ILLINOIS POLLUTION CONTROL BOARD
    August 24, 2000
    ESG WATTS, INC., (Viola Landfill) an Iowa corporation,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
    Respondent.
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    PCB 00-158
    (Permit Appeal - Land)
    ORDER OF THE BOARD (by E.Z. Kezelis):
    This matter is one of six actions initiated by ESG Watts (Watts) as permit appeals.
    1
    For the reasons stated
    below, the Board hereby dismisses this and two of the other actions.
    BACKGROUND
     
    On March 23, 2000, Watts filed a petition for hearing (Pet.). In it, Watts alleged that in 1994, it executed a
    trust agreement for the Viola Landfill, and that in early 1998 it began to seek to replace the trust agreement with an
    insurance policy. Pet. at 1. Over time, Watts and its insurers submitted various certificates of insurance and related
    correspondence to the Illinois Environmental Protection Agency (Agency) in an effort to release the trust account
    and satisfy Watts’ financial assurance obligations under Section 21.1(e) of the Environmental Protection Act (Act)
    (415 ILCS 5/21.1(e) (1998)). Pet. at 1-2. Watts alleges that during that same time period, the Agency issued notices
    of violation pursuant to Section 31(b) of the Act to Watts pertaining to those same financial assurance obligations for
    the Viola Landfill. Pet. at 1-2. According to Watts, the first notice of violation was issued January 8, 1998. Pet. at 1,
    Exh. I. At that time, the Agency advised Watts that a written response would be required within 45 days, that each
    violation must be addressed, that the response would constitute a proposed Compliance Commitment Agreement
    pursuant to Section 31 of the Act, and that a request for a meeting would be honored. Pet. at 1, Exh. I. On February
    22, 2000, the Agency issued a letter reiterating that Watts was still subject to referral for enforcement action pursuant
    to Section 31(b), because the various documents submitted by Watts to the Agency did not satisfy the requirements of
    a proposed Compliance Commitment Agreement. Pet. at 2, Exh. O.
    Watts’ petition alleges that the February 22, 2000 letter is appealable to the Board under one or more of
    several theories. First, according to Watts, the Agency wrongfully refused to issue a decision at all on the
    replacement financial assurance Watts had been offering, and accordingly, its failure to issue a decision is itself
    appealable pursuant to Section 21.1 of the Act. Pet. at 3. In the alternative, Watts argues that the February 22, 2000
    letter was “improper, not authorized by law, and arbitrary and unreasonable,” and is appealable pursuant to
    Section 31(b) of the Act. Pet. at 3. For its relief, Watts requests that the Board issue an order requiring the Agency to
    approve a specific insurance policy as financial assurance for the Viola Landfill and to release the trustee from the
    trust imposed upon a trust account that served as the earlier financial assurance for the Viola Landfill.
    1
    Watts operated three landfills in Illinois: the Viola Landfill in Mercer County, which is the subject of this docket as
    well as ESG Watts, Inc. v. Illinois Environmental Protection Agency, PCB 00-208; the Taylor Ridge/Andalusia
    Landfill in Rock Island County, which is the subject of ESG Watts, Inc. v. Illinois Environmental Protection Agency,
    PCB 00-159 and ESG Watts, Inc. v. Illinois Environmental Protection Agency, PCB 00-207; and the Sangamon Valley
    Landfill in Sangamon County, which is the subject of ESG Watts, Inc. v. Illinois Environmental Protection Agency,
    PCB 00-160, and ESG Watts, Inc. v. Illinois Environmental Protection Agency, PCB 00-206. Today’s Board action
    dismisses three cases: PCB 00-158, PCB 00-159 and PCB 00-160. The three later filed dockets (PCB 00-206, PCB 00-
    207, and PCB 00-208) will, in light of this order, continue to proceed.
    2
    MOTION TO DISMISS
    The Agency’s motion to dismiss was filed on April 17, 2000 (Mot.), and was accompanied by a special
    appearance. Briefly, the Agency argues that it is not entirely clear from Watts’ petition precisely what it is that Watts
    is appealing, nor the legal basis for the appeal. Mot. at 1. Relying on the 35-day appeal period provided by Section
    40 of the Act, the Agency concedes that the only Agency action whatsoever during that timeframe is the February
    22, 2000 letter. Mot. at 2.
    According to the Agency, its February 22, 2000 letter was issued pursuant to Section 31 of the Act. Mot. at
    2. The purpose of Section 31, the Agency argues, is to provide notice and an opportunity to resolve alleged violations
    before formal enforcement proceedings are initiated. Citing People v. Eagle-Picher-Boge, L.L.C. (July 22, 1999), PCB
    99-152, the Agency argues that its compliance with Section 31 is a precondition to referral for prosecution. Citing
    People v. Community Landfill Company, Inc. (March 16, 2000), PCB 97-193 and National Marine, Inc. v. IEPA, 159
    Ill. 2d 381, 639 N.E.2d 571 (1994), the Agency claims that no Board review during this preliminary process is
    available to recipients of such notice.
    Finally, the Agency argues that the Section 31 process is a preliminary one; it neither disposes of the
    proceedings nor adjudicates legal duties or rights. Mot. at 3. According to the Agency, an appealable determination
    of liability can occur only after the recipient either: (1) chooses not to participate in the Section 31 process; or (2) the
    recipient fails to resolve the alleged violations during the Section 31 process, and the Agency refers the matter for
    enforcement before an adjudicative body. Mot. at 3.
    3
    DISCUSSION
    The Board finds that Watts’ petition for review must be dismissed. First, the Board finds that because of the
    35-day appeal deadline specified in Section 40 of the Act, the only action of the Agency properly before the Board
    would be the Agency’s February 22, 2000 letter. Examination of that letter reveals that it is clearly and plainly
    correspondence by the Agency pursuant to Section 31 of the Act. Section 31 of the Act, in turn, is a preliminary
    process designed to afford regulated entities a process for resolving alleged violations before enforcement proceedings
    are initiated against them. Section 31 is a process; it is not an end result. Absent extraordinary circumstances not
    present here, the Board finds that a Section 31 transmittal such as the February 22, 2000 letter before us here is not a
    final, appealable determination.
    MISCELLANEOUS MATTERS
    The Board notes that on May 19, 2000, Watts purported to file a document captioned Petitioner’s
    Suggestions in Opposition to Respondent’s Motion to Dismiss. Pursuant to the Board’s rules, Watts’ response had
    been due no later than April 24, 2000. Watts’ filing was 24 days late, and no motion seeking an extension of time
    was filed. On May 30, 2000, the Agency moved to strike the filing. Watts did not respond to the motion.
    The Agency’s motion to strike is granted. As Watts and the Agency are frequent litigants, the Board’s
    procedural rules are well known to them. Flagrant disregard will no longer be tolerated. Simply put, litigants have
    an obligation to comply with deadlines.
    The Board also notes that, pursuant to a hearing officer order dated July 5, 2000, the parties briefed the
    question of whether subsequent events rendered this matter moot, and in the alternative, whether this docket should
    be consolidated with a later-filed Viola Landfill appeal. ESG Watts, Inc. v. IEPA, PCB 00-208. Watts initiated that
    matter on May 30, 2000, by appealing the Agency’s letter of April 21, 2000. In that letter, the Agency formally
    rejected an insurance policy offered by Watts as substitute financial assurance for the Viola Landfill; refused to
    release the existing trust account; and, advised Watts that it could appeal that Agency action as a permit denial
    pursuant to 35 Ill. Adm. Code 105 and Section 21.1(e) of the Act.
    The parties’ briefing pursuant to the July 5, 2000 hearing officer order was completed on July 28, 2000. In
    light of the outcome of this case, the Board does not need to reach the issue of mootness nor consolidation.
    CONCLUSION
    For the reasons stated herein, the Board grants the Agency’s motion to dismiss this petition, and grants the
    Agency’s motion to strike Watts’ filing of May 19, 2000, as untimely. Because of the outcome of this case, the Board
    does not address the issues of mootness nor consolidation. This action is hereby dismissed.
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1998)) provides for the appeal of final
    Board orders to the Illinois Appellate Court within 35 days of the date of service of this order. Illinois Supreme Court
    Rule 335 establishes such filing requirements. See 172 Ill. 2d R. 335; see also 35 Ill. Adm. Code 101.246, Motions for
    Reconsideration.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above order was
    adopted on the 24th day of August 2000 by a vote of 7-0.
    4
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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