CLERK’S
OFHCE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
~
22004
~T~TE OF
~LL1N0~
PEOPLE OF THE STATE OF ILLINOIS,
)
PoHution Contro’ Bo&~
by LISA MADIGAN, Attorney General
)
ofthe State ofIllinois,
)
)
No. PCB 04-9
Complainant
)
(Enforcement
-
Air)
)
V.
)
)
AARGUS PLASTICS, INC.,
)
an Illinois corporation,
)
)
Respondent.
)
NOTICE OF FILING
To:
See Attached Service List
PLEASE TAKE NOTICE that on
April
2,
2004, we filed with the Clerk of the
Illinois Pollution Control Board,
100 West Washington Street, Suite 11-500, Chicago,
Illinois 60601, an original and nine (9) copies ofthe Respondent’s Response to the
State’s Motion to Strike or Dismiss Aargus’s Affirmative Defenses, a copy ofwhich is
attached hereto and hereby served upon you.
AARGUS PLASTICS, INC.
By(~0~*Zm4~\
Leo
P. Dombrowski
WILDMAN HARROLD ALLEN & DIXON, LLP
225
West Wacker Drive, Suite 2800
Chicago, IL 60606
312-201-2000
TIllS FILING
IS MADE ON
RECYCLED PAPER
PROOF OF SERVICE
(State of Illinois
v. Aargus Plastics)
I, Larysa Dema, a non-attorney,
certify that I served a copy ofthe foregoing
Response and Notice ofFiling upon the following by U.S. Mail and depositing same at
225 W. Wacker, Chicago, Illinois, 60606 on this 2nd day ofApril, 2004, with proper
postage prepaid:
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Thomas B. Golz
FageiHaber LLC
55
East Monroe Street, Suite 4000
Chicago, Illinois
60603
Joel J. Sternstein
Office ofthe Illinois Attorney General
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th
Floor
Chicago, IL
60601
X
Under penalties as provided by law pursuant to ILL.
REV. STAT.
CHAP.
110- SEC 1-109,1 certify that the statements set forth
herein are true and correct.
THIS FILING IS MADE ON RECYCLED PAPER
~ECE~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
APR 02
2004
PEOPLE
OF
THE STATE OF ILLINOIS, by
~
STATF OF ILLINO~S
LISA MADIGAN, Attorney General ofthe
)
Pollutlo
Control Boar
State ofIllinois
)
)
Complainant,
)
)
v.
)
No.
PCB 04-9
)
AARGUS PLASTICS, iNC.,
)
an Illinois corporation,
)
)
Respondent.
)
RESPONDENT’S RESPONSE
TO THE STATE’S MOTION TO
STRIKE
OR
DISMISS
AARGUS’S
AFFIRMATIVE DEFENSES
Respondent hereby responds to Complainant’s Motion to Strike or Dismiss
Aargus Plastics’ Affirmative Defenses.
For the reasons discussed below, the State’s
Motion should be denied.
I.
INTRODUCTION
This case concerns a printing operation previously operated by Aargus at a facility
in Des Plaines, Illinois.
The State alleges that Aargus violated its air permits over a
period ofseveral years, failed to comply with ink VOM content regulations, failed to
submit certain reports, and did not hold sufficient allotment trading units forits seasonal
emissions.
Aargus denies that it violated the Environmental Protection Act, regulations, and
permits
as the State has alleged.
The State has now moved to strike all ofAargus
‘S
affirmative defenses, claiming that Aargus has failed to plead the defenses with the
required specificity to allow the State to understand the defenses or that the facts alleged
in the defenses are legally insufficient.
As shown below,
the State is both factually and
legallymistaken.
Additionally, the State is premature in asking the Board to strike
certain ofthe defenses at this stage ofthe proceedings.
II.
ARGUMENT
To the extent the State claims that Aargus has not sufficientlypleaded facts in
support ofits defenses, the State
is not entitled to have those defenses stricken, but it may
seek
additional information if it desires.
The State may also seek discovery on the
defenses.
As noted below,
the Board has refused in other cases to strike manyofthe
defenses asserted by Aargus because “the Board cannot decide the merits ofthe defense
before hearing ofthe evidence.”
See, e.g., People v. John Crane, Inc.,
PCB 01-76, slip
op.
at 8 (May 17,2001).
The Board’s procedural regulations provide that “facts constituting an affirmative
defense must be plainly set forth beforehearing in the answer.
.
.
.“
35 Iii. Admin. Code
§
103.204(d).
Although the Board’s rules do not explain what is a sufficient statement of
facts supporting a defense or how the Board is to evaluate the sufficiency ofsuch a
statement, the Illinois Code ofCivil Procedure does offer some guidance.
Section 2-
6 12(b) ofthe Code provides that, “No pleading is bad in substance which contains such
information as reasonably informs the opposite party of the nature ofthe claim or defense
which he or she is called upon to meet.”
735
ILCS
5/2-612(b).
Additionally, if a party deems a pleading “wanting in details,” it may request a
bill ofparticulars “pointing
out specifically the defects complained ofor the details
desired.”
“If
the bill ofparticulars delivered is insufficient, the court may, on motion
and in its discretion,
strike the pleading, allow further time to furnish the bill of
particulars or require a more particularbill to be filed and served.”
735 ILCS
5/2-607(a
-2-
& b).
The purpose ofthese pleading rules is to sufficiently inform the complainant ofthe
legal theories presented by the respondent in defense ofthe action and to provide the
complainant a remedy, not ofstriking the defense, but ofseeking additional information
if it deems the facts alleged in the affirmative defenses to be insufficient.
As shown
below, not only are Aargus’s defenses sufficientlypleaded, but it would also be
premature forthe Board to strike them at this stage ofthe proceedings.
Affirmative Defense
No. 2
(Jurisdiction)
Complainant’sjurisdictional arguments are unsupported by the clear language of
Section 31, the normal rules ofstatutory construction, and the Board’s precedent.
If
Complainant’s arguments were true, IEPA’s non-compliance with the pre-complaint
requirements ofSection
31 would never affect the Board’sjurisdiction over an
enforcementmatter.
This is
simplynot true.
Prior to the
1996 amendments to
Section 31, the Board had held that non-
compliance with Section
31
requirements divested the Board ofjurisdiction over an
enforcement matter.
For example, in
People v. American
Waste Processing Ltd.,
PCB
96-264, 1997 Ill. ENV LEXIS 48 at
**
7-10 (Jan. 23,
1997), respondent argued that the
Agency’s failure to comply with Section 31’s pre-complaint notice requirements divested
the Board ofjurisdiction over the matter.
The Board agreed and dismissed the action,
holding that the Agency’s failure to follow the notice procedures was fatal to
the State’s
complaint: “Lack of such notice prior to
the filing ofa complaint results in defective or
insufficientnotice on all counts.”
See also People
v. Amsted Indus., Inc.,
PCB 97-38,
1996 Ill. Env. LEXIS 897 at
*
9
(Oct.
16,
1997) (because the Agency failed to
comply
-3-
with Section
31
requirements “prior to
the filing ofthe complaint in this matter, the
Board grants respondents’ motion
to dismiss.”)
The legislature’s 1996 amendments to Section
31
did not overrule or at all affect
this line ofBoard decisions.
In fact, the amendments added significant pre-complaint
requirements that the Agency must meet as a pre-condition ofreferring a matter to the
Attorney General.
One ofthe new requirements is that:
Within
180 days ofbecoming aware ofan
alleged violation ofthe
Act or any rule adopted under the Act or ofa permit granted by the
Agency or condition ofthe permit, the Agency shall issue and
serve, by certified mail,
upon the person complained against a
written notice informing that person that the Agency has evidence
ofthe alleged violation.
415
ILCS 5/31 (a)(1) (emphasis added).
The amended Section also requires that the
Agency offer an opportunity to respond to the written notice and to meet with Agency
personnel to
attempt to resolve differences, all prior to filing ofa complaint.
Id.
at
5/31(a)(2-7).
Only if the Agency has complied with these procedures, and onlyif the
Agency and respondent have not resolved their differences, is the Agency allowed to
refer the matter to the Attorney General for the filing ofa complaint with the Board:
For alleged violations which remain the subject ofdisagreement
between the Agency and the person complained against following.
fulfillment ofthe requirements ofsubsections (a) and (b) of this
Section,
the Office of the Illinois Attorney General or the State’s
Attorney ofthe county in which the allegedviolation occurred
shall issue and serve upon the person complained against a written
notice,
together with a formal complaint
Id.
at
5/31(c)(1)
(emphasis added).
In enacting the old Section 31, the legislature also used the word “shall” to require
the Agency to
comply with certain conditions before a complaint could be filed with the
Board:
-4-
-
Prior
to
issuance and service of a written notice and formal
complaint.
.
.,
the Agency
~J~ll
issue and serve upon the person
complained against a written notice informing such person that the
Agency intends to file a formal complaint.
The Agency was also required to provide
an opportunity for pre-complaint
resolution ofthe matter.
415 ILCS
5/31(d).
(The text ofold Section 3lis
attached hereto as Exhibit A.)
When used in a statute, “shall” is generally interpreted to mean that something is
mandatory.
Citizens OrganizingProject v. Department ofNatural Resources,
189 Ill. 2d
593,
598,
727 N.E.2d 195,
198 (2000).
Additionally, in amending a statute, the
legislature is presumed to have been aware ofthe decisions interpreting the statute “and
to have acted with this knowledge.”
Morris
v.
Dawson Nursing Center, Inc.,
187
Ill. 2d
494, 499, 719 N.E.2d 715, 718 (1999).
Unless otherwise indicated, the legislature
“intends a consistent body oflaw when it amends” a statute.
In reLasky,
176 Ill. 2d 75,
79, 678 N.E.2d 1035,
1037 (1997).
In opposition, the State claims that “the 180 day requirement is
directory rather
than mandatory in nature.”
(Motion p.
5.)
If the State’s positionwere true, then the
legislature would have indicated its displeasure with the line ofBoard decisions
provisions holding that non-compliance with old Section 31
divested it ofjurisdiction and
would have overruled those decisions in amending Section
31.
Additionally, the State
does not explain how the use ofshall in
old Section
31
was “mandatory” while the use of
shall in amended
Section 31
somehow became “directory.”
Indeed, the State reads
identical language in both versions ofSection
31 to, in one instance, safeguard a
respondent’s rights (mandatory) and
also to merely direct official conduct (directory).
-5-
See Crane,
slip op. at 6.
The State
is simply interpreting both versions as it likes without
resortingto traditional principles of statutory construction.
As shown in the Board decisions noted above, non-compliance with the pre-
complaint requirements of old Section
31 did divest the Board ofjurisdiction over an
enforcement matter.
In amending Section
31
in
1996, the legislature did not indicate that
this long line of case was
to be overruled and, therefore, affirmed these Board’s
decisions.
In
People v. Eagle-Picher,
PCB 99-152 (July 22,
1999), the respondent moved to
dismiss the State’s complaint because the State (not the Agency) had not complied with
the new requirements of amended Section
31.
The Board denied the motion, finding that
the new requirements do not applyto the Attorney General with respect to
claims that
were not the subject ofa referral from the Agency: “Since nothing in the record indicates
that the Agency referred the violations contained in Count II to the Attorney General,
Sections
3 1(a) and (b) do not apply.”
Slip op. at 7.
Consequently,
Eagle-Picher
holds
that for claims referred by the Agency to the Attorney General (in this case, all the claims
in the State’s complaint with the exception ofparts ofCount III and Count V1), the Board
is divested ofjurisdiction over those claims if the Agency did not comply with Section
31.
Here, too,
Aargus asserts that the Agency failed to comply with the pre-complaint
notice procedures.2
“Rules of construction are useful only where there is doubt as to
the
See
Motion at pp.
10-1 1
(where the State acknowledges that part ofCount III and part ofCount
V were not included in the Agency’s violationnotices.
By implication,
everything else
in the
complaint was referred by the Agency to the Attorney General.)
2
Aargus acknowledges that, recently, the Board has altered course and ruled contrary to the
position asserted here by Aargus.
Aargus respectfully requests the Board to reconsider its prior
rulings.
-6-
meaning ofa statute,
and a court may not alter that meaning beyond the clear import of
the language employed therein.”
Pielet Brothers Trading, Inc.
v. Pollution Control
Board,
110 III. App. 3d 752,
755,
442 N.E.2d 1374,
1377
(5t~~
Dist.
1982).
To
accept the
State’s interpretation ofamended Section
31 would ignore the plain language ofthe
statute and the Board’s rulings.
Affirmative Defenses
Nos. 4 and
5
(Laches/Waiver)
Throughout the
1 990s, the Agency inspected the Aargus facility and
acknowledged that small printers like Aargus had difficulty with the RACT ink content
requirements.
The Agency encouraged Aargus to experiment with different inks and
suppliers, which Aargus did, to come into full compliance with these rules.
The Agency
assured Aargus that Aargus was making reasonable progress toward compliance and did
not instruct Aargus to do
anything different.
In fact, the Agency has acknowledged that
that water-based inks do not represent RACT for small printers like Aargus because
compliant inks were not always available and adding pollution control equipment would
be economically unreasonable and not technically feasible.
See, e.g., In the Matter of
Petition ofFormel Indus.for
an Adjusted Standard,
AS
00-13, slip op. at 7 (Jan.
18,
2001).
Because ofthe Agency’s statements, the 2002 Violation Notice was a complete
surprise to
Aargus.
Complainant mistakenly claims that Aargus must demonstrate, in asserting its
laches
and waiver defenses, that it will prevail on the defenses.
(Motion p. 7.)
Rather, a
respondent need only allege “new facts or arguments that, if true, will defeat.
-
.
the
government’s claim even if all allegations in the complaint are true.”
People v.
Community Landfill Co.,
PCB 97-193, slip
op. at 3 (Aug.
6,
1998).
-7-
Here, the
laches
and waiver defenses are clear from the face ofthe complaint.
For example, the State alleges that Aargus violated its air permit from
1994 through
2000, presumablyrelying on annual emissions information submifted by Aargus.
(Cmplt., Count III.)
The other counts also contain allegations ofwhich the State has long
known, or should have known.
Despite having this information (or, at the least, the
Agency certainly should have been aware ofthe alleged violations), the IEPA did not
issue a violation notice to Aargus until January 31, 2002.~The Agency’s unreasonable
and unjustified delay in issuing the Violation Notice satisfies the first element of laches.
The second element ofprejudice is also satisfied because the delay subjects Aargus
to
greater penalty amounts because the State
is seeking per day penalties.
Considering similar facts, the Board has refused to dismiss a
laches
defense.
See,
e.g., People v. Peabody
Coal.
Co.,
PCB 99-134, slip op.
at 7-8 (June
5,
2003);
People v.
John Crane, Inc.,
PCB 01-76, slip
op. at 8 (May 17, 2001).
As in
Peabody
and
Crane,
the Board should not decide the merits ofthe defense before hearing the evidence.
The
Board should deny the State’s motion to strike the
laches
defense.
As to waiver, the Board has held that “waiver applies when a party intentionally
relinquishes a known right or his conduct warrants an inference to relinquish that right.”
Peabody Coal,
slip op.
at 8.
Aargus alleges that by inspecting its facility and assuring it
that it was taking appropriate action,
the State relinquished its right to file an enforcement
action against Aargus.
As with its
laches
defense, Aargus has been prejudiced because
~The Agency also issued a notice on September
13,
2001, regarding only one alleged violation—
failure to submit an annual report.
(Motion p. 4.)
This difference ofonly a fewmonths between
the two violationnotices does not help the State’s argument as itknew or should have known for
years ofthe violations
alleged.
-8-
the delay subjects Aargus to greater penalties.
As in
Peabody
and
Crane,
the Board
should deny the State’s motion to strike the waiver defense.
Affirmative Defenses Nos. 6 and
11
(Estoppel)
As Complainant notes, a party asserting estoppel must show “that it relied on a
government agency, the
reliance was reasonable,
and that such reliance led that party to
suffer some prejudice.”
(Motion p.
8.)
As in
Peabody
and
Crane,
Aargus will
demonstrate that the Agency was aware ofthe alleged violations for years and that, by
waiting until
September 2001
and January 2002 to issue violation notices, IEPA intended
to relinquish its claims.
Aargus will further show that it relied on the Agency’s
representations that it need do nothing different or additional and that it would suffer
prejudice—substantial penalties—ifthe State
is allowed to withdraw those
representations.
The Board
should deny the State’s motion
to strike the estoppel defense.
Peabody,
slip
op. at 9;
Crane,
slip op. at 9.
Affirmative Defenses
Nos. 12 and 13
(Improper Notice)4
Here, Aargus defends on the basis that certain allegations and alleged violations
found in Counts III and
V ofthe complaint were not included in either violation notice
issued by the Agency.
The State counters by asserting that, “There is no prohibition
anywhere in the Act barring the Attorney General from alleging violations against
Respondent on her own.”
(Motion p.
11.)
4Aargus agrees to withdraw defenses Nos.
1,
3,
7,
8, 9 and
10.
As to No. 10, however, Aargus
wishes to point out that the State confuses the affirmative defense standard—an affirmative
defense admits the alleged cause ofaction, but seeks to avoid
it by asserting a new matter—with
the motion
to dismiss standard, by claiming that that the asserted RACT defense does not address
the underlying allegations in the complaint.
(Motion p.
10.)
The RACT defense does indeed
address the complaint’s allegations
(see
Cmplt., Count I,
¶~
17-23), namely, by asserting that
RACT
does not apply to Aargus.
By withdrawing Defense No.
10, Aargus agrees with the State
-9-
The States’ position does not respect the language of Section
31
and would render
it a nullity.
The principles of statutory construction do not allow the State to pick
whatever language it deems favorable from Section 31
and discard that which hurts its
case.
Ifthe State
is correct that the Section
31
allows the Attorney General to
allege
violations not referred by the Agency “on her own,” then the State must also
accept the
provisions ofSection
31 that require the Agency to comply with certain requirements,
including the 180
day rule, before referring an action to the Attorney General.
Thus, the
only valid allegations ofthe complaint are those recited by Affirmative Defenses Nos.
12
and
13.
Respectfully submitted,
By:
~
One ofthe attorneys for AARGUS
PLASTICS, INC.
Dated: April 2, 2004
Leo P. Dombrowski
WILDMAN, HARROLD, ALLEN & DIXON
LLP
225 W.
Wacker Drive,
Suite 3000
Chicago, IL
60606
T: (312) 201-2000
F: (312) 201-2555
dombrowski(~wildmanhanold.com
John J. Cullerton
Thomas B. Golz
FAGELHABER
LLC
55
East Monroe Street,
40th
Floor
Chicago, IL
60603
T: (312) 346-7500
F: (312) 580-2201
jcullerton@fagelhaber.com
tgolz(Zlifagelhaber.com
that this is not a
true
affirmative defense, but rather is an
element ofthe State’s case, which the
State must prove -at hearing.
-10-
(e)
The Board shall
give
notice of
the petition and shall
hedtile
a
hearing
in
accordance
with
35
Ill.Adm.Code
The
proceedings
shall
be
in
accordance
with
35
lll.Adm.Code
103.
(0
In
considering the proposed petition and the hearing
record,
the
Board
shall
take
into
account
the
factors
contained
in subsection (a) of Section
27
of this Act.’
The
flQard
shall issue
and enter a written
opinion
stating
the
Eacts
and reasons
leading
to
its
decision within
120 days
after the filing
of the petition.
The Board shall
issue and
enter
such
orders
concerning a petition
for
an
adjusted
standard
as are appropriate for
the reasons stated
in
its
written opinion.
Such
decisions
may
include
but are not
limited
to
decisions
accepting
or
rejecting
the
petition,
directingthat hearings
be held to
develop further informa-
tion
or to
cure any
procedural defects,
or
remanding the
petition
to
the petitioners
with
suggested
revisions.
The
Board
shall
also
include
a cQmpliance
schedule
for con-
struction
of any treatment works,
discharge
outfall
facili-
ties
or
operational
controls
that
may
be
required
as
a
result of
its
final order.
(g)
Application
of otherwise applicable discharge limita-
tions to discharges subject
to
this Section
shall
be held
in
abeyance pendingBoard action far thosepetitioners pursu-
ing an
adjusted standard as
long
as
they
have adhered to
the filing
times
in
this
Section
and are making timely
and
appropriate
progress
in
seeking
an
adjusted
standard.
Petitioners
must
take
all
reasonable-
steps
to
minimize
discharge
quantities
and
adverse
environmental
impacts
for
the
interim
operating
period
during
pursuit
of
an
adjusted standard.
In no instailces
shall interim
operating
procedures
be
relaxed
from
previously demonstrated
and
generally
attainable performance
levels.
-
P.A.
76—2429,
§
28.3,
added
by
P.A.
86—1363,
Art.
2,
§ 2002,
eff.
Sept.
7,
1990.
Formerly
Ill.Rev.Stat.1991,
ch.
111
½,
¶11028.3.
1415
ILCS 5/27.
5/29.
Review
-
§
29.
(a)
Any
person adversely affected or
threatened
by
any
rule
or
regulation
of
the
Board
may
obtain
a
determination of
the validity ~r application of such rule or
regulation by
petition
for
review
under
Section
41
ot
this
Act.’
(b)
Action by
the Board
in
adopting any regulation for
which judicial
review
could
have
been
obtained
under
Section
41
of
this
Act
shall
not
be
subject
to
review
regarding
the
regulation’s
validity
or
application
in
any
subsequent proceeding under
Title
VIII, Title
IX or Sec-
tion
40 of
this
Act.2
P.A.
76—2429,
§
29,
eff.
July
1,
1970.
Amended
by
P.A.
85—1048,
§
2,
eff.
Jan.
1,
1989.
Formerly
Ill.Rev.Stat.1991,
cli.
111
~/z,
¶11029.
14j5
ILCS
5/41.
2415
ILCS
5/30
et
seq.,
5/35 et
eq.
or
5/40.
TITLE VIII:
ENFORCEMENT
Section
5/30.
Investigations.
5/31.
Complaints.
-
5/31.1.
Administrative citations.
5/31.2.
Landowners
who
provide
good
faith
information
to the Agency—Liability.
5/32.
Hearings.
Section
5/33.
P—’,
415
ILCS
5/31
Determinations
and
orders—Matters
consid-
ered—Notice
of-proceedings
affecting commu-
nity
sewer or water facilities.
5/34.
Episode
or
emergency
conditions—Sealing
of
equipment,
vehicle, vessel,
aircraft,
etc.
5/30.
Investigations
§
30.
The
Agency
shall
cause
investigations
to
be
made
-
upon• the request of
the Board
or
upon
receipt of
information
concerning an
alleged
violation
of
this
Act or
of any
rule or
regulation promulgated -thereunder, or of
any
permit granted
by
the Agency or
any term. or condi-
tion
of any such
-
permit, and may
cause to
be
made
such
other investigations
as
it shall
deem
advisable.
PA.
76—2429,
~
eff.
JUly
1,
1970.
Amended
by
P.A.
78—862
§
1
eff
Sept
14
1973
Formerly
Ill Rev Stat
1991
ch
111
‘/~
¶11030
5/31.
Complaints
-
§
31
(a)(1) If such
investigation
discloses that a viola
tion may
exist
the Agency shall
issue
and serve upon
the
person complained against a written
notice
together with
a
formal complaint
which
shall
specify the
provision
of
this
law or
the
rule or
regulation
or
permit
or term
or
condition
thereof
under
which such person
is
said
to
be in
violation
and astatement of the manner in
and theextent
to whichsuch person is said to violate this law or such rule
or
regulation
or permit
or term
or
condition
thereof
and
shall
require the person
so
complained against to ‘answe~
the charges
of such
formal complaint’at
a hearing before
the‘BOard at a time not less than 21
days-after the date of
notice by
the Board;
except
as
provided in Section
34
of
this- Act.1
Such
complaint
shall’ be
accompanied
by
a
nOtifiCation
to the defendant that
financing may
be avail-
able,
through the Illinois
Enviromnental Facilities
Financ-
ing ‘Act,2 to
correct such -violatiOn.
A copy
of
such notice
of such
hearings shall
also be sent to any person that
has
complained to the Agency respecting’ .the
respondent with-
in the six.~monthspreceding the date
Of the complaint,
and
to any-person~
iC’the countydn
which. the offending activity
Occurred that
has -requested
notice of
enforcement pro-
ceOdin’gs;
21
days
notice
of
such
hearings
shall
also
be
published
in
a
newspaper ‘of
general
circulation
in
such
county.’. The respondent may file a written aUswer, andat
such hearing the rules prescribed -in Sections
32
and
33 of
this: Act3 shall apply.
In, the case of actual or
threatened
acts outside
Illinois eontributing to
environmental damage
in Illinois, the extraterritorial service-of-process
provisions
of
Sections
2—208
and
2—209
of the
Code
of
Civil
Proce-
dure’4
shall, apply.
With
respect
to notices
served pursuant to
this
subsec-
tion
(a)(1)
which
involve
hazardous material or
wastes
in
any manner
the Agency shall annually publish
a list
of all
such
notices
served
The
list
shall
include
the
date
the
investigation
commenced
the
date
notice
was sent
the
date the matter was
referred
to
the Attorney General
if
applicable
and the current status
of the matter
(2)
Notwithstanding the provisions of subdivision
(1)
of
this subsection
(a),
whenever acomplaint’has‘béeh filed on
behalf of the
Agency
or
by
the
People of
‘the
State
of
Illinois, the parties
may
file with
the
hoard a stipulation
and proposal for settlement accompanied by a request for
relief
from
the
requirement
of
a
hearing
pursuant
to
subdivision
(1)
Unless the
Board,
in
its
discretion, con-
cludes that a hearing
will
be
held, the Board shall cause
ENVIRONMENTAL
SAFETY
iter
quality
id
econoi~
~rand those
ubljc
ie
intent
to
d
submit
to
POssession
A~gencyaf-
iall
reque5~
ary
for
its
tptly
notify
5cretio531.~
sUit
of
an
s
for
such
be limited
iS
insuffj
~nadjusted
or
that
a
sidered
by
neering
or
I the Ages.
I
standard
~edby
the
on.
If the
ite
control
Ln
Agency
1
adjusted
jointly file
be includ.
discharge
luation
of
cessibility
I,
commer-
iency
and
ottom
de-
r,
stream
analyses.
stification
analyses,
andthor-
e but
are
ed
in
35
~d in
this
ral
proce-
lopted
by
tion
shall
instances
tion
shall
ionerS
or
pe of the
the
basis
against
etitiofler
control
vith
said
r
attain-
a adjust-
spted
by
£
(
!
415
ILCS
5/31
ENVIRONMENTAL
SAFETY
notice of the stipulation,
proposal and request for relief to
be
published
and sent
in. the same manner as
is
required
for hearing pursuant
to
subdivision
(1)
of this
subsection.
The notice shall
include a statement that any person may
file ,a
written
demand
for
hearing
within
21
days
after
receiving the notice.
:
If any. person files
a timely
written
demand for
hearing,
the Board shall
deny the request for
relief from
a hearing
and
shall
hold
a.. hearing
in
accor-
dance with
the provisions
of subdivision
(1).
(b)
Any person
may file
with
the
Board
a
complaint,
meetingthe requirements of subsection (a) of this
Section,
against any person allegedly violating this
Act or any rule
or
regulation thereunder
or
any permit
or
term
or condi-
tion
thereof.-
The complainant
shall
immediately
serve a
copy
of such” complaint upon
the person or:persons
named
therein.
Tjnless the Boarddetermines that such complaint
is
duplicitous
or
frivolous
it
shall
schedule a hearing and
serve
written, notice
thereof upon
the
person or
persons
named therein,
in
accord
with
subsection (a)
of
this
Sec-
tion.
(c) In ‘hearings
before
the
Board
under
this
Title
the
burden
shall
be
on
the
Agency or
other
complainant
to
show either that the respondent has caused or threatened
to cause air
or water pollution
or that
the respondent has
violated or threatens
to violate any provision of this Actor
any rule or
regulation of the Board or permit or
term
or
condition
thereof.
If
sUch
proof
has
been
made,
the
burden shall be on the respondent to show that compliance
with the Board s regulations would impose
an arbitrary or
unreasonable
hardship
(d) -Notwithstanding
the provisions of
subsection
(a), of
this
Section,
prior
to
issuance
and
service
of
a
written
notice
and formal complaint
under
subsection
(a)
of
this
Section, the Agency shall
issue and serve upon
the person
complained against a written notice informing such person
that, the Agency intends’to
file a formal complaint..
Such
written
notice
shall
notify
the person
of the
charges al-
leged. and
offer the
person an
opportunity
to
meet. with
appropriate agency
personnel
in
an effort
to’resolve such
conflicts which could
lead to
the filing
of a formal com
plaint.
Such
meeting
shall’ .be
held
within- 30 .days
of
receipt of notice by
the‘person,complained
agains’t
-
unless
the’ Agency.
agrees
to
a
postponement,
-or
the
person
-
complained against
fails
to
respond
to
the notice
or- such
person
notifies
the
Agency
that
he
will
not
appear’ ,at’ a
meeting.
Nothing
in
-
this
-
subsection
is
intended to. pro-
elude
the Agency from
following
theprovisions
of subsec-
tion
(a) of
this
Section after
the provisions
of
this subsec-
tion
are fulfilled.
(e) The
provisions
of
this
Section
shall
not
‘apply
to
administrative
citation
actions
commenced
under
Section
3L1 of
this
Act.5
PA
76—2429
§
31
eff
July
1
1970
Amended
by
PA
78—862
§
1
eff
Sept
14
1973
P
A
81—1444
§
2
eff
Sept
4
1980
P
A
82—269
§
1
eff
Jan
1
1982
P A
82—
783
Art
XI
§
214
elf
July
13
1982
P
A
83—1444
§
1
eff
Sept
16
1984
PA
84—1320
§
30
eff
Sept
4
1986
P.A. 87—i34,~1, elf.
Aug.
13,
1991.
Formerly
Ill RevStat 1991
ch
111
‘/2
¶11031
--i
415
ILCS 5/34.
‘
‘
-
220
ILCS 3515/1
èt
seql
3
415
ILCS 5/32 and
5/33
4735
ILCS
5/2—208
5415
ILCS 5/31.1.
5/31.1.
Administrative citations
§
31.1.
(a) The
prohibitions specified
in
subse(
and
(q)
of
Section
21
of
this
Act’
shall
be
enf
either
by
administrative
citation
under
this
Secti
otherwise provided by
this
Act.
(b)
Whenever Agency
personnel or
personnel
of local government
to which the Agency has
dde1
functions
pursuant to
subsection (r)
of
Section
4
Act,2
on the basis of direct observation, cleteri-nine
person has violated any provision of subsectioiT(p)
Section
21
of
this
Act,
the
Agency or such
unit
government may
issue and servean
administrative
upon
such
person within
not
more
than
60
days
a
date of
the observed
violation.
Each such
citatio:
shall
be
served
upon
the person
named
therein
person’s
authorized agent for
service of
process,
a
include the following information:
(1) a
statement
specifying the provisions of
su
(p)
or (q)
of Section
21
of which the person was o
to
be
in
violation;
(2)
a copy of the inspection report
in which the
or
local
government recorded
the
violation,
whici
shall
include the
date and time
of
inspection,
and
—
conditions
prevailing
during
the inspection;
(3) the penalty
imposed
by
subdivision
(b)(4) of
42 ~ for
such
violation;
(4)
instructions for contesting theadministrative
findings
pursuant
to
this
Section,
including
noti
that the person has 35 days
within which
to
file a
for
review
before the Board to
contest the admini
citation;
and
(5)
an affidavit
by the personnel observing the vi
attesting
to
their
material
actions and
observation
(c) The Agency or
unit
of
local
government sha
copy
of
each
administrative citation
served
under
tion
(b)
of
this
Section
with
the
Board
no
later
I
days after
the
date of service.
(d)
(1)
If the person named in the administrative
fails
to
petition the Board for review within
35 da~
the date
of service~the
Board shall
adopt a
final
which shall
include the administrative citation
and f
of violation
as alleged
in
the citation,
and shall
imp
penalty
specified in
subdivision
(b)
(4) of Section
4
(2)
If a petition
for
review
is
filed
before
the
B
contest an
administrative
citation
issued under
sub
(b) of this
Section,
the Agency or
unit of local
gove:
shall
appear
as
a
complainant
at a
hearing
bef
Board to
be conducted pursuant to Section
32 of thi
at a time not
less than 21 days after notice of such I
has been sent by
the Board
to
the Agency or
unit
government an’d the person named in the citation.
I
hearings, the
burden
of
proof
shall
be
on
the
Age
unit
of
local
government.
If,
based
on
the
reco~
Board
finds
that
the
alleged
violation
occurred,
i
adopt a final order which shall
include
the adminis
citation
and findings
of
violation as
alleged in
the c
and shall
impose the penalty specified
in subdivision
of Section 42.
However,
if the Board finds that the
appealing the citation
has shown that
the violation
-
ed
from
uncontrollable
circumstances,
the
Boarc
adopt afinal order which makes no finding of violati
which imposes
no
penalty.
(e)
Sections
10 through
15
of The Illinois Adminis’
Procedure
Act
5
shall
not
apply
to
any
adminis’
citation
issued
under
subsection
(b)
of
this
Section.
