ILLINOIS POLLUTION CONTROL BOARD
    August
    2,
    1984
    CITY OF SYCAMORE:
    Petitioner,
    )
    V~.
    )
    PCB 83—172
    )
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY~
    )
    Respondent.
    DISSENTING OPINION (by 3, Anderson):
    While
    I would ordinarily have agreed with the Board’s action
    granting the Agency’s motion of August
    1, 1984 to extend time for
    filing,
    I dissent because
    I believe that the Board should have
    acted at the same time on the Agency’s concurrent Moticn to Dismiss
    with leave to reinstate, rather than taking it with the case.
    Section 103.140(a)
    of the Board’s Procedural Rules
    states,
    in pertinent part:
    “All motions by respondent to dismiss
    or strike the complaint or challenging the jurisdiction of the
    Board shall be filed within 14 days after receipt of the com-
    plaint,
    shall be directed to the Board and shall be disposed of
    prior to hearir
    on the complaint, subject,Thowever, to subsection
    (e)
    (emphasis added~,”
    Subsection
    (e) states,
    in pertinent part,
    “Notwithstanding the provisions of paragraph
    (a) above, the Board
    in its discretion, may direct that hearing on the proceeding be
    conducted and,
    in its discretion, may take all motions directed to
    it with the case.
    This
    conditional ruling by the Board shall not
    foreclose a party
    from
    advancing the same contentions as to
    jurisdiction or adequacy of the complaint upon completion of the
    hearing.”
    This
    somewhat
    unclear language appears at the very
    least, to
    infer that the
    Board
    will act on motions to dismiss unless it has
    a reason to make
    a conditional
    ruling.
    No such reason is given
    here
    In its Motion,
    the Agency essentially argues that,
    even
    though a third amended petition has been submitted,
    the
    information from the Petitioner required to be submitted by the
    Board’s regulations is so deficient the Agency cannot fulfill
    its own statutory role,
    If the Agency feels it lacks, or is
    unable to get, sufficient information to substantially exercise
    its statutory charge,
    it
    should
    make a Motion to Dismiss~
    Especially where a variance petition is involved, the “take with
    59-229
    the case~’approach poses a dilemma for the Agency.
    A variance
    proceeding is not a contested case in the usual
    sense of that
    term.
    The Agency
    is a party primarily because of its statutory
    responsibility to make a recommendation regarding the petition.
    The Agency must file a motion to dismiss within 14 days, must
    object within 21 days
    (
    if
    it wishes to trigger a hearing) and
    must file a recommendation within 30 days whether or not there is
    a hearing.
    And the Board must make its decision within 90 days,
    with waiver rights accruing only to the petitioner.
    Under these circumstances it makes sense to file a motion
    to dismiss.
    The Board can often cure the problem by denying
    the Motion and requiring an amended petition through a ~more
    information~order,
    In this case, the petition is so deficient
    after four submittals that
    I believe the Board should have granted
    the Motion to Dismiss with leave to refile,
    Either way, though,
    the Board is not ruling on the merits of the Petition but on its
    lack of compliance with fundamental informational requirements,
    such as a compliance plan,
    What is the administrative economy if the Agency has to file
    a negative recommendation because of lack of sufficient
    information to even prepare a recommendation on the merits, then
    use the hearing process hopefully to develop the information,
    then for the first time address the merits by way of an amended
    recommendation,
    all while the 90 day clock is running?
    If a
    petitioner has waived hearing, would the Board prefer that the
    Agency
    exercise its right to object in 21 days
    in order to
    trigger a hearing, or that the petitioner request a hearing after
    such a negative recommendation—-all because of lack of
    information?
    To defer action on the Motion to Dismiss does not make
    sense.
    An Agency Motion to Dismiss for insufficient
    information,
    it acted upon ~up front,” avoids delays resulting
    from “backending~the whole variance process, and conforms to
    what I believe is the clear intent of the Board’s rules.
    In
    short,
    it avoids leaving the Agency “up a creek without a
    paddle.”
    For these reasons
    I dissent,
    /
    foan
    G.
    Anderson
    59-230
    I,
    Dorothy M.
    Gunn, Clerk of the Illinois Pollution Control
    Board, hereby c~rtifythat the above. Dissenting Opinion was filed
    on the
    ~
    ___day of
    ~
    1984.
    ~lo~trol~ard
    59-231

    Back to top