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)
ORDER OF THE BOARD (by C.A. Manning):
Pursuant to Section 31 of the Environmental Protection Act (Act) (415 ILCS 5/31
(1994)), the Illinois Attorney General (complainant or Attorney General) filed this complaint
for enforcement on behalf of the People of the State of Illinois and the Illinois Environmental
Protection Agency (Agency). Filed on August 22, 1996, the complaint alleges that
respondents Amsted Industries, Inc. d/b/a Griffin Wheel Company (Amsted) and L.E.
Swiderski d/b/a Griffin Wheel Company (Swiderski) violated 35 Ill. Adm. Code 809.301 by
failing to complete and deliver a completed manifest to a hauler who held a valid special waste
hauling permit. The complaint also alleges that respondent Horsehead Resource Company,
Inc., (Horsehead) violated 35 Ill. Adm. Code 809.302(a) and Section 21(d)(2) of the Act (415
ILCS 5/21(d)(2) (1994)) by accepting special waste without a signed manifest.
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The complaint also alleged that Hellman Trucking Company, Inc., (Hellman) violated 35 Ill.
Adm. Code 809.201 and Sections 21(g)(1) and (2) of the Act (415 ILCS 5/21(g)(1), (2)
(1994)) by shipping special waste without a current and valid permit. On April 24, 1997,
complainant filed a stipulation and proposal for settlement with the Board as to Hellman and a
joint request to waive the hearing requirement pursuant to Section 31(c)(1) of the Act (415
ILCS 5/31(c)(1) (1996)). On June 19, 1997, the Board granted the parties’ joint motion for
relief from the hearing requirement and found the settlement agreement between complainant
and Hellman acceptable under 35 Ill. Adm. Code 103.180. Accordingly, the Board dismissed
Hellman as a respondent in this matter and ordered that the matter proceed against the
remaining respondents. See People v. Amsted Industries, Inc.
et al.
(June 19, 1997), PCB 97-
38.
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Respondents seek dismissal of the complaint, arguing that the Board lacks jurisdiction
since the Agency failed to meet certain statutory notice requirements prior to bringing the
complaint. Complainant admits statutory notice requirements were not met and moves to
withdraw the complaint without prejudice so that a new complaint may be filed after the notice
requirements have been met (see 415 ILCS 5/31(d) (1994)). Respondents object, arguing that
this case should be dismissed with prejudice as complainant cannot cure the notice deficiencies
because of a change in law that modified the notice requirements (see 415 ILCS 5/31(a), (b)
(1996)). For the reasons that follow, the Board grants respondents’ motion to dismiss, but
does so without prejudice.
BACKGROUND
Prior to August 1, 1996, Section 31(d) required that the Agency issue and serve a
notice of violation letter on respondents prior to the filing of a complaint for enforcement. See
415 ILCS 5/31(d) (1994). By legislative amendment effective August 1, 1996, Section 31 was
modified. See 415 ILCS 5/31 (1996). Instead of requiring the former Section 31(d) letter as a
precondition to the filing of the complaint, revised Section 31 now sets forth a specific time-
driven procedure that the Agency must follow when it discovers a potential violation.
Compliance with the new procedures outlined in Section 31 is a precondition to the Agency’s
referral of a case to the Attorney General for initiation of a formal enforcement action. See
415 ILCS 5/31(b) (1996).
Sometime in 1993, the Agency became aware of respondents’ alleged noncompliance
with the Act and the Board’s waste disposal rules. On November 5, 1993, the Agency sent a
Compliance Inquiry Letter to Horsehead, notifying Horsehead of its apparent noncompliance
with the Board’s waste disposal regulations. As the Agency cannot pursue environmental
violations before the Board or in court on its own (see People
ex rel.
Scott v. Briceland, 65
Ill.2d 485, 500-501, 359 N.E.2d 149, 157 (1976)), the matter was, through the normal course
of State environmental business, referred to the Attorney General for environmental
prosecution prior to August 1, 1996. On August 22, 1996, the Attorney General filed the
complaint in this matter, 22 days after the effective date of the new law. It is uncontested that
the Compliance Inquiry Letter did not meet the new Section 31(a) requirements, and the
Agency failed to provide respondents with any other notification meeting the requirements of
former Section 31(d) or new Sections 31(a) and (b), prior to the referral or filing of the
complaint in this matter.
ISSUES
Whether this matter should be dismissed for the Agency’s failure to comply with
Section 31 requirements? If so, can this complaint properly be refiled?
ARGUMENTS
The respondents argue that new Section 31(a) and (b) apply to this matter since the
complaint was filed after the effective date of the amendments to Section 31. Since the
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Agency did not comply with new Section 31(a) and (b) and cannot now comply, respondents
assert that the Board lacks jurisdiction to hear the complaint, and the matter should therefore
be dismissed. The Attorney General, on behalf of the people and the Agency, argues that
since the violation was discovered and the matter referred to the Attorney General by the
Agency prior to the effective date of the amendments, former Section 31 applies. Since the
former Section 31(d) letter was not sent, the Attorney General argues that the well-established
Board precedent under that law would allow it to withdraw the complaint without prejudice
and refile it after the Section 31(d) letter was sent. The Attorney General seeks to do so
through its motion to voluntarily withdraw without prejudice.
Respondents object, arguing that the applicable law is the one in effect at the time of
the filing of the complaint, and accordingly, the Board should not allow the State to perfect its
filing under the old law. Rather, the law in effect at the August 22 filing of the complaint
required that, within 180 days of the discovery of the violation, a “violation notice” had to be
sent which would give respondent an opportunity to settle with the Agency prior to
enforcement. Thereafter, absent satisfactory resolution, a “Notice of Intent to Pursue Legal
Action” had to be given as a precondition to the filing of this case before the Board. The
respondents argue that the Agency’s failure to meet these requirements divests the Board of
jurisdiction in this matter. Respondents also assert that the 180-period began to run on August
1, 1996, the effective date of the amendments to Section 31. However, since the 180-day
period has expired, respondents contend the Agency cannot now meet its obligation under the
amended law, and accordingly, the Board cannot allow a refiling under the amended law.
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To this argument, complainant responds that the new Section 31 was not intended to
prevent it from pursuing environmental enforcement of the Act, but was merely intended to set
up a procedure prior to the Agency’s referral to the Attorney General for such. Accordingly,
even if the new Section 31 applies, it applies only to the Agency and does not serve to stop the
Attorney General from filing complaints for enforcement of the Act with the Board or in court.
ANALYSIS
In People v. Heuermann (September 18, 1997), PCB 97-92, the Board determined that
the new Section 31(a) and (b) applied prospectively to cases referred to the Attorney General
after August 1, 1996, the effective date of the amendments to Section 31. In reaching this
conclusion, the Board found that to apply the provisions of new Section 31(a) and (b) to cases
that were referred prior to August 1, 1996, would improperly impose new requirements and
duties on transactions already past, that being the referral of a case to the Attorney General for
enforcement.
In the present case, it is uncontested that the Agency referred the matter to the Attorney
General prior to August 1, 1996. Based on Heuermann, new Section 31(a) and (b) do not
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On June 25, 1997, Horsehead filed a motion for leave to file a reply to complainant’s
response to respondent’s objection to the motion for voluntary dismissal. The Board grants
Horsehead’s motion.
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apply to the pending matter. Accordingly, the Board rejects respondents’ argument that this
matter should be dismissed because the Agency failed to comply with new Section 31(a) and
(b) prior to the referral or filing of the complaint.
Respondents also argue that this matter should be dismissed because the Agency failed
to comply with former Section 31(d) prior to the filing of the complaint in this matter. Since
the complaint in this matter was filed after the effective date of the amendments to Section 31,
the provisions of new Section 31 apply unless their application would result in a retroactive
impact on an existing controversy. See First of America Trust Co. v. Armstead, 171 Ill. 2d
282, 286, 664 N.E.2d 36, 40 (1996). As previously noted, the Board determined in
Heuermann that to apply new Section 31(a) and (b) to cases that had been referred to the
Attorney General prior to August 1, 1996, would result in such a retroactive impact. The
more difficult question is whether the notice requirements of former Section 31(d) apply to
cases referred prior to August 1, 1996, when the notice requirements of new Section 31(a) and
(b) do not apply. The Board believes that they do.
The statute itself is ambiguous on this point. The amendments to Section 31 do not
contain a savings clause, nor do they contain any language regarding what cases the new
provisions of Section 31 apply. However, if the former Section 31(d) did not apply to those
cases in which new Section 31(a) and (b) could not apply, the result would be that respondents
would not be entitled to any notice of the alleged violations or the opportunity to meet with the
Agency. The Board does not believe that this was the intent of the legislature. The legislative
history of the amendments illustrate that the intent of the amendments was to foster an
atmosphere where resolutions could be reached without resorting to litigation (see Heuermann,
PCB 97-92, slip op. at 7) and was to “clarify the procedure where the IEPA and potential
violators of the Environmental Protection Act work together in an effort to resolve potential
violations of the Act.” 89th Gen. Assem. House Proceedings, March 25, 1996 at 101
(statements of Representative Persico). To hold that Section 31(d) does not apply in this
instance would seem to defeat the whole purpose of the new amendments. Had the legislature
intended such a result, it could have so provided, but it did not. Therefore, for complaints
filed on behalf of the Agency and the State based on an Agency referral that occurred prior to
August 1, 1996, the notice provisions of Section 31(d) must be met.
As noted earlier, it is uncontested that former Section 31(d) was not met. Under
existing case law regarding former Section 31, the failure to comply with former Section 31(d)
prior to the filing of a complaint resulted in defective or insufficient notice on all counts. See
People v. Chicago Heights Refuse Depot, Inc. (October 10, 1991), PCB 90-112; People v.
EMCO Chemical Distributors, Inc. (December 2, 1993), PCB 93-186; People v. Escast, Inc.
(July 20, 1992), PCB 92-67; People v. American Waste Processing, Ltd. (January 23, 1997),
PCB 96-264. Moreover, failure to comply with Section 31(d) prior to the filing of the
complaint resulted in the dismissal of the complaint. See American Waste, PCB 96-264, slip
op. at 4.
Because the Agency failed to comply with former Section 31(d) prior to the filing of
the complaint in this matter, the Board grants respondents’ motion to dismiss. The Board
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grants the motion to dismiss, however, without prejudice since Board precedent establishes that
the failure to comply with former Section 31(d) can be cured by service of a Section 31(d)
letter prior to the filing of another complaint. See American Waste, PCB 96-264, slip. op at
4.
Moreover, regardless of whether former Section 31(d) applies to this case, the Board
would still dismiss this action without prejudice as complainant could refile the action on its own
motion under new Section 31(d). See People v. Geon (October 2, 1997), PCB 97-62.
CONCLUSION
For the foregoing reasons, the Board grants respondents’ motion to dismiss, but does so
without prejudice. Because the Board grants the motion to dismiss, the Board need not rule on
complainant’s motion to withdraw.
IT IS SO ORDERED.
Board Members M. McFawn and J. Theodore Meyer concurred.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 145 Ill. 2d
R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 16th day of October, 1997 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
