ILLINOIS POLLUTION CONTROL BOARD
    August 21,
    1980
    ENVIRONMENTAL PROTECTION AGENCY
    and the PEOPLE OF THE STATE OF
    )
    ILLINOIS,
    Complainants,
    v.
    )
    PCB 78—54
    AMOCO OIL COMPANY,
    a Maryland
    )
    corporation, and AMOCO PIPELINE
    COMPANY,
    a Maine corporation,
    )
    Respondents.
    DISSENTING OPINION
    (by J.
    Anderson):
    This complaint was filed on February 27,
    1978.
    The complaint
    alleges violations by the respondents of various provisions of the
    Environmental Protection Act
    (Act) and the Board’s rules and regu-
    lations as a result of a pipeline rupture in December,
    1977 that
    caused xylene to be released.
    On July 22, 1980, the Complainants
    presented to the Board a Motion to Dismiss this action without
    prejudice,
    stating in part, that “the parties arrived at a mutually
    acceptable manner of disposing of the matters alleged in the Com-
    plaint”
    (Par.
    2)
    and that “Complainants believe that further
    litigation of this cause would serve no useful purpose under the
    act”
    (Par.
    3).
    On July 24,
    1980, the Board ordered the complaint
    dismissed with prejudice.
    On August
    7,
    1980 the Complainants
    filed a motion requesting reconsideration of the Board’s July 24,
    1980 order.
    In support of its motion,
    the complainants argued
    that they had an absolute right,
    in the absence of any Board rules
    to the contrary,
    to have this cause dismissed as they submitted
    it,
    namely, without prejudice, citing Village of South Elgin,
    et al.
    v. Waste Management of Illinois,
    Inc.,
    et
    ale.,
    64 Ill.App.3d 565,
    (2d Dist.
    1978),
    (Elgin).
    On August 21,
    1980, the Board reversed
    itself and .provided for dismissal without prejudice.
    I dissent in the Board’s reversal, because
    I believe that the
    Board should have corrected this matter by,
    as a first step~ordering
    a public hearing.
    I see no reason why Elgin should be construed
    as preventing the Board, while the case
    is pending and prior acting
    on the dismissal question,
    from directing the hearing officer to
    schedule a hearing to place under public scrutiny any compromise
    or settlement,
    specifically
    in this case the substance of the
    “mutually acceptable manner of disposing of the matters alleged
    in the complaint.”
    Concerns that the Complainants might fail to
    appear at the hearing or fail to make a substantive record should
    not deter the Board.
    In such an unlikely event, such a record
    2
    would speak for itself, even if the Board chose not to invoke
    Sec.
    5(e) of the Act and Part VII of the Procedural Rules.
    Once an enforcement proceeding is
    filed,
    it falls under Board
    authority
    (Sec.
    306,
    Procedural Rules).
    306(b)
    states that when
    a complaint is filed by the Agency,
    “the Chairman shall designate
    a hearing officer.”
    Sec.
    307 provides for public notice of the
    hearing, including
    “by public advertisement in a newspaper of
    general circulation in the county in which the cause of action
    arose.
    (307(b)2 and
    (d)3).
    Procedural Rule 331 requires that all settlements or
    compromises proposed in any case pending before the Board shall
    be filed with the hearing officer (331(a)), presented and discussed
    at a public hearing “in which all interested persons may testify...”
    (331(b)) and presented to the Board for its consideration (331(c)).
    This procedure outlined above exists to ensure that,
    at the
    very least,
    all settlements or compromises are made public in an
    open forum prior to Board action.
    Even if Elgin is construed to
    mean that the Board’s rules must he amended to specifically provide
    for the Board’s discretionary authority on motions for dismissal,
    by complainants, the very least the Board should do in the interim
    is to preserve the public disclosure provisions and intent of Pro-
    cedural Rules
    306,
    307 and 331.
    This is especially important when
    the complainant, the Environmental Protection Agency (Agency)
    is
    acting on behalf of the people of the State of Illinois.
    Apart
    from the legal question of whether the existence of Rule 331
    renders ~gin
    inapplicable, the Board
    (and the Agency)
    should
    choose to avoid any appearance that a motion for dismissal
    is being used as a mechanism to circumvent public disclosure of
    the results of the
    formal and informal meetings and discussions
    that led to a mutually acceptable disposal of the allegations.
    (See Motion to Dismiss,
    Par.
    1 and 2).
    I also feel that Complainants’ Motion to Dismiss without
    prejudice, which leaves room for later renewal of the action, is
    logically inconsistent with supporting paragraph
    3 of the Motion,
    which states...
    “further litigation.., would serve no useful
    purpose under the act.”
    Finally,
    I believe that until the Procedural
    Rules are
    clarified, the Board should authorize hearings before acting upon
    any motions for dismissal by the Complainants, with the possible
    exception of those whose basis
    is clearly lack of jurisdiction.
    This conforms to the spirit of Part III of the Procedural
    Rules,
    which contemplates that notice be given and a public hearing be
    held before the Board finally disposes of any enforcement action.
    3
    7
    Joan G. Anderson
    I,
    Christan
    L.
    Moffett,
    Clerk of the Illinois Pollution
    Control Board, hereby cer~fythat the above Dissenting Opinion
    was submitted on the
    pg
    day of
    ____________,
    1980.
    ~
    Illinois Pollution
    ntrol Board

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