ILLINOIS POLLUTION CONTROL BOARD

May 21,

1992

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

)

PCB 90-63

(Enforcement)

v.

CITY OF EAST MOLINE,

)

Respondent.

ORDER OF THE BOARD

(by R.C.

Flemal):

On Nay 11,

1992 respondent, City of East Moline

(East

Moline),

filed a motion to dismiss or stay the scheduling of

hearing in this matter (Motion).

On May 18,

1992 complainant,

the Illinois Environmental Protection Agency (Agency), filed a

memorandum in opposition to the motion (Response)1.

At issue here is whether new Section 28.3

of. the Illinois

Environmental Protection Act

(Act),

adopted subsequent to filing

of the complaint,

authorizes or warrants either a dismissal or

stay of this enforcement proceeding.

Section 283

of the Act

contains provisions for adjusted standard procedures specifically

for public water supplies using the Mississippi or Ohio Rivers as

a raw water source.

For the purposes of the instant matter, the

operative portion is found at Section 28.3(g):

Application of otherwise applicable discharge

limitations to discharges subject to this Section shall

be held in abeyance pending Board action for those

petitioners pursuing an adjusted standard as long as

they have adhered to the filing times

in this Section

and are making timely and appropriate progress in

seeking an adjusted standard.

Petitioners must take

all reasonable steps to minimize discharge quantities

and adverse environmental impacts for the interim

operating period during pursuit of an adjusted

standard.

In no instances shall interim operating

procedures be relaxed from previously demonstrated and

generally attainable performance levels.

1

The Response is incorrectly captioned with docket number PCB

90—69.

13.3—431

---

2

A joint petition of East Moline and the Agency was filed pursuant

to this section on December 27,

19912.

East Moline argues that the enforcement action should be

stayed

(or dismiss with leave to reinstate)

since the Act states

the application of the discharge limits is “held in abeyance

pending Board action”.

(Motion at 6.)

The Agency argues that

the enforcement action should not be stayed because Section 28.3

does not have retroactive application, and that this enforcement

action was filed before the filing of the petition for adjusted

standard.

(Response at 5-6.)

The language of Section 28.3(g)

is clear on its face that

the discharge limits are held in abeyance during the pendency of

the adlusted standard proceeding before the Board.

The Agency

is

correct in its observation that Section 28.3(g) does not specify

that the limits are held in abeyance at other times.

Accordingly,

the Board finds that the enforcement action is not

automatically stayed pending Board action on the adjusted

standard, where the complaint applies to the time period prior to

the filing of the adjusted standard.

The Board observes,

as the Agency also recognizes

(Response

at 5), that the issue of any prospective remedy involved in this

enforcement action would likely be interwoven with the matters to

be resolved in the adjusted standard proceeding.

Thus,

it may be

necessary to reserve ruling on some portion of a remedy,

if any,

until the adjusted standard is resolved.

However, the Board does

not see this as reason in itself for this enforcement action to

continue to lay fallow.

East Moline’s alternative motion to dismiss with leave to

refile is apparently predicated in part on perceived staleness of

the complaint.

However, any issue of staleness

is best addressed

at the time of decision on the merits.

Similarly,

the Board

notes that both East Moline

in the Motion and the Agency in the

Response present arguments regarding the merits of the several

counts cited in the complaint.

Judgement on these matters is

also reserved for the proper time.

East Moline’s motion to stay or in the alternative to

dismiss this action with leave to refile is denied.

The cause

shall proceed in accordance with the findings

in this order and

the directives previously given

in this matter.

IT IS SO ORDERED.

2

In the Matter

of:

Petition of the City of East Moline and

Illinois Environmental Protection Agency for Adlusted Standard from

35 Ill. Adm.

Code,

AS91—9

133—432

---

3

I, Dorothy N.

Gunn, Clerk of the Illinois Pollution Control

B_9ar4,

hereby certif

that the above order was adopted on the

~/~day

of

‘~

,

1992 by a vote of

7~

(1

~

/J~-?~~

Dorothy N. GMn,

Clerk

Illinois PolLXution Control Board

‘33—433