ILLINOIS POLLUTION CONTROL BOARD

~January

23,

1975

ENVIRONMENTAL PROTECTION AGENCY

)

Complainant

)

)

)

PCB 73—279

DONALD F. SIZELOVE, individually and

d/b/a CENTRAL REALTY AND DEVELOPMENT

CO., and THE MARK IV CORPORATION, a

)

corporation

)

Respondents

INTERIM OPINION AND ORDER OF THE BOARD (by Mr. Zeitlin):

This case was originally filed by the Illinois Environmental Protection

Agency as an enforcement action on July 10, 1973. After considerable

pleadings, the parties entered a Stipulation and Proposal for Settlement

at a hearing held November 26, 1974.

The Board is not opposed to the factual provisions of the proposed

settlement, or to the provisions for penalty and future compliance contained

therein. There are, however, certain technical difficulties which weigh

against its adoption by the Board.

First, the Stipulation

as it

exists does not adequately provide for the

inclusion of necessary parties. Although two motions have been submitted to

the Board for the inclusion of three Homeowners Associations in this proceeding,

the testimony at hearing indicates that such associations may not yet properly

exist. And although the proposed settlement would require that these addi-

tional parties take on specific duties and acquire certain property, the asso-

ciations have in no way bound themselves to this course of action, assuming

that they do in fact exist.

Second, the Stipulation provides that, in the event the Board should adopt

this Stipulation, the Complaint in this matter should be dismissed. This is

procedurally unsound, insofar as it can raise difficulties regarding the power

of the Board to bind the parties. The Board is limited to the terms of the

Stipulation, Brotherhood v. N.Y. Central, 339 Ill. 201, 209, 171 N.E. 148

(1930). Were the Board to dismiss the Complaint in this action, it necessar-

ily is left without authority to determine that violations have in fact occurred,

or to impose a penalty. As the Board may not alter the terms of the Stipula-

tion, that portion of the Stipulation requiring dismissal negates all terms of

the Stipulation which preceed it,

15—283

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Third, the compliance and settlement plans in this matter contemplate

the provision of water to the Washington Heights Subdivision by the

Bloomington Township Water District. No direct evidence on the intentions

of that District have been presented. While the Board does not require a

binding agreement from that District, so integral a part of the case can-

nr~- -e left to speculation.

~‘ourth,the stipulation in paragraph

two

directs the Board,

should it find a violation and impose a penalty, in the use of the

funds which such a penalty would generate. This is also unacceptable.

Penalties assessed by the Board shall, as has been past practice, be

made payable to:

State of Illinois

Illinois Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

Springfield, Illinois 62706

For these reasons, the matter will be remanded to the Hearing Officer

for actions to be taken in compliance with this Interim Opinion and Order.

It is suggested that, in addition to the changes discussed above, the

following be submitted with a corrected Stipulation and Proposal for

Settlement:

1) Copies of the Articles of Incorporation, or other

legal documents, showing the legal existence of

Washington Heights Homeowners Association N~umber

One, Washington Heights Homeowners Association Number

Two, and Washington Heights Homeowners Association

Number Three.

2) Binding agreements executed by the above described

Associations, under which such Associations agree

to accept the properties and responsibilities detailed

in this Opinion and Order of the Board, and in the

Stipulation and Proposal for Settlement submitted by

the parties to this action, and agree to perform the

duties thereunder.

3) A written communication from the Bloomington Township

Water District whereby such District evidences an intent

to supply water to the residents of the Washington

Heights Subdivision. Such communication need not be

binding upon that District, and need only show an intent

and a brief statement of its plans based on such intent.

15

—

284

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—3—

This Opinion constitutes the Board~s findings of fact and conclusions

of law with regard to this Interim U~inionand Order,

ORDER

IT IS THE ORDER OF

THE

Pollution Control Board that:

The above titled matter is remanded to the Hearing ~fficerfor

actions to be taken in compliance with the Opinion herein~

I, Christan L. Moffett, Clerk of the Illinois Pollution Control BoArd

hereby certify the above Opinion and Order were adopted on the~~a day

of January, 1975 by a vote of

J—~

Christan L. Moffett, ~le

Illinois Pollution Cant

oard