ILLINOiS POLLUTION CONTROL BOARD

July 31, 1975

ENVIRONMENTAL PROTECTION AGENCY,

)

Compiainant,

v.

)

PCB No. 75-232

PCB No. 75—242

CITY OF SPRINGFIELD, a

)

Consolidated

municipal corporation,

)

Respondent.

INTERIM ORDER OF THE BOARD (By Mr. Zeitlin):

On July 16, 1975, Respondent City of Springfield (Springfield)

filed a “Motion for Determination of a Preliminary Legal Issue”,

asking that the Board determine on the pleading whether Springfield’s

“Dallrnan—3” steam-electric generating unit at the Daliman

Station constitutes a “New Emission Source” within the meaning

of Rules 101 and 103 of Chapter 2: Air Pollution of the Pollution

Control Board Rules and Regulations. The Complainant Environmental

Protection Agency (Agency) filed a Response in Opposition to

Springfield’s Motion on July 22, 1975, and Springfield filed

a further Reply to that Response on July 23, 1975.

Springfield, with its Motion, provided a group of affi-

davits and exhibits purporting to demonstrate the need for

determination of the issue raised, and to support its position

that the Dallman—3 ui~itmust be considered an Existing

Emission Source witnin the meaning of the above cited Rules.

The Agency contends that the issue raised by Springfield is

one of fact, to be determined at a hearing. Springfield’s Reply

states that since the City of Springfield is acting as its own

general contractor, the contracts submitted as Exhibits to

affidavit with its ora’jinal motion show the uncontroverted facts

on which the Board may decide this preliminary issue.

We find that the matters alleged by Springfield do not,

however, indicate sufficiently that “there is no genuine issue

as to any material fact”. Ill. Rev. Stat., Ch. 110, §57. (The

Civil Practice Act was cited by both parties.) We find instead

that on the present state of the pleadings, we cannot find

“a significant reliance interest in treating the source as an

existing one.” In the Matter of Emission Standards, R71—23,

4 PCB 298,301 (1972).

18— 275

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—2—

The following issue of fact remains for determination:

whether Springfield had bound itself to a course of conduct

to undertake and complete, within a reasonable time, a

continuous program of construction. This statement closely

parallels the language of the present definition of “Commence”

in Rule 101, but makes allowance for the fact that Springfield

may, in fact, be it~own general contractor, (although that

fact is merely alluded to in the final Reply of Petitioner

Springfield).

The issue raised in Springfield’s motion shall be considered

with the case—in-chief.

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

___,

1975 by a vote of ~_t3

Christan L. Moffe~tj~J/)Clerc

Illinois Pollution ~6ntro1 Board