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
35
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.)
3
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 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