ILLINOIS POLLUTION CONTROL BOARD

July

27, 1989

KATHY WESTERN AND

JEFFREY WESTERN,

Complainants,

v.

)

PCB 89—44

MOLINE CORPORATION,

Respondent.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v.

)

PCB 89—87

MOLINE CORPORATION,

Respondent.

ORDER OF THE BOARD

(by J. Marlin):

This matter comes before the Board upon a Joint Motion to

Consolidate filed by Illinois Environmental Protection Agency

(Agency)

and Kathy and Jeffrey Western on June 26,

1989 and a

Motion for Judgement on the Pleadings filed on July 7,

1989 by

Moline Corporation (Moline)

in PCB 89—87.

In PCB 89—87,

the Agency filed a four count complaint

against Moline.

Counts

I-Ill allege that Moline caused air

pollution in violation of section 9(a) of the Illinois

Environmental Protection Act

(Act)

and failed

to obtain the

required construction and operating permits

in violation of

section 9(b)

of

the Act.

Count

IV alleges

a violation

of section

23 of

the Act relating

to excessive noise.

While

the Board does not usually accept

Replies

to Response

Motions, given

the comDlexiLy

of the

instant issues,

Moline’s

Reply

to Complainants’ Response

to Motion for Judgement on the

Pleadings

is hereby accepted.

Moline asserts that the Board does not have subject matter

jurisdiction over Count

LV because the Agency failed to issue

a

Compliance Inquiry Letter concerning noise pollution pursuant

to

section 31(d)

of the Act.

Therefore, Moline contends that Count

IV

must

be dismissed for failure

to state

a cause of

action.

101—291

---

—2—

The Agency does not dispute that the noise pollution

violation was not specifically referenced in its Compliance

Inquiry Letters.

However,

the Agency discussed the alleged noise

violation with Moline at a conference on December

15,

1988 held

pursuant to section 31(d) of the Act.

A letter from Moline to

the Agency dated January

3,

1989 states that “although the

compliance inquiry letter did not mention any allegations of

excessive noise, we discussed this matter during our meeting.”

Lastly, correspondence from the Attorney General’s Office dated

April

3,

1989 notifies Moline of the possible initiation of an

enforcement action noting the level of noise emitted from

Moline’s plant.

Based on the foregoing,

the Board concludes that Moline

received notice of

the allegations of Count

IV and that

it

is not

appropriate to grant Moline’s Motion for Judgement on the

Pleadings as to Count

IV.

(See, IEPA v.

Mervis Industries,

Inc.,

PCB 88—36

(May

5,

1989).)

In PCB 89—44 the Westerns alleges that Moline has caused or

allowed noise pollution.

Therefore,

PCB 89—44 and PCB 89—87

involve the common issue of noise pollution.

In the interest of

administrative economy,

PCB 89-44 and PCB 89—87 are consolidated

so that only one hearing need

to be held.

However, the Board

notes that the Westerns,

as complainants

in PCB 89—44, must prove

the alleged noise violations as set forth in their complaint but

not as complainants in PCB 89-87.

The Agency retains the burden

of proving Counts I—IV of

its complaint.

The Hearing Officer

is

directed to take necessary action consistent with this opinion.

IT IS SO ORDERED.

Board Members

J. Anderson and J.T.

Meyer dissented.

I, Dorothy

M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify~hat,the

above

Order

was adopted on

the

~T~/—

day of

____________________

,

1989,

by a vote

of

~

.

I

:

Dorothy M,,/Gunn, Clerk

Illinois pollution Control Board

101—292