ILLINOIS POLLUTION CONTROL BOARD

December 2, 1993

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

v.

)

PCB 93—186

(Enforcement)

ENCO CHEMICAL DISTRIBUTORS, INC.,

Respondent.

ORDER OF THE BOARD (by R.C. Flemal):

This matter comes before the Board on respondent’s October

28, 1993 motion to dismiss count VIII and to strike certain

allegations contained in counts XVI-XX of the complaint filed

October 7, 1993 by Roland W. Burns, Attorney General of the

State of Illinois, on behalf of Illinois Environmental Protection

Agency and the People of the State of Illinois. On November 18,

1993 the Board granted complainant leave to file its response to

the motion to dismiss and strike by November 22, 1993. The

complainant filed its response on November 23, 1993 accompanied

by a motion to file. The Board hereby grants the motion to file.

Section 31(d) Notice

The respondent requests dismissal of count VIII. Part of

count VIII alleges violations of condition 6(b) of respondent’s

air operating permit1. Respondent alleges that this count is

brought by the Attorney General’s office upon request of the

Illinois Environmental Protection Agency (Agency) pursuant to the

terms of Section 31 of the Act. (See footnote 1.) Respondent

requests dismissal for failure of the Agency to include alleged

violation of condition 6(b) in written notice to respondent

pursuant to Section 31(d) of the Act. (415 ILCS 5/31(d)).

Respondent further claims that none of the enforcement notice

letters sent to respondent by the Agency included an alleged

violation of condition 6(b) of the permit. (See Exhs. A, B, and

C to respondent’s motion.) Respondent argues that Agency failure

to give respondent notice pursuant to Section 31(d) prior to the

filing of the complaint results in the Board lacking personal

jurisdiction over respondent for the allegations contained in

Count VIII pertaining to condition 6(b) of the permit.

Respondent further argues that count VIII should be dismissed

with prejudice, claiming that the statutory requirement of notice

1

Permit No. 84100044.

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prior to filing of a complaint cannot be met after filing of the

complaint has been accomplished.

Complainant argues in response that respondent had

“constructive notice” of the alleged violation of condition 6(b)

of the permit. This “constructive notice” is described as (1)

oral notice of violation of condition 6(b) in discussions during

a facility inspection prior to the filing of the complaint, and

(2) written notice of alleged violation of condition 6(a) that

would serve as constructive notice of alleged violation of

condition 6(b), due to the nexus between conditions 6(a) and 6(b)

in the permit. Additionally, complainant argues that should the

Board find that failure to provide notice pursuant to Section

31(d) occurred for count VIII, the count should not be dismissed.

with prejudice..

The Board finds that written notice was not given for

alleged violations of condition 6(b) of the permit, and therefore

the Board lacks personal jurisdiction over the respondent

pertaining solely to violations of condition 6(b). (See, People

v. Chicago Heights Refuse Depot, Inc. (October 10, 1991), PCB 90-

112; and People v. Escast, Inc. (July 30, 1992), PCB 92—67.) The

Board is not persuaded by the “constructive notice” arguments of

the complainant. Section 31(d) of the Act requires written

notice of the charges alleged as follows:

* * *

Prior to issuance and service of a written

notice and formal complaint under subsection (a) of

this Section, the Agency shall issue and serve upon a

person complained against a written notice informing

such person that the Agency intends to file a formal

complaint. Such written notice shall notify the person

of the charges alleged and offer the person an

opportunity to meet with appropriate agency personnel

in an effort to resolve such conflicts which could lead

to the filing of the formal complaint.

* * *

Oral notification during a facility inspection and written

notification of alleged violation of condition 6(a) do not amount

to written notice of alleged violation of condition 6(b). The

Board here finds that oral discussions cannot substitute for the

clear requirement in the Act for written notice of the charges

alleged.

The Board further finds that complainant is correct that

count VIII should not be dismissed with prejudice. A dismissal

due to lack of personal jurisdiction is not an adjudication on

the merits. Based on the above, the Board hereby dismisses count

VIII without prejudice, but only as it pertains to condition 6(b)

of the permit.

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3

Striking of Certain Allegations Pertaining to Tank Truck Loading

Operations

Respondent requests that the following paragraphs of counts

XVI through XX of the complaint be stricken:

Count XVI, paragraphs 7, 8, and 13;

Count XVII, paragraphs 9, 10, 14, and 15;

Count XVIII, paragraphs 9, 10, and 14;

Count XIX, paragraphs 9, 10, 14, and 15;

Count XX, paragraphs 9, 10, and 14.

Respondent alleges that counts XVI through XX of the

complaint allege that respondent’s tank truck loading operations

violated certain special and standard conditions of permit no.

84110021. However, in a complaint recently filed against

respondent in the Circuit Court of Lake County, complainant

alleges that respondent does not possess an operating permit for

its tank truck loading operations. (People v. Emco Chemical

Distributors, Inc., et al., Cir. Ct. Lake County No. 93-CH—658

(Exhibit D). From this, respondent asserts that complainant’s

unequivocal statements contained in the circuit court complaint

should be taken as judicial admissions by complainant that

respondent’s tank truck loading operations are not encompassed in

the tank truck washing permit no. 84110021, and that the portions

of the complaint pertaining to violations of tank truck loading

under permit number 84110021 should be stricken.

Complainant responds that “tank truck loading” or “tank

truck loading/unloading” (terms used interchangeably) comprises

two separate actions that require two separate permits.

Complainant states that:

Respondent’s unloading activities though generally

considered a part of its loading operation is permitted

by the Agency. It is the violation of the permit

conditions associated with the permitted “unloading”

activities that is addressed in counts XVI—XX.

(complainant’s response at 9-10, emphasis in original.)

Complainant claims that it has set forth information in both the

complaint before the Board and the District Court to notify

respondent of the violations alleged, distinguishing between the

two permit requirements.

The Board denies the motion to strike certain portions of

counts

XVI—XX.

These portions pertain to alleged violations for

actions required under permit no. 84110021. Neither party claims

that permit no. 84110021 is not a valid permit issued to

respondent. Whether actions required by this permit were not

performed as required, and hence result in violation of the

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permit, is an issue to be decided by the Board after development

and completion of the record in this proceeding.

IT IS SO ORDERED.

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

Bo~ard~hereby certi~fy that the above order was adopted on the

day of ~

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,

1993, by a vote of ~

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Dorothy N. Gi~nn, Clerk

Illinois Po1~Lution Control Board