ILLINOIS POLLUTION CONTROL BOARD
December
4, 1990
JOSEPH
P. COMER and MICHELLE
S. COMER d/b/a/ FLAMINGO LAKE,
)
Complainant,
v.
)
PCB 90—145
(Enforcement)
GALLATIN NATIONAL CO.,
)
Respondent.
ORDER OF THE
BOARD
(by J.
D.
Dumelle):
This matter
is before the Board on a Motion to Dismiss and a
Motion for Continuance filed by Gallatin National Co.,
(“Gallatin”) on November
20,
1990.
(The Board notes that the
Hearing Officer has addressed the motion for continuance).
Complainant,
Joseph
P.
Corner and Michelle S.
Corner d/b/a Flamingo
Lake (“Comers”)
responded on November
29, 1990 to the motions
filed by Gallatin and filed a Motion to Recuse the Hearing
Officer.
The Board will first address the Motion to Dismiss.
Gallatin moves for dismissal “because Gallatin has agreed with
the Illinois Environmental Protection Agency (“Agency”)
to
implement a sound control program at the balefill site that more
than exceeds the relief sought by Complainants.”
(Motion
p•
1).
In support of this motion, Gallatin states that
it
currently has a development permit application pending with the
Agency and the agreement worked out with the Agency was developed
as a result of this process.
Gallatin asserts that “the permit
condition that the Agency has indicated
it will impose will
require Gallatin to modify its equipment,
construct earthen berms
and take control measures to strictly limit the impact of sound
on the Comers.”
(Motion p.
4—5).
Gallatin also states that “the
Agency has acknowledged that
if Gallatin complies with all the
terms of the condition, Gallatin will be
in compliance with the
law.”
(Motion p.
5).
Gallatin maintains that this agreement
will give the Corners the relief that they sought
in their filing
of September 18,
1990.
In further support of its motion, Gallatin filed Exhibit
B,
which is a letter from Gregory
T.
Zak of the Agency to Linda
Burke and Andrew Haubert.
Gallatin offered this Exhibit
in
support of the agreement it asserts has been reached with the
Agency.
The letter sets forth areas of continued disagreement,
specifically the classification of the Corners’ property, as well
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—2—
as specific controls to be used for the abatement of noise.
Gallatin also attached
a
letter which indicates that
it will
accept the conditions set forth in Exhibit
B.
The Corners response to the Motion to Dismiss points out that
the relief sought by the Corners was two—fold.
First, the Corners
asked the Board to grant relief in the form of requiring Gallatin
to modify equipment ‘and second,
to move equipment farther away
from the Corners’ property.
Thus,
the Corners maintain that the
modification of equipment would constitute only partial relief.
The Corners also maintain that the claim that Gallatin makes
concerning compliance with the law is not relevant
to this case
because:
“Gallatin can’t
state that they will be in compliance
with the sections pertaining to noise and to this complaint,
section 1023 and 1024 (sic.).
(Response p.
1).
The Corners also
point to the Board’s October
11,
1990 Order which stated:
Lastly, Gallatin claims the complaint is duplicitous
because its development permit currently pending
discusses steps it will take to monitor sound
emissions levels near Complainant’s property.
The
Board finds this circumstance irrelevant to its
determination on this matter.
(PCB 90—145, October
11,
1990.)
The Corners have correctly cited to the Board’s Order
of
October
11,
1990, and the Board does not find the additional
information and arguments presented by Gallatin to be
persuasive.
The Board finds that the circumstances surrounding
Gallatin’s permit application are not dispositive as
it relates
to a motion to dismiss.
In addition,
the Board notes that
Exhibit
B and the subsequent letter accepting the conditions
in
Exhibit
B are also not persuasive.
The Board is not convinced
that the exchanged letters constitute an “agreement”
on all
issues with regards to noise abatement.
There is nothing
contained in Exhibit B which supports Gallatin’s assertions that
it has gone beyond what
the Agency requires.
Nor
is there
anything contained within Exhibit B to support the conclusion
that “if Gallatin complies with the conditions, Gallatin will be
in compliance with the law.”
(Motion p.
5).
Also, Gallatin
asserts
that the conditions agreed to in Exhibit B will be
included as a permit condition;
however,
the record does not
indicate that the permit has been issued.
The Board is reluctant
to grant a motion
to dismiss based on potential relief
in a
permit which has not been issued;
therefore,
the Motion to
Dismiss
is denied.
Finally, even if Gallatin were in full
compliance with an Agency issued permit that would not preclude a
citizen enforcement action under Landfill,
Inc.
v.
Pollution
Control Board
(74
Ill.
2d
541;
387 N.E.2d
258).
If complainants
can show that Gallatin is not
in compliance with statutory or
regulatory standards, they may pursue their action despite Agency
permitting action.
As previously stated,
the Corners filed a Motion to Recuse
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—3—
the Hearing Officer on November
29,
1990.
The Board will address
that motion at its December
20,
1990 meeting,
in order
to allow
time for
a reply.
IT
IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
y certify
ove Order was adopted on
______
of
_________________,
1990,
by a vote
of
________
rk
Illinois P
lution Control Board
117—13