ILLINOIS POLLUTION CONTROL BOARD
October 21, 1993
JOSEPH A. SCHRANTZ, CHARLES
)
HULLIHAN, FRANK OWOC, and
ELIZABETH STEARNS,
Complainants,
)
v.
)
PCB 93—161
(Enforcement)
VILLAGE OF VILLA
PARK,
DUPAGE
)
COUNTY DIVISION OF TRANSPORTATION,
)
VILLA PARK
ROTARY CLUB, VILLA
PARK
)
KIWANIS CLUB, and VILLA
PARK
MASONIC
)
LODGE,
)
Respondents.
ORDER OF THE BOARD (by C. A. Manning):
This matter is before the Board pursuant to a formal complaint
filed August 31, 1993 by Joseph A. Schrantz, Charles Hullihan,
Frank Owoc, and Elizabeth Stearns against the Village of Villa
Park, DuPage County Division of Transportation, Villa Park Rotary
Club, Villa Park Kiwanis Club and the Villa Park Masonic Lodge. The
gravamen of the complaint is that respondents sponsored two
entertainment events, Suinmerfest
(931
and the Summer Concert
Series2, on the Illinois Prairie Path right-of-way in Villa Park
during the month of July, 1993, and these events were conducted in
a manner which violated the Board’s Noise Pollution Emission
regulations found at 35 Ill.Adm.Code Subtitle H, Section 900 et
seq. adopted pursuant to Section 24 of the Environmental Protection
Act (415 ILCS 5/24).
The Village of Villa Park, the Rotary Club, the Kiwanis Club
and the Masonic Lodge have filed motions to dismiss alleging the
complaint to be frivolous and duplicitous, to which the
complainants have submitted replies. The County of DuPage entered
a special and limited appearance to contest the DuPage County
Division of Transportation as a party to this proceeding. For the
following reasons set forth below, the Board denies all Motions to
Dismiss on Frivolous and Duplicitous Grounds and grants the County
‘Suininerfest ‘p93 is alleged to have been sponsored by the Villa
Park Masonic Lodge, the Villa Park Rotary Club, the Villa Park
Kiwanis Club and the Village of Villa Park. (Complaint, at 6,
attachment.)
2The Summer Concert series is alleged to have been sponsored
by the Village of Villa Park and the Kiwanis Club. (Complaint, at
7, attachment.)
2
of DuPage’s motion to dismiss the County as a party.
MOTIONS TO DISMISS ON FRIVOLOUS
AND
DUPLICITOUS GROUNDS
In the case of a complaint filed by a private citizen, the
Board is required by procedural rule and the Act to enter a finding
as to whether the complaint is frivolous or duplicitous. Section
103.124(a) of the Board’s procedural rules, which implements
Section 31(b) of the Environmental Protection Act (415 ILCS
5/31(b)), provides:
.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 shall
notify the parties of its decision. If the Board rules
that the complaint is not duplicitous or frivolous, this
does not preclude the filing of motions regarding the
insufficiency of the pleadings.
Four of the respondents have specifically filed motions to
dismiss the complaint as both frivolous and duplicitous. (Notion
to Dismiss of Village of Villa Park (September 15, 1993); Motion to
Dismiss and Amended Motion to Dismiss of the Rotary Club of Villa
Park (September 13, 1993 and September 17, 1993); Motion to Dismiss
of the Villa Park Kiwanis Club (September 17, 1993); and Motion to
Dismiss of the Villa Park Masonic Lodge (September 20, 1993).) The
complainants have filed a reply to each and every motion. The
motions and the replies raise substantially similar issues and
therefore, the Board will rule on the motions together.
Frivolous
The Board has construed “frivolous” to mean “failure to state
a cause of action upon which relief can be granted.” (Citizens for
a Better Environment v. Reynolds Metals Co., (May 17, 1973) PCB 73-
173, 8 PCB 46. The Board stated in Farmers Olposed to Extension of
the Illinois Toliway v. Illinois State Toll Highway Auth.,
(September 16, 1971) PCB 71—159, 2 PCB 119: “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 these two Board holdings, and Webster’s
dictionary3, the Appellate Court of Illinois, First District,
3Webster’s Third New Dictionary 913 (1971) defined “frivolous”
as “of little weight or importance: having no basis in law or
3
defined a “frivolous” pleading as “one that is either legally or
factually deficient.” Winnetkans Interested in Protecting the
Environment (WIPE) v.Illinois Pollution Control Board, 13 Ill.Dec.
149, 153, 370 N.E.2d 1176 (1st Dist. l977)~.
Accordingly, the motions to dismiss allege that the complaint
is frivolous because it fails to state a cause of action upon which
relief can be granted. Essentially, the Village of Villa Park, the
Rotary Club, the Kiwanis Club and the Masonic Lodge all argue that
because Summerfest ‘93 and the Summer Concert Series have ended,
the complaint is moot and any relief granted by the Board is
speculative.
In response, the complainants state they have reason to
believe the Village of Villa Park and the other sponsors are
currently planning a “Summerfest ‘94”, and though there has been no
public announcement regarding the Summer Concert Series, the
complainants believe it is logical that the Summer Concert Series
will be held in 1994 as well.
The Board finds the complaint is not frivolous. The
complaint alleges violations of the numerical noise standards of
the Board’s noise emission regulations found at 35 Ill. Adm. Code
Section 900 et seq. and requests that the Board find the
respondents in violation of these regulations. The complaint
further asks that the Board enter an order directing “respondents
to take appropriate action to limit noise”
...
“in accordance with
the Illinois State Noise Emission Regulations.” Such a prayer for
relief can come in the form of a “cease and desist” order which the
Board is authorized to enter in this matter in the event the
complainants are successful on the merits, regardless of whether
Sununerfest or a Summer Concert Series takes place in 1994. (415
ILCS 5/42.)
(~
Mandel v. Kulpaka, (July 30, 1992) PCB 92—33, 135
PCB 157, 160, “The Environmental Protection Act confers the Board’s
jurisdiction. The Act authorizes the Board to hear complaints of
violations of the Act and the Board regulations. 415 ILCS 5/31.
It authorizes the Board to impose a civil penalty for violations
that is payable into public funds, not to private parties, and it
authorizes the Board to order a person found in violation to cease
fact.
. .
4”The Board can grant relief by ordering a Respondent to stop the
polluting activity and by imposing a fine. The Board cannot grant
monetary compensation for damage done to health or property and it
cannot impose criminal sanctions such as a jail term. Thus, any
request for monetary compensation or the imposition of criminal
sanctions would be considered frivolous.” (In the Matter of:
Duplicitous or Frivolous Determination, (June 8, 1989), RES 89-2,
SlipOp. at 2.)
4
and desist from further violation. 415 ILCS 5/42.”.)~.Cessation
of the complained—of activity does not preclude an actIon before
the Board to determine whether the activity violated the Act,
although “subsequent compliance” is to be considered by the Board
in issuing its orders. (415 ILCS 5/33(c).)
Duplicitous
In Brandle v. Ropp, (June 13, 1985), PCB 85—68, 64 PCB 263,
the Board 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 motions to dismiss brought by the Rotary Club, the Masonic
Lodge and the Kiwanis Club allege the complaint is duplicitous
because three other actions have already been filed regarding
excessive noise stemming from the Villa Park Summerfest ‘93 and
Summer Concert Series: one before the Summerfest Commission, an ad
hoc body of Villa Park residents; a second with the Village Board
of Villa Park; and a third in the Circuit Court of the Eighteenth
Judicial Circuit. These three motions argue that “even though
technically there is at the present time, no other proceeding,
because of their past efforts, we believe complainants’ complaint
is in substance duplicitous and should be dismissed.” (Rotary Club
Motion to Dismiss, at 2; Masonic Lodge Motion to Dismiss, at 2; and
Kiwanis Club Motion to Dismiss, at 2.) The Village of Villa Park
Motion to Dismiss simply alleges that because there was an action
filed in Circuit Court which was voluntarily dismissed by the
complainants, this matter is duplicitous. (Village of Villa Park
Motion to Dismiss, at 2-3.)
The Board finds the complaint is not duplicitous. First, the
motions are devoid of any allegation that there is another matter
substantially identical to that of the instant case currently
pending before the Board or in another forum. Second, the
complaint presents facts that are matters of first impression for
the Board and are not duplicitous in the context of League of Women
Voters which pertained to the Board itself being flooded with the
same type of case. Third, the Motions to Dismiss do not allege
5
sufficient information about the proceedings before the Circuit
Court, the Summerfest Commission or the Village Board so that a
determination made in those forums could arguably make this
complaint moot. There are no explanations of the issues, the
timeframes, the parties or the relief sought in the other
proceedings. Moreover, even if separate actions on this matter
have been brought in other jurisdictions, the Board is the
appropriate jurisdiction in which to seek the enforcement of
violations of the numerical noise emission standards contained in
the 35 Ill. Adm. Code Section 900 et seq. As is raised in the
complainants’ replies to the motions to dismiss, none of the other
actions considered the evidence of noise emission standard
violationsThe
Boardset herebyforth
indeniesthe instantall
fourcomplaint.motions
5to
dismiss filed by
the Village of Villa Park, the Rotary Club, the Kiwanis Club and
the Masonic Lodge. At this time, the Board finds that, pursuant to
Section 103.124(a), the complaint is neither frivolous or
duplicitous. Accordingly, this matter shall proceed to hearing.
The Chief Hearing Officer shall assign a hearing officer to conduct
hearings. Hearing must be scheduled and completed as directed by
the Chief hearing Officer. The Chief Hearing Officer shall
promptly issue appropriate directions to the assigned hearing
officer consistent with this order.
The assigned hearing officer shall inform the Clerk of the
Board regarding the time and location of the hearing at least 40
days in advance of hearing so that public notice may be published.
After hearing, the hearing office shall submit an exhibit list, a
statement regarding credibility of witnesses and all actual
exhibits to the Board within five (5) days of the hearing. The
hearing officer and the parties are encouraged to expedite this
proceeding to the extent possible.
NOTION TO DISMISS DUPAGE COUNTY
DIVISION OF TRANSPORTATION
Additionally, on October 4, 1993, the County of DuPage filed
a special and limited appearance contesting the jurisdiction of the
Board to decide the case as to the County of DuPage. Via a motion
to dismiss based on the complainants’ improper service on an
employee of the DuPage County Division of Transportation, DuPage
alleges that DuPage County Division of Transportation cannot be a
named party to the complaint and that the proper party, the DuPage
5The complainants attached to the formal complaint, a compilation
of sound level measurements conducted on July 16, 1993 by Triodyne
Environmental Engineering, Inc. Based upon the unrefutted
statement by the complainants, it appears as though this data has
never been considered by any other forum until now.
6
County Board, was never properly served. The complainants filed a
reply on October 6, 1993 indicating their agreement with the
dismissal from this action of the “DuPage County Division of
Transportation”, and thus DuPage County. The Board hereby grants
DuPage County’s Notion to Dismiss and directs the Clerk of the
Board to delete DuPage County Division of Transportation from the
caption. The County of DuPage also filed a Motion to Vacate
Technical Defaults accompanied by a Notion to File Instanter. As
the County of DuPage has been dismissed as a party, the Board need
not reach the merits of this motion. The Motion tc Vacate
Technical Defaults is hereby denied.
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
-~_4’
day of
~eTZ1~~
,
1993, by a vote of
7—.c)
~
Dorothy ~/ Gunn, Clerk
Illinoi~/~ollutionControl Board