ILLINOIS POLLUTION CONTROL BOARD

October 10, 1985

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

V.

CAPITAL ENGINEERING & MFG. CO.,

Respondent.

)

PCB 85—101

DISSENTING OPINION (by J.D. Dumelle):

I would not have stricken Capital’s fifth affirmative

defense,

the

statute of limitations. The majority’s only stated

reason for doing so is that “the Board has consistently held that

the statute of limitations does not bar enforcement actions.”

That statement is true, and I have consistently voted with the

Board on that issue. Yet, unlike the majority, I would not cut

off Capital’s ability to make its argument. Board membership

changes, court interpretations of law change and Board members

may simply change their minds. The majority appears t.o be saying

that never again will it listen to a statute of limitations

argument (unless, presumably, the statute is amended), and the

Board’s previous decisions will remain cast in stone forever.

do not believe the Board should be so rigid, nor do the Board’s

rules or administrative law require it.

I would have denied the Illinois Environmental Protection

Agency’s motion in its entirety. Therefore, I respectfully

dissent.

I, Dorothy H.

Board, hereby cert

submitted on the

~.

Dorothy M. unn, Clerk

Illinois Pollution Control Board

~f the Illinois Pollution Control

aboveDis~ent~eing Opinion was

day of

_____________________,

1985.

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