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