ILLINOIS POLLUTION CONTROL BOARD

July 22, 1999

KELLY-MAC PARTNERS,

)

an Illinois partnership,

)

)

Complainant,

)

)

v.

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PCB 99-162

)

(Enforcement - Citizens, UST)

ROBERTSON-CECO CORP.

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a foreign corporation,

)

)

Respondent.

)

DISSENTING OPINION (by R.C. Flemal):

I respectfully dissent from the majority’s order delivered today because I believe that the Board does not

have authority to grant reimbursement of the remediation costs allegedly incurred by the complainant.

The majority correctly notes in its opinion that the Board is a creature of statute, and accordingly has no

authority except that expressly provided by statute. See Village of Lombard v. Pollution Control Board, 66 Ill. 2d

503, 363 N.E.2d 814, 6 Ill.Dec. 867 at 868 (1977), (“An administrative Agency, such as the Pollution Control

Board, has no greater powers than those conferred upon it by the legislative enactment creating it.”) For this

reason the majority finds that the Board has no authority to award accrued interest costs in citizen enforcement

actions because no statute authorizes the Board to make such awards.

This same reasoning needs to be applied to the larger issue of whether the Board has authority to even

hear third-party cost recovery cases. Neither the Environmental Protection Act, nor any other statue grants such

authority to the Board. Absent any explicit authority, no authority exists.

This matter should accordingly have been dismissed as frivolous, because the Board does not have the

authority to grant the relief requested.

For this reason, I dissent.

___________________________

Ronald C. Flemal

Board Member

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above dissenting

opinion was submitted on the _____ day of ___________________, 1999.

_________________________________

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board