ILLINOIS POLLUTION CONTROL BOARD
January 5, 1989
VILLAGE OF KILDEER,
)
Complainant,
)
v.
)
PCB 88-173
VILLAGE OF LAKE ZURICH
)
NICHOLS GROVE PROPERTIES,
LIBERTY LAKE PARTNERSHIP,
ESR/ANDEN CORPORATION,
)
LEXINGTON DEVELOPMENT CO.,
LEXINGTON HOMES, INC.,
)
Respondents.
)
ORDER OF THE BOARD (by J. Theodore Meyer):
This matter is before the Board on a November 9, 1989 motion to dismiss
filed by respondent the Village of Lake Zurich. Respondent Lexington
Development Corp. (Lexington) filed its motion to dismiss on November 15,
1988, adopting and incorporating Lake Zurich’s motion to dismiss. On November
18, 1988 ESR/Anden Corporation (ESR/Anden) and Liberty Lake Partnership
(Liberty Lake) filed a motion to dismiss, also adopting and incorporating Lake
Zurich’s motion to dismiss. Complainant the Village of Kildeer filed its
response to the motions on November 23, 1988.
Lake Zurich, Lexington, ESR/Anden, and Liberty Lake (collectively,
respondents) move the Board to dismiss Kildeer’s complaint, which alleges
effluent violations, water quality violations, and hydraulic overloading
resulting from the operation of Lake Zurich’s southeast wastewater treatment
plant. Respondents claim that Kildeer’s complaint is duplicative under
Section 31(b) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1987,
ch. iii1/~ par. 1031(b)), because the Illinois Environmental Protection Agency
(Agency) has sent Lake Zurich an enforcement letter pursuant to Section 31(d)
of the Act. Respondents state that settlement discussions between Lake Zurich
and the Agency are continuing with the objective of obtaining a judicially
sanctioned consent decree. Respondents note that on November 3, 1988, this
Board issued an order concluding that there is no pending legal action between
the parties alleging violations of the Act, and thus finding that Kildeer’s
complaint is not duplicative. Respondents contend, however, that because the
Agency’s enforcement letter is mandated by Section 31(d), the Agency’s action
is on an equal footing with Kildeer’s complaint and thus is a prior pending
enforcement proceeding, rendering Kildeer’s complaint duplicative.
Additionally, respondents maintain that the Board should strike and dismiss
Count III of the complaint, which seeks revocation of six permits issued by
the Agency. Respondents assert that the Agency is thus a necessary party over
whom the Board lacks jurisdiction.
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In response, Kildeer states that respondents’ motions present no reason
why the Board should reconsider its November 3 decision that the complaint is
not duplicative. Kildeer contends that settlement negotiations pursuant to a
Section 31(d) notice are not the type of action that render a citizen
enforcement complaint duplicative. Kildeer further maintains that its
complaint is not duplicative because the violations alleged in the complaint
and those raised in the Agency’s Section 31(d) notice are not identical
,
and
because the Agency does not seek the same complete relief that Kildeer
seeks. Finally, Kildeer disputes respondents’ contention that the Agency is a
necessary party in this proceeding. Kildeer states that it seeks no relief
against the Agency, but merely asks the Board to exercise its statutory
authority to revoke the challenged permits.
The Board agrees with Kildeer that a Section 31(d) notice does not
constitute a prior pending enforcement action which would render Kildeer’s
complaint duplicative. Respondents are correct in noting that a Section 31(d)
notice is a necessary prerequisite to a formal enforcement action. However,
the issuance of a Section 31(d) letter does not always result in the filing of
a formal enforcement action. In determining whether a complaint is
duplicative, the issue is whether the complaint raises allegations identical
or substantially similar to matters previously brought before the Board.
Winnetkans Interested in Protecting the Environment (WIPE) v. Pollution
Control Board (1st Dist. 1977), 55 Ill. App.3d 475, 370 N.E.2d 1176, 1179.)
In instances where the Board has concurrent jurisdiction with a circuit court,
substantially similar matters previously brought before a circuit court may
also be dismissed as duplicative. Brandle v. Ropp, 64 PCB 263 (PCB 85—68,
June 13, 1985). Respondents do not claim that Kildeer’s complaint raises
allegations which have been previously brought before the Board or a circuit
court. The Board also agrees with Kildeer’s claim that its complaint is not
identical or substantially identical to the Agency’s Section 31(d) notice.
Kildeer’s complaint alleges violations of the arnonia nitrogen water quality
standards, while the Section 31(d) notice does not allege ammonia nitrogen
violations. Additionally, Kildeer seeks revocation of permits issued by the
Agency, while the Agency has stated that it will not revoke those permits at
this time. (See Lake Zurich’s Motion to Dismiss, Exh. B.) The Board
reaffirms its November 3 finding that the complaint is not duplicative.
The Board further finds that the Agency is not a necessary party to this
action. Kildeer asks that Agency—issued permits be revoked, but seeks no
relief against the Agency. Pursuant to Section 33(b) of the Act, the Board
may revoke a permit as a penalty for violation. It is solely the province of
the Board to revoke permits; action by the Agency is not required. No
interest of the Agency will be materially affected by the decision of this
case. Thus, the Agency is not a necessary party. However, the Agency is
urged to participate in this proceeding by conilienting upon the status of its
discussions with Lake Zurich and its intentions for any further action. The
Clerk is directed to serve a copy of this Order on the Agency.
For these reasons, respondents’ motions to dismiss are denied.
IT IS SO ORDERED.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby
certif
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_________________
1989, by a vote of
~
of
above Order was adopted on the
~
day
Do
Cl e rk
Illinois Poll tion Control Board
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