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