ILLINOIS POLLUTION CONTROL BOARD
February
1,
1996
LASALLENATIONAL TRUST, N.A.
as
)
Trustee under Trust Agreement datedJanuary
)
10,
1966 and known as Trust No.
34565,
)
PCB 96-117
)
(Enforcement
-
Land)
Complainant,
)
)
v.
)
)
STANDARD BANK AND TRUST CO., as
)
Trusteeunder Trust Agreement dated July
17,
)
1995 and knownas Trust No.
14929 and
)
CAPITOL
BANK
AN)
TRUST
as
Trustee
)
under Trust Agreement datedMarch
12,
1993
)
and known as Trust No.
2421,
)
)
Respondents.
)
ORDER OF THE BOARD (by G.T. Girard):
This matter is before the Board on a December 28,
1995, motion to dismiss filed by
respondent, Capitol Bank and Trust (Capitol).
On January
8,
1996, complainant filed a response
to Capitol’s motion. On January
16,
1996, Capitol filed a motion for leave to file a reply and a
reply.
The Board hereby grants the motion to file a reply.
Capitol asserts that the complaint
beforethe Board is frivolous “because
it
seeks reliefagainst Capitol
which
is beyond
tiLe
Board’s
authority to grant”.
(Mot. at
1.)’
The complaint sets forth allegations ofviolation ofSections 2 1(e) and (d)(1) ofthe
Environmental Protection Act (415 ILCS
512
1(e) and (d)(l)).
The complaint,
in the request for
relief, asks that theBoard adopt an order directing respondents to ceaseand desist further
violation ofthe Act and Board regulations.
The complaint additionally includes a request that the
Board mandate and direct abatement ofcontinuing violations.
Also included in the complaint is a
requestfor attorneys fees and a request that theBoard grant “such reliefas the Illinois Pollution
Control Board may deem appropriate”.
Capitol maintains that “it is not physically possible for it Capitoll
to cease and desist from
alleged violations ofthe Act or to cause abatement ofcontinuing violations, because Capitol does
not own,
control or possess the property.
(Reply at 2.)
Capitol argues that because the property
adjacent to complainant’s property has been transferred to respondent Standard Bank and Trust
‘
Capitol’s motion will be cited as “Mot.
at
_“;
Capitol’s reply will be cited as “Reply at
..j;
the
response will be cited as “Res. at
“.
2
Co., “the Board has no authority to require Capitol to either cease and desist from
further
violations ofthe Act orto cause the abatement ofcontinuing violations ofthe Act”.
(Mot. at 2.)
Capitol further argues that the “Board’s authority to grant the reliefrequested by LaSalle in its
complaint has been foreclosed by recent amendments to the Act”.
(Reply at 4.)
Capitol argues
that the “Brownsfield Legislation” (P.A.89-43 1) prohibits the Board from requiring Capitol, as
the mortgagee which obtained ownership through foreclosure, to perform remedial action.
(Idj.
Complainant first argues that the motion to dismiss was not timely filed and asks the
Board to strike the motion.
(Res. at
1.)
The Board denies the request to strikethe motion to
dismiss.
Complainant next argues that the Board does have the authority to enter an order
directing therespondent to cease and desist from further violation.
In support ofits position,
complainant cites to Streit v. Oberweiss Dairy. et.al., PCB 95-122 (September 7,
1995).
In that
case theBoard stated:
Ifthe complainants meet their burden ofproof.
.
.
we the
Board
are clearly
authorized under the Act to make a determination regarding liability for violating
ofthe Act and ‘necessarily the power to order compliance with the Act’.
(Discovery South Group. Lts. Music Center Associates Ltd. and Tinley Park Jam
Corp.
v. PCB and the Village ofMatteson, No.
1-93-1438
(1st Dist. August 28,
1995),
slip op. at 20 citing, Kaeding v. IPCB, (1974), 22 Ill. App.
3d
36, 316
N.E.2d 788.)
Consequently, we are authorized to award reliefunder the Act
which may include a compliance plan governing any necessary investigation or
corrective action, and compliance with Illinois’ UST program.
(Streit at 6.)
The Board finds that the complaint is not frivolous.
The Board is authorized to make a
determination ofliability under the Act.
Further, even if an order to cease and desist or abate is
not appropriate the Board may direct other reliefsuch as civil penalties.
(See Section 42 ofthe
Act.)
Therefore, the requests for reliefare not frivolous.
As to the argument put forward by
Capitol regarding theprovisions ofPublic Act 89-431 “Brownsfield Legislation”, this legislation
is not effective until July
1,
1996.
Further, the record lacks sufficient information for theBoard to
make a finding on that argument at this time.
Capitol is free to develop this argument at hearing
and in its briefs.
Section
103.124(a) ofthe Board’s procedural rules, which implements
Section 31(b) ofthe
Environmental Protection Act (415 ILCS 5/31(b)), provides:
....Ifa complaint is filed by a person otherthan the Agency, theClerk shall also
send a copy to the Agency; the Chairman shall place the matteron the Board
agenda forBoard determination whether the complaint is duplicitous or frivolous.
Ifthe Board rules that the complaint is duplicitous or frivolous, it shall enter an
order setting forth its reasons for so ruling and shall notify the parties ofits
decision.
Ifthe Board rules that the complaint is not duplicitous or frivolous, this
does not preclude the filing ofmotions regarding the insufficiency ofthe pleadings.
35
III.
Adm. Code 103.124.
3
As theBoard has determined that this compliant is not frivolous theBoard must now
determine ifthe complaint is duplicitous.
It is well settled that an action before the Board is
duplicitous ifthe matteris identical or substantially similar to one brought in another forum,
(Brandlev. Ropp, PCB 85-68, 64 PCB 263
(1985);
DoAll
Co.
v.
Skokie Valley Asphalt
Company. Inc., PCB 94-256 (July 7,
1995).)
The Board finds that the record, at this time,
contains no evidence to indicate to the Board that this complaint
is duplicitous.
The hearing must be scheduled and completed in a timely manner, consistent with Board
practices.
The Board
will
assign a hearing officer to conduct hearings consistent with this order
and the Clerk ofthe Board shall promptly issue appropriate directions to the assigned hearing
officer consistent with this order.
The assigned hearing officer shall inform the Clerk oftheBoard ofthetime and location
ofthe hearing at least 40 days in advance ofhearing so that public notice ofhearing may be
published.
After hearing, the hearing officer shall submit an exhibit list, a statement regarding
credibility ofwitnesses and
all actual exhibits to
the Board within five days ofthe hearing.
The
hearing officer and the parties are encouraged to expedite this proceeding as much as possible.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk ofthe Illinois Ppjlition Control Board, hereby certify that the
abovyrder was adopted on the/~”
day of
c~Le~
,
1996,
by a vote of
Dorothy M.
Gi~iij1,Clerk
Illinois Polluti4plControl Board
