ILLINOIS

 POLLUTION

 CONTROL

BOARD

December 20, 1995

PEOPLE OF THE STATE OF ILLINOIS,

)

Complainant,

)

 PCB 95—163

)

(Enforcement-Air, Water

 & RCRA)

CLARK

REFINING & MARKETING,

 INC.,)

Respondent.

ORDER OF THE BOARD (by E. Dunham):

This matter comes before the Board on a “Motion to

Reconsider and Vacate” filed on September 13, 1995 by

complainant.

 Complainant requests that the Board reconsider and

vacate the Board’s September 7,

 1995 order granting in part Clark

Refining & Marketing,

 Inc. ‘s

 (Clark’s)

 motion to strike and

dismiss portions of the complaint or allow complainant additional

time to file a response to the motion.

 On October

5,

 1995,

the

Board granted complainant additional time to file its response to

Clark’s July 28,

 1995 motion to strike and dismiss portions of

the complaint.

 The Board allowed the complainant’s request for

additional time to file a response based on complainant’s

contention that it did not receive a copy of the motion to strike

or dismiss.

 Complainant filed its response to Clark’s motion to

strike or dismiss on October 13,

 1995.

 The Board reconsiders its

September 7,

 1995 order in this matter based on the response

filed by the complainant.

The 13-count complaint in this matter was filed on June 6,

1995 by the Attorney General of the State of Illinois,

 on his own

motion and at the request of the Illinois Environmental

Protection Agency (Agency).

 In its September 7,

 1995 order, the

Board partially granted Clark’s motion to strike.

 The Board

ordered that certain portions be stricken from the complaint

because proper notice prior to the filing of the complaint as

required by Section 31(d)

 of the Environmental Protection Act

(Act)

 (415 ILCS 5/31(d)

 (1994))

 was not given to the respondent.

The portions to be stricken from the complaint were Count XIII in

its entirety and portions of the following paragraphs:

 paragraph

7 of Count III, paragraph

 18 of Count V, paragraph 10 of Count

IX, paragraphs

 13 and 22 of Count

 X, paragraph 21 through 25 of

Count XI and paragraph 26 of Count XI.

Timeliness of Clark’s Motion to Strike

Complainant maintains that Clark’s motion should be denied

because

it was filed later than 14 days after the filing

 of the

complaint.

 Pursuant to 35 Ill. Adm. Code 103.140(a),

in

enforcement actions,

 “fall

 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 complaint”.

Complainant cites to People v. City of Herrin

 (July 20,

 1995),

PCB 95-158 in support of its contention that the motion should be

dismissed as untimely.

Clark

 argues that 35 Ill.

ACID.

 Code 101.243(b)

 is the

standard to be applied in this case.

 Section 101.243(b) provides

that “all motions challenging jurisdiction shall be filed prior

to the filing of any other document by the

moving

party,

unless

material prejudice will result.”

Section 101.243 is generally applicable to all proceedings

before the Board while Section 103.140 is applicable to

enforcement actions pursuant to Section 101.100.

 Therefore,

Section 103.140 is applicable to this enforcement action.

However, the Board may still exercise its discretion to consider

a motion filed after the 14-day period if material prejudice

would

 result,

 as allowed by Section 101.243.

 The Board finds

that Clark would be materially prejudiced if the Board were to

find the motion to strike or dismiss as untimely.

 Therefore, the

Board will consider the merits of Clark’s motion to strike or

dismiss.

Typographical error

Complainant contends that the violation of Section 9(a)

alleged in paragraph 7 of Count III should not be stricken.

Complainant contends that the reference to Section 9(b)

 of the

Act in the April

26,

 1994 Enforcement Notice Letter was a

typographical error and should have been Section 9(a) of the Act.

Complainant notes that the obligation to submit the required

report is established by regulation rather than by permit

condition.

The Board finds that the reference to 9(a)

 in paragraph

 7 of

Count III should be restored to the complaint.

 Sections 9(a) and

9(b) are substantially different.

 Section 9(a) contains a

general prohibition against air pollution while Section 9(b)

pertains to permitting.

 Complainant claims that the reference to

Section 9(a)

is

 a typographical error.

 None of the enforcement

notice letters in the record contain any citation to Section

 9(a)

in reference to the alleged reporting violation as contained in

the complaint.

 However, the required notice for Section 9(a) was

provided by citing to the appropriate section of the

administrative code and reference to facts sufficient to place

Clark on notice of the potential violation.

Where specific sections of Board regulations with facts to

support violations are noticed; the Board will deem the

respondent to be on notice of a violation of the general sections

of the Act from which those regulations derive.

3

Violations flowing from conduct contained in the notice letter.

Complainant contends that the violation of Section 9(b)

in

paragraph 18 of Count V should not be stricken because the

alleged violations

 (operating without a permit) flow from conduct

that

was the subject of a Section 31(d)

 notice.

 Complainant

states that respondent was notified that its wastewater treatment

plant exceeded the emission limits of 35 Ill. Adm. Code 219.986

and

219.991.

 (See IEPA

Enforcement

Notice

letter dated April 26,

1994.)

 Complainant argues that because respondent was denied an

air operating permit due to these violations, and respondent was

on specific notice as to the emission limit violations,

respondent was therefore, reasonably apprised that other

violations would flow from that noncompliance.

 Complainant

maintains that an additional Section 31(d)

 notice is not

necessary for violations that flow from conduct that was the

subject of a Section 31(d)

 notice.

Similarly,

 complainant argues that

Count XIII

 arid paragraphs

13 and 22 of Count X should not be stricken because Clark was

notified of the offending conduct, albeit not all the violations

that occurred as a result of that conduct.

 Complainant reasons

that no additional Section 31(d) notice should be required.

The

portions stricken at Count X concern Clark’s failure to have a

NPDES permit; Count XIII alleged violations

 of Section 12(a)

relating to oil sheens on state water.

 The violation actually

noticed involved contamination of surface waters,

 i.e., violation

of Sections 12(a) and

(d)

 of the Act.

 (See IEPA Pre-Enforcement

Conference Letters dated October 7 and 21,

 1994).

Complainant maintains that since the Section 31(d) notice is

a step removed from the formal complaint and intended to he more

informal, the scrutiny of

 a Section 31(d)

 notice should be less

rigorous than the requirements for the complaint.

 Complainant

cites to Rasky v. Department of Registration and Education (1st

Dist.

 1980),

 87 Il1.App.3d 580,

 585—586, 410 N.E.

 2d 69,’ to

illustrate that a complaint need not detail every allegation to

be considered sufficient.

 In Rasky, the plaintiff maintained

that the complaint was insufficient because it did not specify in

detail the municipal codes which the plaintiff was alleged to

have violated.

 The court in Rasky found the complaint was

sufficient because the appropriate section of the statute was

‘Rasky sought the revocation of plaintiff’s real estate

broker’s license under the Real Estate Brokers and Salesman

License Act

 (Ill. Rev. Stat 1975,

ch.

 114½)

 which provides that a

license may be revoked where the registrant has shown

unworthiness or incompetency

which nay be shown by knowledge of

 the registrant to be in violation of ordinance.

 The municipal

code violations were alleged to show the registrant’s

unworthiness or incompetency.

4

alleged and sufficient facts were pled to appraise the plaintiff

of the case against him to intelligently prepare his defense.

The Board observes several distinctions between Rasky and

the present situation.

 Rasky involved the sufficiency of the

complaint, whereas the matter presently before the Board

involves the adequacy of the pre-enforcement notice required by

Section 31(d).

 While the Board recognizes a relationship between

the sufficiency of a complaint and the adequacy of the Section

31(d)

 notice requirements, the Board also notes a distinction

between the purposes of the complaint and the notice.

 The notice

requirements of Section 31(d)

 are intended to place the

respondent on notice of possible violations, and the intent of

complainant to file a formal complaint, and to allow a meeting

between the parties to discuss the alleged violations.

The

complaint is the initial action in a formal proceeding and places

the respondent on notice of the alleged violations to which the

respondent needs to prepare a defense.

 In addition, the

municipal codes which were not alleged in the complaint in Rasky

were ancillary to the provisions of the statute for which a

violation was alleged.

The Board believes that it is incorrect to review the

sufficiency of the Section 31(d) notice against the requirements

of a complaint under the Administrative Procedures Act or rules

of civil procedure.

 The sufficiency of the Section 31(d) notice

can be adjudged based on the requirements found in Section 31(d)

of the Act.

 The Board finds that to fulfill the purpose of

Section 31(d), the pre—enforcement notice must be specific enough

to inform the recipient of the alleged violations.

 The Board

finds that the pre-enforcement notices received by Clark did not

properly inform Clark concerning a possible violation of Section

9(b)

 as alleged in paragraph 18 of Count V.

Pursuant to Section 31(d)

 of the Act, the violations alleged

in the notice must be sufficiently specific to inform the

recipient,

 in this case Clark, that the Agency intends to file a

formal complaint concerning those violations and offer the

recipient an opportunity to meet with the appropriate personnel

at the Agency in an effort to resolve the conflict.

 First none

of the Section 31(d)

 notices sent to Clark contained an

allegation that Clark was operating its WWTP without an air

operating permit.

 The Board finds that the violation noticed by

the Agency in its April

26,

 1994 Enforcement Notice Letter that

Clark was causing air pollution due to excess VOM emission from

its WWTP does not suffice.

 The relevant statutory section cited

 therein was to Section 9(a)

 of the Act.

 Clark certainly is not

informed by this notice that it was allegedly operating without

an air permit

 violation of Section 9(b) of the Act.

Second, none of the Section 31(d)

 notices sent to Clark

contained an allegation that Clark failed to have an NPDES

5

permit.

 For the same reasons as stated above concerning the

failure to have an air permit, noticing alleged surface water

violations does not provide notice to Clark of an alleged failure

to have a water discharge permit.

 Therefore, paragraphs 13 and

22 of Count X remain stricken.

Finally, concerning Count XIII, no notice was given to

respondent concerning alleged violation of 35 Ill. Adm. Code

302.203 in any notice letter.

 Therefore,

 Count XIII remains

stricken in its entirety.

 Citation to the Act absent any

citation to the Board’s rules or the facts informing the

respondent concerning an alleged oil sheen is not sufficient to

satisfy Section 31(d).

Notice of 21(f)

 instead of 21(i)

The complaint against Clark alleges violation of both

Section 21(f) (2) and Section 21(1)

 of the Act, but only Section

21(1) was cited in a Section 31(d) Notice.

 Complainant argues

that paragraph 10 of Count IX as it relates to a violation of

Section 21(f) (2)

 of the Act should not be stricken because notice

 of an alleged violation of Section 21(i)

 was given and there is

no practical difference between the two statutory sections for

the purposes of a Section 31(d)

 notice.

 Citing to Peo~1ev.

Escast (July 30,

 1992), PCB 92-67, complainant argues that

therein the Board “found” that there was no practical difference

between citing Section 21(f) (2) and Section 21(i)

 for the purpose

of a Section 31(d) notice.

Though the Board’s statement in Escast was in the dicta of

the case, both sections relate to the prohibition against

violating the hazardous waste regulatior~of the Board, and are

thus very non-specific.

 The 31(d) notice and the complaint cite

to the regulations affected, and the statutory provisions giving

rise to those regulations may be several.

 Clark should be on

notice that a general prohibition may be included in the specific

charge.

 References to Section 21(f) (2) of the Act are restored.

Alle~edlvcontinuing violations statutory

Complainant contends that the violations alleged in

paragraphs 21 through 25 and the related portions of paragraph 26

of Count XI should not be stricken since respondent was notified

of alleged violations from similar releases.

 Complainant

maintains that these sections of the complaint merely address

additional releases which occurred contemporaneously with service

of the Section 31(d)

 notice and the subsequent meeting.

Complainant claims that including the subsequent releases in this

 complaint is no different from including claims or continuing

exceedences of air emission limits or water discharge limits, or

operating without a permit,

 all of which may continue to occur

after a Section 31(d) notice has been issued.

6

The Board is not persuaded by this analogy.

 The violations

alleged in paragraphs

 21 through 25 of Count XI concern a

discharge on October 10, 1994 of gasoline from a pipeline within

the facility and a spill of diesel fuel from a diesel pipeline on

October 28,

 1995.

 The other alleged violations

 in Count XI

pertain to incidents on different dates concerning different

materials and equipment.

 The Board finds a distinction between

continuing or patterned air or water exceedences and the alleged

releases in the complaint.

 The former represent a continuin

or

reoccurring violation based on the same factual situation, w

le

the releases alleged in the complaint involve factual situat

)ns

with different locations and different materials.

 It is sim

by

not a matter of just different dates and otherwise identical

facts underlying the alleged releases.

The argument advanced by the complainant would permit the

filing of a complaint containing allegations based on incidents

that were not specified in any 31(d)

 notice.

 Complainant asserts

that having once notified respondent that a specific incident

 represents a possible violation,

 respondent is on notice that

similar incidents may also be included in a formal complaint

without any additional notice.

 Under complainant’s argument the

respondent is not afforded an opportunity to meet with the

complainant to address the specifics of the incidents that have

occurred after the initial Section 31(d)

 notice

 is issued.

Accordingly, the Board finds that the Section 31(d) notice in

these instances does not correspond to the allegations contained

in the complaint and therefore those allegations should remain

stricken from the complaint.

Filing of an additional Section

 31(d)

 notice

Complainant reports that an additional Section 31(d) notice

including violations alleged in paragraphs 13 and 22 of Count

X,

paragraphs 21 through 25 and 26 of Count XI and Count XII has

been issued.

 That notice is dated September 22,

 1995 and, there

is also a clarification of the notice

 dated September

28,

 1995.

(Exh.

 2 of Agency Response.)

 Complainant claims that the

additional Section 31(d)

 notice moots respondent’s challenges and

therefore these allegations should not be stricken.

The Board finds that the filing of an additional Section

31(d) notice issued after the filing of the complaint does not

moot the respondent’s challenges to the complaint.

 Section 31(d)

clearly states that “prior to issuance and service of a written

 notice and fbrmal complaint,

 the Agency shall issue” a written

notice.

 To allow the Agency to issue such written notice after

the complaint has been filed would abrogate the purpose of

Section 31(d) which is, again,

 to inform the person or the

charges alleged and to provide an opportunity for the respondent

to meet with the complainant to discuss the alleged violations.

Therefore,

 the filing of the requisite Section 31(d)

 notice after

the filing of the complaint does not satisfy the requirements of

Section 31(d).2

 The notice required by Section 31(d)

 is to be

filed prior to the filing of the formal complaint to inform

respondent of the Agency’s intent to file a formal complaint,

to

place the respondent on notice of the alleged violations and to

provide an opportunity tor the respondent to meet with the

complainant to discuss the alleged violations.

 Therefore,

the

filing of the requisite Section 31(d)

 notice after the filling of

the complaint does not satisfy the requirements of Section 31(d).

SUMMARY

Upon reconsideration, the Board finds that complainant has

presented sufficient cause for the Board to modify its order of

September 7,

 1995.

 The Board restates the portion of its

previous order striking specific provisions from the complaint.

The Board strikes the following paragraphs from the

 complaint as the Agency did not provide notice of these

allegations to Clark as required by Section 31(d):

b.

 Paragraph

 12 of Count V as it relates to the

alleged violation of Section

 9(b)

 of the Act.

d.

 Paragraphs 13 and 22 of Count X as it relates

to the alleged violation of Section 12(f)

of

the Act.

e.

 Paragraph 21 through 25 of Count XI which

allege that the discharge of gasoline on

October 10,

 1994 and the spill of diesel fuel

on October 28,

 1994.

 Paragraph

26

 of Count

XI as it relates to the alleged violation of

Section 12(a)

and

 (d) to the incidents

alleged in Paragraphs 21 through 25.

f.

 Count XIII in its entirety.

2The Board notes that in People v. James Lee Watts

 (November

3,

 1995), PCB 94-127, the Board allowed the filing of an amended

complaint to correct alleged notice deficiencies after

 a new

31(d) notice was filed and a meeting was held between the

parties.

 The Board observes that in Watts, the respondents did

not object to the filing of the amended complaint.

 Also the

Board recognizes that the complainant in this matter has not

filed an amended complaint,

 so the issue of whether Section 31(d)

deficiencies can be cured by the filing of an amended complaint

is not at issue in this matter.

IT IS SO ORDERED.

Board

Member

McFawn

dissented.

Board Member J.

 Yi concurred.

Dorothy

14.

GUnfl,

Cleric

 the Illinois Pollution Control

Board, hereby certify t

,~1Z-’

 day of

above,

 order was adopted on the

___________

_____________

 1995,

 by a vote of

unn,

Clerk

Illinois ~1lution

 Control Board