ILLINOIS POLLUTION CONTROL BOARD
June 23, 1994
ANGELA M. WHITE,
)
)
Complainant,
)
v.
)
PCB 94—150
(Enforcement)
TERRY & BILLIE
VAN
TINE &
)
SCHNEIDER TRANSPORT INC.,
)
)
Respondents.
ORDER OF THE BOARD (by E. Dunham):
The complaint in this matter was filed on May 13, 1994. The
complaint alleges that the respondents have violated Section 9(a)
of the Environmental Protection Act (415 ILCS 5/9(a) (1992)) and
35 Ill. Adm. 900.102. The complainant alleges that the operation
of a semi—tractor on neighboring property creates noise and air
pollution resulting in an unreasonable interference with the use
and enjoyment of her property. The complaint seeks an order from
the Board ordering respondents to cease and desist from such
violations. Unless the Board determines that the complaint is
duplicitous or frivolous it shall accept the matter for hearing.
(415 ILCS 5/31(b) (1992).)
Also before the Board are two motions to dismiss filed by
the respondents. On May 20, 1994, Schneider Transport Inc. filed
a motion to dismiss. On June 1, 1994, Angela White filed a
response to the motion along with a motion to file instanter.
The Board grants Ms. White’s motion to file a response instanter.
The Van Tines filed a motion to dismiss on June 10, 1994. Angela
White filed a response to the Van Tines’ motion on June 13, 1994.
Schneider Transport seeks dismissal of this matter because
it is frivolous, duplicitous and insufficient in law. The Van
Tines also argue that this matter should be dismissed on the
grounds that the complaint is duplicitous and frivolous.
Initially, Schneider Transport notes that it was improperly
identified in the complaint as “Schneider National Trans. Inc.”
The Board directs the Clerk of the Board to correct the caption
in this matter to correctly identify the respondent as Schneider
Transport, Inc.
Schneider Transport claims that the complaint is frivolous
because it seeks relief beyond the Board’s authority to grant.
The motion states that the complaint alleges, at best, the
elements of a nuisance complaint rather than a violation of any
regulation. Schneider contends that this matter would be more
appropriate in a civil court. The Van Tines argue that the
allegations represent a private nuisance action and is beyond the
jurisdiction of the Board.
2
Ms. White argues that the respondents have ignored the fact
that the Board and civil court have concurrent jurisdiction over
such claims. She also contends that respondents’ argument that
the relief sought is beyond the Board’s authority is contrary to
both law and statute.
An action before the Board is frivolous if it fails to state
a cause of action upon which relief can be granted by the Board.
(Citizens for a Better Environment v. Reynolds Metals Co. (May
17, 1973, PCB 73—173, 8 PCB 46.) The Board finds that the
complaint is not frivolous in that it states a cause of action
upon which the Board can grant relief. The alleged violations of
the Act are within the Board’s jurisdiction.
Schneider Transport and the Van Tines claim that the
complaint is duplicitous because the matter was investigated by
the Illinois Environmental Protection Agency (Agency) and the
Agency did not issue a citation or report a violation. In
addition, Schneider Transport argues that numerous complaints
have been filed with the City Council and police department but
no citations were issued. The Van Tines assert that a resolution
to the complaints of the Van Tines was reached by the city police
and the City Council. Ms. White states that the respondents’
argument is contrary to case law and statute.
An action before the Board is duplicitous if the matter is
identical or substantially similar to one brought in another
forum. (Brandle
V.
Ro~p(June 13, 1985), PCB 85-68, 64 PCB 263.)
The Board finds that the complaint is not duplicitous. While the
complaints to the Agency, the police and city council appear to
be substantially similar to the complaint, these are not the
types of actions that support a finding of duplicitous. An
investigation by the Agency or a municipality does not preclude
the matter from being brought before the Board.
Schneider Transport argues that the complaint is
insufficient in law because Schneider Transport has no control
over Mr. Van Tine’s residential property or the activities on his
property. Further Schneider Transport argues that the complaint
is insufficient in law because it is vague and ambiguous. The
Van Tines contend that the complaint fails to state a cause of
action. The Van Tines argue that the complaint is deficient in
that it does not allege any fact which, if proven, would
constitute a violation of the Act. The Van Tines also claim that
the complaint merely recites conclusory allegations.
The Board finds that the relationship between Schneider
Transport and the alleged violations pertains to a factual matter
relating to the merits of the case. The motions before the Board
request dismissal of the case as frivolous, duplicitous or
otherwise insufficient in law. While a motion for summary
judgment would allow the Board to consider the facts alleged in
3
the complaint, no such motion is before the Board. The motions
before the Board are insufficient to make a finding based on the
merits of the case. The Board finds that the complaint is
specific enough to provide notice of the alleged violations and
that more specifics of the allegations can be achieved through
discovery.
For the proceeding reasons, the Board denies the motions to
dismiss. The Board finds that the complaint is neither frivolous
or duplicitous for the purpose of Section 31(b). This matter is
accepted for hearing.
IT IS SO ORDERED.
M. McFawn dissented.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certi that the above order was adopted on~he
‘~—
day of
_________________,
1994, by a vote of
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I
/~~J
-~borothyN. ~nn, Clerk
Illinois Pot)~utionControl Board