ILLINOIS POLLUTION CONTROL BOARD

May 24, 1990

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

Complainant,

v.

)

PCB 90—37

(Enforcement)

NESCO STEEL BARREL COMPANY

Respondent.

DISSENTING OPINION (by B. Forcade):

Although I agree with the majority that Count I should not

be dismissed, I disagree with the majority dismissal of Count IV.

Accordingly, I dissent. In addition, I fear the Board is

starting to equate the Section 31(d) notice with handing the

respondent a draft copy of the complaint, complete with all the

specifics. I find no requirement in the Act for such

specificity.

Regarding Count IV, the majority reaffirms that compliance

with the requirements of Section 31(d) is accomplished by actual

notice to the respondent during the discussions with the Agency.

See IEPA v. Mervis Industries, Inc., PCB 88—36 (May 5, 1988).

The Agency has asserted that such discussions took place. In

reply, Nesco attacks the Agency’s lack of specificity, but does

not specifically deny the validity of the claim, nor does Nesco

provide factual support or assertions that it did not acquire

actual notice under the theory of Mervis Industries.

If Mervis Industries is still good law, then the Board

presently has a question of fact before it: whether such

discussions took place as to provide Nesco with actual notice.

Unfortunately, the Board has no facts before it. The Board has

one ASSERTION from the Agency that such discussions took Diace,

but that assertion is not supported by testimony or affidavit.

Nesco did not even bother to ASSERT that such discussions did not

take place. Accordingly, I am not able to decide this question

of fact based on one unverified assertion and a failure to deny

that assertion. Since Nesco must carry the burden in its motion

to dismiss, I would deny the motion.

~\ \•~~

Bill S. Forcade

Board Member

111—421

---

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Dissenting Opinion was filed

on the ~

day of

_____________________

,

1990.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

111—422