ILLINOIS POLLUTION CONTROL BOARD

December 2, 1993

MARK AND JEANNE

DORUFF, WILLIAM  

)

AND MARLA BOLEN, RALPH AND KAREN

)

NUZZO, 

GARY AND

VALERIE 

BRAUN,

)

ROMAN 

AND

GERI 

MALUK, JAGVIR AND

)

VICKI SINGH, 

AUTHUR AND

NELLIE  

)

REYES, 

AND DAN

RODRIGUEZ,     

)

Complainants,      

)

PCB 93-204

)

(Enforcement)

v.

)

BLOOMINGDALE ELEMENTARY SCHOOL

)

DISTRICT

13 AND FGM, INC.,     

)

Respondents.

ORDER OF THE BOARD (by C.A. Manning):

This matter~ is before the Board pursuant to a five—count

complaint filed November 1, 1993 by Mark and Jeanne Doruff, et.

al., against the respondents, Bloomingdale Elementary School

District 13 (School District) and FGM, Inc (FMG). The complainants

allege that respondents violated 415 ILCS 5/23 and 5/24 of the

Environmental Protection Act (Act) and 35 Ill. Adm. Code 900.102,

901.102(a) and (b) in their operation of air conditioner chillers

at the Erickson Elementary School.1 Pursuant to Section 31(b) of

the Act and 35 Ill. Adm. Code 103.124(a), on November 4, 1993, the

School District filed a motion to dismiss the complaint and on

November 10, 1993, FGM, also filed a motion to dismiss the

complaint. Both motions argue that the complaint is frivolous and,

FMG further argues that it is duplicitous. On November 29, 1993,

complainants filed a response to the motions. The Board denies the

motions to dismiss and sets this matter for hearing for reasons

stated below.

The Board recently denied a motion to dismiss brought on

frivolous and duplicitous grounds in another citizens enforcement

case involving noise pollution currently pending before the Board.

Joseph A. Schrantz et al. v. Villac~eof Villa Park et al., (October

21, 1993), PCB 93-161. In Schrantz, the Board explairted the

meaning of “frivolous”:

1   The Board’s regulations at 

III. 

Adm.

Code 901.102(a) and (b)

establish numerical limits for sound emission levels for certain land use

classifications. Sections 23 and 24 of the Act are the general provisions

prohibiting persons from emitting noise beyond the boundaries of his property

so as to unreasonably interfere with the enjoyment of life or any lawful

business or activity so as toviolate any regulationor standardadoptedby

the Board under the Act.

2

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 Opposed to Extension of the

Illinois Tollwav 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 dictionary2, the

Appellate Court of Illinois, First District, defined a

“frivolous” pleading as “one that is either legally or

factually deficient.” Winnetkans Interested in Protectinc~

the Environment LWIPE) v.Illinois Pollution Control

Board1 13 Ill.Dec.

149, 153, 370 N.E.2d 1176 (1st Dist.

l977)~.

The instant complaint requests that the Board issue an order

directing respondents to cease and desist from the alleged

violations, to permanently reduce the noise by relocation and any

other further relief the Board may deem appropriate. 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.

Schrantz also discussed the meaning of “duplicitous” and in

doing so stated the following:

In Brandle v. Roi~p, (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.

2 Webster’s Third New Dictionary 913 (1971) defined ~frivolous~ as ~of

little weight

or importance: h. ing no basis in law or fact....~

polluting

~TheactivityBoard

andcan bygrantimposingrelief

a fine.

by ordering

The Board

a Respondent

cannot grant

to stop

nx.netary

the

compensation for damage done to health or property and it cannot impose criminal

sanctions such as a jail term. Thus, any request for nxinetary compensation or

the imposition of criminal sanctions would be considered frivolous.~ (ii~tbe

Matter of: Du~licitous or Frivolous Determination, (June 8, 1989), RES 89-2,

Slip Op. at 2.)

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 

IPCB, 13 Ill.Dec.

at 153, citing, League of Women

Voters, at 36.

The Board finds the complaint is not duplicitous; it is not

identical or substantially similar to one brought before the Board

or in another forum. FMG’s motion raises the possibility of an

action before the Bloomingdale Elementary School District. However,

FMG fails to state whether the action is substantially identical to

that of the instant case currently pending before the Board.

Moreover, the complaint presents facts that are matters of first

impression for the Board and are not duplicitous in the context of

Lea~ueof Women Voters which pertained to the Board itself being

flooded with the same type of case. Finally, FMG’s motion does not

allege sufficient information about the proceedings before the

Bloomingdale Elementary School District 13 Board of Education to

demonstrate that a determination made in that forum could arguably

make this complaint moot.  FNG states that the Bloomingdale

Elementary School District 13 Board of Education was scheduled to

meet on November 22, 1993 to address what appropriate corrective

action may be taken; however, the Board has no information as to

the outcome of the meeting.

For the above stated 

reasons

the complaint is not frivolous

nor duplicitous in connection with the motions to dismiss,

directs

this matter 

to hearing. A hearing officer will contact the

parties

to schedule a hearing date.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certif,y that

the above order was adopted on the

~

day of      

~

1993, by a vote of

~~

/

~Dorothy N. Gur~n, Clerk

Illinois Pollution Control Board