ILLINOIS POLLUTION CONTROL BOARD
    May 23,
    1991
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Complainant,
    )
    V.
    )
    PCB 90—89
    (Enforcement)
    FRED JOHNSON, JOHNSON
    & BRIGGS
    )
    TANK TRUCK SERVICE, a/k/a
    )
    JOHNSON & BRIGGS TANK TRUCK
    )
    & HEATER SERVICE,
    an Illinois
    )
    Corporation,
    )
    Respondents.
    DISSENTING OPINION
    (by B.
    Forcade):
    I dissent from today’s Order.
    Herman Loeb was dismissed
    from this action because the Agency failed to provide Section
    31(d)
    notice.
    That action was not a dismissal with prejudice,
    the Board did not rule in any manner on the claimed violations.
    The Agency is free to file a new enforcement action against Mr.
    Loeb for the exact same claimed violations.
    After the dismissal, the Agency did send Mr. Loeb the
    appropriate notice.
    The Agency has now satisfied all procedural
    prerequisites for notice and is fully entitled to file a new and
    separate enforcement action against Mr.
    Loeb.
    The Board would
    have no discretion to deny this new filing.
    If this new
    enforcement action is filed the Agency could move to consolidate
    the new action with this existing one to avoid duplication of
    effort by the parties and the Board.
    None of the regulatory
    requirements used to justify today’s denial
    (35 Ill. Adm.
    Code
    103.240 and 103.241(b)) would then apply.
    Alternatively, the Agency could have attempted to add Mr.
    Loeb by filing an Amended Complaint identical to the original
    complaint filed in this proceeding.
    Again, neither of the
    regulatory bases for today’s denial would then apply.
    I also disagree with the language in the Order about Mr.
    Loeb’s reasonable expectations. The Agency has repeatedly
    asserted that Mr.
    Loeb violated the environmental protection laws
    of the State of Illinois.
    Neither this Board nor any Court has
    ever ruled to the contrary.
    Any expectation by Mr. Loeb that he
    would not be subject to suit for the claimed violations would be
    unreasonable in my opinion.
    I simply can’t see how it would,
    “not be fair” to reopen this matter, but would be fair to start a
    new matter which would cost everyone more money.
    122—24 1
    2
    Mr. Loeb’s attorney received a copy of the motion to
    reinstate and his attorneywasmade aware of the Section 31(d)
    letter.
    Mr. Loeb did not file :afly opposition to the motion to
    reinstate him in this action.
    In short, the majority’s adherence
    to procedural niceties can end up having the Board rule upon
    multiple new legal filings and responses,
    thus running up
    attorney fees for the Attorney General’s office as well as Mr.
    Loeb.
    I would grant the Agency motion.
    Bill S. Forcade
    Board Member
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereb~certifythat the above Dissenting Opinion was filed
    on the
    ~
    day of
    ~
    ,
    1991.
    ,)~.
    Dorothy M.~Gunn,Clerk
    Illinois Pollution Control Board
    122—242

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