ILLINOIS POLLUTION CONTROL BOARD
    May 24, 1990
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY
    Complainant,
    v.
    )
    PCB 90-37
    (Enforcement)
    NESCO STEEL BARREL COMPANY,
    Respondent.
    ORDER OF THE BOARD (by J. Marlin):
    This matter is before the Board on the March 29, 1990 filing
    by the Nesco Steel Barrel Company (“Nesco”) of a Motion to Strike.
    The motion requests the Board to strike Counts I and IV of a four
    count complaint filed by the Illinois Environmental Protection
    Agency (“Agency”) on March 15, 1990. Count I of that Complaint
    alleges that Nesco operated certain air emission sources between
    June 6, 1984 and September 8, 1988 without obtaining an operating
    permit from the Agency. Count IV of the same Complaint alleges
    that Nesco violated certain provisions of the Board’s January 27,
    1987 Order (PCB 84-81) granting Nesco a variance from the
    requirements of 35 Ill. Adin. Code 215.204(j). These provisions
    concerned imposed reporting requirements and timely execution of
    a “Certificate of Acceptance and Agreement” regarding the granted
    variance. The Agency filed its Response to Nesco’s motion to
    strike on April 9, 1990. Nesco filed its reply on April 29, 1990.
    For reasons set forth below, Nesco’s motion is denied in part and
    granted in part.
    Nesco’s motion to strike alleges that the Agency failed to
    notify Nesco of the charges contained in Counts I and IV of the
    Complaint before it was filed against Nesco. This requirement is
    contained in Section 31(d) of the Act, which provides in pertinent
    part:
    Notwithstanding the provisions of subsection
    (a) of this Section, prior to issuance and
    service of a written notice and formal
    complaint under subsection (a) of this
    Section, the Agency shall issue and serve upon
    the person complained against a written notice
    informing such person that the Agency intends
    to file a formal complaint. Such written
    notice shall notify the person of the charges
    alleged
    . . .
    Ill. Rev. Stat. 1987, ch. ill 1/2
    par. 1031(d)
    11 1—~~1 7
    2
    In support of its position Nesco attached the Agency’s
    Enforcement Notice Letter dated July 14, 1989 to its motion to
    strike. The letter mentions nothing concerning these two charges.
    The Agency’s response states that the allegations comprised
    within Count I were cited in a letter notice sent to Nesco on May
    22, 1986. The Agency attached a copy of the letter as an exhibit
    to its response. An examination of that letter reveals that the
    Agency did indeed make Nesco aware of the alleged violations nearly
    four years prior to the filing of the complaint.
    COUNT I
    Nesco claims the Agency’s response is deficient with respect
    to Count I. According to Nesco, on May 22, 1986, the IEPA sent
    NESCO a notice, pursuant to Section 31(d) informing the company
    that it was operating its drum coating lines without an operating
    permit. At the time NESCO received the “31(d) notice,” it was
    before this Board seeking a variance from the requirements of 35
    Ill. Adin. Code 215.204(j) so that it could obtain an operating
    permit. This variance petition was filed on June 25, 1984 by
    NESCO’s predecessor, Reliable Nesco, Inc., (PCB 84-81). Several
    amendments to the variance petition were filed, the last on May
    12, 1986, some ten days before the “31(d) notice” letter was sent.
    On January 27, 1987, the Board granted the variance requested
    by NESCO. NESCO attached a copy of the January 27, 1987 variance
    order as Exhibit 1. On July 13, 1987, NESCO applied for an
    operating permit from the IEPA. The permit application was
    received July 15, 1987 and was denied on October 13, 1987. The
    permit denial letter is attached as Exhibit 2.
    On October 28, 1987, approximately two weeks after the
    company’s permit application was denied, NESCO filed a permit
    denial appeal with this Board (PCB 87-166). Then, in August of
    1988, after NESCO had submitted a second permit application,
    counsel for IEPA informed NESCO that the requested operating permit
    would be granted, but would contain as a condition that the permit
    denial appeal, PCB 87-166, be dismissed. On August 23, 1988 NESCO
    filed a Motion to Dismiss its permit denial appeal and on September
    8, 1988 this Board dismissed the appeal.
    Sometime in late August or early September of 1988, Nesco
    received its operating permit from the IEPA. The permit recited,
    ‘!this permit shall become effective upon the date of Board Order
    dismissing the appeal currently before the Board in PCB 87-166.”
    Nesco attaches a copy of the operating permit as Exhibit 3.
    On July 14, 1989 the IEPA sent a second “31(d) notice” to
    Nesco. The notice did not inform Nesco that the IEPA was
    considering filing an enforcement action against Nesco for
    1 11—41F~
    3
    operating without a permit during the time it sought a variance
    and appealed the denial of its July 1987 permit application.
    On November 27, 1989, the IEPA renewed Nesco’s operating
    permit, extending it to September 5, 1991 (Exhibit 4). On or about
    March 15, 1990, three and one half months after the issuance of the
    second operating permit, the IEPA filed the instant complaint
    against Nesco alleging in part that from June 6, 1984 until
    September 8, 1988, Nesco operated without the required IEPA permit.
    Nesco believes that the totality of the circumstances
    regarding its efforts to obtain an operating permit and its receipt
    of permits both before and after the 1989 “31(d) notice” had
    satisfied and met the concerns of the IEPA raised in its 1986
    notice. Nesco states that its belief was supported by two actions
    of the IEPA. First, the IEPA required Nesco to dismiss its permit
    denial appeal and thereby waive any protection a successful outcome
    of the appeal might have provided with respect to the length of
    time the company was “out of compliance” with the permit
    requirement. Second, the IEPA’s 1989 “31(d) notice” was silent
    about a permit violation. Because the IEPA did not list a permit
    violation in the 1989 “31(d) notice”, Nesco assumed that the IEPA
    was satisfied that the company had resolved the matter.
    Nesco argues that given the circumstances described
    immediately above, the 1986 “31(d) notice”, no longer served to
    alert Nesco of the Agency’s intentions. In addition, the 1989
    “31(d) notice” was silent about any alleged permit violations and
    therefore failed to alert Nesco to its peril.
    Dismissal of permit denial appeal as a precondition to grant
    of permit does not, absent more, strike the Board.as improper. Nor
    does grant of a subsequent permit vitiate prior violations of the
    Act. To hold, as Nesco desires, that the Agency’s decision to
    grant Nesco its requested permit somehow bars the Agency from
    prosecuting prior violations of the Act would impose unintended and
    undesirable consequences to the Agency’s permitting decision. The
    determination to prosecute and the determination to permit are made
    under separate grants of authority and are guided by distinct legal
    principles. See Waste Management, Inc. v. IEPA, PCB 84-41
    (condolidated), 60 PCB 173 (October 1, 1984).
    Addressing Nesco’s second argument, Nesco asserted that it
    was free to assume the matter of the permit violation had been
    satisfied because the Agency failed to re-include it as part of
    the 1989 “31(d) notice” letter.
    The Board agrees that it
    certainly would have been useful for the Agency to have re-
    apprised Nesco of its intentions. However, Nesco has shown no real
    prejudice by the Agency’s omission. We have discovered no legal
    mandate to re—include prior allegations in any subsequent notice
    and are reluctant to impose one of our own. The Board, therefore,
    declines to grant Nesco its requested relief at this time.
    11+—41q
    4
    COUNT IV
    With regard to Count IV the Agency cites our decision in IEPA
    v. Mervis Industries, Inc., PCB 88—36 (May 5, 1988) as standing for
    the proposition that actual notice of the allegations through
    discussions with the Agency satisfies Section 31(d) notice
    requirements. The response mentions nothing further regarding
    these alleged discussions.
    Following receipt of the Agency’s response, Nesco filed with
    the Board its Reply. As to Count IV Nesco states that the Agency’s
    response is deficient because it fails to give any particulars as
    to the discussions the Agency claims to have held with Nesco
    regarding the Count IV allegations nor how these discussions
    affected the 31(d) notice process. Nesco reiterates that the count
    should be therefore stricken.
    We note that the Agency has provided us with no factual basis
    to support its assertion that the respondent has actual notice of
    the allegations comprised within Count IV. The Board agrees with
    the Agency that substantial compliance with the section 31(d)
    requirements may be shown in this manner under our holding in IEPA
    v Mervis Industries, Inc., supra. In Mervis, however, facts were
    submitted to the Board upon which it could base a finding of
    substantial compliance. That is not the case here. Instead, the
    Agency’s contentions are merely conclusory. Therefore, because our
    examination of the May 22, 1986 enforcement notice letter reveals
    nothing regarding the allegations contained in Count IV, we must
    strike it.
    IT IS SO ORDERED.
    Board Members J. Anderson, J. Dumelle and B. Forcade
    dissented.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Order was adopted on the
    Jday of
    ./‘
    ,
    1990, by a vote of
    ________________
    /
    ~
    Dorothy
    $.
    Gunn, Clerk
    Illinoith Pollution Control Board
    11 1—420

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