ILLINOIS POLLUTION CONTROL BOARD

November

1,

1973

CITIZENS FOR A BETTER ENVIRONMENT

AN ILLINOIS NOT-FOR-PROFIT CORP.,

v.

LT.

COLONEL WILLIS

S.

ROSING,

AS COMMANDING OFFICER, JOLIET

ARMY AMMUNITION PLANT;

BRIG.

GENERAL LAURENCE

E.

VAN BUSKIRK,

AS COMMANDING OFFICER, UNITED STATES

ARMY AMMUNITION PROCUREMENT AND SUPPLY

AGENCY;

)

PCB 72-464

JAMES

R.

SCHLESINGER, AS SECRETARY

OF

DEFENSE;

and

UNITED STATES OF AMERICA,

FORMERLY

CITIZENS FOR A BETTER ENVIRONMENT,

an

Illinois Not-For-Profit Corporation

v.

JOLIET ARMY AMMUNITION PLANT,

UNITED STATES ARMY PROCUREMENT

AND SUPPLY AGENCY

and

UNIROYAL,

INC.,

Operating Contractors,

)

a New York Corporation

Phillip Miller,

for Citizens

for

a Better Environment

James

R.

Thompson by James

K.

Toohey, Assistant United States Attorney,

for Respondents

DISSENTING

OPINION OF

MR. HENSS

Under Section

313 of the Federal Water Pollution Control Act

Amendments

of

1972,

Federal agencies

~sha1l

comply with...

State...

requirements respecting control and abatement of pollution

to the

same extent that any person is

subject to such requirements....

(33 USC

§

1323)

This makes Respondent subject to those requirements

9—517

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—2—

of the Illinois Environmental Protection Act which relate to

control and abetement of pollution.

Some procedural and jurisdictional rules

for enforcing the

State environmental standards are found in Section 505, Federal

Water Pollution Act Amendments of 1972

(33 USC

§

1365)

There,

it

is provided that any citizen may commence a civil action against

the United States, and its agencies, alleging violation of an

effluent standard.

However,

the right of

a citizen to file an

action is restricted somewhat.

No action may be commenced unless

the citizen-plaintiff has given 60 day notice of the alleged

violation to the Administrator of the United States Environmental

Protection Agency,

to

the State and to the alleged violator.

This

notice is apparently required in order to allow control of the

lawsuit by those governmental agencies which are specifically

charged with the duty of enforcing environmental laws.

If the

Administrator or State commence suit the citizen—plaintiff may

not sue independently, but is allowed to intervene in the pending

litigation.

In this case, Complainant CBE did not give the 60 daynotice

which is required under the Federal law.

This alone should be

sufficient cause for dismissal.

However, the jurisdictional question is even more basic.

The

Federal Act clearly gives jurisdiction

to the United States District

Court, but also indicates that such jurisdiction

is not exclusive.

“Nothing in this Section shall restrict any right which

any person

(or class of persons) ~y

have under ~

Statute or common law to seek enforcement of any effluent

standard or limitation or to seek any other relief (in-

cluding relief against the Administrator or State Agency).’7

33 USC

§

1365(e)

(emphasis supplied)

Although citizens are authorized to bring any action against the

United States which

they

‘tmay have under any Statute”,

in an

action

brought before this Board the pertinent Statute is the Illinois

Environmental Protection Act.

The Illinois Pollution Control Board

as an administrative agency gets its authority and jurisdiction

from just one source——the Illinois Legislature.

We are not a court

of general jurisdiction, but may exercise only that jurisdiction

which

is conferred upon us by the Illinois Environmental Protection

Act.

The Illinois Statute does not give us authority to hear actions

which are brought under Federal Statutes.

See:

EPA Sec.

5.

We must therefore determine whether the Illinois Statute

authorizes actions to be brought against the United States.

The

Illinois Environmental Protection Act provides that the following

are “persons” subject to the Act:

9—518

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“any individual, partnership, co-partnership,

firm,

company, corporation, association,

joint stock company,

trust, estate, political subdivision, state agency,

or any other legal entity, or their legal representative,

agent or assigns.’ EPA Sec.

3(i)

One might argue that the United States is

a “legal entity”

and

therefore subject to our jurisdiction.

However, the definition

of

“person”, when read as

a

whole,

seems inapplicable

to the

United States.

Therefore,

my conclusion is that this Board

is

not given jurisdiction in this matter by the Illinois Environmental

Protection Act.

Since that Statute is

the source of our authority it

seems to me

that

the Complainants must look elsewhere for an appro-

priate forum.

We do not derive our authority from Section 1323.

Section 1323 actions are to be brought in the United States District

Court,

or perhaus in State courts of general jurisdiction or in

a

forum which

is authorized by Statute to exercise jurisdiction over

the United States.

The Majority Opinion assumes

that this Board’s jurisdiction

is

as broad as that of

a court of general jurisdiction.

It is not.

We

must look

to the Illinois statute for our authority.

The

Illinois Legislature could have given us

the jurisdiction to rule

upon this tyne action, but did not.

In my opinion this action was

brought

in

the

wrong

forum.

/~

.~,

.j

j

(‘

Donald A~Hen~s,member

I, Christan L. Moffett, Clerk of the Pollution Control Board,

hereby certify that the above

is

a Dissenting Opinion

filed by

Mr. Henss on November

1,

1973.

9

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519

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