ILLINOIS

POLLUTION

CONTROL. BOARD

December

17,

1992

HERMAN

W.

PRESCOTT,

)

Complainant,

PcB 90—187

(Bnforcu.nt)

)

CITY

OF

SYCAMORE,

)

)

Respondent.

)

DISSENTING OPINION (by B

•

Forcade):

I respectfully

dissent

from today’s cation.

I

believe

in

this

came

the

complainant

has

.tat.d

sufficient

facts

to support

a cause of action under at

least

two theories.

First,

Section

18(a) of the

Environmental

Protection

Act

provides:

Section 18

a

•

Owners

and official

custodians

of

ublic

water

supplies

shall direct

and

maintain

the

continuous

operation and

maintenance of water-supply facilities so

that water

shall be assuredly safe in

qualit~

clean,

adequate

in

quantity,

and

of

satisfactory

athsral

oh~racter for

ordinary

domestic

consumption.

Here,

I

believe

the

testimony

shows

that

the

water

is

not

clean.

Second,

our

regulations

used

to

provide

at 35

:111

Ada.

Code

604.201

as

follows:

SUBPART B:

CHEMICAL AND

P1IYSIC*L~QUALIT~

Section 604.201

Finished

Water Quality

a)

The finished

water shall contain

no impurity in

concentrations that may be

hazardous to the health

of the

consumer

or

excessively

corrosive

or

otherwise

deleterious

to

the

water supply.

Drinking

water

shall

containno

impurity

which

could

reasonably

be

expected

to

caus.

offense

to

the

sense

of

sight,

taste,

or

~*1l.

b)

Substances

used

in

treatment

should

not

r.aain

in

the

water in

concentrations

greater

than

required

by

good

practice.

Subst5flO5a

which

may

have

deleterious

physiological

effect,

or

for

which

physiological effects

are

not known,

shall

not be

used in

a

manner

that

would

permit

them

to

reach

the consumer.

0138-0031

---

2

Although inadvertently deleted in

a prior

regulatory proceeding,

this language was replaced in R91—3

(November 19, 1992).

I

believe the testimony would support a violation of Section

604.201(a).

I believe the majority declines to accept fact

pleading

as

a

basis for finding a violation,

and

will only

look

to

the

specific

statutory or regulatory

provisions

cited

in

the

complaint.

Since

counsel failed to cite to these provisions,

the majority did not

evaluate

them.

I

disagree

for

reasons

stated

in

my

dissenting

opinion

in

North

Oak

Chrysler

Plymouth..

v.

Amoco

Oil

Comoanv,

PCB

91—214

(April

9,

1992).

A

substantial

porticn

of

that

dissenting

opinion

is

reproduced

here

for

clarity:

First,

despite

any

ruling

regarding

the

US?

regulations,

I

believe

North

Oak

Chrysler

(North Oak)

has

filed

a

complaint

which states sufficient facts to support

a cause

of action

over

which this Board has jurisdiction.

For

purposes

of

ruling

on a motion to dismiss, all well

pleaded

facts

contained

in

the

complaint

must

be

taken

as

true

and all

inferences

therefrom

must

be

drawn

in

favor

of

the

nonmovant.

(citations

omitted.

A

complaint

should

not

be

dismissed

for

failure

to

state

a

cause

of

action

unless

it

clearly

appears

that

no set

of

facts

could

be

proven

under

the

pleadings

which

would

entitle

plaintiff

to

relief.

(citations

omitted

...

J~~eauir~s

fAct rather ~

(citations omitted

.

.

.

Brumlev v. Touche. Ross

& Co.

636, 463 N.E.2d 195.

*

C•

*

•*

*

Since

I

believe

the

complaint states sufficient

facts

to

support

a

viable

cause

of

action,

I

would

not

have

granted

dismissal

~

I

do

not

yet

know

whether

North

Oak

can

prove

those

facts

and

their

most

favorable

inferences.

$or

do

I

know it

Amoco

might

have

a

perfectly

valid

defense.

‘~be question

of

what

relief

is

available,

if

any,

is

even

more

complicated.

Those

matters

must

be

resolved

later

in

the

proo..ding.

Since

the

majority

focuses

only

on

the

r.gu1ator~

provisions

involved,

I

assume

the

majority

concludes

that

notice

pleading

~‘ather

than

fact

pleading

controls

here.

I

would

disagree.

Illinois

is

a

fact

pleading

state.

Ill.

Rev.

Stat.

1989,

ch. 110,

pare.

2-601.

This

Board j~ ~

administrative

agency

rather

than

a

court

of

law.

Further,

this

proceeding is a

citizen

enforcement action.

Under those conditions, I believe the

Board

should

be as lenient as the law will allow in regard to the

particulars of formal Pleading.

0138-0032

---

3

I, Dorothy M.

Gunn,

Clerk

of

the

Illinois

Pollution

Control

Board, hereb~certifythat the above dissenting. opinion was

filed

onthe

..~‘-~dayof

/t-?~i.’~--’

,l992

Dorothy

P1. ,qWin,

Clerk

Illinois ~~1lution

Control

Board

0138-0033