ILLINOIS POLLUTION CONTROL BOARD

May 5, 1988

ILLINOIS ENVIRONMENTAL      

)

PROTECTION AGENCY,

Complainant,

v

)

PCB 88—36

MERVIS INDUSTRIES, INC.,

Respondent.

ORDER OF THE BOARD (by J. Anderson):

On March 9, 1988, Mervis moved the Board in the alternative

to either a) dismiss the February 18, 1988 Complaint in this

matter in its entirety, or b) to dismiss Count I of the

Complaint or to stay proceedings concerning that Count. The

Agency filed a response in opposition on March 22, 1988. Noting

that these pleadings alleged and relied upon facts not then of

record, by Order of April 7, 1988, the Board granted the parties

leave to supplement the record. On April 26, 1988, each party

filed documents and supporting affidavits relative to the motion

and response.

For the reasons set forth below, Mervis’ motion is denied in

its entirety.

The Arguments Concerning Complete Dismissal

The Complaint concerns activities conducted by r’lervis since

approximately 1985 at a former railroad switching yard known as

the Lyons Yard located south of Danv-ille in Vermilion County.

Mervis receives certain materials at its site by railroad car

which the Complaint characterizes as primarily materials which

were discarded and/or which no longer are capable of serving

their original purpose such as dirt, rock, broken ties, and scrap

metal generated during the reconstruction of railroad beds but

also including wooden pallets, construction and demolition

debris, fly ash and other materials. The Complaint further

alleges that such materials are sorted by Mervis, with some being

segregated for reuse and some being reloaded for landfill

disposal off—site.

Count I of the Complaint charges that these activities are a

violation of Section 21(d) of the Act on the basis that Mervis,

by operating a waste transfer station, is thus operating waste

storage facility without Agency permits. Counts II and III of

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the Complaint allege that Lyons Yard is in violation of

provisions of the Act relating to dust, odors, and noise.

Mervis presents four arguments for dismissal of the

Complaint as a whole. The first three, that the Complaint 1)

fails to state a cause of action, 2) is duplicitous, and 3) is

frivolous, merit little discussion by the Board as the law and

facts clearly indicate that the Complaint is sufficiently well—

pleaded to go to hearing, and that this case, the sole

enforcement action pending against Mervis, seeks relief which the

Board is empowered to grant. (See Agency Response of 3—22—88, pp.

1—5 and cases cited therein.)

The fourth argument for dismissal is more troublesome.

Mervis asserts that the Agency failed to comply with the pre—

enforcement notice requirements of Section 31(d) of the ~et.

Section 31(d) provides in pertinent part that:

d.  “prior to issuance and service of a written

notice and formal complaint under 

...

Section

31(a), the ~gency 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 and offer the person an opportunity to

meet with appropriate agency personnel in an

effort to resolve such conflicts which could

lead to the filing of a formal complaint.

Such meeting shall be held within 30 days of

receipt of notice by the person complained

against unless the Agency agrees to a

postponement, or the person complained against

fails to respond to the notice or such person

notifies the Agency that he will not appear at

a meeting. Nothing in this subsection is

intended to preclude the Agency from following

the provisions of subsection (a) of this

Section after the provisions of this

subsection are fulfilled.”

The basis for this assertion is that the P~gency’sAugust 22,

1986 pre—enforcement conference letter did not advise Mervis of

Agency concerns in three specific areas, each of which were

included in the complaint filed against Mervis on February 18,

1988. These are that the Agency believes Mervis to be a waste

transfer station in violation of Section 21(d), and that the

Agency believes that Mervis’ operation is in violation of

regulations and standards concerning noise and dust.

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—3—

In its March 22, 1988 Response (pp. 6—7), Agency comments

that

“As the respondent correctly notes, there are

no time limits set forth in Section 31(d) on

how long the process initiated by the 31(d)

notice can continue.  Nor are there any

prohibitions in sections 31(d) against partial

resolutions of the conflicts between the

Agency and a respondent and litigation of the

remainder. Nor is there anything in Section

31(d) to indicate that if information about

the operations of a potential violator is

obtained during the 31(d) process which

discloses  additional  violations,  those

violations should not be addressed as well.”

In its April 26 filing, Mervis has provided documents, and a

table of contents to those documents, which provide the

chronology of meeting held between Mervis and the Agency and the

substance of those meetings. The transfer station, noise and

dust issues were clearly all subjects of discussion no later than

the parties’ September 24, 1987 meeting (Mervis’ Response of 4—

26—87, Exh. 17). It would appear that informal discussion was

commenced as early as November, 1986, in the context of Mervis’

defense to similar allegations in a then—pending citizens’

enforcement suite Americans for A Clear Environment v. Mervis

Industries, Inc. and H 

L Landfill, Inc., PCB 86—68 (dismissed

without prejudice March 19, 1987).

Given all of the facts and circumstances of this case, and

the continuum of communication between the Agency and Mervis, the

Board finds that Mervis received actual notice of all of the

elements of the instant complaint long in advance of its filing,

as well as an opportunity to discuss and resolve violations

perceived by the Agency. Accordingly, the Board is not persuaded

that Section 31(d) requirements have not been met.

Arguments Concerning Dismissal or Stay of Count I

This record now clearly indicates that one of the primary

disputes in this matter is whether the materials handled by

Mervis are “wastes” as defined in Section 3.53 of the Act.

Mervis contends that they are not, and that hence Mervis is not

subject to Section 21(d) permitting requirements as a waste

transfer or waste storage facility.

On February 16, 1988 

——

two days before the filing of this

Complaint 

——

Mervis filed a Verified Complaint for declaratory

relief with the Circuit Court of Vermilion County asking, in

essence, that this and related issues be resolved by the Court.

89—131

—4—

Pendancy of this action is the ground urged for stay or dismissal

of Count I.

The Board agrees with the Agency that the action before the

Board provides the most appropriate vehicle in which to conclude

the entire controversy surrounding Mervis’ operations. Moreover,

to the extent that this case involves construction of the term

“waste transfer station”, a term not currently defined in the

Act, the Board believes that it is appropriate for it to utilize

its technical expertise in environmental matters to give

expeditious guidance to the parties as well as to other

potentially affected persons.

Again, for all of the foregoing reasons, Mervis’ March 9,

1988 motion is denied in its entirety.

IT IS SO ORDERED.

J. Marlin concurred.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on

the

5~-’

day of 

77)

1988, by a vote of 

Dorothy M. ~4~unn,Clerk

Illinois Pollution Control Board

89— 132