ILLINOIS POLLUTION CONTROL BOARD
July 30,
1992
ERICH J. MANDEL,
)
)
Complainant,
)
PCB 92-33
(Enforcement)
v.
THADDEUS C. KULPAKA,
Respondent.
ORDER OF THE
BOARD
(by J.
Theodore Meyer):
This matter comes before the Board on the motion to dismiss
or for summary judgment filed by the respondent,
Thaddeus G.
Kulpaka, dated June 5,
1992.
The complainant, Erich
3. Mandel,
responded to the motion on June
15, 1992.
Upon consideration of
the issues raised by the motion, the Board strikes certain
portions of the complaint,
denies the motion for summary
judgment,
and grants the motion to dismiss in part and denies it
in part.
The Complaint
The complaint,
filed February 25,
1992,
states that Mr.
Kulpaka purchased a parcel of real estate in August 1968.
The
property was the site of a gasoline service station that had used
three underground storage tanks
(USTs), two foi~storage of
gasoline and one for storage of heating oil.
Mr. Kulpaka’s predecessors in interest installed the tanks
in about
1958.
Mr. Kulpaka allegedly learned that one of the
gasoline tanks was leaking in about September,
1970,
and he
replaced it with another UST.
In about September,
1971,
Mr.
Kulpaka learned that the other gasoline storage tank was leaking,
so he took all gasoline and heating oil storage tanks out of use
and ceased doing business as a gasoline service station.
He
continued use of the property as a tire dealership.
On about
August
13,
1982,
Mr. Kulpaka sold the tire dealership to Mr.
Mandel, granting a five year lease on the property.
On about
August 13,
1987,
Mr. Kulpaka sold the real estate to Mr. Mandel.
In the course of seeking refinancing for business loans in
October,
1991,
the lender instructed Mr. Mandel to remove the
four USTs,
which he did in December,
1991.
The contractor he
hired allegedly “found evidence of soil and possible groundwater
contamination
.
.
.
beneath and near the USTs)
.
.
..“
Complaint,
¶
19,
at p.
4.
According to the complaint,
Mr. Mandel
exclusively used the property,
he knew nothing of the
contamination, and he neither used the USTs nor sold petroleum
products during the period he has occupied the property.
0135-0157
2
Count
I of the complaint alleges that Mr. Kulpaka violated
Sections 11(b)
and 12(a)
of the Environmental Protection Act
(Act)
by causing or allowing petroleum to leak (discharge)
into
the soil and groundwater near the tank, thereby causing water
pollution.
Count II essentially alleges that Mr. Kulpaka
polluted or misused land,
by disposing of refuse (the tanks)
at a
facility that did not meet the requirements of the Act and Board
regulations, thereby violating Sections 20(b)
and 21(e)’ of the
Act.
Count III similarly alleges that Mr. Kulpaka violated
Section 21(e)2 of the Act by abandoning or disposing of waste
(the tanks and leaked petroleum products)
at a facility that did
not meet the requirements of the Act and Board regulations.
Count IV alleges that Mr. Kulpaka was the owner and operator of
the tanks at the time of discovery of the petroleum leaks, and he
violated Section 731.150(a)3 of the Board’s rules when he failed
to submit timely notification of those leaks on June 12,
1989,
when the regulatory requirement to do so became effective.
Similarly, Count V alleges a violation of Section 731.160k of the
regulations because Mr. Kulpaka did not undertake required
corrective actions when the pertinent Board rules became
effective in 1989.
The prayer for relief requests that the Board find that Mr.
Kulpaka violated Ill. Rev. Stat ch.
111½,
pars.
1011,
1012(a),
1020,
1021(e), and 1021(f)
(Sections
11,
12(a),
20,
21(e),
and
21(f)
of the Environmental Protection Act)
and 35
Ill. Adm. Code
731.150 and 731.160
(of the Board’s rules).
It requests that the
Board direct Mr. Kulpaka to implement the cleanup provisions of
our UST corrective action rules.
It finally seeks such other
1
Citing this as Ill.
Rev. Stat.
ch.
111½,
par. 1021(f).
The statutory prohibition against disposal, treatment,
or storage
of “refuse” except at a compliant location appeared as Section
21(f)
until P.A. 81-856 renumbered it to Section 21(e)
effective
January
1,
1980.
The relevant substance of this prohibition
remained unchanged.
P.A.
81-983 amended this provision to
prohibit disposal, treatment,
storage, or abandonment of “waste”,
effective December 12,
1g83.
2
Citing this as Ill.
Rev.
Stat.
ch.
111½, par. 1021(e),
as
amendedby P.A. 83-983, effective December 12,
1983.
This is
essentially the same prohibition as is involved in Count III, but
as subsequently amended.
~
35 Ill. Adm. Code 731.150(a)
(adopted in R88—27 at
13
Ill.Reg.
9519,
effective June 12,
1989; repealed in R91—14 at 16
Ill.
Reg.
7407,
effective April 24,
1992.)
.
~‘
35 Ill. Adm. Code 731.160
(adopted in R88—27 at 13
Ill.
Reg. 9519,
effective June 12,
1989).
0135-0158
3.
relief as the Board deems appropriate.
DISCUSSION
As stated in Williamson Adhesives,
Inc.
v. EPA
(Aug.
22,
1991), PCB 91-112,
“Summary judgment is appropriate where
there is no genuine issue of material fact based on the
affidavits,
admissions, pleadings,
and other items
in the
record.”
(Williamson Adhesives at 1-2
(citing Caruthers v.
B.C.
Christopher
& Co.
(1974),
57 Ill.
2d 376,
380, 313 N.E.2d 457,
459 and Ill.
Rev.. Stat.
1989 ch.
110, par. 1005(d)).)
It is
necessary to examine the nature of the complaint and the facts
presented by the pleadings in order to dispose of a motion for
summary judgment.
An affidavit must accompany any motion and
response to support all facts not of record.
35 Ill.
Adm. Code
101. 241.
No affidavit accompanied either the June 5,
1992 motion or
the June 15,
1992 response.
Therefore, the only facts pertinent
to summary judgment are those asserted by the complaint.
Under
the cirOumstances presented by this proceeding,
summary judgment
.‘~
inappropriate.
The Board will deny summary judgment.
If summary judgment
is inappropriate, the Board may
nevertheless dismiss a complaint for some legal defect.
For
dismissal,
the Board may accept all well—pleaded facts as true
and draw all inferences in favor of the non—moving party.
Ultimately,
the first issue presented in this proceeding on the
sufficiency of each count is whether it pleads sufficient facts
to place Mr. Kulpaka on notice of the violations alleged and to
permit him to mount his defense.
Dismissal
is inappropriate if
the facts pled and all reasonable inferences based on those facts
reasonably inform Mr. Kulpaka of a violation of the Act or Board
rules.
(Brumley v. Touche, Ross
& Co.
(2d Dist.
1984),
123 Ill.
App.
3d 636, 463 N.E.2d 195.)
The other issue presented is
whether the count states a claim and prays for relief that are
within the Board’s jurisdiction.
To this end, the Board will
examine each count after addressing a couple of general issues
raised relating to our jurisdiction.
General Issues
The instant motion characterizes the complaint as an attempt
to shift liability for the cleanup of a leaking UST,
in
contravention of the Board’s determination in A.K.A.
Land,
Inc.
v.
EPA (Mar.
14, 1991), PCB 91-33, 120 PCB 35.
The motion argues
that whatever complaint Mr. Mandel has against Mr. Kulpaka,
it is
one derived from contract law, rather than from the Act.
Mr. Kulpaka argues that the Board lacks the statutory
authority to grant a major portion of the relief requested.
He
contends that the heart of the prayer is for an order that Mr.
0135-0159
4
Kulpaka
is responsible for site cleanup:
an order that he
asserts the Board is without authority to issue.
He states,
rather, that both Mr. Kulpaka
(as an “owner”) and Mr. Mandel
(as
an “operator”)
share this responsibility.5
The motion places
great emphasis on the present ownership of the property and tanks
by Mr. Handel, essentially asserting that an owner of land
acquires all contingent liabilities with the property.
Mr.
Kulpaka characterizes this action as an attempt by Mr. Handel to
avoid his responsibility for cleanup of his property.
The motion
implies that
a decision in favor of liability of a predecessor in
interest would “undermine
completed real estate transfers
absent a clear and express legislative
intent to do so.”
Motion at
4.
He asserts that this matter is not properly before
the Board because it is little more than a private cost recovery
action.
He concludes that the dispute between the parties
is one
more appropriate for a court of
law.
Mr. Handel concedes by his response that a circuit court may
have concurrent jurisdiction over aspects of the dispute between
the parties.
However, he asserts that the real issue here is
whether the Board has jurisdiction.
He maintains that the
complaint sufficiently alleges
a violation of the Act.
Mr.
Mandel argues that without regard to any responsibility he
himself bore for corrective action, the real issue here is
the.
responsibility under the Act that Mr. Kulpaka independently bore
for the UST leaks.
He similarly responds to Mr. Kulpaka’s
characterization of this action as one for private cost recovery.
The Environmental Protection Act confers the Board’s
jurisdiction.
The Act authorizes the Board to hear complaints of
violations of the Act and Board regulations.
(Ill. Rev.
Stat.
1991 ch.
111½, par.
1031.)
It authorizes the Board to impose a
civil penalty for violations that is payable into public funds,
not to private parties,
and it authorizes the Board to order
a
person found in violation to cease and desist from further
violation.
(Ill. Rev.
Stat.
1991 ch.
111½,
par.
1033(a)
&
(b)
&
1042.)
If a complaint before the Board requests relief we cannot
grant,
or if it states claims outside our jurisdiction, we can
strike or dismiss those claims.
Conversely, although a circuit
~
In a recent case cited by Mr. Kulpaka,
the Board
confronted a similar scenario between a prior site owner who used
the tanks and a later owner who purchased the property and later
had to perform site cleanup operations.
We determined that only
the prior landholder, which had actually “used” them, was an
“owner” for the purposes of the UST cleanup provisions.
(A.K.A.
Land,
Inc.
V.
EPA
(Mar.
14, 1991), PCB 90—177 at 10—12,
120 PCB
35,
44-46.)
The current site owner became an “operator” of the
tanks when it became subject to the UST closure regulations by
removing them.
(PCB 90—177 at 12—18,
120 PCB 46-52.)
0135-0160
5
court may have concurrent jurisdiction over aspects of the same
case,
that concurrent jurisdiction does not divest the Board of
jurisdiction.
The Board will not further sidetrack into the issues raised
that relate to private cost recovery and circuit court
jurisdiction.
Those are not within the Board’s statutory
jurisdiction.
The appropriate forum for such claims is the
appropriate circuit court.
We will only consider alleged
violations within our statutory jurisdiction and only entertain
relief within our statutory authority.
Mr. Handel’s complaint
prays for various findings of violation against Mr. Kulpaka, that
the Board find Mr. Kulpaka responsible for site contamination and
order him to perform site corrective action,
and that we grant
such other relief as we deem appropriate under the circumstances.
Such orders are within the Board’s traditional statutory
authority.
Count
I
The basic thrust of Count
I
is that while removing the USTs
from the property, Mr. Mandel became aware of possible soil and
groundwater contamination from the tanks.
He performed no
physical or chemical analyses to confirm that in fact
contamination had occurred.
Rather, the sole evidence of
contamination was the representations of the contractor hired to
remove the tanks.
Mr. Kulpaka was the last person to use the
UST5 for storage of petroleum,
and during the course of that use
he had two episodes of tank leakage.
In fact, he ceased using
the USTs in 1971 as a result of the second episode of leakage.
Until 1982,
Mr. Kulpaka continued to operate a business on the
property on which the tanks reside,
and he continued to own the
property until 1987.
Mr. Handel claims that this violated the
legislative intent of the Act
(Section 11(b))
and the statutory
prohibition against causing, threatening,
or allowing a discharge
of contaminants that causes or tends to cause water pollution
(Section 12(a)).
The Environmental Protection Act became
effective on July 1,
1970,6 so the times complained of are by
inference from July
1,
1970 until the filing of the complaint.
The motion to dismiss argues that Mr. Kulpaka could not have
violated Section 11(b)
of the Act because this provision is
essentially only hortatory language of legislative purpose.
Mr.
Kulpaka argues that it includes no express prohibitions capable
of violation.
In response, Mr. Handel asserts that the legislative purpose
behind the Environmental Protection Act,
of providing private
~
P.A.
76—2429.
0135-0161
6
remedies to assure that those who cause adverse environmental
effects fully bear their costs
(~
Ill. Rev. Stat.
1991 ch.
111½, par 1002(b)), the provisions authorizing the Board to enter
“appropriate” orders (~g~
Ill. Rev. Stat.
1991 ch.
111½,
par.
1033(a)), and the provision making a Board order enforceable by
an “other appropriate remedy”
(Ill.
Rev.
Stat.
1991 ch.
111½,
par.
1033(d)), would make dismissal especially improper.
Mr.
Mandel urges the Board to take a~nexpansive view of the Act.
He
“espouses such a liberal construction” of the Act.
(Response at
7.)
Section 11(b)
contains no prohibitory or mandatory language.
A violation of legislative purpose, without more,
is not
actionable.
Therefore,
we will strike all claims as to any
purported violation of Section 11(b).
The motion to dismiss argues that Count
I otherwise fails
because it alleges only “possible groundwater contamination” with
no indication of what evidence would indicate that such has
occurred.
It maintains that a laboratory report attached to the
complaint and the contractor’s representation to this effect are
both insufficient to characterize the extent of any groundwater
contamination which may have occurred.
Mr. Mandel responds by highlighting the “tends to cause”
language in Section 12 and the “likely to create” language in the
definition at Section 3.55.
On Count
I he admits that he is
unaware of the discharges made from the tanks, but “as can be
implied from the allegations in the Complaint,
these findings
arguably were known or should have been known to
Mr.
Kulpaka.”
(Response at 9.)
He states that he can ascertain these facts
before hearing if necessary.
As to the alleged water pollution in violation of Section
12(a), the Board can envision evidence that could support a
finding of violation.
The complaint alleges and implies various
activities by Mr. Kulpaka with regard to the tanks over a long
period of time.
At the very least,
it alleges that leakage
actually occurred during times since the Environmental Protection
Act became effective,
that this occurred while Mr. Kulpaka owned
and used the tanks, and that Mr. Kulpaka was aware of the
leakage.
Whether the complaint contains sufficient proofs of a
violation is immaterial.
What is important is that if the
allegations are proven,
a finding of violation is possible.
The
Board will not dismiss Count I as it relates to possible
violation of Section 12(a).
Count II
On the same facts as Count
I, this count alleges that Mr.
Kulpaka violated the intent of the Act (Section 20(b))
and the
prohibition against disposal of refuse at a site that did not
0135-0162
7
comply with the requirements of the Act and Board regulations
(former Section 21(f), now codified as Section 21(e)
as amended).
The complaint alleges Mr. Kulpaka committed this violation by
leaving the tanks in the ground when he ceased using them in
1971.
Mr. Kulpaka makes the same arguments with regard to the
violation of Section 20(b) as he did for Section 11(b), involved
in Count
I.
Mr. Handel also responds similarly as to Count
I.
As with the recitation of legislative purpose contained in
Section 11(b), the recitation in Section 20(b)
contains no
prohibitory or mandatory language.
For the same reasons as for
Section 11(b), the Board will strike all claims alleging a
violation of Section 20(b).
With regard to the issue of disposal of the tanks,
Mr.
KUlpaka argues that no “disposal” of the tanks occurred at the
site because he only used an existing UST system for a time,
then
ceased its use.
He thus implies that because he did not place
the tanks in the ground, he could not have disposed of them.
Mr. Kulpaka also argues that former Section 21(e),
now
codified as modified at Section 21(d)(1),
included an exemption
applicable to on-site disposal.
He further argues that Count II
fails because it fails to effectively affirmatively plead that
the property did not meet the requirements of the Act and Board~
regulations,
as such
is used in Section 21(e).
Mr. Handel responds that disposal did in fact occur and that
the former station site did not meet the requirements of the Act
and Board regulations for disposal.
He argues that the complaint
sufficiently pleads to this effect.
Mr. Handel also argues that
any “on-site” disposal exemption does not apply in this instance.
Former Section 21(f)
and current Section 21(e)
include the
caveat,
“except at a site or facility which meets the
requirements of this Act and of regulations thereunder.”
(Ill.
Rev.
Stat.
1977 ch.
111½,
par. 1021(f);
Ill. Rev.
Stat.
1991 ch.
111½, par.
1021(e).)
Former Section 21(e)
and current Section
21(d)
include an exception from the permit requirement for sites
receiving wastes generated on-site.
(Ill. Rev.
Stat.
1977 ch.
111½, par. 1021(e); Ill.
Rev. Stat.
1991 ch.
111½,
par. 1021(d).)
Thus, no permit was required for disposal of wastes generated at
the station and disposed of on the property.
However, the record
is not sufficiently developed to allow the conclusion:
“Therefore, the station premises met the requirements of the Act
and Board regulations.”
The present record does not preclude the
possibility that other,
substantive operational requirements may
have applied to such a disposal site.
The development of a
record and briefing on these issues will aid the Board’s
deliberations.
01350 163
8
The Board is also unprepared to dismiss Count
II on the
present record as it relates to Section 21(f).
Too many
unresolved legal and factual issues remain.
For example, the
complaint cites the disposition of the tanks in the ground as the
basis for this violation.
Does this include the contents of the
tanks?
Did “dispose” include “abandon”,
as that word was later
added by amendment--i.e.,
was this addition by P.A. 81-856, on
December
12, 1983,
a clarification or a substantive amendment?
What effect does the redesignation of Section 21(f) as Section
21(e), on January 1,
1980, have on the time—frame of the
complaint?
When did the offending act(s)
occur—-in 1970, when
Mr. Kulpaka replaced the leaking tank; in 1971,
when Mr. Kulpaka
ceased actively using the tanks,
in 1982, when he leased the
property to Mr. Handel, or in 1987, when he sold the premises to
Mr. Mandel?
While reserving judgment on the merits of these
issues, we note that the complaint is sufficient on Count II to
raise issues within the Board’s jurisdiction, without regard to
how we would determine the issues involved.
The development of a
record and briefing on these issues will aid the Board’s
deliberations.
Count III
Count III is closely related to Count II inasmuch as it
involves the successor provision to that involved in Count II.
It alleges that the disposition of the tanks and their contents
in the ground constitutes land pollution in violation of Section
21(e)
of the Act.
The primary difference in thrust, according to
Mr. Mandel’s response,
is that Count II focuses on “disposal” and
Count III focuses on “abandon” in a narrower time—frame.
Mr. Kulpaka maintains by the motion to dismiss that Mr.
Mandel attempts to apply the provision of the Act retroactively.
Section 21(e)
of the Act,
involved in Count III, became effective
in 1983.~ Mr. Kulpaka points out that nothing in the statutory
language exhibits an intent for retroactive application.
Mr. Handel responds that the complaint alleges that the
abandonment took place after the 1983 effective date of the
amendments to Section 21(e) that added the prohibition against
“abandonment” of waste.
He argues that the effectiveness of
these amendments imposed a new affirmative responsibility on Mr.
Kulpaka, which Mr. Kulpaka breacb.ed by his inaction with regard
to the tanks.
Even if Count III is limited in time to the time since
SectiOn 21(e) became effective in its present form in 1983, the
Board cannot agree that dismissal
is warranted.
As asserted by
~
See supra note 1.
0 135-0
I6Le
9
the complaint,
Mr. Kulpaka still owned the prc erty on which the
tanks resided until 1987.
The present record does not permit a
decision as to the effect of such ownership and the subsequent
sale as it relates to Section 21(e).
Further, the present record
does not preclude the possibility of some other knowledge or
activity on the part of Mr. Kulpaka with regard to the UST5
during the time from 1983 until 1987 that might warrant a finding
of violation.
The Board is unprepared to dismiss Count III on
this basis.
Mr. Kulpaka raises the “on—site” disposal argument on Count
III,
similarly to Count
II..
For reasons similar to those
involved in Count II, the Board is unprepared to dismiss Count
III on this basis.
As to the substantive allegations.of Count III, the Board is
unprepared to dismiss at this stage.
The Board cannot conclude
that the facts alleged in this count could not constitute a
violation of Section 21(e)
if proven.
The development of the
record and briefing on the legal issues will ultimately benefit
the Board’s judgment.
Count IV
Count IV is different from the alleged statutory violations
of the preceding three counts.
It alleges an administrative
violation by asserting that Mr. Kulpaka failed to make a
notification purportedly required by Section 731.150(a)
of the
Illinois UST regulations.
Mr. Kulpaka argues that Mr. Mandel attempts to apply this
prohibition retroactively.
Section 731.150(a)
became effective
in 1989.~ Mr. Kulpaka points out that nothing in this provision
exhibits an intent for retroactive application.
Mr. Handel essentially argues that the effectiveness of
Section 731.150(a)
imposed an affirmative duty to notify of all
known past releases from UST5.
As he asserts,
“It strains good
sense to suppose that the Board’s rules and regulations are only
to apply to prospective discoveries of leaks
.
.
..“
Response a
15.
The Board’s UST rules do not address past releases.
Rather,
Section 731.150(a)
requires notice within 24 hours of the
discovery of a release.
This requirement became effective in
June,
1989, nearly two years after Hr. Kulpaka sold the property
on which the tanks stood.
The complaint alleges that these
discoveries occurred in 1970 and 1971; nowhere does it allege
8
See supra note 3.
tJtJ~-U I
b~
10
that Mr. Kulpaka discovered a release during the effectiveness of
Section 731.150(a).
The Board cannot accept the argument that
the effective date of this provision triggered the notification
requirement for a past detection of a release.
If the Board were
to impose this requirement on Mr. Kulpaka on this basis,
it would
have the effect of retroactive application.
(~
Pulitzer
Community Newspapers.
Inc.
v.
IEPA
(Dec.
20,
1990), PCB 90—142 at
4,
117 PCB 99,
102.)
For this reason, the Board will dismiss
Count IV.
Count V
Like Count IV, Count V alleges a violation of an
administrative requirement, Section 731.160.
This UST regulation
requires a UST owner or operator to undertake certain corrective
action procedures upon the confirmation of a release from a UST.
Mr. Kulpaka asserts that under the Board’s decision in
A.K.A.
Land.
Inc.
v. EPA
(Mar.
14, 1991), PCB 91—33,
120 PCB 35,
and through the real estate transfer,
Hr. Handel became the owner
or operator of the tanks.
He further argues that the
requirements of Section 731.160 do not come into play until after
a “confirmed release”,9 and points out that the record does not
indicate any such release during the effectiveness of this
provision.
Mr. Kulpaka asserts that without a prior enforcement
action by the Office of the State Fire Marshal, the corrective
action provisions of Section 731.160 are not required.’°
Mr. Mandel responds with the assertion that Mr. Kulpaka was
aware of the prior releases.
He argues,
in essence, that it
is
the discovered fact of leakage that imposes the duties of this
provision,
not the technical administrative confirmation of
leakage.
He prays that if the Board should determine that this
interpretation is wrong, we grant him leave to amend his
complaint.
Similar to his argument with respect to Section
731.150(b),
in Count IV, Mr. Handel asserts that the effective
date of this provision imposed on Mr. Kulpaka the present duty to
perform the corrective action measures for past releases.
~
Mr. Kulpaka cites former 35 Ill. Adm. Code 731.152, which
set forth a procedure for confirmation of a release.
The Board
repealed that provision in R91—l4,
at 16 Ill.
Reg.
7407,
effective April 24,
1992.
10
In the repeal of various of our UST rules,
in R91—14
(Apr.
9,
1992)
at 6—7, and in rendering our decision in North Oak
Chrysler Plymouth
v. Amoco Oil Co.
(Apr.
9,
1992), PCB 91-214 at
5, we opined that the repeal of those rules would leave the Board
without authority to enter an order absent a prior, finding by the
Fire Marshall.
01350166
11
It is the confirmation of a release that imposes the
requirements of Section 731.160 on the owner or operator.
Together with Section 731.150(b),
Section 731.160 became
effective in June,
19,89,11
nearly two years after Mr. Kulpaka sold
the property on which the tanks stood.
The complaint alleges
that the discoveries of releases occurred in 1970 and 1971.
Nowhere does the complaint allege that a release was confirmed to
Mr. Kulpaka during the effectiveness of this provision.
The
Board cannot accept the argument that the effective date of this
provision triggered the notification requirement for a past
detection of a release.
If the Board were to impose this
requirement on Mr. Kulpaka on this basis,
it would have the
effect of retroactive application.
As with Section 731.150(a),
the Board will not give Section 731.160 retroactive effect.
(~
Pulitzer Community Newspapers at 4.)
For this reason, the Board
will dismiss Count V.
With regard to any amendment of Count
V,
as suggested by Mr.
Mandel’s response,
35
Ill. Adm. Code 103.210 sets forth the
procedural rule relating to amendment of pleadings.
CONCLUSION
The Board hereby denies Mr. Kulpaka’s motion for summary
judgment or to dismiss.
The Board hereby strikes the following
portions of the complaint:
1.
Those portions of Count
I alleging violation of Ill.
Rev.
Stat.
1991 ch.
111½,
par.
1011;
2.
Those portions of Count II alleging violation of Ill.
Rev. Stat.
1991 ch.
111½, par.
1020;
The Board hereby dismisses the following counts:
1.
Count IV alleging violation of 35
Ill. Adm. Code
731.150(a); and
2.
Count V alleging violation of 35
Ill.
Adin.
Code
731.160.
IT IS SO ORDERED.
B.
Forcade concurred.
~
See supra note 4.
0135-0157
12
I, Dorothy M. Gunn, clerk of the Illinois Pollution Control
Board, do here~c~rt1fythat the above order was ad
Board on the
_______
day of ______________________________
_______
______________________________
1992,
by a vote of
~
—o
.
opted by the
Dorothy H. Gun~7Clerk
Illinois Pollti~.&onControl Board
0135-0168
