ILLINOIS POLLUTION CONTROL BOARD
August 8, 2002
BRIAN FINLEY, individually, LOCAL 3315
of the AMERICAN FEDERATION OF
STATE, COUNTY, & MUNICIPAL
EMPLOYEES (COOK COUNTY PUBLIC
DEFENDERS ASSOCIATION), and the
following additional individuals: LISA A.
KOSOWSKI, QUENTIN PITLUK,
MARTHA C. NEIRA, JOEL TOBIN,
TACYE VERSHER, SEAN VARGAS-
BARLOW, ROSA FLORES, DANITA
KIRK, JENNIFER BOROWITZ-GUTZKE,
OPHELIA BARNER-COLEMAN, KARIN
WENZEL, BARBARA A. BLAINE,
VALLERIA FORNEY, JAMES BURTON,
AMANDA LAMERATO, JENNIFER
HOMBURGER, THOMAS GRIPPANDO,
KATE HAARVEI, K. MARY FLYNN,
CHRIS WILLIAMS, ALPA J. PATEL,
PAMELA D. MOSS, LILIANA J. DAGO,
PATRICIA CINTRON-BASTIN, TAMMY
EVANS, CELESTE K. JONES, WILLIAM
A. GOMEZ, KAREN MAHER, TRESA
LOUISE JACKSON, MARCIA G. HAWK,
MARIZOL RODRIGUEZ, MODHURI K.
PATEL, JOSE A. PEREZ, NICHOLAS A.
YOUNGBLOOD, CATHLEEN REYNOLDS,
DAWN M. ROESENER, KIMBERLIE
BOONE, AMY E. McCARTHY, QUENTIN
HALL, GWENDALYN GRANT, GAIL
DAILY, COREY E. MYERS, MARIA DI
CRESCENZO, MARIBEL RODRIGUEZ,
FELICIA BATES, DARNELL TROTTER,
HATTIE MARTIN, AUGUSTUS
PINCKNEY, GEORGE SANCHEZ,
LIZETTE U. McBRIDE, DEBORAH
BUFFKIN, RONALD JACKSON, JOANNE
MORRISON, VALARIE M. COURTO-
HILL, KIMBERLY TURNER,
CONSTANCE L. HARRIS, STEPHANIE
FLOWERS, B. YVONNE YOUNGER,
DORIS J. YUFUF, LUCRETIA ROGERS,
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DANA N. LOCKETT, TAMARA BRASS,
JAMES COLEMAN, SIDNEY TYUS, JACK
L. McBRIDE, PHYLLIS RYAN, DORIS
LOPEZ, SHIRLEY A. VESSEL, MARY
PEARSON, ANGELINE RECANDEZ,
DELORES WASHINGTON, PATRICIA M.
SALORIO, MICHELLE E. HOLMES, RY
HANNAH, ADDIE HAWKINS, RONALD
DOZIER, BARBARA GORDON, RALPH
LEAKES, WILLIE LEAKS, JR.,
THEORDORE SHORTER, JR., QUDALLA
WARD, MICHAEL JONES, PEARLIE MAE
MOSS, SHEILA DUNN, SHARON LEE,
LAVERNE BULLOCK, HELEN CHARLES,
EDWARD J. POE, ANTHONY BINGHAN,
RENETTA GLASS WARD, LILLIAN
OWENS, FREDDIE JOHNSON, MINNIE
HORTON, CARL TRIBBLE, SR., CLAY
APPLETON, SAM JOHNSON, GENEVA L.
CHARLES and NATHANIEL CHARLES,
Complainants,
v.
IFCO ICS-CHICAGO, INC.,
Respondent.
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PCB 02-208
(Citizens Enforcement - Air)
ORDER OF THE BOARD (by C.A. Manning):
Today the Board decides whether to accept a citizen complaint for hearing or dismiss it.
The complaint was filed by Local 3315 of the American Federation of State, County, &
Municipal Employees (AFSCME), Brian Finley, and numerous other individuals in the caption
above (complainants). Complainants allege that IFCO ICS-Chicago, Inc. (IFCO) has violated
Section 9(a) of the Environmental Protection Act (Act) (415 ILCS 5/9(a) (2000)), which
prohibits persons from causing or allowing air pollution.
Specifically, complainants assert that IFCO has emitted chemicals, odors, and smoke
into the air from its used drum reconditioning plant at 2300 West 13th Street, Chicago, Cook
County. These emissions, according to complainants, have injured human health and
unreasonably interfered with the enjoyment of life and property. Complainants ask the Board
to order IFCO to stop polluting and to provide any other relief that the Board finds
3
appropriate. IFCO has moved the Board to dismiss the complaint as both frivolous and
duplicative.
As discussed below, the Board finds that the complaint is not frivolous. The Board also
finds that the complaint is not duplicative of environmental enforcement matters initiated
against IFCO by the United States Environmental Protection Agency (USEPA) or the Chicago
Department of Environment (Chicago DOE). The Board therefore denies IFCO’s motion to
dismiss and accepts the complaint for hearing.
In this order, the Board first addresses procedural matters and then sets forth the
applicable law, including the Act’s provisions on citizens enforcement actions and air
pollution. Next, the Board determines whether the complaint is frivolous or duplicative, as
IFCO asserts in its motion to dismiss. Last, the Board rules on IFCO’s motion to strike.
PROCEDURAL MATTERS
On May 21, 2002, complainants filed a complaint against IFCO.
1
IFCO filed a motion
to dismiss the complaint on June 19, 2002, which complainants opposed in a July 5, 2002
response. On July 9, 2002, IFCO filed a motion for leave to file a reply to complainants’
response, attaching the reply. The hearing officer granted IFCO’s motion for leave.
2
On July 23, 2002, complainants filed a motion for leave to file a surreply, attaching the
surreply. On August 2, 2002, IFCO opposed complainants’ motion for leave to file a surreply.
The Board denies complainants’ motion for leave. On July 9, 2002, IFCO filed a motion to
strike portions of complainants’ July 5, 2002 response to the motion to dismiss. Complainants
opposed the motion to strike on July 23, 2002.
3
Also, complainants argue that IFCO, in its motion to dismiss, violates the Board’s
procedural rule (35 Ill. Adm. Code 101.504) against asserting facts that are not in the record
without also providing an oath, affidavit, or certificate to support the assertions. Comp. Resp.
Dism. at 15. Complainants are correct. However, in the interest of administrative economy,
the Board will consider IFCO’s factual assertions solely to rule on the motion to dismiss. If
1
The Board cites the complaint as “Comp. at _.” The complaint designates respondent as
“Acme Barrel Company” and as “IFCO ICS-Chicago, Inc.,” along with other names involving
“Acme” and “IFCO.” The Board has captioned respondent’s name as it appears in its motion
to dismiss and will refer to “IFCO” throughout this order.
2
The Board cites IFCO’s motion to dismiss as “IFCO Mot. Dism. at _”; complainants’
response to the motion to dismiss as “Comp. Resp. Dism. at _”; and IFCO’s reply as “IFCO
Reply Dism. at _.”
3
The Board cites IFCO’s response to the motion for leave to file a surreply as “IFCO Resp.
Surr. at _”; and IFCO’s motion to strike as “IFCO Mot. Str. at _.”
4
IFCO wishes the Board to consider the asserted facts for any other reason, IFCO must provide
proper support.
APPLICABLE LAW
Citizens Enforcement Actions
In addition to providing that the Illinois Attorney General and the State’s Attorneys may
file complaints with the Board, the Act authorizes
citizens
to bring enforcement actions before
the Board, alleging violations of the Act or Board regulations. Section 31(d) of the Act
provides:
Any person may file with the Board a complaint, meeting the requirements of
subsection (c) of this Section, against any person allegedly violating this Act or
any rule or regulation thereunder . . . . *** Unless the Board determines that
such complaint is duplicative or frivolous, it shall schedule a hearing . . . . 415
ILCS 5/31(d) (2000)
amended by
P.A. 92-0574, eff. June 26, 2002.
4
Section 31(c), referred to in the quoted passage, in turn states that the complaint “shall specify
the provision of the Act or the rule or regulation . . . under which such person is said to be in
violation, and a statement of the manner in, and the extent to which such person is said to
violate the Act or such rule or regulation . . . .” 415 ILCS 5/31(c) (2000). The Board’s
procedural rules codify the requirements for the contents of a complaint, including the “dates,
location, events, nature, extent, duration, and strength of discharges or emissions and
consequences alleged to constitute violations” and a “concise statement of the relief that the
complainant seeks.” 35 Ill. Adm. Code 103.204(c).
Within 30 days after being served with a complaint, a respondent may file a motion
with the Board to dismiss the complaint on the grounds that the complaint is frivolous or
duplicative. 35 Ill. Adm. Code 103.212(b). The Board’s procedural rules define “frivolous”
and “duplicative” as follows:
“Frivolous” means a request for relief that the Board does not have the authority
to grant, or a complaint that fails to state a cause of action upon which the
Board can grant relief.
4
Public Act 92-0574 amended Section 31(d) by substituting the word “duplicative” for
“duplicitous.” The Board and the courts had consistently interpreted “duplicitous” to mean
“duplicative.”
See
,
e.g.
,
Winnetkans Interested in Protecting the Environment v. PCB
, 55 Ill.
App. 3d 475, 478, 370 N.E.2d 1176, 1179 (1st Dist. 1977);
People v. State Oil Co.
, PCB 97-
103, slip op. at _, n.2 (Aug. 19, 1999).
5
“Duplicitous” or “Duplicative” means the matter is identical or substantially
similar to one brought before the Board or another forum. 35 Ill. Adm. Code
101.202.
Air Pollution
Section 9(a) of the Act provides that no person shall:
Cause or threaten or allow the discharge or emission of any contaminant into the
environment in any State so as to cause or tend to cause air pollution in Illinois
. . . . 415 ILCS 5/9(a) (2000).
Section 201.141 of the Board’s regulations likewise provides:
No person shall cause or threaten or allow the discharge or emission of any
contaminant into the environment in any State so as . . . to cause or tend to
cause air pollution in Illinois . . . . 35 Ill. Adm. Code 201.141.
Section 3.115 of the Act defines “air pollution” as:
[T]he presence in the atmosphere of one or more contaminants in sufficient
quantities and of such characteristics and duration as to be injurious to human,
plant, or animal life, to health, or to property, or to unreasonably interfere with
the enjoyment of life or property. 415 ILCS 5/3.02 (2000)
amended
by P.A.
92-0574, eff. June 26, 2002 (by renumbering as Section 3.115);
see also
35 Ill.
Adm. Code 201.102 (like definition of “air pollution”).
“Contaminant” is defined in the Act as “any solid, liquid, or gaseous matter, any odor, or any
form of energy, from whatever source.” 415 ILCS 5/3.06 (2000)
amended by
P.A. 92-0574,
eff. June 26, 2002 (by renumbering as Section 3.165);
see also
35 Ill. Adm. Code 201.101(a)
(definitions in Act apply in Part 201).
LEGAL ISSUES AND ANALYSIS
Below, the Board addresses whether the complaint is frivolous or duplicative, and in so
doing rules on IFCO’s motion to dismiss. The Board then rules on IFCO’s motion to strike.
IFCO’s Motion to Dismiss
Frivolous
IFCO moves the Board to dismiss the complaint as frivolous, asserting that the
complaint is legally deficient because it fails to identify the provision of the Act allegedly
violated and requests relief beyond the Board’s authority to grant. IFCO Mot. Dism. at 3-5.
6
IFCO further argues that the complaint is factually insufficient in that it lacks enough detail
about the alleged emissions to allow IFCO to prepare a defense.
Id.
at 2-4.
Legal Sufficiency.
IFCO asserts that the complaint is deficient because it fails to
expressly identify, by letter, the
specific subsection
of Section 9 that IFCO has allegedly
violated. IFCO Mot. Dism. at 3. The complaint states:
The violations claimed are the causing and allowing the discharge and emissions
into the environment so as to cause and tend to cause air pollution in the area of
the plant at 2300 West 13th St., Chicago, Illinois in violation of 415 ILCS 5/9
. . . . Comp. at 3.
IFCO is correct that the complaint does not explicitly refer to the lettered subsection “(a)” of
Section 9. The complaint does, however, closely paraphrase subsection (a). The Board finds
that the complaint adequately notifies IFCO that complainants allege IFCO violated Section
9(a) of the Act.
IFCO also argues that the complaint seeks relief beyond what the Act authorizes the
Board to grant. IFCO Mot. Dism. at 4. The complaint seeks “a cease and desist order to stop
all activities generating air pollution.” Comp. at 3. IFCO asserts that “the complaint appears
to ask the Board to order IFCO to cease and desist from operating its facility,” which IFCO
maintains is beyond the Board’s authority. IFCO Mot. Dism. at 4-5.
At this stage of the proceeding, the Board need not decide, and indeed lacks a record to
consider, whether ordering IFCO to stop the alleged polluting may result in IFCO closing its
plant. Section 33(b) of the Act authorizes the Board to order a respondent to “cease and desist
from violations of the Act.” 415 ILCS 5/33(b) (2000). The Board does not construe the
complaint as requesting a cease and desist order to accomplish any more than this. Moreover,
before the Board orders any respondent to cease and desist from a violation, the Board must
consider, among other things, “the technical practicability and economic reasonableness of
reducing or eliminating the emissions.” 415 ILCS 5/33(c)(iv) (2000).
Factual Sufficiency.
IFCO argues that the complaint is frivolous because it lacks
sufficient factual detail for IFCO to plan a defense. IFCO Mot. Dism. at 2. Specifically,
IFCO asserts that the complaint fails to allege “specific emissions on specific days from
specific operations” or “the quantity, characteristics, or specific identities of any
contaminants” from the plant.
Id.
at 2-3.
The complaint describes two processes at IFCO’s plant for reconditioning used drums,
which, according to the complaint, arrive at the plant containing residual chemicals. Comp. at
1-2. The first process, referred to as the “tight head drum” reconditioning process, allegedly
cleans the drum interiors chemically, followed by drying and eventually shot blasting, painting,
and oven baking.
Id.
at 1. The second process, referred to as the “open head drum” process,
allegedly incinerates drum residue and paint, followed by shot blasting, painting, and oven
7
baking.
Id.
According to the complaint, the second process also involves a furnace “used to
burn off drum lids prior to painting.”
Id.
at 2.
The complaint alleges that the plant emits “chemical products, noxious odors and
smoke,” including odors “from the barrel contents and the barrel reconditioning.” Comp. at
2. The complaint further alleges that the emissions are “of such characteristics and duration as
to be injurious to human life and health and to unreasonably interfere with the enjoyment of
life and property of complainants.”
Id.
The complaint elaborates that the alleged injuries and
interference include:
Nausea, dizziness, lightheadedness, headaches, sinus pain, sore throats, eye
irritation, chest pain, adverse effects on those with asthma, coughing, adverse
effects on work efficiency and enjoyment of residences, fatigue, breathing
difficulty, irritation of upper respiratory tract and lower respiratory tract,
causing the evacuation of office buildings, causing other health problems and
effects.
Id.
The complaint alleges that the “pollution covered by this complaint”: (1) began on January 1,
2000, and was continuing when the complaint was filed on May 21, 2002; and (2) occurs
“generally daily during the plant work day operations which process thousands of barrels per
work day.”
Id.
The Board finds that the complaint alleges facts in sufficient detail. It provides many of
the details that IFCO asserts the complaint lacks. IFCO’s other suggested requirements for
factual specificity in a complaint are not based on the Act or the Board’s procedural rules.
See
415 ILCS 5/31(c), (d) (2000); 35 Ill. Adm. Code 103.204(c). A complainant can allege air
pollution, as complainants have here, and be heard by the Board without having to identify the
name of the chemical emitted, the specific operation in a plant that emitted the chemical on a
specific day, and the precise quantity of the chemical emitted. It would be the rare complaint,
citizen-initiated or otherwise, that could be pled in such detail. Holding complaints to the
pleading standards IFCO suggests would severely erode citizen enforcement under the Act.
Conclusion.
The Board finds that the complaint adequately identifies the provision of
the Act allegedly violated, requests relief that the Board can grant, and sufficiently advises
IFCO of the extent and nature of the alleged violations to reasonably allow IFCO to prepare a
defense. The Board therefore holds that the complaint is not frivolous. Accordingly, the
Board will not dismiss the complaint on that basis as IFCO requests.
Duplicative
IFCO argues that the complaint is duplicative, claiming that it is identical to
enforcement matters initiated by USEPA and the Chicago DOE. IFCO Mot. Dism. at 5-8.
USEPA Notice of Violation.
According to IFCO, the complaint is duplicative of the
January 28, 2002 “Notice of Violation” (NOV) that USEPA issued to IFCO. IFCO Mot.
8
Dism. at 7-8. The NOV states that IFCO has “allowed the emission of VOM [volatile organic
material] and odors into the environment in sufficient quantities and of such characteristics and
duration as to unreasonably interfere with the enjoyment of life or property, in violation of [35
Ill. Adm. Code 201.141].”
Id.
, Exh. B (NOV at 6).
USEPA’s cover letter for the NOV offers IFCO “an opportunity to confer with
[USEPA] about the violations alleged in the NOV” at a “conference” within 30 days after
IFCO received the letter. IFCO Mot. Dism., Exh. B (letter at 1). USEPA explains that it has
“several enforcement options” under Section 113 of the federal Clean Air Act (42 U.S.C. §
7413), including “issuing an administrative compliance order, issuing an administrative penalty
order, and bringing a judicial civil or criminal action.”
Id.
The cover letter advises IFCO that
the manner in which USEPA proceeds may depend on how IFCO responds to the NOV.
Id.
As the Board noted above, a complaint is “duplicative” if the “matter is identical or
substantially similar to one brought before the Board or another forum.” 35 Ill. Adm. Code
101.202. Unlike the complaint before the Board, the NOV does not purport to enforce Section
9(a) of the Act.
See
League of Women Voters v. North Shore Sanitary District
, PCB 70-7
(Oct. 8, 1970) (“a complaint alleging a violation of one [law against pollution] does not
preclude a complaint by another party alleging violation of another law [against the
pollution]”). USEPA instead refers to violations of the Illinois State Implementation Plan
(SIP), which was approved by USEPA under the federal Clean Air Act. Section 201.141 of
the Board’s air pollution regulations is part of the Illinois SIP. IFCO Mot. Dism., Exh. B
(letter at 1; USEPA NOV at 1).
It is true that the Board regulation, like Section 9(a) of the Act, prohibits persons from
emitting contaminants into the air so as: (1) to be injurious to human, plant, or animal life, to
health, or to property; or (2) to unreasonably interfere with the enjoyment of life or property.
See
35 Ill. Adm. Code 201.141. The NOV, however, does not refer to any
injury
to human
health from IFCO’s emissions, as does the complaint. A person may violate Section 9(a), or
Section 201.141 of the Board’s regulation, by allowing
either
emissions that injure
or
emissions that unreasonably interfere.
See
Incinerator, Inc. v. PCB
, 59 Ill. 2d 290, 295, 319
N.E.2d 794, 799 (1974) (“the legislature has by definition created two categories of ‘air
pollution’”). The complaint contains extensive allegations of injury.
In addition, the NOV refers to VOM and odor emissions resulting in air pollution, but
does not explicitly refer to smoke emissions, which the complaint does. Nor is there any
indication that the
timing
of the alleged violations is the same in each. The NOV specifies no
time during which IFCO was violating the Board regulation. The NOV refers only to a March
1, 2001 inspection of the plant by USEPA, which was followed by IFCO’s March 17, 2001
submittal to USEPA of information requested at the inspection. IFCO Mot. Dism., Exh. B
(NOV at 4). The complaint, on the other hand, alleges that the air pollution began over
a year
before
the date of USEPA’s inspection and was continuing
over a year after
it.
See
Winnetkans Interested in Protecting the Environment v. PCB
, 55 Ill. App. 3d 475, 478, 370
9
N.E.2d 1176, 1179 (1st Dist. 1977) (complaint not duplicative when its critical events
occurred during a time period different from that involved in another complaint).
Perhaps most importantly, however, USEPA’s issuance of the NOV is only a
preliminary enforcement step following a plant inspection. It does not mean that the matter is
before “another forum” within the meaning of “duplicative.” The NOV does not purport to
commence, or to be the product of, an adjudicatory proceeding by a tribunal, either
administrative or judicial. Investigation by the government of potential violations does not
render duplicative a citizen complaint, formally filed with the Board under Section 31(d) of the
Act.
See
UAW v. Caterpillar, Inc.
, PCB 94-240, slip op. at 5 (Nov. 3, 1994) (Illinois
Environmental Protection Agency’s (IEPA) voluntary cleanup program is not another
“forum”);
White v. Van Tine
, PCB 94-150, slip op. at 2 (June 23, 1994) (“investigation by
[IEPA] or a municipality does not preclude the matter from being brought before the Board”);
Gardner v. Twp. High School District 211
, PCB 01-86, slip op. at 3 (Jan. 4, 2001) (Cook
County Department of Environmental Control’s investigation of county code compliance not
duplicative). The Board is not precluded from accepting complaints merely because it is
possible that another matter may, at some later date, end up in court or before a USEPA
administrative law judge or review panel. The Board finds that the complaint is not duplicative
of USEPA’s NOV.
Chicago DOE Order.
On February 14, 2002, the Chicago DOE issued an order
entitled “Order: Limited and Conditional Approval to Continue Operations” (Chicago DOE
Order). Before that, on December 26, 2001, the Chicago DOE had issued a “Show Cause
Order” requiring IFCO to show cause why the Chicago DOE “should not immediately abate
the continuing nuisance conditions caused by the noxious odors and acrid smoke” from IFCO’s
plant. IFCO Mot. Dism., Exh. A (Chicago DOE Order at 1). On January 15, 2002, the
Chicago DOE held a public hearing during which it presented records revealing the following:
•
Between March 1997 and December 2001, the Chicago DOE received 152 complaints
about smoke or odors emanating from the IFCO plant.
•
From July 2000 through December 2001, the Chicago DOE inspected the IFCO plant
53 times.
•
On July 13, 2001, IFCO “shut down its tight head drum processing operations” in
response to a “Cease & Desist Order” issued by the Chicago DOE on June 4, 2001.
Id.
At the public hearing, IFCO proposed to: (1) install a “thermal oxidizer designed to
abate odor-related nuisance conditions”; and (2) cease all operations at the plant by May 31,
2003. IFCO Mot. Dism., Exh. A (Chicago DOE Order at 1). On February 14, 2002, when
the Chicago DOE Order was issued, it had a cover letter of that date requesting that IFCO sign
the order to accept its provisions, which IFCO did the next day. IFCO Mot. Dism., Exh. A.
By accepting the terms of the Chicago DOE Order, IFCO was allowed “to continue operating
10
under the certificate(s) of operation issued by [the Chicago DOE] as modified by the [Chicago
DOE Order].” IFCO Mot. Dism., Exh. A (Chicago DOE Order at 2).
The Chicago DOE Order, which is eight pages long, has seven main components
designed to address “the nuisance allegations made by [Chicago DOE].” IFCO Mot. Dism.,
Exh. A (Chicago DOE Order at 7). First, the Chicago DOE Order provides that if IFCO fails
to close all of the plant’s operations by May 31, 2003, then it will stipulate to a permanent
injunction and the loss of all city permits, both at the Chicago DOE’s sole discretion.
Id.
at 2.
Second, the Chicago DOE Order requires IFCO to: (1) install a thermal oxidizer
system to control emissions from IFCO’s “painting and curing oven operation”; (2) enclose
certain “external and internal painting booths for drum body painting”; and (3) install a “lock-
out arm that is linked to the operating temperature of the drum oxidizer furnace that will
prevent drums from entering the furnace if the furnace temperature is not operating at its
design temperature.” IFCO Mot. Dism., Exh. A (Chicago DOE Order at 3). IFCO is to
finish the work within 90 days after the Chicago DOE approves plans, specifications, and a
milestone schedule.
Id.
For any missed deadline, the Chicago DOE Order requires IFCO to
pay stipulated penalties of $2,500 or $5,000 per business day for up to five business days, and
after that, provides that the Chicago DOE may shut down all operations until the late item is
finished.
Id.
at 4.
Third, the Chicago DOE Order sets forth interim limits on how many drums IFCO can
incinerate, paint, and coat while implementing the improvements described above. IFCO Mot.
Dism., Exh. A (Chicago DOE Order at 5-6). IFCO is subject to stipulated penalties of $5,000
per business day for each day that it exceeds an interim limit.
Id.
at 5-6. Fourth, the Chicago
DOE Order requires that IFCO employees approved by the Chicago DOE serve as compliance
officers and be on-site during operations. IFCO is subject to stipulated penalties of $5,000 per
business day for each day that it operates without the approved compliance officer on-site.
Id.
at 6. Fifth, IFCO must have a Chicago DOE-approved contingency plan that sets forth the
steps IFCO will take if the improvements “do not abate the nuisance conditions.”
Id.
at 7.
Sixth, the Chicago DOE Order states that IFCO’s “tight-head plant shall remain closed for the
duration of [IFCO’s] presence” at the plant.
Id.
at 7.
Seventh and last, the Chicago DOE Order requires IFCO to “re-commit to comply”
with a compliance plan developed under a Cook County Circuit Court “Consent Decree and
Order” (consent order) in
City of Chicago v. Acme Barrel Co.
, 99 CH 02943 (July 14, 2000).
5
IFCO Mot. Dism., Exh. A (Chicago DOE Order at 6); Comp. Resp. Dism., Exh. A at 1. The
Chicago DOE Order requires IFCO and the Chicago DOE to file the order with the circuit
court as an amendment to the consent order.
Id.
at 7. On July 22, 2002, the Cook County
Circuit Court entered a “First Amended Consent Decree and Order” (amended consent order)
based largely on the Chicago DOE Order. IFCO Resp. Surr. at 3-4, Exh. A.
5
IFCO states that it is the “same corporate entity” as Acme Barrel Company. IFCO Reply
Dism. at 5.
11
IFCO argues that the Chicago DOE Order makes the complaint duplicative, citing the
Board’s decision in Lefton Iron and Metal Co. v. Moss American Corp.
, PCB 87-191 (Nov.
29, 1990). IFCO Mot. Dism. at 7. However, in Lefton Iron
, the Board declined to proceed
with a citizen complaint because the Illinois Attorney General, in circuit court, entered into a
consent order after alleging the
same violations
of the Act and seeking the
same relief
as did
the citizen complainant. Lefton Iron, PCB 87-191, slip op. at 5. Here, the Chicago DOE
Order references no specific statutory or regulatory violation. The consent order and amended
consent order refer only to alleged violations of common law public nuisance, statutory public
nuisance, and the Chicago Municipal Code. Comp. Resp. Dism., Exh. A at 1; IFCO Resp.
Surr., Exh. at 1-2.
Early in its history, the Board held that allegations in court of violations of a statute
other than the Act do not make a citizens complaint before the Board duplicative, even if the
same relief is sought. In League of Women Voters
, PCB 70-7 (Oct. 8, 1970), the Board ruled
that a citizens complaint was not duplicative of a Lake County Circuit Court action initiated by
the Illinois Attorney General against the same respondent. The Board stated:
[T]he Attorney General’s court suit does not allege a violation of the same
statute or regulations . . . . It is no answer that in a sense both complaints seek
the same relief, namely, an order forbidding water pollution by the District.
The State has several laws against pollution, and a complaint alleging a violation
of one of them does not preclude a complaint by another party alleging violation
of another law.
League of Women Voters
, PCB 70-7, slip op. at 2.
The Chicago DOE Order and the Cook County Circuit Court orders simply do not
involve alleged violations of the Act. The complaint before the Board is not duplicative of
these matters. Indeed, the Board has exclusive jurisdiction over actions to enforce the Act that
are initiated by citizens, whether individuals, corporations, or municipalities.
See
People v.
State Oil Co., PCB 97-103, slip op. at 7 (Aug. 19, 1999).
Moreover, the remedy called for in the Chicago DOE Order may not be substantially
coextensive with either the cease and desist remedy complainants request for IFCO’s on-going
operations, or with a remedy that the Board could fashion under the Act. Though the Chicago
DOE Order is detailed and comprehensive, it was not designed to address “air pollution” under
the Act. Additionally, though the Board’s remedial authority under the Act is in no way
limited to the relief that a complainant requests, complainants here request not only a cease and
desist order, but also such other relief as the Board deems appropriate, which could include
civil penalties for past violations if the record warrants.
See
415 ILCS 5/42(a), (h) (2000).
The Board finds that the complaint is not duplicative of the Chicago DOE Order. Of
course, nothing in the Board’s rulings today precludes IFCO, or complainants for that matter,
from presenting evidence on any abatement measures IFCO has taken under the Chicago DOE
Order or otherwise.
12
Conclusion.
The citizens complaint filed with the Board under the Act is not
duplicative of either the USEPA NOV or the Chicago DOE Order. The Board therefore will
not dismiss the complaint on that basis as IFCO requests.
IFCO’s Motion to Strike
On July 9, 2002, IFCO moved the Board to strike portions of complainants’ response to
IFCO’s motion to dismiss the complaint. Specifically, IFCO objects to complainants’
discussion of: (1) previous Board decisions finding Section 9(a) violations at IFCO’s plant;
and (2) the Cook County Circuit Court action and consent order described above. IFCO Mot.
Str. at 1. IFCO argues that these cases were not raised in its motion to dismiss, are irrelevant
to whether the complaint is frivolous or duplicative, and unfairly prejudice IFCO.
Id.
at 1-2.
Though they may be relevant in crafting a remedy, if any, the Board agrees that the
information supplied on IFCO’s prior violations of the Act is irrelevant to deciding whether the
complaint is frivolous or duplicative. The Board accordingly grants IFCO’s motion to strike
those parts of complainants’ response. However, the information on the circuit court consent
order is relevant to the Board’s decision today, as noted above, and fairly responds to IFCO’s
motion to dismiss, which attached the Chicago DOE Order referencing the consent order. The
Board therefore denies that part of IFCO’s motion to strike.
CONCLUSION
The Board finds the complaint neither frivolous nor duplicative, accordingly denies
IFCO’s motion to dismiss, and accepts the case for hearing. IFCO’s filing of the motion to
dismiss automatically stayed the 60-day period to file an answer to the complaint. The stay
ends today with the Board disposing of the motion to dismiss.
See
35 Ill. Adm. Code
103.204(e). IFCO’s answer to the complaint is therefore due by October 7, 2002.
Missing this deadline may have severe consequences. If a respondent fails to timely
file an answer specifically denying, or asserting insufficient knowledge to form a belief of, a
material allegation in the complaint, the Board considers the respondent to have admitted the
allegation.
See
35 Ill. Adm. Code 103.204(d). The Board directs the hearing officer to
proceed expeditiously to hearing.
Last, the Board grants IFCO’s motion to strike those parts of complainants’ response to
the motion to dismiss the complaint that discuss past Board decisions finding Section 9(a)
violations at IFCO’s plant. However, the Board denies IFCO’s motion to strike information
relating to the Cook County Circuit Court consent order.
IT IS SO ORDERED.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on August 8, 2002, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
