ILLINOIS POLLUTION CONTROL BOARD
February 25,
1993
JAY AGUILAR,
Complainant,
PCB 93—2
v.
)
(Enforcement)
VENUS LABORATORIES,
INC.
Respondent.
ORDER
OF
THE
BOARD
(by B.
Forcade):
On January
4,
1993, Jay Aguilar filed a complaint against
Venus Laboratories (Venus) alleging that Venus violated Section
12(a),
12(d),
21(a) and 21(p) (6)
of the Environmental Protection
Act
(Act).
(415 ILCS 5/1 ~
~
(1992).)’
On January 19,
1993,
Venus filed a Motion to Dismiss or Stay.
Mr. Aguilar did not
file a response to the motion to dismiss
Venus asserts the complaint is frivolous in that it is
factually insufficient and fails to meet the pleading
requirements of 35 Ill. Adm. Code 103
•
122 (c).
Venus claims that
the complaint lacks sufficient specificity for Venus to prepare a
defense.
Venus alleges that the complaint seeks relief which the
Board cannot grant.
Venus also asserts that the complaint is
duplicative.
Venus claims that the relief sought in the
complaint is already in the process of being provided through
negotiations and agreements with the Illinois Attorney General,
Illinois Environmental Protection Agency and the Illinois State
Fire Marshal.
The Board finds that the complaint is not frivolous.
A
complaint is frivolous if it fails to state a cause of action
upon which relief can be granted.
(See, In re Duplicitous or
Frivolous Determination (June
8,
1989), RES 89—2,
100 PCB 53;
section 31(b)
of the Act.)
The complaint alleges violations of
specific sections of the Act.
The Board finds that the complaint
satisfies the pleading requirements.
The complaint sufficiently
states a cause of action.
Additional information concerning the
nature of the alleged violations may be obtained through
discovery.
However, the Board finds a part of the relief requested in
the complaint is inapplicable.
The complaint seeks the following
relief:
1)
a cease and desist order;
2) order Venus to pay for
all testing; 3~impose a fine against Venus under Section 44(b)
of the Act
4) an order requiring Venus to pay all costs of clean
1
The Act was formerly codified at Ill.RevStat.
1991, ch. 111
1/2, par.
1001 ~
0139-0607
2
up; and 5) any other penalty.
(emphasis added)
The Board finds
that Section 44(b)
is not applicable to citizen enforcement
actions.
Section 44(b)
states the fine for the offense of
Calculated Criminal Disposal of Hazardous Waste.
Actions under
Section 44 are to be brought solely by the State’s Attorney or
the Attorney General.
(Section 44
(in).)
While penalties under
Section 44(b) are not applicable to this enforcement action,
civil penalties, as provided by Section 42 of the Act, may be
appropriate if a violation is found.
However, the other forms of
relief requested in the complaint can be granted by the Board and
therefore the complaint is not frivolous.
An action before the Board is duplicitous if the matter is
identical or substantially similar to one brought in another
forum.
(See, In re Duplicitous or Frivolous Determination (June
8,
1989), RES 89—2,
100 PCB 53; section 31(b) of the Act.)
The
Board finds that the complaint is not duplicative.
Venus notes
that it is involved in negotiations relating to the cleanup of
the site with other government entities as a result of a notice
pursuant to 31(d)
issued in June of 1991.
The Board has
previously held that such a notice does not constitute a prior
pending enforcement action to render a complaint duplicative.
(Village of Kildeer v. Village of Lake Zurich (January 5,
1989),
PCB 88-173.)
The Board finds that respondent has presented no
special circumstances to cause the Board to deviate from its
prior holding.
Venus requests that the Board stay the proceedings pending
the resolution of current proceedings between Venus and other
State agencies.
Having found that these proceedings are not
duplicative, the Board denies the motion to stay.
The motion to dismiss also provides arguments which go to
the merits of the matter; such are not proper for a motion to
dismiss based on a duplicitous or frivolous determination or that
the complaint fails to set forth a cause of action.
The Board
denies the motion to dismiss and finds that the complaint sets
forth a basis for a cause of action before the Board.
Today the
Board makes no determination on the merits of the case (whether
violation as alleged has occurred); the Board finds only that the
case is properly before it.
The Board is concerned with the failure of Mr. Aguilar to
file a response to the motion to dismiss.
By filinga formal
complaint, the complainant assumes the responsibility to actively
proceed with the case.
That responsibility includes the
obligation to respond to the written motions filed by Venus
Laboratories and to otherwise follow the Board’s procedural rules
regarding practice before the Board.
0139-0608
3
In this type of proceeding, the burden is upon Mr. Aguilar
to establish at a formal hearing, by oral testimony under oath or
by properly submitted written documents, that a violation did
occur, under the terms of the Environmental Protection Act, and
applicable regulations.
In order to prevail at hearing, Mr. Aguilar must present
facts and arguments as to why a violation should be found.
The
Board hearing is not an informal informational hearing at which
the Board or the respondent must explain its actions.
The
hearing is more in the nature of a court proceeding with
testimony under oath and questions of the witnesses.
This Board
cannot provide legal advice or legal assistance to Mr. Aguilar.
The complainant bears the burden of providing information to
support its position.
The initial burden at hearing to explain
why the violation should be found is not upon the Board or
respondent.
Failure of Mr. Aguilar to actively proceed with the case or
to follow procedural rules may result in dismissal of this
matter.
If complainant does not wish to proceed with this matter he
may file a motion to dismiss
(reference Sections 101.241 and
101.242 of the Board’s rules and regulations for filing
procedures.)
If a motion to dismiss is not received by the Board
prior to March 31,
1993 this matter will be set for hearing.
In addition, the Board maintains a “List of Pro Bono
Attorneys.”
These are individuals or organizations that have
agreed,
in certain circumstances, to represent individuals before
the Board without charge to the individual.
The Board has not
reviewed the qualifications of these individuals.
By providing
and maintaining this list, the Board makes no recommendations
concerning their qualifications or ability to successfully
prosecute your case.
Presence of a name on this list does not
require an attorney to accept your individual case.
If Mr.
Aguilar desires to contact these individuals, be must do so in
his own, manner, and the individual will analyze the merits of the
particular case.
0139-0609
4
The motion to dismiss or stay is denied.
Accordingly, this
matter is accepted for hearing.
The hearing officer is
instructed to delay setting this matter for hearing until after
March 31,
1993.
IT IS SO ORDERED.
I, Dorothy N.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above order was a’lopted on the
__________
day of
~
,
199.3, by a vote of
a-c.
Dorothy M./~unn,Clerk
Illinois ~~llution Control Board
0139-0610