TLLTNOIS

POLLUTION CONTROL BOARD

August

26,

1993

ERICH

J

MANDEL,

Petitioner—

Counter Respondent,

v.

)

PCB 92—33

(Enforcement)

THADDEUS

G.

KULPAKA,

Respondent-

Counter Claimant.

ORDER OF THE BOARD

(by M.

Nardulli):

On February 25,

1992,

Erich

J. Mandel filed

a complaint

against Thaddeus G.

Kulpaka alleging various violations of the

Environmental Protection Act

(Act).

The allegations concerned

several Underground Storage Tanks located on a property owned by

Mandel and previously owned by Kulpaka.

On January 26,

1993,

Kulpaka filed a counterclaim against Mandel.

On February 25,

1993, the Board granted Kulpaka leave to file the counterclaim

but made no ruling as to whether the counterclaim was duplicitous

or frivolous.

While the Board’s rules do not specifically require the

Board to determine whether counterclaims are duplicitous or

frivolous,

it has been past Board practice to make such

a

determination.

(See, Lefton Iron and Metal v.

Moss—American,

(March

9,

1989)

PCB 87—191,

97 PCB 109.)

Therefore, we turn to

consideration of whether Kulpaka’s counterclaim

is duplicitous or

frivolous.

Section 31(b)

of the act states that when

a citizen’s

enforcement complaint

is filed:

Unless the Board determines that such complaint

is

duplicitous or frivolous,

it shall schedule a hearing.

415 ILCS 5/31(b)

(1992)

Also, the Board regulations

in part provide:

If

a complaint

is filed by a person other than the

Agency,

the Clerk shall also send

a copy to the Agency;

the Chairman shall place the matter on the Board agenda

for Board determination whether the complaint

is

duplicitous

or frivolous.

If the Board rules that the

complaint

is duplicitous

or frivolous,

it shall enter

an order setting

forth

its reasons

for so ruling and

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The

Board

finds

that

the

counterclaim

is

not

duplicitous.

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.)

There

is no evidence before the Board to indicate this matter

is

identical or substantially similar to any matter brought in

another forum.

Moreover, Mandel has not asserted that the

counterclaim

is duplicitous or frivolous.

Therefore,

based on

the evidence before it, the Board finds that the counterclaim

is

not duplicitous within the meaning

of Section 31(b)

of the Act.

The Board finds that the counterclaim

is not frivolous.

A

complaint

is frivolous

if

it fails to state a cause of action

upon relief can be granted.

(Id.)

The counterclaim alleges

violations of specific sections of the Act which fall within the

Board’s purview.

In addition, Kulpaka seeks relief which can be

granted by the Board.

Therefore, the Board finds that the

counterclaim is not frivolous within the meaning of Section

31(b)

of the Act.

In finding that the counterclaim

is neither duplicitous or

frivolous,

the Board makes no ruling on the merits of the case.

The Hearing Officer reports that a hearing on this matter

is

scheduled for November

8,

1993.

The Board takes no further

action on this preceeding at this time.

IT IS SO ORDERED.

I,

Dorothy

M. Gunn,

Clerk of the Illinois Pollution Control

Board,

hereby certify:that the above order was adopted on the

.~7-~’

day of _________________________

,

1993,

by

a vote of

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D6rothy

M. $unn,

Clerk

Illinois Pollution Control Board