg. Br. at 4.) Contrary to what WHLI/WHI argues, Bell Sports maintains that it
has taken significant steps to remedy the alleged instances of noncompliance. (
Id
.) Bell
Sports further argues that the stipulation satisfies the procedural and substantive requirements
of 35 Ill. Adm. Code 103.180(a). Moreover, in accordance with 35 Ill. Adm. Code
103.180(a), Bell Sports believes that the stipulation describes the impact on the public resulting
from noncompliance. (Bell Sp. Reply at 4; Bell Sp. Pre-hrg. Br. at 5.) In providing this
information in the stipulation, Bell Sports alleges that it has effectively followed the settlement
procedures set forth in the Board’s procedural rules.
Bell Sports further argues that WHLI/WHI is not entitled as a matter of right by the
Act, Illinois Administrative Code, or Board precedent to be included in the stipulation between
complainant and Bell Sports. (Bell Sp. Rebut at 4.) Bell Sports states that the Board has, in
fact, approved settlements involving the complainant and less than all respondents. (Bell Sp.
Reply at 4-5; Bell Sp. Rebut at 5.) (
See
discussion
infra
, People and Illinois Environmental
Protection Agency v. Consolidated Freightways Corp. et al. (October 4, 1978) PCB 76-107;
4
Bell Sports’ September 19, 1995 reply and request for approval of settlement will hereinafter
be referred to as (Bell Sp. Reply at __.); Bell Sports’ case statement filed with the Board on
November 7, 1996 will hereinafter be referred to as (Bell Sp. Pre-hrg. Br. at __.); Bell Sports’
November 27, 1997 rebuttal of WHLI/WHI’s case statement will hereinafter be referred to as
(Bell Sp. Rebut at __.); Bell Sports’ post hearing comments filed with the Board on January 3,
1997 shall hereinafter be referred to as (Bell Sp. Post-hrg. Br. at __.)
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see
People v. City of Gillespie et al. (December 1, 1994; January 11, 1995; February 16,
1995) PCB 94-220.) Bell Sports further argues that it is the burden of WHLI/WHI to prove
its cross-claim against Bell Sports. (Bell Sp. Rebut 6-7.) Additionally, Bell Sports asserts
that, at hearing, WHLI/WHI failed to present any convincing evidence which shows that the
stipulation should be rejected by the Board. (Bell Sp. Post-hrg. Br. at 6-8;
See generally
, Tr.
at 25-55.) Bell Sports further argues that WHLI/WHI presented nothing at hearing that would
support its assertion that the stipulation does not satisfy the necessary procedural and
substantive requirements of the Board’s procedural rules. (Bell Sp. Post-hrg. Br. at 8-9.)
Therefore, Bell Sports requests that the Board accept and approve the stipulation.
DISCUSSION
For the reasons stated below the Board finds that the stipulation may be entered
between complainant and one multiple party respondent, and that the stipulation at issue
complies with Section 103.180(a) of the Board’s procedural rules. Accordingly, we accept the
stipulation between complainant and Bell Sports and order that complainant’s enforcement
action against WHLI/WHI shall continue as scheduled. We further order that the cross-claim
between WHLI/WHI and Bell Sports shall proceed as discussed below.
Stipulation
WHLI/WHI objects to the stipulation between complainant and Bell Sports because
WHLI/WHI does not agree to, nor has it signed, the stipulation. Section 103.180(a) of the
Board’s rules states that, “[a]ll parties to any case in which a settlement or compromise is
proposed shall file . . . a written statement, signed by the parties . . . outlining the nature of,
the reasons for, and the purpose to be accomplished by the settlement . . . .” (35 Ill. Adm.
Code 103.180(a).) This settlement procedure language applies to those parties in a case who
have decided to settle. The Board has consistently held that the Board’s procedural rules
require that a written statement be signed by those parties proposing the settlement, not all
parties who are respondents in a case.
In the past the Board has accepted stipulations by less than all respondents. In People
v. City of Gillespie et al. (December 1, 1994; January 11, 1995; February 16, 1995) PCB 94-
220, complainant filed an enforcement action against three named respondents. In three
differently dated orders, the Board accepted separate stipulations and settlement agreements
between complainant and the named respondents. In People and Illinois Environmental
Protection Agency v. Consolidated Freightways Corp. et al. (October 4, 1978) PCB 76-107,
the Board accepted two separate stipulations between complainant and two of the multiple
party respondents. The remaining respondent, Consolidated Freightways, objected to the
stipulations. In an order dated October 4, 1978, the Board found that Consolidated’s
objections were without merit. (
Id
. at 6.) The Board reasoned that the “stipulated facts by the
very text of the Settlement Proposal are limited to the parties in question.” The Board could
not “find how Settlement Agreements to which Respondent Consolidated was not a party
would affect its rights at hearing . . . .” (
Id
. at 4.) The Board stated that stipulations are not
binding on other parties (to a case.) (
Id
.)
7
In the instant matter, the proposed stipulation was filed and signed by complainant and
Bell Sports, which constitutes all the parties to the settlement. The stipulation before the
Board concerns the allegations which complainant filed against Bell Sports alone. Although
complainant filed this matter against multiple respondents, the Board believes that the Attorney
General of the State of Illinois has the prosecutorial discretion to settle with none, one, any, or
all respondent(s) in a multiple party respondent case. Complainant has assured the Board that
it has “adequately addressed all of the relevant facts and circumstances to show the impact of
the violations, to assure future compliance, and to justify the amount of penalty.” (Tr. at 7.)
Section 103.180(c) of the Board’s procedural rules gives the Board the discretion to accept,
suggest revisions in, reject the proposed stipulation, or direct further hearings as it appears
appropriate. The Board has reviewed the proposed stipulation and finds that it is acceptable
and in accordance with the requirements of Section 103.180(a)(1-4). The acceptance of this
stipulation does not affect or alter the cross-claim between the two party respondents,
WHLI/WHI and Bell Sports.
Cross-claim
WHLI/WHI believes that if the stipulation is accepted by the Board, then WHLI/WHI
has little chance of succeeding in the cross-claim against Bell Sports. WHLI/WHI further
asserts that the burden of proof for the cross-claim should rest with complainant. WHLI/WHI
argues that “because of the way the proposed settlement is crafted, the burden of proof
ultimately is shifted impermissibly from the State to WHLI/WHI, both for purposes of the
cross-claim and for purposes of the enforcement action currently pending against non-settling
respondents.” (Tr. at 19.)
The Board disagrees with WHLI/WHI’s arguments and characterizations. Once the
Board has accepted the stipulation between complainant and Bell Sports, complainant still has
the burden of proving its enforcement action against WHLI/WHI, and WHLI/WHI has the
burden to prove the allegations in its cross-claim against Bell Sports. The Board views these
matters as separate allegations which took place during the same string of transactions.
Although complainant filed its enforcement action against the named respondents, it has the
option to resolve the issues with the named respondents. Complainant stated at hearing that it
entered into this stipulation with Bell Sports in order to “resolve the State’s claims against Bell
Sports” but not to “affect the State’s claims against Waste Hauling, Inc. and Waste Hauling
Landfill, Inc., nor [to] affect the cross-claims by the Waste Hauling companies against Bell
Sports.” (Tr. at 7-8.) The Board finds that in accepting the stipulation between complainant
and Bell Sports, neither complainant’s case against WHLI/WHI nor the cross-claim are
affected.
The burden of proof for the cross-claim rests with WHLI/WHI. As the party who filed
the cross-claim, WHLI/WHI must bear the burden of proving its case. In its cross-claim,
WHLI/WHI requests the Board to assess civil penalties against Bell Sports. In order for the
Board to order such civil penalties, the allegations must be proven. WHLI/WHI, being the
only cross-claimant, must bear the burden of proving its cross-claim before the Board.
CONCLUSION
8
The Board finds the stipulation and proposal for settlement between complainant and
Bell Sports acceptable under Section 103.180 of the Board’s rules (35 Ill. Adm. Code
103.180). This stipulation in no way affects respondent’s responsibility to comply with any
federal, State, or local regulation, including, but not limited to, the Act and the Board’s
regulations. The original enforcement matter filed by complainant against WHLI/WHI shall
proceed as scheduled; likewise, the cross-claim between WHLI/WHI and Bell Sports shall
proceed accordingly. Additionally, the Board notes that Bell Sports shall no longer appear as a
named respondent in any future pleadings or orders in the original enforcement case filed by
complainant. This interim opinion constitutes the Board’s interim findings of fact and
conclusions of law in this matter.
ORDER
1.
The Board hereby accepts the Stipulation and Settlement Agreement executed by the
People of the State of Illinois and Bell Sports, located in Rantoul, Champaign
County, Illinois. The stipulation and agreement are incorporated by reference as
though fully set forth herein.
2.
Bell Sports shall pay the sum of $69,427 within 45 days of the date of this order.
Such payment shall be made by certified check of money order payable to the
Treasurer of the State of Illinois, designated to the Environmental Protection Trust
Fund and shall be sent by first class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
P.O. Box 19276
Springfield, Illinois 62794-9276
A copy of the check shall be sent to:
Office of the Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
The certified check or money order shall clearly indicate on its face, Bell Sports’
federal employer identification number and that payment is directed to the
Environmental Protection Trust Fund.
3. Any such penalty not paid within the time prescribed shall incur interest at the rate
set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/1003(a), as
now and hereafter amended, from the date payment is due until the date the
payment is received. Interest shall not accrue during the pendency of an appeal
during which payment of the penalty has been stayed.
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4. Bell Sports shall cease and desist from the alleged violations.
5. The acceptance of this stipulation and settlement agreement does not affect
complainant’s action against the remaining respondents and does not affect the
cross-claim, both of which shall proceed as scheduled.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above interim opinion and order was adopted on the _____ day of ___________, 1997, by
a vote of ______________.
___________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board