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Wipe v. Pollution Control Bd.

OPINION FILED DECEMBER 5, 1977.

WINNETKANS INTERESTED IN PROTECTING THE ENVIRONMENT (WIPE), PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board. MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

The Winnetkans Interested in Protecting the Environment, an unincorporated association (petitioner), seeks review of an order of the Illinois Pollution Control Board (Board), denying reconsideration of a prior order dismissing petitioner's complaint. (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1041; Ill. Rev. Stat. 1975, ch. 110A, par. 335.) The action was brought against the Environmental Protection Agency (respondent) for alleged violations of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1039(a)) and Board Procedural Rules in connection with the issuance of a permit to the Village of Winnetka (Village) for the operation of a boiler used for the generation of electricity.

In this court, petitioner contends that the Board's finding that designated paragraphs of the complaint were duplicitous was without basis in law, unsupported by evidence and arbitrary. Petitioner also urges that the complaint states a valid cause of action and is therefore not frivolous, as the Board found and that a citizen enforcement proceeding under section 31(b) of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1031(b)) was proper in this case. Respondent and the Board contend that the Board's interpretation of the statutory terms "duplicitous" and "frivolous" should be given deference and certain allegations of the complaint were duplicitous while others were frivolous.

On August 27, 1976, petitioner filed a complaint (PCB No. 76-215) with the Board alleging that respondent had issued a permit to the Village on July 15, 1976, allowing the operation of boiler No. 8 at a designated generating plant. Paragraph 4 of the complaint charged that in issuing this permit, respondent exceeded its lawful authority and violated section 39(a) of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1039(a)) (hereinafter "the Act"), and Board Rules 103(b) and 303 for the following reasons:

4.A. Respondent accepted "stack test results submitted by * * * [the Village] on or about July 12, 1976 * * *" when respondent knew or should have known that evaluation of the date supporting the test results according to proper engineering practice would show violation of Board rules;

4.B. Respondent knew or should have known the stack test results were a misrepresentation of actual boiler operation because the tests "assume[d] the complete combustion of all fuel consumed * * *";

4.C. The stack test results were also false because they were based on data taken from "deliberately non-representative operating conditions * * *" involving the suppression of normal daily plant operations;

4.D. The permit allows the burning of any kind of coal, although the tests and permit applications were limited to a specified type of coal "for the purpose of assuring minimum particulate emissions * * *";

4.E. Respondent relied on data from stack tests conducted on May 12, 1976, when, according to a Village promise and an order of a Board hearing officer, a technical representative of petitioner was to have been allowed to observe the test. The Village falsely told petitioner the May 12 tests were cancelled subject to future rescheduling and as a result, the technical representative could not view the tests. The Village and respondent are barred from relying on the test to support the permit application;

4.F. The tests could not be relied on by the Village or respondent because they were not conducted by or under the supervision of an Illinois-licensed engineer; and

"[4.]G. The subject permit was issued by the Agency as the result of improper pressure, undue influence and actual or implied threats of economic and policical [sic] reprisal by Winnetka and its agents and representatives in Springfield, Illinois on or about January 13, 1976 and at various times and places which WIPE cannot now allege with more specificity without the benefit of prehearing discovery."

The complaint requested the permit be declared void and respondent be found in violation of the Act and that the statutory civil penalty be assessed.

On the same date, petitioner filed a motion to consolidate this matter with an earlier pending enforcement action (PCB No. 75-363) brought by petitioner against the Village. The motion referred to the prior proceedings as an enforcement action for the Village's "failure to have an operating permit while operating its No. 8 boiler for more than a year prior to the issuance of the disputed July 15, 1976 permit."

Respondent filed a motion to dismiss. On August 27, 1976, the Board scheduled a hearing pursuant to Board Rule 306 to determine whether the complaint is "duplicitous or frivolous * * *." The Village, although not a party to the proceedings, filed a memorandum "Suggesting Dismissal of the Complaint." The Village stated that the complaint was "duplicitous (in the sense of being duplicative) and frivolous (in the sense of being unnecessary) because it challenges Agency action on issues which might and, no doubt, would be raised by * * * [petitioner] in its pending case against the Village * * *, PCB No. 75-363."

On September 15, 1976, the Board issued a brief order dismissing the complaint and reciting without specificity that the Board found "that several of the allegations of the Complaint are duplicitous of the matter now before the Board in * * * (PCB 75-363). The ...


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