ILLINOIS POLLUTION CONTROL BOARD
    July 8, 1998
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    CHEMETCO, INC.
    Respondent.
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    PCB 96-76
    (Enforcement - Land)
    ORDER OF THE BOARD (by K.M. Hennessey):
    This case comes before the Board on respondent Chemetco, Inc.’s (Chemetco) motion
    to dismiss Count III of Complainant’s First Amended Complaint (Mtn.). The Attorney
    General, appearing on behalf of the People of the State of Illinois (State), opposes the motion.
    The Board denies the motion.
    Chemetco owns and operates a secondary metal smelting facility near Hartford,
    Madison County, Illinois. In 1995, the State filed a two-count complaint against Chemetco,
    alleging that Chemetco had violated various provisions of the Illinois Environmental Protection
    Act, 415 ILCS 5/1
    et seq
    . (1996) (Act) and Board regulations relating to hazardous waste. On
    April 8, 1998, the State moved to amend its complaint to add count III. The State alleged that
    during discovery on counts I and II, it learned that Chemetco allegedly failed to update various
    estimates of closure and post-closure costs, as Board regulations require. Chemetco did not
    file a response to that motion, and the Board granted it in an order dated May 7, 1998.
    On June 15, 1998, Chemetco moved to dismiss Count III on the grounds that the State
    has not complied with Section 31(a) of the Act. That section, which became effective on
    August 1, 1996, provides as follows:
    (a)(1) Within 180 days of becoming aware of an alleged violation of the Act or
    any rule adopted under the Act or of a permit granted by the Agency or
    condition of the permit, the Agency shall issue and serve, by certified mail,
    upon the person complained against a written notice informing that person that
    the Agency has evidence of the alleged violation. . . . . 415 ILCS 5/31(a)
    (1996).
    The written notice must contain information specified in Section 31(a), and the person
    complained against is entitled to request a meeting with the Agency to respond to the alleged
    violations and to attempt to resolve them. 415 ILCS 5/31(a) (1996). If the meeting is waived
    or does not resolve all issues, the Agency must notify the person complained against that it
    intends to pursue legal action. 415 ILCS 5/31(b) (1996). The notice must describe the alleged
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    violations and offer the person complained against an opportunity to meet with Agency
    personnel to resolve the alleged violations. 415 ILCS 5/31(b) (1996). This notice is a
    precondition to the Agency’s referral of the alleged violations to the Attorney General. See
    415 ILCS 5/31(b) (1996). However, the Attorney General (or any other person) also may
    bring an action to enforce the Act under Section 31(d) of the Act without following the
    procedures described in Sections 31(a) and (b). See 415 ILCS 5/31(d) (1996).
    Chemetco states that the State did not follow the procedures outlined in Sections 31(a)
    and (b) for the violations alleged in count III. Chemetco therefore argues that the State is
    without authority to bring those allegations and count III must be dismissed. Mtn. at 2.
    In Complainant’s Response to the Respondent’s Motion to Dismiss Count III of
    Complainant’s First Amended Complaint (Resp.), the State argues that the Board has rejected
    similar Section 31 challenges and should reject this one as well. Resp. at 1-2. The State relies
    primarily upon People v. Geon (October 2, 1997), PCB 97-62, in which the Board held that
    the procedures set forth in Section 31(a) and (b) limited the ability of the Agency to refer
    alleged violations to the Attorney General, but did not limit the ability of the Attorney General
    to prosecute without a referral from the Agency. In so holding, the Board relied upon the
    plain language of Section 31. The Board also noted that the legislative history of the
    amendment to Section 31 indicated that the legislature did not intend to prevent the Attorney
    General from bringing enforcement actions without an Agency referral. Geon, PCB 97-62,
    slip op. at 9; see also People v. Heuermann (September 18, 1997), PCB 97-92, slip op. at 7
    (same holding). In other cases under Section 31, the Board also has acknowledged Section 31
    does not affect the Attorney General’s broad authority to enforce the Act. See People v.
    Heuermann (September 18, 1997), PCB 97-92, slip op. at 7 (citing People ex rel. Scott v.
    Briceland, 65 Ill. 2d 485, 500-02, 359 N.E.2d 149, 156-157 (1976)); People v. Amsted
    Industries, Inc. (October 16, 1997), PCB 97-38, slip op. at 5.
    The Board finds that Geon controls the outcome of this motion. Nothing in the record
    indicates that the Agency referred the violations alleged in count III to the Attorney General;
    instead, the record reveals that the Attorney General learned of the alleged violations during
    discovery on counts I and II. Under Geon, Sections 31(a) and (b) therefore do not apply, and
    the State is free to pursue the violations alleged in count III under Section 31(d). The Board
    further notes that Chemetco waived its objection to the State’s motion to amend when it did
    not file a response to that motion. See 35 Ill. Adm. Code 103.140(c). The Board therefore
    denies the motion to dismiss.
    IT IS SO ORDERED.
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    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 8th day of July 1998, by a vote of 5-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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