Winnetkans Interested in Protecting Environment (WIPE) v. Illinois Pollution Control Bd.

• Decision Date: 05 December 1977
• Docket Number: No. 76-1643,76-1643
• Citation: 13 Ill.Dec. 149,55 Ill.App.3d 475,370 N.E.2d 1176
• Parties: , 13 Ill.Dec. 149 WINNETKANS INTERESTED IN PROTECTING the ENVIRONMENT (WIPE), Petitioner, v. ILLINOIS POLLUTION CONTROL BOARD and Illinois Environmental Protection Agency, Respondents.
• Court: United States Appellate Court of Illinois

Page 1176

370 N.E.2d 1176

55 Ill.App.3d 475, 13 Ill.Dec. 149

WINNETKANS INTERESTED IN PROTECTING the ENVIRONMENT (WIPE), Petitioner, v.ILLINOIS POLLUTION CONTROL BOARD and Illinois Environmental Protection Agency, Respondents.

No. 76-1643.

Appellate Court of Illinois, First District, First Division.

Dec. 5, 1977.

Keck, Cushman, Mahin & Cate, Chicago (George E. Bullwinkel, Gene H. Hansen and Jeffrey T. Williams, Chicago), for petitioner.

William J. Scott, Atty. Gen. of Ill., Chicago (Anne K. Markey, Asst. Atty. Gen., Environmental Control Division), for respondents.

GOLDBERG, Presiding Justice.

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. 1111/2, 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. 1111/2, 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 Ill.Rev.Stat.1975, ch. 1111/2, 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 (PCBNo. 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. 1111/2, par. 1039(a)), (hereinafter "the Act"), and BoardRules 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 data 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 (PCBNo. 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 * * *, PCBNo. 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 balance of the allegations are so generalized as to be frivolous."

Petitioner filed a motion for reconsideration challenging the Board's omission of findings of fact or conclusions of law in its order and its failure to specify which portions of the complaint were duplicitous and which were frivolous.

On November 10, 1976, the Board issued an opinion and order denying the motion for reconsideration and setting out the following reasons for the order of September 15, 1976 in accord with Rule 306.The opinion first stated the Board's finding that paragraphs 4.A. through 4.D. and paragraph 4.F., as above summarized, were duplicitous of the pending matter PCBNo. 75-363.The order expressed the Board's belief that the issues of the compliance of the boilers with emission limitations and the propriety of the issuance of permits could be most expeditiously resolved by pleading and proof in the pending proceedings.The Board found the charges in paragraph 4.E. to be frivolous because no facts had been alleged to show that respondent had a duty not to consider the results of the challenged stack test.The order also found the allegations of paragraph 4.G. frivolous as stating only a "bare conclusion" of law, in effect a mere suspicion.

The pertinent statute authorizes any person to file a complaint with the Board alleging violation of the Act or Board rules or regulations.The section further provides: "Unless the Board determines that such complaint is duplicitous or frivolous, it shall schedule a hearing * * * " according to specified notice requirements.(Ill.Rev.Stat.1975, ch. 1111/2, par. 1031(b).)The Board has adopted a parallel rule, Procedural Rule 306, providing for Board determination of whether a complaint is duplicitous or frivolous.

The meaning of the statutory term "duplicitous" is not disputed here.Both parties have cited the construction of the term in League of Women Voters v. North Shore SanitaryDist., 1 P.C.B. Op. 35, 36(1970), where the Board stated that the reason for the prohibition of duplicitous complaints is the apprehension that private citizens' complaints "might flood the Board with too many cases raising the same issue and (might) unduly harass a respondent."Webster's Third New International Dictionary 702, 703 (1971) defines "duplicitous" as "showing duplicity.""Duplicity" is defined in part as "the quality or state of being double or twofold * * * the use of two or more distinct allegations or answers where one is sufficient: pleading double * * *."

An administrative agency has the authority to construe statutory provisions (Sugden v. Department of Pub. Welfare(1960), 20 Ill.2d 119, 121, 169 N.E.2d 248) and to develop guidelines in aid of such interpretation (People ex rel. Petersen v. Turner Co.(1976), 37 Ill.App.3d 450, 462, 346 N.E.2d 102).Such constructions are entitled to deference by reviewing courts unless clearly erroneous, arbitrary or unreasonable.(SeeLegg v. Illinois Fair Employment Practices Comm'n(1975), 28 Ill.App.3d 932, 939, 329 N.E.2d 486.)In view of these principles, we are persuaded that the above definitions aptly state the intent of the legislature to empower the Board to dismiss complaints raising allegations identical or substantially similar to matters previously brought before the Board.

The record before us does not include a duly certified copy of the earlier complaint brought by petitioner against the Village.(PCBNo. 75-363.)In this regard we may not consider the uncertified photocopy of the complaint in the earlier case appended to petitioner's brief.(SeeIn re Annexation of Certain Territory(1973), 16 Ill.App.3d 140, 145, 304 N.E.2d 769andIll.Rev.Stat.1975, ch. 110A, par. 335(h);Ill.Rev.Stat.1975, ch. 110, par. 274.)However, with our permission petitioner has filed a supplemental record which includes a certified copy of the interim order previously entered by the Board in PCBNo. 75-363 which describes the complaint in that case.Neither party has raised this issue regarding the record before us....