SLeL.LNOiS

POLLUTiON

CONTROL

BOARD

January

4,

1996

PEOPLE OF THE STATE OF ILLINOIS,)

Complainant,

)

V.

)

PCB 96—107

)

(Enforcement—Air, Water

ESG WATTS,

INC., AN IOWA

)

and Land)

CORPORATION,

Respondent.

ORDER OF THE BOARD

(by E.

Dunham):

This matter comes before the Board on a “Motion to Dismiss

and to Make More Definite and Certain” filed on December

1,

1995

by ESG Watts,

Inc.

(ESG Watts).

The complainant filed its

response to the motion on December 11,

1995.

ESG Watts moves to dismiss Counts II,

III,

IV, V,

VI, VII

and VIII or,

in the alternative,

to make the complaint more

definite and certain.

ESG Watts seeks dismissal of Counts III,

IV, V, VI, VII and VIII because the allegations in these counts

violate the doctrine of laches.

ESG Watts claims that Counts III

and VIII should be dismissed because the complaint was not filed

within the statute of limitations.

ESG Watts claims that Counts

II through VIII do not contain specific information and

therefore, should be dismissed or be made more specific.

The complainant objects to the motion to dismiss and

requests that it be denied.

The complainant maintains that the

doctrine of laches is not applicable to matters before the Board.

Complainant also maintains that there is no statute of

limitations in this matter.

Complainant asserts that the

complaint is sufficiently specific as to infon ESG Watts of the

alleged violations.

Doctrine of Laches

With regard to the doctrine of laches, respondent has not

proven any tardiness on the part of complainant has been

prejudicial to respondent.

While this could potentially be

proven at hearing, the Board finds insufficient grounds for

dismissal.

Count IV of the complaint alleges that an ongoing Violation

of respondent’s NPDES permit began in 1986 and continues to the

present.

The complaint itself states that respondent has been

previously adjudicated to be in violation of the NPDES permit.

Any claims of violation previously adjudicated are barred by Res

Judicata, any violation not adjudicated may be argued to the

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2

Board at hearing.

Respondent may prove the inequity required for

laches to apply at hearing as well.

Statute of Limitations

Respondent mischaracterizes the harm alleged in Count III

and VIII as an adverse effect on private property only,

subject

to the statutes of limitation.

Count III alleges adverse impacts

on the “waters of the State”.

With regard to both counts,

complainant is acting on behalf of the People, not on behalf of a

private party or seeking to remedy a private injury.

Specific Contents of Complaint

The content requirements of a complaint are set forth at

3.

Ill. Adm.

Code 103.122(c).

Specifically,

35 Ill. Adm. Code

103.122(c) (2) provides that a complaint shall contain:

the dates, location, events,

extent, duration, and

strength of discharges or emissions,

and consequences

alleged to constitute violations of the Act and

regulations.

The complaint shall advise respondents of

the extent and nature of the alleged violations to

reasonably allow preparation of a defense.

(emphasis

added.)

The underlined portion of Section 103.122

(C)

(2)

is the key

sentence in judging the adequacy of a complaint.

Count II through VIII of the complaint contain sufficient

information regarding the date,

place, activities and references

to the Act and regulations to allow respondent to understand

reasonably what is alleged and to prepare a defense.

Specific

facts can be, and should be, entered into the record at hearing

or in briefs as appropriate.

ORDER

The Board hereby denies

ESG Watts’

Motion

to

Dismiss

and

make more Definite and Certain.

IT IS SO ORDERED.

I, Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that

e above order was adopted on the

day of

-

,

1996, by a vote of

Dorothy M./~unn,~lerk

Illinois ~Jllution Control Board

7~’~t~