Lisa Madigan
ATTORNEY GENERAL
The Honorable Dorothy Gunn
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph
Chicago, Illinois 60601
Re :
People v. Barger Engineering, Inc .
PCB 06-82
Dear Clerk Gunn
:
Enclosed for filing please find the original and ten copies of a Notice of Filing and
Complainant's Response to Respondent's Motion to Dismiss Complaint in regard to the above-
captioned matter. Please file the originals and return file-stamped copies to me in the enclosed,
self-addressed envelope
.
Thank you for your cooperation and consideration .
KLG/pp
Enclosure
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
February 1, 2006
Very truly yours,
Kristen Laughridge Gale
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
.
500 South Second Street, Springfield, Illinois 62706
•.
(217) 782-1090
• TTY: (217) 785-2771
• Fax: (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601
•
(312) 814-3000
• TTY: (312) 814-3374
• Fax: (312) 814-3806
1001 East Main, Carbondale, Illinois 62901
• (618) 529-6400
• TTY: (618) 529-6403
• Fax: (618) 529-6416
RECEIVED
CLERK'S OFFICE
FEB 0 3 2006
STATE OF ILLINOIS
Pollution Control Board
RECEIVED
CLERK'S OFFICE
FEB 0 3 2006
PEOPLE
OF
THE STATE
OF
)
STATE OF ILLINOIS
ILLINOIS,
)
Pollution Control Board
Complainant,
)
vs .
)
PCB No. 06-82
(Enforcement)
BARGER ENGINEERING, INC ., an
)
Indiana corporation,
)
Respondent .
)
NOTICE OF FILING
To
:
Charlie Northrup
Sorling, Northrup, Hanna, Cullen & Cochran, Ltd
.
Suite 800, Illinois Building
607 East Adams
P.O. Box 5131
Springfield, IL 62705
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution
Control Board of the State of Illinois, COMPLAINANT'S RESPONSE TO RESPONDENT'S
MOTION TO DISMISS COMPLAINT, a copy of which is attached hereto and herewith served upon
you .
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: February 1, 2006
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigatio Division,
BY,,
-Gv1
KRISTEN LAUGHRIDGE GALE
Assistant Attorney General
Environmental Bureau
CERTIFICATE OF SERVICE
I hereby certify that I did on February 1, 2006, send by First Class Mail, with postage
thereon fully prepaid, by depositing in a United States Post Office Box a true and correct copy
of the following instruments entitled NOTICE OF FILING and COMPLAINANT'S RESPONSE
TO RESPONDENT'S MOTION TO DISMISS COMPLAINT
To :
Charlie Northrup
Sorling, Northrup, Hanna, Cullen & Cochran, Ltd
.
Suite 800, Illinois Building
607 East Adams
P.O. Box 5131
Springfield, IL 62705
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the
same foregoing instrument(s)
:
To :
Dorothy Gurln, Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
A copy was also sent by First Class Mail with postage thereon fully prepaid to
:
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Springfield, IL 62794
K isten Laughridge Gale
Assistant Attorney General
This filing is submitted on recycled paper
.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v .
)
PCB No. 06-82
(Enforcement)
BARGER ENGINEERING, INC ., an
)
Indiana corporation,
)
Respondents .
)
COMPLAINANT'S RESPONSE TO RESPONDENT'S
MOTION TO DISMISS COMPLAINT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by Lisa Madigan Attorney
General of the State of Illinois, responds to Respondent's Motion to Dismiss Complaint filed
by
the Respondent, BARGER ENGINEERING, INC ., but not served upon the Complainant, as
follows
:
GENERAL COMMENTS
1
.
Dismissal is sought by the Respondent on the basis that the Illinois
Environmental Protection Agency ("Illinois EPA") did not comply with the Section 31
administrative notice requirements within the Illinois Environmental Protection Act
("Act"), 415
ILCS 5/31 (2004). The Complainant objects to the Motion to Dismiss and requests that it be
denied
.
2
.
The Complaint was brought against the Respondent in the name of the People
of the State of Illinois, by Lisa Madigan, Attorney General of the State of Illinois, on her own
motion pursuant to Section 31(d) of the Act, and at the request of the Illinois Environmental
Protection Agency ("Illinois EPA"). The Attorney General has standing pursuant to the Act, 415
ILCS 5/1
et seq.
(2004), other statutes and the common law, and the Illinois Constitution, to
undertake enforcement action against environmental violators
.
1
RECEIVED
CLERK'S OFFICE
FEB 0 3 2006
STATE OF ILLINOIS
Pollution Control Board
4
.
The Board must determine the Motion to Dismiss according to the principles
applied by the circuit courts pursuant to Sections 2-615 and 2-619 of the Illinois Code of Civil
Procedure, 735 ILCS 5/2-615, 2-619 (2004) . It is instructive to note that in County ofDuPage v.
Waste Management of Illinois, PCB 94-92 (December 1, 1994), in denying the motion to
dismiss, the Board relied upon both "these [principles] and normal practice standards before the
Board." Order at p. 5
.
5 .
In a motion to dismiss, all well-pleaded facts must be deemed true . People ofthe
State of Illinois v. Peabody Coal Company, PCB 99-134 (June 20, 2002) .
THE OFFICE OF THE ATTORNEY GENERAL MAINTAINS INDEPENDENT
AUTHORITY TO ENFORCE VIOLATIONS OF THE ACT
6 .
The Attorney General has the constitutional, statutory and common law duty and
authority to enforce laws of the State of Illinois . See ILL. CONST., Art. 5, § 15. The Attorney
General is charged with the investigation of violations of statutes which she has the duty to
enforce. 15 ILCS 205/4 (2004). The Attorney General is charged with the enforcement of the
Act. 415 ILCS 5/42(e) (2004). The Illinois Supreme Court has been absolutely clear that the
Attorney General is the sole representative of the State in proceedings where the State is the
real party in interest, including those under the Act
. Lyons v. Ryan, 201 III. 2d 529, 535, 780
N.E.2d 1098, 1103 (2002) ;
People ex rel . Scott v. Briceland, 65 III. 2d 485, 501, 359 N .E.2d
149, 158 ; Fergus v. Russell, 270 III. 304, 342, 110 N .E. 130, 145 (1915)
.
7
.
Legislature enactments cannot be applied to usurp or diminish the authority of
the Attorney General
. Lyons, 201 Ill
. 2d at 541, 780 N .E. at 1106
; Briceland, 65 III. 2d at 502,
359 N .E. 2d at 157-158
.
Neither the judiciary nor the legislature may deprive the Attorney
General of her constitutional common law powers
. Environmental Protection Agency v. Pollution
2
Control Board, 69 111.2d 394, 399, 372 N .E.2d 50, 52 (1977). Those duties include ensuring a
healthful environment .
People v. NL
Industries, 152 111.2d 82, 102, 604 N.E.2d 349, 358 (1992)
;
ILL. CONST., Art . 11, § 1. Section 31 was not amended to restrict the authority of the Attorney
General but rather to impose administrative obligations upon the Agency
.
8 .
The Office of the Attorney General has the independent authority to prosecute
violations of the Act according to Section 31(d) of the Act, 415 ILCS 5/31(d) (1996)
:
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 of condition thereof
.
.
.
9 .
Section 3.26 of the Act, 415 ILCS 5/3.26 (1996), defines "person" as follows
:
"PERSON" is any individual, partnership, co-partnership, firm, company, limited
liability company, corporation, association, joint stock company, trust, estate,
political subdivision, state agency, or any other legal entity, or their legal
representative, agent or assigns
.
10 .
The Board has held that the Attorney General's Office is not subject to the
requirements of Sections 31 (a) and (b) of the Act and has acknowledged the Attorney
General's broad, independent authority to bring actions pursuant to Section 31(d)
. People v .
Geon Company (October 2, 1997), PCB 97-62, People v. Victor Heuerman, PCB 97-92
(September 18, 1997) .
11
.
The Attorney General is a person as defined by the Act, therefore she clearly
has the authority to file a complaint with the Board pursuant to Section 31(d) of the Act
.
NO LEGISLATIVE MANDATE REQUIRES DISMISSAL FOR THE ILLINOIS EPA'S
PURPORTED FAILURE TO COMPLY WITH SECTIONS 31 (a) AND (b) OF THE ACT
12 .
Section 31 of the Act does not mandate dismissal (or any other sanction)
because Illinois EPA did not provide Section 31 notice . Nothing in Section 31 implicitly limits
3
the Attorney General's broad authority to bring enforcement actions or explicitly states that the
Office of the Attorney General must independently develop any violations alleged in a
complaint
.
13
.
In People v. Heuerman, the Board clearly outlined the legislative intent of the
1996 amendments to Section 31 . Most importantly the Board included Representative
Persico's statement : "
. ..there
is
nothing in this Bill that would preclude the Attorney General
from acting on his own
.
. ." Coincidentally, Representative Novak continued with an example
:
So this is supposed to help resolve potential violations of Illinois law, Illinois
Environmental Law. But if there was a charge against a corporation for violating
a law of the Illinois Environmental Protection Agency, let's say excess dumpinq
or dumpinq toxic pollutants into a river or a stream, this Bill would not in any
means weaken the current laws we have as far as punishing violators that
perpetrate such a crime. Is that correct? (emphasis added)
14 .
Representative Persico responds, "You are absolutely correct there,
Representative." People v. Heuerman, PCB 97-92 (September 18, 1997) citing, 89th Ben .
Assem. House Proceedings, March 25, 1996, at 103
.
15 .
In this case, crude oil and salt water were released in a stream and flowed over a
mile downstream killing approximately 150 small fish. Clearly; the violations in this case is the
sort of situation that the General Assembly intended would not be limited by Section 31
.
16
.
Furthermore, the Board has no real powers in equity and therefore cannot create
powers for itself not outlined in the Act . The Board and the circuit court "do not have the same
powers and are not coordinate tribunals ." Janson v. Illinois Pollution Control Board,
69 III. App .
3d 324, 25 III. Dec. 748, 751 (3rd Dist. 1979). "The Board has no authority to issue or enforce
injunctive relief
.
.
. or to punish for civil contempt ." Id . at 752. The Board also has no power to
issue a declaratory judgment. See Landfill, Inc. v. Pollution Control Board,
74 III. 2d 541, 551
(1978) (absent statutory authorization, the Board did not have the power to entertain an action
in which a third party challenges the Agency's granting of a permit). "The Board lacks the
4
authority to delineate the Agency's jurisdiction ." White Fence Farm, Inc . v. Land & Lakes Co .,
99 III. App. 3d 234, 240 (4th Dist. 1981). "The grant of authority to conduct hearings upon
complaints charging violations of the Act is merely a delegation of quasi-judicial powers to the
Pollution Control Board incidental to its duty of administering the law . [citations omitted] The
Board is limited in its jurisdiction, procedural due process is provided for, and the Board's
decisions are subject to judicial review." Meadowlark Farms v. Pollution Control Board,
17 lll .
App. 3d 851, 856 (5th Dist. 1979). Even these delegated powers are limited . For instance, a
circuit court could hold a municipal ordinance to be invalid or to order a municipality to repeal
such ordinance; the Board cannot. See Lake Forest v . Pollution Control Board,
146 III. App . 3d
848, 854 (2d Dist. 1986). It is well settled that the Board is an administrative agency created by
the legislature and statutorily empowered by the legislature . "An administrative agency, such
as the Pollution Control Board, has no greater powers than those conferred upon it by the
legislative enactment creating it ." Lombard v. Pollution Control Board,
66 III. 2d 503, 506
(1977). Neither the legislature nor the Board may limit the power of the Attorney General to
take action .
People v. NL Industries, 152 III. 2d 82, 178 III . Dec. 93, 102 (1992)
.
17 .
Since the statute does not mandate dismissal for the Illinois EPA's purported
notification deficiencies, the Board cannot create for itself this power
.
CHIQUITAIMPROPERLY LIMITS THE ATTORNEY GENERAL'S AUTHORITY
18 .
Respondent cites Mly People of the State of Illinois v .
Chiquita
Processed
Foods, LLC,
PCB 02-56 (November 21, 2002) as its basis for the dismissal
.
Chiquita
improperly limits the Attorney General's authority
.
5
19 .
Complainant does not dispute that the Illinois EPA did not provide Section 31
notification for the violations set forth in the complaint. However, the Attorney General is the
paramount authority when it comes to the representation of the State
.
20 .
The Board
in
Chiquita
stated in its discussion that the Board had repeatedly
found that Section 31 was not intended to bar the Attorney General from prosecuting an
environmental violation, but then resolved to do exactly that. By dismissing counts brought by
the Attorney General because of failure to follow Section 31 by Illinois EPA, the Board
effectively diminished the authority of the Attorney General in contravention of the principals laid
out by the Illinois Supreme Court in
Briceland, Lyons, NL Industries
and other cases cited
above. The Board, in denying the motion to dismiss, ought to unequivocally nullify its prior
erroneous ruling in
Chiquita .
21
.
Section 31 can only be reconciled with the discussed precedent of the Illinois
Supreme Court if it is not enforceable against the Attorney General . If a failure to properly
follow Section 31 by the Illinois EPA results in the dismissal of a case brought by the Attorney
General, that result would impinge upon the Attorney General's primary right to decide what
cases to bring on behalf of the State. Respondent maintains that this case should be dismissed
because the Illinois EPA did not follow Section 31 . However, this case was brought, and could
only have been brought, by the Attorney General, not by the Illinois EPA . To construct Section
31 in the way found in
Chiquita
improperly subordinates the Attorney General's authority,
i .e.,
the decision as to whether or not, and how, to proceed with a case on behalf of the State, to the
Illinois EPA over which the Attorney General has no authority or control
.
22
.
Furthermore, since the Board does not have any power in equity as stated
above, the Board in
Chiquita
improperly created for itself the power to dismiss Counts
23
.
The Attorney General's independent authority and prosecutorial discretion to
allege violations of the Act, as well as the absence of a legislative mandate, dictates the denial
of Respondent's Motion to Dismiss .
WHEREFORE, the People of the State of Illinois respectfully request that the Board
deny the Motion to Dismiss
.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State of Illinois
Of counsel :
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: February 1, 2006
7
MATTHEW J. DUNN, Chief
Environmental Enforce ent Di ision
BY :
"--
KRISTEN LAUGHRIDGE GALE
Environmental Bureau
Assistant Attorney General
