ILLINOIS POLLUTION CONTROL

BOARD

January 17, 1972

ENVIRONMENTAL PROTECTION AGENCY

#71—300

v.

GEORGE E. HOFFMAN

&

SONS, INC.,

a corporation

OPINION AND ORDER OF THE BOARD (BY MR. LAWTON):

Complaint filed by the Environmental Protection Agency alleging

air pollution in violation of the Environmental Protection Act and

the Rules and Regulations Governing the Control of Air Pollution,

was served upon George E. Hoffman

&

Sons, Inc., Respondent, on

September 28, 1971, which complaint requested that a hearing be set,

that a cease and desist order be entered against Respondent, and that

Respondent be ordered to pay a penalty in the maximum statutory amount.

The complaint was unsigned, although the typed names of William J.

Scott, Attorney General and John C. Parkhurst, Assistant Attorney

General, on behalf of the Environmental Protection Agency, appeared

at both the foot of the complaint and the notice. The notice advised

Respondent of the filing of the complaint with the Board and that a

hearing date would be set.

On December 6, 1971, Richard J. Cooper, previously designated

as Hearing Officer for this matter mailed a notice to Respondent

setting January 10, 1972 as the hearing date on the complaint. Res-

pondent has filed a Motion to Dismiss, asserting that the Board “lost

jurisdiction in this matter

22

days after the service of the complaint

and purported notice on this Respondent”. In support of this conten-

tion, Respondent cites Section 31(a) of the Act requiring Respondent

to answer the charges of the formal complaint at a hearing before the

Board “at a time not less than 21 days after the date of notice”

and

Rule

307 of the Rules and Regulations of the Pollution Control

Board providing that a hearing date be set not later than 60 days after

the filing of the complaint. Why either of the above—cited provisions

would cause the Board to lose jurisdiction 22 days after service of

the complaint and notice is not clear, since the 21-day provision

in the statutory section is a period of time after service of notice

during which hearing shall not be set, The statute does not contain

any provision providing a maximum period of time during which such

hearing shall be scheduled.

Construing Respondent1s Motion as one seeking dismissal for

failure to hold a hearing within the 60-day period after filing of

the complaint as provided by Rule 307, it

will

be noted that the Rule

3

—

477

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makes no provision as to the consequences of the failur? to so

schedule a hearing.

Dismissal of an a’tion because of

failure to comply with this Rule is nc~specifically provided, nor

can such result be inferred. While

OUL

Rule is geared to assure

speedy hearing and disposition of enforcement cases, it is silent on

the consequences of failure to meet the time schedule. We cannot

conclude that dismissal of the action is the consequence of failure to

set the trial date within the 60-day period. Indeed, were we to so

hold, we would deprive the Complainant and Respondent of a hearing

without fault on their part, and would be violatihg the basic statute

which directs that hearings be held on all complaints filed by the

Agency. Section 31(a)

.

Such a construction would, in effect, con-

stitute a statutory amendment which obviously cannot be done by a Board

regulation.

IT IS THE ORDER of the Pollution Control Board that the Motion to

Dismiss be and the same is hereby denied.

I, Christan L. Moffett, Clerk of the Pollution Control Board, certify

that the Board adopted the above Opinion and Order this

/7

day

of

,

1972 by a vote of

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