ILLINOIS POLLUTION CONTROL BOARD

July

27,

1989

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v.

)

PCB 89—87

also

MOLINE CORPORATION,

an

)

PCB 89-44

Illinois Corporation,

Respondent.

DISSENTING OPINION

(by J. Anderson and J.

T. Meyer):

We would have granted Respondent’s Motion for Judgment on

the Pleadings with respect to the Agency’s Count

IV noise

complaint;

we then would have denied the motion to consolidate

the PCB 89—87 and PCB 89—44 hearings, since the latter citizens’

complaint involves noise violations and the former Agency

complaint, absent Count

IV,

involves air violations.

Section 31(d)

of the Act

is quite explicit

in requiring

“up—

front” service of written notice by the Agency of a)

intent to

file a formal complaint,

b)

the charges alleged, and c) an offer

to meet within 30 days thereafter

to provide an opportunity to

resolve the conflicts.

Since the Agency admitted

it did not include in its “31(d)”

notice of air violations anything about noise violations

at all,

and

if one

is

to assume this defect can be cured by other means,

then one must look at whether all aspects of “31(d)” were later

addressed.

We do not believe they were.

First,

at

no point

in the Agency’s interactions with Moline

is there any indication that the Agency stated its intent

to file

a Count IV formal complaint.

Nor did the Attorney General.

The

majority opinion completely glosses over this defect.

Second, there

is

no

indication that the Agency told Moline

exactly what would be

the

charges

it would allege regarding Count

IV.

The interactions between the Agency and Moline concerned the

citizen noise allegations,

not those initiated by the Agency.

It

cannot be assumed

for purposes of

31(d),

that

these allegations

are the same,

or concern the same noise sources or dates

of

violation.

The essence of Section

31(d)

is to assure that

a potential

respondent knows

that

a formal complaint

is forthcoming and knows

what the alleged charges are before meeting on them.

Section

101—305

---

—2—

31(d)

is written as explicitly as

it

is

in part to provide an

opportunity to the potential respondent

to anticipate

“up front”

exactly what the Agency intends to file so as

to prepare for the

meeting,

including the bringing of any experts,

so as to avoid

litigation.

“Backing and filling” efforts to cure the 31(d)

notice defect should be scrutinized carefully or 31(d) will be

rendered meaningless.

Of course, Moline knew of the citizen complaints against

them;

that it acknowledged that it discussed the noise issue does

not constitute a waiver of notice.

Indeed,

Moline specifically

cautioned the Agency that a referral to the Attorney General

flowing from the discussions would violate Section 31(d).

Although the Board held

in IEPA v.

Mervis,

(PCB 88—36)

that the

31(d)

notice defect was not fatal,

the circumstances

in this case

do not warrant such a conclusion.

And we certainly do not

see

how the Attorney General’s letter has any bearing on the

31(d)

process at all.

Finally,

the Agency gives no explanation as

to why

it did

not cure the “31(d)” problem by sending another notice of

intent

to file a formal complaint and alleging the additional noise

violation during the months that elapsed after the

referral of

the air complaint to the Attorney General.

We submit that hindsight suggests that we may have erred

in

not strictly applying the Section 31(d) notice provisions

in

Mervis.

We certainly believe that

the majority here has gone

well beyond any arguable limits of flexibility

in construing

the

intent of Section 31(d),

with, we predict,

a resulting chillinq

effect on the very resolution process that “31(d)” was

designed

to encourage.

For these reasons we respectfully dissent.

Joan Anderson

(J

J. T.M~yer

/

I,

Dorothy

M. Gunn,

Clerk of the

Illinois Pollution Control

Board, hereby certify that

the above Dissenting Opinion was

submitted on the

~

day of

_____________

1989.

/2~L

~

L/~7).

/\~/~‘~~)

Dorothy M.~unn, Clerk

Illinois Pollution Control Board

101—306