ILLINOIS POLLUTION CONTROL BOARD

June

6, 1972

ENVIRONMENTAL PROTECTION AGENCY

v.

)

#

71—346

MASCOUTAB TOWNSHIP

Opinion

&

Order of the Board. (by Mr.

Currie):

The Agency~s complaint, filed November 3, 1971, sought

money.penalties and an order closing a site at which solid

waste had been disposed of allegedly in violation of the

applicable law, On May 8, 1972, the Agency filed with us a

purported ~notice of dismissal” indicating that the case ~is

being dismissed byreasonof the fact that the factual situation

giving rise to this Complaint no longer exists~” On May 17

we ordered the submission of additional information to enable

us to determine, in accordance with our procedural rules, whether

or not a dismissal would he in the public interest.

The Agency~s supplemental statement, since received, re-

counts that the landfill in question had been the subject of

a court proceeding filed before the present complaint; that the

court had already ordered the landfill closed; that the court

had enjoined the Agency from proceeding before the Board on

the

present complaint (presumably, although the statement does

not say so, in order to avoid multiple litigation of a single

case); that the injunction against the Agency had been lifted

in consideration of the Agency~s agreement to drop the present

complaint upon closing of the site; and that the site has been

closed in accordance with the Rules~

The termination of allegedly illegal conduct is not enough

to moot a complaint seeking penalties for past violations; if

it did the deterrent effect of the penalty provisions would

be seriously undermined by allowing free violations until the

offender is brought before the Board. We have imposed penalties

in such cases in the past, e.g., EPA v. Alton Box Board Co.,

#71—318 (Jan. 6, 1971). On the other hand, we have recognized

that the policy of conserving limited prosecutorial resources

for important cases is relevant in considering whether or not

to dismiss a complaint upon the Agency’~smotion after future

compliance is assured, EPA v, Citizens Utilities Co.,

#

72-69

4

— 647

---

(April 17, 1972). As in Citizens Utilities, we need not today

decide whether this policy alone justifies the prosecutor in

dropping a case once filed, for in

the

present case the Agency

has not only obtained, Uecessation of the challenged conduct

but has agreed as a part of the

judicial settlement not to

proceed before the Board. We deem the Agency’s

agreement in

essence a

part of

the court order, and

we must accept the

court~s judgment disposing of this litigation. In substance

the issues raised

by the complaint

before us have~been disposed

of by court order, to which we must defer under the principles

of res judicata.

The complaint is hereby dismissed.

I, Christan Moffett, Clerk

of

the Pollution Control Board,

certify t,~tat

the Board adopted the above Opinion

& Order

this

(. ~

day of

--i.4~

,

1972, by a vote of

4t-ø

4— 648