ILLINOIS POLLUTION CONTROL BOARD
September 11, 1986
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
Complainant,
v.
) PCB 86—108
JOLIET SAND
AND
GRAVEL COMPANY,
Respondent.
ORDER OF THE BOARD (by J. Anderson):
This matter comes before the Board upon several motions
filed by the parties in this case.
On August 8, 1986, Joliet Sand and Gravel Company (“Joliet”)
filed a motion to dismiss the complaint filed against it by the
Illinois Environmental Protection Agency (“Agency”). Joliet
first contends that the Agency “failed to comply with section
31(d) of the (Illinois) Environmental Protection Act”.
Joliet does not allege, in any greater specificity, the
manner in which the Agency has failed to comply with section
31(d). Section 31(d) requires the Agency, prior to the issuance
of a formal complaint, to notify the person complained of that
the Agency intends on issuing such a complaint and to offer such
person the opportunity to meet with the Agency within 30 days in
order to resolve the conflict. The Board assumes that in raising
the allegation concerning section 31(d), Joliet believes that it
was not notified prior to the Agency’s issuance of a formal
complaint in this matter, and/or that it was not offered an
opportunity to meet with the Agency in order to resolve the
matter in question prior to the issuance of the formal complaint.
On September 3, 1986, the Agency filed a memorandum in
opposition to Joliet’s motion to dismiss. On September 8, 1986,
Joliet filed a motion to strike the Agency’s September 3
memorandum. The motion to strike is denied. Attached to the
memorandum and labeled Exhibit 1 is a copy of the notice letter
sent by the Agency to Joliet on July 3, 1985. That letter
requested Joliet attend a “Pre—Enforcement Conference” on July
22, 1985, and moreover stated that the letter was intended to
constitute the notice required by section 31(d) (the provisions
of which were also explained). The Agency did not file its
complaint in this matter until July 24, 1986. The Board finds
that the Agency has complied with the requirements of section
31(d).
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Joliet next asserts as grounds for dismissal that the
complaint fails to allege with sufficient particularity the dates
and durations of the discharges complained of. While a greater
agree of specificity would be desirable, the Board agrees with
the Agency’s contention that the complaint’s allegations of
general time frames are sufficient, given Joliet’s ability to
obtain more specific information through the discovery process.
For all of the foregoing reasons, then, the motion to
dismiss is denied.
Finally, on September 5, 1986, the Agency filed an
“emergency motion to the Board to vacate an order requiring
certain discovery to be made by Complainant”. Joliet filed a
response in opposition on September 8. The order the Agency
wishes to vacate was issued by the Hearing Officer on August 29,
1986, and requires complainant to produce certain discovery on or
before September 15.
The Order was entered in response to Joliet’s discovery
motion of August 12, 1986, in which Joliet asserted that the
parties would be unable to agree on the legitimate scope of
discovery. By letter of August 18, the Hearing Officer advised
the parties of his intent to allow the Agency “the opportunity to
resolve the scope of discovery...before entry of an Order”, but
that if the matter had not been resolved, that he intended to
enter an Order concerning the motion on August 27. No response
to the motion was ever filed by the Agency. On August 29, the
Hearing Officer entered the order granting the discovery
motion. The Agency has not requested the Hearing Officer to
reconsider his Order, but has instead filed the instant
“emergency motion”.
Under these circumstances, the Board declines to vacate the
Hearing Officer’s Order.
IT IS SO ORDERED.
J. T. Meyer dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify th~Eth~above Order was adopted on
the //t~ day of
___________________,
1986 by a vote of 5—/
Illinois Pol on Control Board
72-322