ILLINOIS POLLUTION CONTROL BOARD
    February 27,
    1992
    PEOPLE OF THE
    )
    STATE OF ILLINOIS,
    )
    )
    Complainant,
    PCB 91—157
    v.
    )
    (Enforcement)
    THE GRIGOLEIT COMPANY,
    )
    Respondent.
    ORDER OF THE BOARD
    (by J. Anderson):
    On February 5,
    1992, the Grigoleit Company (“Grigoleit”)
    filed a motion for leave to file an interlocutory appeal of the
    Board’s November 7,
    1991 Order in this matter.
    On November 7,
    1991, the Board denied Grigoleit’s October
    8,
    1991 motion to file
    instanter its October
    8,
    1991 motion to dismiss and strike the
    complaint in this matter because Grigoleit had “not provided the
    Board with any extenuating circumstances that persuade the Board
    to grant their motion to file instanter”.
    Grigoleit asserts that
    the November 7,
    1991 Order violated its due process rights and
    raises the following issues:
    1.
    After the Board used a “good cause” standard
    in PCB 89—184 for ruling upon motions to file
    instanter, may the Board change that
    standard, without any prior notice, to a
    standard of “extenuating circumstances”,
    2.
    Whether the Board can apply a “good cause”
    standard to the Agency motions but an
    “extenuating circumstances” standard to
    Grigoleit when ruling upon motions to file
    instanter,
    3.
    Whether the Board can create and apply to
    prior actions, without any notice preceding
    such action, an “extenuating circumstances”
    standard or any standard other than “good
    cause” when ruling upon motions to file
    instanter, and
    4.
    Whether the Board has the authority to create
    and apply an “extenuating circumstances”
    standard in an administrative proceeding
    which is a more stringent standard that the
    standard of “good cause” as set forth in
    Section 2-1007 of the Code of Civil
    130—27
    7
    2
    Procedure,
    Ill. Rev.
    Stat.
    1991,
    ch.
    110,
    par. 2-1007,
    as applied by Illinois courts
    when assessing the merits of requests for
    extensions of time or continuances.
    In addition to the above, Grigoleit asserts that its. motion
    may
    materially advance the ultimate termination of the litigation
    because its October 8,
    1991 motion to dismiss presented arguments
    on the issues of double jeopardy, res ludicata, and the issue of
    the complainant’s failure to state a cause of action.
    On
    February 10, 1992,
    the Attorney General, on behalf of the People
    of the State of Illinois
    (“AG”),
    filed a memorandum of law in
    response to Grigoleit’s motion.
    Supreme Court Rule 308(a),
    Ill.
    Rev. Stat.
    1991,
    ch.
    I1OA,
    par.
    308(a), provides as follows:
    When the trial court,
    in making an interlocutory order
    not otherwise appealable,
    finds that the order involves
    a question of law as to which there is substantial
    ground for difference of opinion and that an immediate
    appeal from the order may materially advance the
    ultimate termination of the litigation, the court shall
    so state in writing,
    identifying the question of law
    involved.
    Such a statement may be made at the time of
    the entry of the order or thereafter on the court’s own
    motion or on motion of any party.
    The Appellate court
    may thereupon in its discretion allow an appeal from
    the order.
    The Board,
    through its own procedural rules and judicial
    interpretation, has authority to issue the requested
    certification for appeal.
    (See 35 Ill.
    Adm. Code 101.304; People
    v. PCB,
    129 Ill. App.
    3d 985
    (1st Dist.
    1985); and Getty
    Synthetic Fuel v.
    PCB,
    104 Ill. App.
    3d 285
    (1st Dist.
    1982)).
    To do so, the Board must find that a two pronged test has been
    satisfied:
    a) that its decision involved a question of law
    involving a substantial ground for difference of opinion,
    and b)
    that immediate appeal may materially advance the ultimate
    termination of the litigation.
    As to the first prong of the test,
    a review of our orders in
    PCB 89-184 indicates that the Board never employed a gbod cause
    standard.
    Rather, the Board based its other decisions to grant
    or deny motions to file instanter upon an evaluation of the
    circumstances offered as lessening the seriousness or magnitude
    of the delay in filing (i.e., prejudice justification for the
    delay,
    length of delay, etc.).
    Moreover, even if the Board did
    apply a different standard in its earlier orders, we note that
    Section 5(d) of the Environmental Protection Act,
    Ill. Rev.
    Stat.
    1991,
    ch.
    111½ par. 1005(d), states thatthe Board may promulgate
    such procedural rules as it deems necessary.
    As a result,
    it is
    130—278
    3
    within the Board’s power to rule on motions for leave to file
    instanter and to set the standard for granting such motions
    though adjudication rather than by rule.
    (see also City of
    Springfield v. Carter,
    184 Ill.
    App.
    3d
    1, 540 N.E.2d 546
    (1989)
    cited in Illinois Federation of Teachers v. Board of Trustees,
    191 Ill. App.
    3d 767,
    548 N.E.2d 64,
    6~6—67 (4th Dist.
    1989);
    Securities
    & Exchange Community v.
    Chenery Corp.,
    332 U.S.
    194,
    202—03
    (1049), United States v. Narkgraf, 736 F.2d 1179,
    1185
    (7th Cir.
    1984), cert.
    dismissed 469 U.S. 1199
    (1985)
    ,
    and City
    of Chicago v.
    Illinois Commerce Commission,
    133 Ill. App.
    3d 435,
    447—48, 478 N.E.2d 1369
    (1985)
    cited in~Boffav. Illinois
    Department of Public Aid,
    168 Ill. App.
    3d 139,
    522 N.E.2d
    644,
    648
    (1st Dist.
    1988); Ron Smith Trucking,
    Inc.
    v.
    Jackson,
    196
    Ill.
    App. 3d 59,
    552 N.E.2d 1271, 1276
    (4th Dist.
    1990)).
    The
    Board also notes that it is not bound by the Code of Civil
    Procedure and thus,
    is not obligated to apply the “good cause”
    standard articulated therein.
    (see EPA v.
    Celotex, PCB 79—145,
    50 PCB 23
    (December 2,
    1982); Village of South Elgin v. Waste
    Management of Illinois,
    Inc..
    64 Ill. App.
    3d 565, 381 N.E.2d
    778,
    782
    (2nd Dist.
    1978), DeSai
    v. Metropolitan Sanitary
    District of Greater Chicago,
    125 Ill. App.
    3d 1031, 466 N.E.2d
    1045,
    1047
    (1st Dist.
    1984).
    In addition, the Board has strictly enforced the time limit
    for filing motions to dismiss as well as the time requirements
    for raising a res ludicata issue.
    (see EPA v. Village of Pawnee,
    PCB 81-183,
    45 PCB 289
    (February 4,
    1982);
    EPA v. Marathon Oil
    Company, PCB 81-144,
    47 PCB 403
    (July 21,
    1982); EPA v.
    Peterson/Puritan,
    Inc., PCB 78—278,
    39 PCB 409,
    410
    (September 4,
    1986)).
    Finally, even if the Board had erred in denying the
    motion to file instanter, such error does not rise to the level
    of
    a due process violation.
    (see Benton
    v.
    Marr,
    364 Ill.
    628,
    5
    N.E.2d 466,
    467
    (1936); Moore
    v. McDanield,
    48 Ill. App.
    3d 152,
    362 N.E.2d 382,
    392
    (5th Dist.
    1977); City of Chicago v.
    Southgate Corp.,
    86
    Ill. App.
    3d 56,
    407 N.E.2d 881,
    884
    (1st
    Dist.
    1980)
    As to the second prong of the test, granting the motion for
    interlocutory appeal would not materially advance the ultimate
    termination of the litigation because the arguments made in
    Grigoleit’s October
    8,
    1991 motion to dismiss were not persuasive
    on the issue as to whether the complaint in PCB
    91—157 should
    have been dismissed.’
    For example,
    in its motion to dismiss,
    Grigoleit asserted,
    in part, that the Board’s November 29,1991
    Order in PCB 89-184 barred prosecution of PCB 91-157 on the
    grounds of ~
    ludicata and double jeopardy and that the statute
    of limitations barred certain portions of the complaint.
    ‘The Board will not summarize all of the arguments presented
    in Grigoleit’s October
    8,
    1991 motion to dismiss.
    130—279
    4
    The Board rejects Grigoleit’s assertion that the Board’s
    November 29,
    1991 Opinion and Order in PCB 89-184 bars
    prosecution of PCB 91-157 on the grounds of ~
    ludicata and
    double jeopardy.
    In our November 29,
    1991 Opinion and Order, the
    Board made no finding regarding the validity of certain alleged
    land violations cited within Agency’s denial of Grigoleit’s air
    permit.
    Rather, the Board struck the denial reasons relating to
    the alleged land violations because the land concerns were not
    related to the issue of whether the grant of Grigoleit’s air
    permit would violate the Act or regulations.
    The issue in PCB
    91-157, ~n the other hand,
    is whether Grigoleit is violating the
    Act and land regulations.
    The Board also rejects Grigoleit’s
    statute of limitations argument because there is no statute of
    limitations in the Act.
    (IEPA v.
    Cabot Corporation, PCB 81-27,
    41 PCB 285
    (April
    16,
    1981),
    Pielet Brothers Trading,
    Inc.
    v.
    ~
    110 Ill. App.
    3d 752,
    442 N.E.2d
    1374,
    1379
    (5th Dist.
    1982))
    For the foregoing reasons,
    the Board finds that Grigoleit
    has not shown that interlocutory appeal would satisfy the
    requirements of Supreme Court Rule 308(a).
    Accordingly, the
    Board hereby denies Grigoleit’s motion.
    IT IS SO ORDERED.
    I,
    Dorothy N. Gun, Clerk of the Illinois Pollution Control
    Board,
    hereby certify that~
    the
    above Order was adopted on the
    _____________
    day of
    ---~
    —,
    1992,
    by a vote of
    /
    &
    ~
    I
    Dorothy N. Gunn,
    Clerk
    Illinois Pol1~utionControl Board
    130—280

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