ILLINOIS POLLUTION CONTROL BOARD
February 23, 1989
VILLAGE OF KILDEER,
)
Complainant,
V.
)
PCB 88—173
VILLAGE OF LAKE ZURICH,
LIBERTY LAKE PARTNERSHIP,
ESR/ANDEN CORPORATION,
LEXINGTON~ DEVELOPMENT
CO.,,
LEXINGTON HOMES, INC.,
Respondents.
ORDER OF THE BOARD (by J. Theodore Meyer):
This matter is before the Board on a January 10, 1989 motion
by complainant the Village of Kildeer (Kildeer) seeking interim
relief. On January 19, 1989, the Board granted respondents an
extension of time until February 6, 1989 to file their
responses. Respondents the Village of Lake Zurich (Lake Zurich),
ESR/Anden Corporation (ESR/Anden)
,
and Liberty Lake Partnership
(Liberty Lake) filed their responses on February 6. On February
7, 1989, respondent Lexington Development Corporation (Lexington)
filed its response, along with a motion to file instanter. That
motion to file instanter states that Lexington’s response was one
day late because of a delay in the transmission of executed
affidavits in support of the response. In view of Lexington’s
minimal delay in filing its response, and because no party was
prejudiced by the delay, the motion to file instanter is granted.
Kildeer’s motion for interim relief arises from its October
24, 1988 enforcement complaint against respondents. That
complaint alleges various effluent and water quality violations
at Lake Zurich’s Southeast Treatment Plant, and in its receiving
stream, Buffalo Creek. Kildeer alleges that these violations
will be exacerbated by permits issued by the Illinois
Environmental Protection Agency (Agency) to respondents
ESR/Anden, Liberty Lake, and Lexington for sewer extensions which
will increase the flow to the Southeast Plant. No hearing has
yet been held on this complaint. In this motion for interim
relief, Kildeer asks that the Board enter an order prohibiting
the construction of the sewer extensions, and prohibiting Lake
Zurich from accepting wastewater from those extensions, pending a
final order of the Board in this enforcement proceeding. Kildeer
contends that if flows from the sewer extensions are directed to
the Southeast plant, the alleged violations will become more
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severe and more frequent. Kildeer also maintains that if the
sewer extensions are constructed before the Board issues a final
ruling on the enforcement complaint, the doctrine of equitable
estoppel might bar the Board from granting some of the relief
requested by Kildeer, i.e. the revocation of the permits allowing
the construction of the extensions. Wachta v. Pollution Control
Board (2c3 Dist. 1972), 8 Ill. App. 3d 436, 289 N.E.2d 484.
Kildeer argues that the Board has authority to grant the interim
relief pursuant to its “cease and desist” powers under Section
33(b) of the Illinois Environmental Protection Act (Act). Ill.
Rev. Stat. 1987, ch. lii 1/2, par. 1033(b). Indeed, Kildeer
contends that it must seek this relief from the Board before
initiating an action for injunctive relief in the circuit court
under Section 45(b) of the Act.
In opposition to Kildeer’s motion, all respondents argue
that the motion for interim relief should be denied because the
Board lacks authority under the Act to grant the requested
relief. Respondents contend that the Board’s “cease and desist”
powers under Section 33(b) can only be used in final orders
entered by the Board after a hearing on the merits of the
complaint, and point out that no hearing has been held on the
enforcement complaint. Furthermore, respondents maintain that
Kildeer’s statement that it must seek interim relief from this
Board before initiating an action in circuit court pursuant to
Section 45(b) is unfounded. Respondents state that a person may
seek injunctive relief pursuant to Section 45(b) only after he is
denied relief under Section 31(b), which contemplates the entry
of a final order after hearing. Respondents therefore contend
that because no hearing has been held and there has been no
decision on the merits of the enforcement complaint, the motion
for interim relief has nothing to do with Kildeer’s right to
pursue injunctive relief in the courts. Finally, respondents
argue that Kildeer is not entitled to interim relief on the
merits of its request.
The Board agrees with respondents’ claim that it has no
authority to grant the requested interim relief, and thus must
deny the motion. The “cease and desist” authority granted to the
Board in Section 33(b) of the Act is clearly to be used only in
final orders pursuant to Section 33(a)
.
It is just as clear that
a Section 33(a) final order can only be entered after hearing on
the merits of an enforcement complaint. No hearing has been held
in this proceeding, and thus the Board cannot at this time issue
any cease and desist order. See Illinois Environmental
Protection Agency v. Fitz—Mar, Inc., PCB 86—160 (July 16, 1987);
Greenland v. City of Lake Forest, PCB 84—155 (June 13, 1985).
Kildeer’s motion is denied.
Finally, on February 17, 1989, Kildeer filed a reply to
respondents’ responses. In its January 19, 1989 order the Board
allowed Kildeer to file a reply by February 14, 1989. The
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certificate of service on Kildeer’s reply states that the reply
was mailed on February 14, 1989. However, the reply was not
received by the Clerk’s office until February 17. The reply is
late and will not be accepted. In Interstate Pollution Control
v. Illinois Environmental Protection Agency, PCB 86—19 (March 27,
1986), this Board declined to apply the mailbox rule, except in
cases where a statutory appeal period is involved. That is not
the case here. No motion to file instanter accompanied the
reply, and thus the reply is not accepted. The Board notes,
however, that the reply contains nothing which would change its
decision to deny Kildeer’s motion for interim relief.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, herpby certify t~.at the above Order was adopted on
the
~‘~-‘~
day of
~
,
1989, by a vote of
7’~
Ill
S
lut
Control Board
96—231