ILLINOIS POLLUTION CONTROL BOARD
    February
    16,
    1995
    PEOPLE OF THE STATE
    )
    OF ILLINOIS,
    Complainant,
    v.
    )
    PCB 94—271
    (Enforcement)
    NATIONAL INTERCHEM CORPORATION,
    )
    Respondent.
    ORDER OF THE BOARD
    (by G.
    T. Girard):
    This matter
    is before the Board on a motion to dismiss filed
    by the respondent, National Interchem Corporation,
    on November
    10,
    1994.
    On December 22,
    1994,
    the complainant filed a timely
    response to the motion.
    On December 29,
    1994, the respondent
    filed a motion for leave to file a reply and a reply.
    Pursuant
    to the Board’s rules at 35
    Ill. Adm.
    Code 101.241, the Board
    finds that a reply is necessary to prevent material prejudice and
    will allow the reply.
    Respondent argues that the complaint should be dismissed as
    the complaint fails to state a cause of action.
    Respondent
    alleges that the plain language of the statute “does not create
    or establish a deadline by which TRI Report must be filed’t.
    (Mot.
    at 2.)
    Respondent argues that the complainant
    is asking
    the Board to read into the statute a nonexistent submission
    deadline, which would make the statute “imperniissibly vague and
    possibly preempted”.
    (Mot. at 3.)
    Complainant maintains that the Emergency Planning and
    Community Right-to-Know Act
    (EPCRA) explicitly states that it is
    not intended to preempt any state or local law and that other
    jurisdictions have interpreted the provisions of EPCRA such that
    state law is not preempted.
    (Res.
    at 3—4.)
    Complainant
    distinguishes the EPCRA law from the laws at issue
    in the cases
    cited by respondent and asserts that
    in this case federal law
    does not preempt the state law.
    (Res.
    at 5.)
    Complainant also
    argues that the statute incorporates by reference the provisions
    of EPCRA which require the filing of the TRI Report by a set
    date.
    (Res.
    at 5.)
    Therefore, the complainant asserts the Act
    is not unconstitutionally vague.
    (Res.
    at 8.)
    Respondent next argues that the complainant’s action is
    premature and that the alleged violation does not exist under
    current law.
    In support of this position, respondent cites to
    Public Act 88—146 which became effective January
    1,
    1994,
    amending Section 25b-2
    of the Act.
    Complainant argues that the
    provisions of Public Act 88—146 do not apply as the alleged
    violations occurred in 1992,
    two years prior to the enactment of
    2
    Public Act 88—146.
    Respondent
    in its reply maintains that the
    provisions of Public Act 88-146 do apply because the provision
    imposes procedural requirements which must be complied with
    before filing a cause of action.
    (Reply at
    3.)
    The Board finds that the provisions of Public Act 88-146
    amending Section Title VI-B:
    Toxic Chemical Reporting by adding
    Section 25b—6 apply to this case.
    Section 25b-6
    of the Act
    provides in pertinent part:
    Prior to taking action.
    .
    .
    for a violation of Section 25b-2
    of
    this Act, the Agency shall issue...by certified mail or
    personal service upon the person complained against,
    a
    notice that the Agency has failed to receive from that
    person all required toxic chemical release forms...
    (415 ILCS 5/25b—6)
    This amendment became effective on January
    1,
    1994 and this
    case was filed on September 27,
    1994.
    Specifically, the
    amendatory language quoted above includes a procedural
    requirement that notice be served on the person complained
    against indicating that the Agency has failed to receive all
    toxic chemical release forms.
    This is clearly a prerequisite to
    filing an enforcement action which the Agency did not follow in
    this case.
    Therefore, the Board grants the motion to dismiss and
    the docket is closed.
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act
    (415 ILCS
    5/40.1) provides for the appeal of final Board orders within 35
    days of service of this decision.
    The Rules of the Supreme Court
    of Illinois establish filing requirements.
    (But see also,
    35
    Ill. Adm. Code 101.246, Motions for Reconsideration.)
    I, Dorothy H. Gunn,
    Clerk of the Illinois Pollution Control
    Board
    hereby cer ~fy that the above order was adopted on the
    ~
    day of
    __________________,
    1995,
    by a vote of
    7O
    Dorothy M. ,qtinn, Clerk
    Illinois P6~lutionControl Board

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