ILLINOIS POLLUTION CONTROL BOARD
    October 19,
    1995
    DONNETTA GOTT,
    LYNDELL CHAPLAIN,
    GARY
    WELLS,
    EARNEST L. ELLISON
    )
    and MAXINE ELLISON,
    )
    )
    Complainants,
    PCB 96—68
    v.
    )
    (Enforcement-Air)
    N’ORR
    PORK,
    INC.,
    Respondent.
    ORDER OF THE BOARD
    (by E. Dunham):
    This matter
    is before the Board pursuant to a complaint
    filed September 20,
    1995 by Donnetta Gott, Lyndell Chaplain, Gary
    Wells,
    Earnest
    L. Ellison and Maxine Ellison against the
    respondents, N’Orr Pork,
    Inc.
    The complaint alleges
    that the respondents violated 415 ILCS 5/3.02 and
    9 of the
    Environmental Protection Act
    (Act)
    and
    35 Ill. Adm. Code 501.402
    and 501.405(b)
    of the Board’s air regulations in the operation of
    a hog confinement facility in Kinderhook,
    Illinois.
    As
    of the date of this order, the Board has not received a response
    to the complaint.
    Pursuant to Section 31(b)
    of the Act the Board
    must make a determination as to whether the complaint filed is
    frivolous or duplicitous.
    (415 ILCS 5/31(b)
    (1994).)
    The Board, on numerous occasions,
    has in its opinions
    discussed the meaning of frivolous and duplicitous in the context
    of citizen enforcement actions.
    In Citizens for a Better
    Environment v. ReYnolds Metals Co.,
    (May 17,
    1973)
    PCB 73-173,
    8
    PCB 46, we held that “frivolous”
    is the “failure to state a cause
    of action upon which relief can be granted.”
    In Farmers Opposed
    to Extension of the Illinois Tollway v. Illinois State Toll
    Highway Auth.,
    (September
    16,
    1971)
    PCB 71-159,
    2 PCB 119, we
    held that the “frivolous” provision is designed to avoid
    expensive and
    time—consuming
    hearings on claims that cannot
    prevail even if the facts alleged are true.”
    After examining our
    holdings in Citizens for
    a Better Environment and Farmers, and
    additionally, Webster’s dictionary, the appellate court
    determined in Winnetkans Interested in Protecting the Environment
    (WIPE)
    v.Illinois Pollution Control Board,
    (1st Dist.
    1977),
    13
    Ill.Dec.
    149,
    153,
    370 N.E.2d 1176
    ,
    that a “frivolous” pleading
    is
    “one that is either legally or factually deficient.”
    The instant complaint requests that the Board issue an order
    directing respondents to cease and desist from the alleged
    violations, and to order the respondent to permanently eliminate
    the air pollution by relocating the air pollution source to a
    2
    more suitable location.
    The Board has the authority to grant
    such relief if the alleged facts are proven at hearing.
    Therefore the Board finds that the complaint is not frivolous.
    On the issue of “duplicitous”,
    in the case of Brandle
    v.
    Ropp,
    (June
    13,
    1985),
    PCB 85—68,
    64 PCB 263, we held:
    Duplicitous
    is not defined in the Act but has
    been interpreted to apply to complaints which
    duplicate allegations identical or
    substantially similar to matters previously
    brought before the Board.
    (Citation
    omitted.)
    A complaint is also duplicitous
    if
    it is identical or substantially similar to
    one brought
    in another forum.
    In League of Women Voters v. North Shore Sanitary Dist.,
    (October
    8,
    1970),
    PCB 70—1,1 PCB 35, the Board held “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.”
    (WIPE v.
    IPCB.
    13 Ill.Dec. at 153,
    citing, League
    of Women Voters,
    at 36.)
    The complainant states that the complainants are not aware
    of any other cases arising from the same issue in another forum
    or court.
    The Board is unaware of any other cases arising from
    the same issue therefore the Board finds the complaint is not
    duplicitous and this matter is directed to hearing.
    The hearing must be scheduled and completed in a timely
    manner consistent with Board practices.
    The hearing officer
    shall inform the Clerk of the Board of the time and location of
    the hearing at least 40 days in advance of hearing so that public
    notice of hearing may be published.
    After hearing, the hearing
    officer shall submit an exhibit list,
    a statement regarding the
    credibility of witnesses and all actual exhibits to the Board
    within five days of the hearing.
    If after appropriate consultation with the parties, the
    parties fail to provide an acceptable hearing date or
    if after an
    attempt the hearing officer is unable to consult with the
    parties, the hearing officer shall unilaterally set a hearing
    date in conformance with the schedule above.
    The hearing officer
    and the parties are encouraged to expedite this proceeding as
    much as possible.
    3
    IT IS
    SO ORDERED.
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify th~,t_theabove order was adopted on~he
    ~
    day of
    ______________,
    1995,
    by a vote of
    ________
    Illinois
    lution Control Board

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