ILLINOIS POLLUTION CONTROL BOARD
    October
    1,
    1992
    CITY OF DES PLAINES, GAIL
    )
    PAPASTERIADIS, and GABRIEL
    AND
    )
    LINDA GULO,
    )
    )
    Complainants,
    )
    v.
    )
    PCB 92—127
    (Enforcement)
    SOLID WASTE AGENCY OF NORTHERN
    )
    COOK
    UN,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by R.C.
    Flemal):
    On September
    1,
    1992, complainants filed an action alleging
    violation by respondent of Section 22.14 of the Illinois
    Environmental Protection Act
    (Ill. Rev.
    Stat.
    1991,
    ch.
    111½,
    par. 1022.14) (Act).
    On September 14,
    1992 respondent filed a
    motion to dismiss on the basis that the complaint is duplicitous
    and frivolous.
    On September 22,
    1992, complainants filed their
    response to the motion to dismiss.
    On September 28,
    1992, the respondent filed a motion for
    leave to file a reply to the complainants’ response.
    The motion
    alleges that the response is misleading in that it contains
    alleged factual inaccuracies.
    The Board may allow replies to
    responses in order to prevent material prejudice.
    (35 Ill.
    Ada.
    Code 101.241(c)).
    The complainant does not specifically allege
    that it will be prejudiced if it is not allowed to file its
    reply.
    However, the Board finds that the allegations in the
    motion to file,
    if proven true, would amount to material
    prejudice.
    Therefore the Board allows the reply.
    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.)
    A
    review of City of Des Plaines v. County of Cook
    (June 12,
    1991),
    90 CR 12163, cited by respondent,
    indicates that that case was
    solely an appeal of zoning actions alleging procedural flaws in
    the zoning proceeding, and it is not identical or substantially
    similar to the complaint brought here, which is an action
    involving alleged violations of setback provisions of Section
    22.14 of the Act.
    On the issue of whether the complaint is frivolous, the
    Board states that a complaint is frivolous under the Act if it
    fails to state a cause of action upon which relief can be
    granted.
    (See,
    In re Duplicitous or Frivolous Determination, and
    section 33(b),
    supra.)
    Here,
    the complaint states a cause of
    0136-02145
    —2—
    action upon which relief can be granted in that it requests an
    order that respondent cease and desist from violating the setback
    provisions of Section 22.14 of the Act.
    The Board is empowered
    to adjudicate enforcement actions and can issue cease and desist
    orders under the Act.
    (See Section 33 of the Act.)
    Therefore
    the Board finds that the complaint is not frivolous, and
    respondent’s arguments on this issue are unconvincing.
    The
    motion to dismiss and reply also give other arguments
    which go to the merits of the matter; such are not proper for a
    motion to dismiss based on a duplicitious or frivolous
    determination or that the complaint fails to set forth a cause of
    action.
    The Board denies the Lotion 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.
    Also on September 1,
    1992,
    complainants filed a motion for
    expedited hearing.
    Complainants ask that the Board hold an
    expedited hearing on the basis that “it is in the interest of the
    parties that a determination be had relative to Complainant’s
    allegations as quickly as possible so that activities in
    furtherance of the development of the Wheeling Transfer Station
    be stopped and no further funds be expended” (Motion for
    Expedited Hearing at 2).
    While the Board makes no determination
    regarding the pace of the development of the transfer station at
    this time, the Board notes that respondent filed no objection to
    the motion
    for expedited decision and accordingly has waived
    objection (see 35 Ill. Mm. Code 101.241~b)). The Board will
    thereby expedite consideration, consistent with available
    resources and decision deadlines in other matters.
    Accordingly, this matter is accepted for hearing.
    A hearing
    officer will be designated and this matter will, be set for
    hearing.
    IT IS SO ORDERED.
    Board Member Bill Forcade concurred.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify
    t4at
    e above order was adopted on the
    ~
    day of
    ___________________,
    1992, by a vote of
    Dorothy N.
    91,Inn, Clerk
    Illinois Po~LutionControl Board
    0136-02146

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