ILLINOIS POLLUTION CONTROL BOARD

April 4, 1974

STUDENTS FOR ENVIRONMENTAL CONCERN

J.E.

DUNWOODY & L.J. STONE

)

COMPLAINANTS

v.

)

PCB 73—439

WELDON

SILICA

COMPANY

RESPONDENT

ORDER OF THE BOARD (by Mr. Marder)

On March 18, 1974, Respondent filed five motions to dismiss

the above-captioned matter with the Board. The grounds stated in

these motions are as follows:

1) That Complainants’ organization is not represented by

counsel licensed to practice law in the state of Illinois.

2) That Sections 3 (n) and 12 (a) of the Environmental

Protection Act are unconstitutionally vague as to violate due pro-

cess.

3) That the power of the Board to im~posepenalties and mone-

tary fines is an unconstitutional delegation of judicial power by

the Legislature.

4) That there is a violation of due process as the hearing

officer does not render a finding of fact based on the credibility

and demeanor of witnesses called at hearing.

5) That Complainants do not have adequate standing to bring

this action.

On March 29 Complainants filed a motion for Leave to File

Answer. This motion is hereby granted.

Complainants respond to the motions as follows:

1) Complainants are presently represented by counsel lic-

ensed to practice in Illinois, and even had Complainants not been

represented by a licensed attorney, this is not required by the

Board’s rules;

2) That taken with Chapter 3 of the Board’s Rules and Regu-

lations, prohibited conduct is adequately defined to meet the require-

ments of due process;

3) That this action is not sufficiently advanced to determine

whether penalties or fines will be assessed by the Board, and that

there is a conflict in the Appellate districts as to the delegation

of these judicial type functions to the Board;

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4)

That this motion is premature for the reason that no hear-

ing has been held in this matter and Rule

315 of the Board’s Procedural

Rules provides that the hearing officer must develop a clear and com-

plete record, and Rule 318 provides that the hearing officer must sub-

mit a statement as to the credibility of witnesses and such statement

becomes a part of the record.

5) That Complainants have standing to bring this action under

Sec. 3 (i) and 31 of the Environmental Protection Act and also that

Complainants are residents of the state and use the waters of Illinois

for recreation and other purposes in the vicinity of Respondent’s dis-

charges.

The Board finds as follows:

1) The Environmental Protection Act does not require an organ-

ization to be represented by a licensed attorney before the Board.

Section 31 (b) of the Act states that any person (emphasis added) may

file a complaint with the Board. Section 3 (i) of the Act defines per-

son to be an association. The Procedural Rules of the Board state that

a business, non-profit, or governmental organization may appear by any

bona fide officer, or

may be represented by a licensed and registered

attorney (Rule 106 (a) (2) Chap. 1 Rules and Regulations of the Pollu-

tion Control Board). Here, Complainants were represented by two offi-

cers, and this is sufficient to meet the requirements of the Act and

Rules.

2) The language in Sections 3 (n) and 12 (a) is substantially

the same as the language of Sec. 3 (a) and 9 (a) of the Act (Air Poll-

ution). The Appellate Court for the Fifth District has upheld the def-

inition of air pollution contained in the Act, as being in conformity

with due process (see Southern Illinois Asphalt v. Environmental Pro-

tection Agency, 303 NE 2 606 (1973), and Cobin v. Pollution Control

Board

,

5th Ill. App. 3d 958 (1974). The Board finds that Sec. 3 (n)

and 12 (a) are not unconstitutionally vague and do not violate due proc-

ess.

3) The power of the Board to levy penalties and civil fines has

been upheld by the Supreme Court in City of Waukegan v. Pollution Con-

trol Board, Docket #45984 (March 30, 1974)

4) Rule 318 (c) of the Procedural Rules mandates a statement by

the hearing officer as to the credibility of witnesses which becomes a

part of the record. Sec. 32 and 33 of the Act authorize a hearing be-

fore

a hearing officer, but the intent of the Act is that the Board shall

determine the truth of the facts from the record. This is what the

Board does, with the aid of the hearing officer who judges the credibil-

ity and demeanor of witnesses.

5) Sec. 31 (b) of the Act provides that “Any person may file

with the Board a complaint...” Rule 302 of the Procedural Rules pro-

vides, “An enforcement proceeding may be commenced by the Agency or by

any person” (emphasis added). Complainants allege that they use the

waters of the state for recreational and other purposes in the vicinity

of Respondent’s discharges. Complainants have proper standing.

Respondent’s motions to dismiss (5) filed March 18, 1974, are

hereby denied for the reasons stated above.

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IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, certify that the above Order was adopted by the Board on the

4-&~\

day of

___________,

1974, by a vote of ~

to 0

~

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