ILLINOIS
POLLUTI~YN
CONTROL
BOARD
February
2,
1978
OWENS-ILLINOIS,
INC
Petitioner,
V.
)
PCB 77—288
ENVIRONMENTAL
PROTECTION AGENCY,
Respondent
ORDER OF
THE BOARD
(by
Mr.
Young):
On
January
27,
1978, Respondent
Illinois
Environmental
Protection
Agency filed
a Motion
for Reconsideration,
re—
questing the Board
to reconsider
its Order of January 19,
1978, which
dismissed
a
counterclaim
for permit revocation
filed on December
23,
1977.
A Motion and Memorandum in
opposition
to the Motion to
Reconsider was filed by Peti-
tioner
Owens-Illinois,
Inc. on
February
1,
1978.
The
Environmental Protection Act
through Title VIII,
Sections
31 and 33, gives the Board
discretionary
authority
to revoke
a permit after finding
a
violation of the Act or
any rule
or regulation thereunder or
of any permit
or term
or condition
thereof,
after the
filing and hearing on a
complaint
before the Board.
As
we stated in our dismissal
of January
19,
1978,
the
Procedural
Rules
of the Board pro-
vide that an
action for
revocation
of a permit shall be
commenced
by
notice
and
formal
complaint in accordance with
the requirement
of Rules 304
and 305 and are thus
consistent
with the
authority and direction of
the Act.
Since
the
Aqency has filed and
the Board has
authorized
hearing
on
a
Complaint
(PCJ3
77—346)
seeking
rcvocdtion
of
the permits,
Llie
identical
relief
sought
in
Resgondent
s
Counterclaim,
the
necessity
for
the Motion
to Reconsider
the denial
of
the
counterclaim
is
not
clear since
the
same
relief can
be obtained in PCB 77-346.
In the
Motion to Reconsider,
Respondent states that
the Board~s
decision of January
19,
1978, constitutes a
reversal of
previous Board policy
which allowed the pleading
of counterclaims,
citing three
early Board decisions,
Nor—
folk&Western
Railwa1 Co.
V.
EPA,
1 PCB 281
(1971); EPA
v.
Granite
City
Steel
Co.,
1 PCB 324
(1971); ç~~rcolav.
EPA,
4
PCB
635
(1972),
29~—173
—2—
The decision of January
19,
1978,
to refuse the counter-
claim
is not a reversal of the earlier decisions;
in each of
those cases the counterclaim
(or countercomplaint)
arose
after
the initial
filing
of
a variance
petition
and
obviously
to
penalize
the
variance
petitioner
for
violations
during
the
period
prior
to
the
filing
of
the
variance.
For
a
number
of
reasons,
most
of
which
are
detailed
by
Professor
David
P.
Currie
in
a law review article, Enforcement Under the Illinois
Pollution Law,
70 Northwestern L.R.
389-485
(1975)
,
the practice
of counterclaim or countercomplaint by way of variance recom-
mendation was discontinued and then finally laid to rest by the
decision of the Second District in Citizens Utilities Company
v.
Illinois Pollution Control Board and Illinois Environmental
Protection Agency,
289 N.E.2d 642,
9 Ill.App.3rd
158
(1972).
The Court
(at 289 N.E.2nd p648)
stated:
“The fact that the Act provides enforcement
oroceedings
to
ascertain,
penalize,
and
deter
violators,
further
detracts
from
the
Board~s
conclusion that such powers are necessarily
included
in
variance
proceedings.
If
the
Board
wanted
to
impose
penalties
against
Citizens for violations of effluent standards
or for tne deterioration of the lagoon,
the
Agency should have filed a complaint and
followed
proper
enforcement
procedures,
per-
haps in a consolidated proceeding.”
It is noted that none of the cases cited in support of
the Motion
to Reconsider involve a counterclaim in a case
arising out of Section
40 of the Act
to contest the decision
of
the
Agency
to
deny
a
permit.
Since
the
Board
had
adopted
a Procedural Rule
503 on October
16,
1970, which was sub-
stantially the same as the existing Rule 503 (h)
,
we have no
reason to believe that the instant matter has or would have
been differently decided;
the opinions
in the cases cited in
Respondent~sMotion are not on point.
The Motion for Reconsideration
is hereby denied.
IT
IS
SO
ORDERED.
I,
Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Order was adopted on
the
~
day
of
~
,
1978 by a vote of~-O
Illinois Pollution
29
—
174