ILLINOIS POLLUTION CONTROL BOARD
October 16, 1997
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
AMSTED INDUSTRIES, INC., a Delaware
corporation d/b/a GRIFFIN WHEEL
COMPANY; L.E. SWIDERSKI d/b/a
GRIFFIN WHEEL COMPANY; and
HORSEHEAD RESOURCE
DEVELOPMENT COMPANY, INC., a
Delaware corporation,
Respondents.
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PCB 97-38
(Enforcement - Land)
CONCURRING OPINION (by M. McFawn and J. Theodore Meyer):
While we agree that dismissal of this case must be without prejudice, we disagree with
two of the Board’s conclusions. Therefore, we concur. First, we do not agree that failure to
comply with former Section 31(d) of the Environmental Protection Act (Act), 415 ILCS
5/31(d) (1994) (“old” Section 31(d)), results in a jurisdictional defect in this case filed after
that section was deleted, and would therefore deny the respondents’ motion to dismiss with
prejudice. Second, we disagree that the Attorney General must comply with the provisions of
former Section 31(d) in order to file a new complaint in this matter because the amendments to
Section 31 effective August 1, 1996, eliminated the precondition to filing imposed under
former Section 31(d). We disagree with the majority’s decision that the current version of the
Act must be construed to impose the old Section 31(d) notice requirement in cases filed with
the Board after the effective date of the legislation deleting that requirement.
As has been recounted in detail recently in the Board’s opinions in People v.
Heuermann (Sept. 18, 1997), PCB 97-92, and People v. Geon Company, Inc. (Oct. 2, 1997),
PCB 97-62, as well as the Board’s opinion and order adopted today in this case, the
amendments to Section 31 imposed new preconditions on referral of cases from the Illinois
Environmental Protection Agency (Agency) to the Attorney General for enforcement
proceedings, see 415 ILCS 5/31(a) and (b) (1996) (“new” Section 31(a) and (b)), but at the
same time removed the prior precondition to filing which had been contained in old Section
31(d). See Heuermann, slip op. at 2; Geon, slip op. at 8-9. Under old Section 31(d), a notice
and an opportunity to negotiate prior to filing (the so-called “Section 31(d) letter”) was held to
be a precondition to the filing of an enforcement action. See People v. Chicago Heights
Refuse Depot, Inc. (October 10, 1991), PCB 90-112. Under the new Section 31, however,
the language on which this conclusion was predicated, “prior to the issuance and service of a
written notice and formal complaint under subsection (a) of this Section, the Agency shall
issue and serve on the person complained against a written notice. . .,” has been deleted from
the Act.
New Section 31(d), 415 ILCS 5/31(d) (1996), in pertinent part, provides:
d.
Any person may file with the Board a complaint, meeting
the requirements of subsection (c) of this Section, against
any person allegedly violating this Act or any rule or
regulation thereunder or any permit or term or condition
thereof. The complainant shall immediately serve a copy
of such complaint upon the person or persons named
therein.
“Any person,” as the phrase is used in new Section 31(d), includes the Attorney
General on behalf of the People of the State of Illinois. See 415 ILCS 5/3.26 (1996). Thus,
under new Section 31(d), the Attorney General (as well as any other person) retains its broad
authority to commence enforcement actions. Nothing in subsections (a), (b), or (c) of new
Section 31 limits or qualifies this authority. These subsections concern interagency dealings
between the Agency and the Attorney General, into which the Board need not inquire, at least
not in this case or the similar cases which have lately come before us.
The majority applied the old Section 31(d) notice requirement to this case on the
premise that the new Section 31 is ambiguous. We find no ambiguity in any provision of the
new Section 31 which justifies resorting to legislative history to reach such a conclusion. The
asserted “ambiguity” is not a provision of the amended Act which is subject to conflicting
interpretations. Rather, it involves resolution of a question on which the amended Act is
silent: procedures applicable to a case referred prior to the amendments to Section 31 but filed
after those amendments. This question may be easily answered by application of the principles
identified by our Supreme Court in First of America Trust Co. v. Armstead, 171 Ill.2d 282,
286, 664 N.E.2d 36, 39-40 (1996): apply the law as it exists when the matter comes before
the tribunal, unless to do so would interfere with a vested right. The court in Armstead noted
that there is no vested right in the mere continuance of a statute, because the legislature has an
ongoing right to amend a statute. Thus, no alleged violator of the Act can claim a vested right
in an opportunity to meet and negotiate prior to filing of an enforcement action. The court
also noted that, as here, the amendment did not create a new obligation or duty with respect to
a past transaction. Indeed, the court went so far as to state that “where an amendment has
no. . . retroactive impact, there is simply no need to apply further rules of construction to
determine legislative intent because the amendment by definition has only prospective
application.” Armstead, 664 N.E.2d at 40. There is thus no need or reason to resort to
legislative history to resolve any issue facing the Board in this case.
Even if resort to legislative history were warranted in this case, we do not find that the
legislative history militates in favor of imposing the requirements of old Section 31(d) in a case
filed after the effective date of the amendments to Section 31. Two things are clear from the
legislative history of the amendments to Section 31: the amendments were intended to exclude
the Attorney General from pre-enforcement negotiations, and the amendments were not
intended to hinder the Attorney General in bringing enforcement actions. See 89th Gen.
Assem., House Proceedings, March 25, 1996, at 102-04; 89th Gen. Assem., Senate
Proceedings, May 8, 1996, at 87. Application of the procedure under old Section 31(d)
furthers neither of these goals: the Attorney General participates in negotiations under old
Section 31(d), and the Attorney General will be hindered in bringing enforcement actions.
We acknowledge that it is possible, under this literal interpretation of the statute, that
an enforcement action could be initiated against an alleged violator of the Act without an
opportunity for that party to meet and negotiate with the Agency prior to filing. Every alleged
violator, however, has always faced this prospect, inasmuch as even under Section 31(b) of the
old law, anyone (including the Attorney General) could file such a suit at any time. This is
still true under new Section 31(d). We note that neither ongoing discussions in accordance
with new Sections 31(a) and (b) nor meticulous compliance with all the provisions of a
settlement entered into under new Sections 31(a) and (b) provides any defense to filing of an
enforcement action under new Section 31(d). As acknowledged in the majority’s opinion, the
Attorney General is not excluded from bringing an enforcement action under that subsection of
the amended Section 31.
Applying these principles to this case, since there is no jurisdictional defect for failure
to comply with either new Section 31(a) and (b) or with old Section 31(d), the Attorney
General is free to re-file its complaint, and should not be required to send a Section 31(d)
letter as a precondition to doing so. Accordingly, we do not join in the Board’s opinion,
although we concur with the ultimate decision to dismiss without prejudice since the Attorney
General has made a motion for voluntary dismissal.
Marili McFawn
Board Member
J. Theodore Meyer
Board Member
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above concurring opinion was submitted on the 23rd day of October 1997.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
