BEFORE THE ILLINOIS

POLLUTION

CONTROL BOARD

SEp

2008

PEOPLE

THE STATE

OF ILLINOIS,

)

pjTE

ILLINOIS

Board

Complainant,

vs.

)

PCB No. 05-1

)

(Enforcement

- Air)

CHAMPION ENVIRONMENTAL

)

SERVICES, INC.,

Wisconsin

)

corporation,

Respondent.

NOTICE

OF FILING

To:

Ms.

Jennifer Nijman

Attorney at

Law

NijmanFranzetti LLP

10 South LaSalle St., Suite 3600

Chicago, IL 60603

PLEASE TAKE

NOTICE that

on this date I mailed for filing with the Clerk of the Pollution

Control

Board of the State of Illinois, COMPLAINANT’S RESPONSE

TO RESPONDENT’S

MOTION TO

FINALIZE SETTLEMENT AGREEMENT, copies

of which are attached hereto

and

herewith

served upon you.

Respectfully submitted,

PEOPLE OF THE STATE

OF ILLINOIS

LISA MADIGAN,

Attorney

General of the

State

of Illinois

MATTHEW

J. DUNN, Chief

Environmental

Enforcement/Asbestos

Litig

n Div i

BY:____________________

‘.L.

MAN

Assistant Attorney

General

Environmental Bureau

500

South

Second Street

Springfield,

Illinois 62706

217/782-9031

Dated:

September 16,

2008

CERTIFICATE

OF SERVICE

hereby

certify that I did on September

16,

2008, send

First

Class Mail, with

postage

thereon

fully prepaid, by depositing

United States Post Office

Box

true

and correct

copy

of the

following

instruments

entitled

NOTICE

OF FILING and COMPLAINANT’S

RESPONSE

RESPONDENT’S

MOTION TO

FINALIZE SETTLEMENT

AGREEMENT

To:

Ms.

Jennifer

Nijman

Attorney at

Law

NijmanFranzetti

LLP

10 South

LaSalle St., Suite

3600

Chicago,

IL 60603

and

the

original

and ten copies

First

Class

Mail

with

postage thereon

fully prepaid

of the

same foregoing

instrument(s):

To:

John T.

Therriault, Assistant

Clerk

Illinois Pollution

Control

Board

James R. Thompson

Center

Suite 11-500

100

West

Randolph

Chicago,

Illinois 60601

A copy

was also sent

First

Class Mail

with postage

thereon

fully prepaid to:

Carol

Webb

Hearing

Officer

Illinois

Pollution Control

Board

1021

North Grand Avenue

East

Springfield,

IL 62794

Assistant

Attorney

General

This filing

is submitted on recycled

paper.

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF

)

ILLINOIS, ex. rel. LISA MADIGAN,

)

LER’S

OFFICE

Attorney General

of the

State of Illinois,

)

SEP

2008

Complainant,

)

STATE

vs.

)

No. 05-1 99

CHAMPION

ENVIRONMENTAL

)

SERVICES, INC., an Wisconsin

)

corporation,

Respondent.

)

COMPLAINANT’S RESPONSE

TO RESPONDENT’S MOTION

TO FINALIZE SETTLEMENT AGREEMENT

COMES NOW, the PEOPLE OF THE STATE OF ILLINOIS, ex reL

LISA

MADIGAN,

Attorney General of the State of

Illinois,

and for its Response to

Respondent’s Motion

Finalize

Settlement Agreement, states as

follows:

May 23, 2005, the Complainant filed a

complaint against Champion Environmental

Services, Inc.,

before the Illinois

Pollution

Control

Board.

Champion

Environmental Services, Inc., corrected the

concerns

at the

site

which gave

rise to

the

Complaint, within one week.

Since the date

of filing of the Complaint, the parties have discussed settlement of this

matter.

The

negotiations have been very protracted while

the

parties discussed language

in the

draft stipulation,

and

there

have been

several versions

of that

language

passed

between the

counsels for

both sides, and reviewed at various levels within the Illinois Environmental

Protection

Agency and

Illinois Attorney General’s Office.

Champion

Environmental Services, Inc., provided a version of the stipulation

the

Complainant

which

had been signed by representatives of Champion, after discussion with

the

Illinois

Attorney

General’s Office. That version of the stipulation was not accepted by the Illinois

Environmental

Protection

Agency.

During the negotiations

between Champion

and

the Illinois

AGO, an updated

version

of the stipulation

was created

the

Illinois

AGO

and Illinois

EPA.

The Illinois

EPA expressed

a preference

for the updated

version

of the

stipulation

since

neither

it nor

the

Illinois AGO had signed

the earlier

stipulation, and

the stipulation

draft had not

been

reviewed,

approved and

accepted by

all levels

management within

the Illinois EPA

and

Illinois

AGO. The Illinois EPA

was

not a

signatory to

the

version

previously

discussed

with

Champion, and later

provided

the Illinois AGO

by Champion, signed

by Champion.

Complainant

denies

that there is

any enforceable

agreement. The

proposed

stipulation

provided by Champion

with its Motion

for

consideration

the Illinois

Pollution Control

Board

does

not constitute

binding

settlement

document. The

draft

stipulation

and

proposal

for

settlement

has not passed through

the internal review

of the Illinois

Environmental

Protection

Agency,

nor has it been

signed

by the

Illinois

Attorney General’s

Office.

Although the primary

terms are

what has

been discussed

as settlement

for this matter, most

notably the

amount

the

penalty,

the

language

in this draft document

was not reviewed

and

accepted

by the Illinois

Environmental

Protection

Agency.

Illinois Environmental

Protection

Agency

City

of Marion,

PCB 71-25, the

Agency

filed

complaint alleging

water pollution and

similar violations

the

City’s

sewage

treatment

plant.

Please

see

Complainant’s

Attachment

A. At the hearing,

the Assistant

Attorney

General

agreed

to a

settlement

of the

matter

without consulting

his client. Two

days later,

the

Illinois

Attorney General’s

Office sent

letter

the Board

indicated

that the Illinois EPA did

not agree

to the terms

of that

settlement.

The

Board

noted initially

that “[iJt is elementary

that an

attorney

is not

to settle cases without

the consent of

his client.” 1971

4501

(1971).

The Board

goes

on to

refer to Procedural

Rule

333,

now 35 ll.ADC 103.302,

which

states

that no case is

to be

settled

“...without a Board order

based upon a written

statement by

the parties to the

case

setting

forth the justifications

for the proposal.”

1971

WL 4501

(1971).

That rule

also requires

that

the

parties

submit sufficient

information

for the Board

actually

evaluate

the proposed

settlement

to be

certain it

is “... in the

public interest.”

ll.ADC.

103.302

provides

follows:

proceeding

pending

before the

Board

will

be disposed

of or

modified

without

an order

of the

Board. [emphasis

added]

A proposed

stipulation

and

settlement

agreement

must

contain

a written

statement,

signed

by the

parties

their

authorized

representatives,

[emphasis

added]

outlining

the

nature

of,

the reasons

for, and

the purpose

accomplished

by the settlement.

The

written

statement

must include:

a) a

full

stipulation

aN material

facts pertaining

to the

nature,

extent,

and

causes

of the

alleged

violations

proposed

settled;

b) the

nature

of the

relevant parties’

operations

and

control

equipment;

facts

and circumstances

bearing

upon

the reasonableness

of the

emissions,

discharges,

deposits

involved,

including

1) the character

and

degree of

injury

to,

or interference

with the

protection

of the

health, general

welfare

and

physical

property

of the

people;

2) the

social and

economic

value

the

pollution source;

the suitability

or unsuitability

the pollution

source

to the

area

in which it

is located,

including

the

question

of priority

of location

the

area

involved;

the technical

practicability

and economic

reasonableness

of reducing

or eliminating

the emissions,

discharges

deposits

resulting from

such

pollution

source;

and

any

subsequent

compliance.

Details as

future

plans

for

compliance,

including

a description

of additional

control

measures

and the dates

for their

implementation,

any;

and

e) the

proposed

penalty, if

any, supported

by factors

mitigation

or aggravation

of penalty,

including

the factors

set forth

Section

42(h) of

the

Act

[415 ILCS

4/42(h)].

35 ll.ADC.

103.302.

Under

this regulation,

the Board

will not order

matter

dismissed

until the

Board

has

received

and accepted

written

statement

signed

the

parties. No

such filing

has been

made in

this

matter,

because

the

settlement

negotiations

have not

yet reached

the point

of a signed

agreement.

In Environmental Protection

Agency v. Ralston Purina

Co., PCB 71-88 (November 23,

1971), the Illinois Attorney

General’s Office filed an action

alleging air pollution in April of 1971.

Please see

Complainant’s

Attachment B. Settlement

negotiations took place for a time, and

November a document was submitted

to the Board that was

purported settlement between

the

company, the Attorney

General, and the neighbors.

The Board declined to accept the

agreement for a few reasons, primarily

because the Illinois EPA,

the

complainant

in the case,

had

not accepted the settlement. “As we held in EPA v.

City

of Marion, #71-25 (October 28,

1971), a

party’s attorney cannot

settle a case without the party’s consent.” EPA v. Ralston

Purina Co.,

PCB

71-88, 1971 WL 4196 (1971). This is precisely

the case at bar. The Illinois

EPA

has declined to accept the draft stipulation version

signed by Champion. The

Respondent’s own

transmittal letter

of March 6,

2008,

acknowledges that the

stipulation

was

pending

signature by the

Illinois EPA prior

to submittal to the Board. Please see Attachment

Respondent’s

Motion.

The language

of the draft stipulation itself indicates

that the

agreement is not final

until

signed and submitted,

approved and accepted. In the initial paragraph of the document, the

draft

states that the

Illinois Attorney General’s Office, the Illinois Environmental Protection

Agency, and the Respondent

“...have agreed to

the

making of this Stipulation... and submit

the

Illinois Pollution

Control Board ... for approval...”

and that

only

upon

approval

by the Board

are the

parties bound by

its terms. Please

see Respondent’s

Attachments

8, 9, and

12,

page

one

of the draft

stipulation. The draft also

has a provision

noting that

the

signatories

to the

stipulation

have the

authority

sign and thereby bind

their

represented party to the terms

that

stipulation. Please see Respondent’s

Attachment

8, page

1-2, Attachment

9, page

1-2,

and

Attachment

12, page 12. Further, the stipulation provides that once the Board enters

Order

approving

and accepting the stipulation, the stipulation becomes an enforceable Order.

Please see

Respondent’s Attachment

8, pages 8-9, Attachment

9 pages 8-9, and Attachment

12, page 12. If it is not accepted, the stipulation

is not binding. This draft

document states that

it is not

effective until signed

all

parties, then approved

and accepted

the Board. The

signature

lines remain blank, reflecting

the need for the document

to be reviewed and signed

management at BOTH the Illinois Attorney General’s

Office and the Illinois EPA before it is

even

provided

the Board for review

and possible entry. It seems absurd

only attempt

enforce part of the “agreement” Furthermore, the March

2008,

transmittal

letter

from the

Respondent to the

Complainant notes

that the Illinois EPA signature was needed on the

stipulation draft

prior to submittal to the Board. Please

see

Respondent’s

Attachment 8. Also,

the May

20, 2008, letter from

the IAGO

to the Respondent

indicates

that “[i]f the settlement

meets with your

approval, please have it signed

your client and return

us for filing.”

Please see

Respondent’s

Attachment 12. This

does not

indicate

completed

arrangement.

Earlier emails

discuss whether or not the Illinois EPA was even going to be a party to the

agreement.

In the

signed version of the stipulation, the Illinois EPA was not a party, nor a

signatory.

Please see

Respondent’s Attachment

The

documentation provided by the Respondent in support of its

motion tends to

show

how

very

contentious all the language in

the draft

has been to date.

The Illinois Environmental

Protection Agency

has not been

continuously involved

in all of the language

discussions

between the Illinois

Attorney General’s Office and the

Respondent.

During the

pendency

of this

action,

the draft

stipulation itself was subject to some revisions by the

Illinois

EPA and

Illinois

AGO.

When the latest

draft of the stipulation, already signed by the Respondent and accepted

by the

Respondent,

was presented to the

Illinois EPA for

their

review,

input and

comment,

the

Illinois

EPA declined

to accept this version of the stipulation, preferring instead the more

updated

version. It

is noteworthy that the majority of terms in the stipulation have not changed

overly much - the

Respondent has agreed

to a penalty amount, and it is

agreed by the parties

that no further work

remains

to be accomplished at the site itself.

Complainant denies that

continuing the ongoing negotiations “turns back the

clock” by two years. The

Respondent

has

suggested certain language changes for consideration,

and the Illinois EPA has declined

accept those

proposed changes.

The Respondent appears to advance a contracts

theory in arguing that the

stipulation

was

already complete. The documentation provided

by the Respondent with its

Motion does

indeed show a

significant amount of

“back and forth” between Respondent’s

counsel and

the

IAGO, including discussions of

the

penalty amount and at least two versions of

the draft

stipulation, including one without the

Illinois

EPA as a signatory. The very

title of the

document

in question,

“Stipulation and Proposal for Settlement” indicate that this

draft document is

than

mere contract and

therefore not merely subject

to a

contracts interpretation.

The

Respondent did not

indicate

any

willingness

to accept the

initial

penalty demand made upon

it.

This is not

unusual and the

Complainant did

not

immediately

assume that this meant the

negotiations

were over.

However,

penalty amount was not contingent upon language

changes,

additions or

deletions in the stipulation - the

Complainant

did

not

hold language changes

ransom for

additional money to be extracted from the Respondent. It is frequently the case

that

a penalty

amount is agreed upon long

before all of the

changes

in language

are drafted for

review. It

appears clear from review of the documentation that the parties were

still discussing

the draft

stipulation. In

fact,

there were several

versions

of the stipulation reviewed before

the

Respondent

was even willing to consider

signing

any. Certainly the Illinois EPA would be

allowed

to also

review, comment, and elect

whether

or not to sign the draft. There has been

meeting of

the minds of

the

parties to

this proposed stipulation.

This draft

document is not effective

until and unless signed

by all parties AND entered

by the Board. The

signature

lines

remain blank, reflecting

the need for the document to

reviewed

and

signed

by management

at both the Illinois Attorney General’s

Office and the

Illinois Environmental Protection

Agency before it is even

provided for review and possible

entry. It seems absurd to only attempt

to enforce portions of

the “agreement.”

Also, the

last

letter

from Complainant to the Respondent’s

counsel provides that

the Respondent should

have

the draft signed and returned

to Complainant for filing

if the draft is suitable. This does

not

indicate

completed arrangement.

There are no circuit court

cases

directly

on point. In the case at bar, the settlement

itself

states some

conditions

precedent - that it does not become effective until signed

by the parties

and approved and entered by the Board.

The document is both a

settlement

and a stipulation.

This language itself shows that there was no “meeting

of the

minds” regarding

formalization

the settlement

until the agreement

was

signed

and entered. As the

negotiations

continued.,

proposed changes

were discussed

and reviewed by the Respondent and at various levels of

management within both the

Illinois

Attorney General’s Office and the Illinois Environmental

Protection Agency. The individual Assistant Attorney General handling the case is

not a

signatory to the

proposed Consent Order and does not have the authority to sign this

document

on behalf of

management of either of those entities.

Complainant

denies

that

there

was a

final

settlement agreement

prior

agreeing

to the

proposed terms of,

completing

any necessary

and/or

acceptable changes to, and signing the

anticipated formal

written document,

then

having

that document reviewed by,

approved

by,

and

entered by

this Board. The draft

stipulation

attached to the Respondent’s motion is only one

step in that

ongoing process.

The Illinois

Attorney General’s Office is well within its scope

authority to

continue

the

negotiations/settlement

process.

The

Respondent’s

Motion

improper

as there

has been

no contract

created

in this

case.

WHEREFORE,

Complainant

would

respectfully

request

the Board

STRIKE

the Motion

Enforce

Settlement

Agreement.

the alternative,

Complainant

would

respectfully

request

that

the

Board

DENY the

Respondent’s

Motion.

Respectfully

submitted,

PEOPLE

THE STATE

OF ILLINOIS,

exrel. LISA

MADIGAN,

Attorney

General

of the

State

of Illinois,

MATTHEW

J. DUNN,

Chief

Environmental

Enforcement/Asbestos

::zz>-

4/Hojian

/Assitant

Attorney General

(Environmental

Bureau

500 South

Second

Street

Springfield,

Illinois

62706

217/782-9031

Dated:_

Wftw.

1971 WL 4501 (II1.Pol.Control.Bd.)

Page 1

1971

WL 4501

(Il1.Pol.Control.Bd.)

Illinois

Pollution

Control Board

State of

Illinois

ENVIRONMENTAL

PROTECTION

AGENCY

CITY

MARION

71-25

May 12, 1971

Opinion

of the Board

This

complaint

the Agency

charging

water pollution

and related

violations

at the City’s

sewage

treatment plant.

the

hearing the

Special Assistant

Attor

ney General

representing

the

Agency,

without consulting

his

client,

agreed

purported

settlement of

the case. The City

admitted

the

violations

alleged

and

stated

that it was

“understood”

that

plans

would

submitted,

a contract

let,

and

the needed

facilities

completed

by specified

dates. The

Special Assistant

Attor

ney

General

further urged that

no penalties be

imposed on

the ground that

the City

had not

received

timely notice

of the requirements

question.

No order

was

pro

posed.

Two

days

after

the hearing

we received a letter

from the

Assistant

Attorney

Gener

al in

charge of

environmental control

for

the Southern Region

of the State

vising us

that the

Agency disapproves

of the

proposed settlement

and

urges

take

appropriate action

on the basis

the complaint,

which in the

Agency’s

view

would include

both

cease

and desist order

and money

penalties.

iselementary

that

an attorney

is not to settle

cases

without

the consent

his

client.

Our Procedural Rule

333 makes clear

that no

case

settled

without a

Board order

based upon a

written

statement

by the parties

to the

case

setting forth

the

justifications

for the

proposal.

It is the Agency,

not its

torney,

that is

the party

complainant in

the present

case, and

the Agency’s ap

proval

is a

prerequisite

our

consideration

of any proposed

settlement.

Since

the parties

have not agreed,

there is no settlement

proposal

for us

to consider.

For

future

guidance

we point out

also

that

Rule

333 requires

the parties

to submit

the

Board adequate

information

on which we can

base an

intelligent

evaluation

of whether

any proposed

settlement

is-in the

public

interest.

After

all it

the

ATTACHMENT

Thomson

Reuters/West.

No Claim

Orig. U.S.

Govt. Works.

1971 WL4501 (Il1.Pol.Control.Bd.)

Page 2

Board

and not the

Agency

or its

attorneys

that is given

statutory

responsibility

determine

whether a violation

exists

and what

is the appropriate

remedy.

Cf.

Environmental

Protection

Agency

City of Springfield,

70-9,

decided May 12,

1971. Such

information must

contain

full stipulation

of the relevant

facts

per

taining to the

nature, extent,

and causes

of the violations,

the nature

of the

spondent!s

operations

and control

equipment,

any explanations

of past failures

comply, and details

as to future

plans for

compliance, including

descriptions

additional

control

measures

and the dates for

implementing

them, as well

as a

statement of

reasons why no hearing

should

be conducted. Opportunity

will also

provided by the

Board for individual

citizens

to express their

views as is

contem

plated by

the

statute.

The Agency asks

us to pass on the

case on the

basis of our present

information,

but

that information

fails in a number

respects

to satisfy what

we need to

make

an intelligent

decision,

and

the respondent

is entitled

its day before

the

Board.

A new hearing

will

be scheduled

expeditiously

as is

convenient

for

the

parties;

no second twenty-one-day

notice will be necessary

since the respondent

has

long been

on notice

of the charges

against which it

must defend.

ordered.

Mr. Currie

1971

4501 (I1l.Pol.Control.Bd.)

END OF

DOCUMENT

2008 Thomson

Reuters/West.

•No Claim to

Orig.

U.S.

Govt.. Works.

Westiaw

1971 WL4196

(I1l.Pol.Control.Bd.)

Page 1

1971 WL 4196 (I1l.Pol.Control.Bd.)

Illinois

Pollution Control

Board

State

of Illinois

ENVIRONMENTAL

PROTECTION AGENCY

RALSTON

PURINA

CO.

71-88

November

23,

1971

Preliminary Order

This

complaint

respecting air

pollution in Bloomington was filed April

21, 1971.

Hearings

belatedly began in September, only

to be

interrupted

for settlement

nego

tiations. On

November 12 we were sent

purported settlement agreement

among the

company, the

Attorney General, and

the

intervening

neighbors.

We cannot consider

this agreement. In the first place

it has not been accepted

the

Environmental Protection Agency, which is the complainant

in the case. As

held in EPA v.

City of Marion,

71-25

(October

28, 1971),

a party’s attorney

can

not settle a case

without the party’s consent. Moreover,

there is no stipulation

facts as is

required in order

give us

a basis for evaluating the proposed

order.

The question

of what

order is for the Board

to decide, and it cannot

decided in

the absence of a knowledge of the facts. We call attention

specific

ally to the

proposal for “directing the emissions of odors away

from the Sunnyside

Housing

Development.” Any settlement proposal ought

explain why it

is neces

sary that odors be

simply deflected rather than controlled.

Settling disputes

without the burdens of hearings is

encouraged by

the

Board.

But

the

attempt at

settlement

must

not

permitted

delay

the resolution of the

controversy,

and it must not

leave

the Board in the dark as to the facts

on which

its

determination of

the

public

interest

depends. Had the hearings been

completed

scheduled,

this case would have been decided by now. We trust there will

be no

further

delays.

The

proposed

settlement is rejected. Further proceedings

are to be

held

with all

reasonable dispatch.

—1

ATTACHMENT

Reuters/West.

No Claim to Orig. U.S. Govt. Works.

1971 WL 4196

(11l.PoI.Control.Bd.)

Page 2

Mr. Currie

1971 WL 4196

(Ill.Pol.Control.Bd.)

END OF

DOCUMENT

Orig.

U.S.

Govt. Works.