ILLINOIS POLLUTION CONTROL BOARD
September 2, 1982
U
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
and
FLORENCE FARMER,
)
Intervenor,
V.
)
PCB 78—233
GRANITE CITY STEEL
)
DIVISION OF NATIONAL STEEL CORPORATION,
)
Respondent.
ORDER OF THE BOARD (by I. Goodmanh
By Order of the Board this matter was reopened on March 19,
1982 pursuant to the appellate court’s mandate in Florence Farmer
v.Illinois Pollution Control Board, No. 80—377 (5th Dist, 1982).
On June 3, 1982 Intervenor, Florence Farmer, filed an ~n~endedCom-
plaint which 1) named the Illinois Environmental Protection Agency
(Agency) as a Respondent and 2) alleged additional and continuing
violations by the original Respondent, Granite City Steel (Granite
City).
The Agency moved to dismiss those counts in the Intervenor’s
Amended Complaint alleging violations by the Agency on June 9,
1982. On June 21, 1982 the Intervenor filed a Response to the
Agency’s motion and requested additional time to file a memorandum
of law in support thereof. The Board granted the additional time
on July 1, 1982, On July 14, 1982 the Intervenor filed her memo-
randum, Without leave, the Agency filed a Reply on July 22, 1982
and the Intervenor filed a Response thereto on August 30, 1982
and amended the complaint naming the Director of the Agency as
Respondent, as opposed to the Agency itself.
The Agency’s motion to dismiss was premised on the Supreme
Court’s holding in Landfill,
Inc.
v. Pollution Control Board,
74 Ill,2d 541, 387 N.L2d 258 (1978), that the Agency was not a
person that could be sued under the Environmental Protection
Act for failure to properly exercise its duties. Throughout its
responses, the Intervenor argued that the Landfill decision was
distinguished in that it dealt with a permit denial, as opposed
to an enforcement action. However, the Court’s language is
48-55
2
explicit:
~Prosecution under the ~lct~
is against
polluters,
not the Agency~
at
p.
264~
Despite
the quasi~’:~udicial duties delegated to the
Board
under the Act,
this body cannot consider actions in
contravention
of the
Landfill decision0 Furthermore, the Board, as an adrninis-
trative~~dy,cannot decide issues for which the remedy is a writ
of mandamus~
This is reserved for the :iudiciary0 Therefore, the
Agency’s
motion
to dismiss is granted and Counts Vi,
VII,
VIII
and IX of the Amended Complaint of August 30, 1982
are stricken,
As stated above, the :ntervenor s Amended Complaint
alleged
violations by Granite City in addition to those already brought
by the
Agency’s complaint in this matter, On June
14,
1982
Granite
City moved for an extension of
time to respond
and
filed
a motion to strike or d~Lsmiss Intervenor’s Amended Complaint and
Memorandum in Support thereof on June
28,
i982~ (The additional
time was granted by the Board at its regu.anlv scheduled meeting
on July 1, 1982,)
On
July 14, 1982 the Intervenor requested until July
28, 1982
to
respond to Granite City~smotion, which was granted on July
21,
1982,
On August
30, 1982 the Intervenor filed the response with
a motion to
file Instanter,
The motion is granted~.
In
the Amended Complaint filed by the Intervenor, three counts
in addition to those alleged originally by the Agency are set out.
The counts
allege violations of Section 39 of
the Act, Chapter 2:
Air
Pollution, Rules 102, 103(a), 103(b), :L10, 203(d)(2), 203,
204
and
307, and Rule 331(a) of the Board’s Procedural Rules.
The
Intervenor
alleges violations of the Act and Chapter 2
from 1975
and
1972,
respectively, up until the present.
The Board will
allow the additional counts, but the time frame will be limited.
The Board acknowledges that the Stipulation is vacated by the
Fifth District~s action, but believes that the Intervenor should
be allowed to
amend only
as
to violations
and the
time
period
prior to the time she attempted to intervene0
The Board notes
that she is free to bring a separate enforcement action for
violations she wishes to al:Lege since that time,
Thus, Granite
City’s
motion
to dismiss is denied and the motion to strike
is
granted
in part~
IT IS SO ORDERED,
Board Members D. Anderson
and J, Dumelle concurred,
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control
~oard, hereby certify
that
the above Order
was
adopted
on
the ~
day of
~
1982 by a vote
of
____
Q
Christ a~I~Thof~ Clerk
Iil~noisPolluti~ Control
Board
48-58