ILLINOIS POLLUTION CONTROL BOARD

September 16, 1971

ENVIRONMENTAL PROTECTION AGENCY

and JULIUS L. BOGNAR

v.

)

##

PCB 71—137, 71—139

STEELCO CHEMICAL CORP. et al.

Opinion of the Board (by Mr. Currie)

On June 9, 1971, we received from the

Attorney General, on

behalf of the Agency, a complaint alleging air pollution violations

at the respondents~ plant in Lemont, with respect to the discharge

of chlorine gas. A complaint was also filed in the Circuit Court

by the Attorney General with respect to the same matter, seeking

both temporary and permanent relief.

After extensive proceedings in the Circuit Court, including

appearances relating to the respondents~ motion to enjoin the

proceedings before this Board, the Attorney General on behalf of the

Agency filed with us a motion to dismiss the complaint before the

Board. Oral argument was heard by the full Board at its regular

meeting September 7. The respondent had no objection to the motion.

The Attorney General~s spokesman related that the Village of Lemont,

which had intervened, had no objection, and that Mr. Bognar, complainant

in a related case against the same respondents

(#

71-139) ,could not

immediately be contacted, The Attorney General asked for speedy

resolution of the motion as conducive to an early termination of

jurisdictional litigation in the Circuit Court.

The Attorney General~argued that it was his intention to

press the pending Circuit Court proceeding seeking permanent relief;

that

our

dismissal would avoid a duplication of effort in trying

the merits of the case; and that it would put an end to litigation

over preliminary questions, thus facilitating resolution of the alleged

pollution problem. We found these arguments convincing. The

Environmental Protection Act clearly gives the Agency and the Attorney

General a

choice of forums with respect to the merits of pollution

cases. Obviously the same case should not be tried in both

of them, and it

is

up to the complainants whether to litigate here

or there. When temporary injunctive relief is sought to prevent

irreparable harm while the case is being tried, as we have held

(Hernmerich v. Lloyd Fry Roofing Co.,

#

71-33, May 12, 1971), it

is necessary that such relief be obtained from the court, since the

2

-~

453

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statute does not provide for the Board to give it. We do not think

that this statutory gap means the Board cannot try on the merits

cases in which preliminary court relief has been sought, but that

issue is not now before us. The parties are agreed that this case

should be tried in the Circuit Court, and we consequently dismissed

the Board case on September 7. This opinion gives the reasons for

that action, which was without prejudice, of course, to the rights

of the complainant in

#

71-139, who was not represented at the

September 7 argument.

On September 8, however, we received from Mr. Bognar a motion

to dismiss his own action without prejudice. We grant that motion

for similar reasons, in order to avoid multiple litigation in two

forums at the same time.

I, Regina E. Ryan, Clerk of the Pollution Control Board, certify

that the Board adopted the above opinion this

16

day

of September

,

1971.

2 — 454