ILLINOIS

POLLUTION

CONTROL BOARD

July 30,

1992

PEOPLE OF

THE

STATE OF ILLINOIS,

)

)

Complainant,

)

v.

)

PCB 92—67

(Enforcement)

ESCAST,

INC.,

Respondent.

ORDER OF THE BOARD

(by J.

Anderson):

This matter comes before the Board on a May 29,

1992 motion

filed by Escast,

Inc.

(Escast) to strike a portion of the

complaint filed May 7,

1992 by the People of the State of

Illinois

(People).

Escast requests that the Board strike a portion of the

complaint that refers to an alleged violation for failure to file

a required 1989 Generator Annual Hazardous Waste Report.

Escast

states that the Illinois Environmental Protection Agency (Agency)

sent Escast a Pre—Enforcement Conference Letter

(PECL) pursuant

to Section 31(d)

of the Environmental Protection Act

(Ill. Rev.

Stat.

1991,

ch.

111½, par.

1031(d)

(Act).

Escast states that the

letter referenced the alleged failure to file its 1990 report by

March

1,

1991,

but does not refer to an alleged failure to file

the 1989 report.

The People, did not file a reply to Escast’s motion.

Escast argues that because the PECL sent to it does not

contain allegations concerning the 1989 report, that notice

is

defective.

Escast concludes that due to the defect in the

notice, the portion of the complaint that pertains to the 1989

report should be struck.

Escast bases its arguments on the

Board’s opinion, People

V.

Chicago Heights Refuse Depot1

Inc.,

PCB 90-112,

October 10,

1991.

There, the Board noted that

Section 31(d) mandates the Agency to serve upon

a respondent a

written notice informing the person of the charges alleged, that

the Agency intends to file a formal written complaint,

and

offering an opportunity to meet with Agency personnel to resolve

conflicts, all prior to the filing of the complaint.

The Board

found that specific notice is required prior to the filing of the

complaint, and that lack of such notice prior to the filing of

the complaint results

in defective or insufficient notice.

The

Board further found that the defect in the notice results in a

lack of jurisdiction over the person of the respondent.

(~.

at

3—4)

A review of the Section 31(d)

notice sent to Escast

indicates that the Agency advised Escast of alleaed violations

0135-0173

---

—2-

“of 35 Ill.

Adm. Code 722.141(a) and Section 21(f) (2)

of the

Act”,

and added that “Escast failed to submit its Annual Report

for 1990 by March 1,

1991”.

(PECL dated June

24,

1991).

The

complaint in this matter alleges violations of the above cited

sections for the years 1989 and 1990. The PECL indicated the same

section of the Board’s regulations as alleged in the complaint

(Section 722.141(a)).

The Board notes that the complaint further cites alleged

violations of Section 21(1)

of the Act whereas the PECL cited

alleged violations of Section 21(f)(2)

of the Act.

These

sections both contain general prohibitions against conducting a

hazardous waste process or operation in violation of the Act or

Board regulations.

Therefore,

there is no practical difference

between citing either section for the purpose of section 31(d)

notice.

Furthermore, Escast does not allege that the PECL fails

to contain notice of the sections of the Act and Board

regulations alleged to be violated.

The Board finds that the Agency failed to notify Escast of

the charges alleged in the complaint pertaining to the 1989

report.

By containing mention of solely the 1990 report, the

PECL only notified Escast of the alleged violation pertaining to

the 1990 report.

Therefore, the reqUirement in Section 31(d)

of

the Act to give written notice to a person of the charges alleged

has not been satisified for the charges involving the 1989

report.

This

is true even though the PECL contained a citation

to

the

regulation which requires the annual reports.

However, we

note that this situation is distinct from that presented in

Chicago Heights Refuse Depot,

where the PECL contained nothing

pertaining to the alleged violations in counts other than count

I

of the complaint.

(See, Chicago Heights Refuse Depot,

supra,

at

4).

Accordingly, Escast’s motion to strike those charges

pertaining to the 1989 report is granted.

IT IS SO ORDERED.

B.

Forcade dissented.

I,

Dorothy N.

Gunn, ClerJ~of the Illinois Pollution Control

Board, hereby certify that the above order was adopted on the

3~-t~1iday of

_____________________,

1992, by a vote of

-

/

.

~

~.

Dorothy M. G)4~n, Clerk

Illinois Po~J/utionControl Board

O!35-0171i