ILLINOIS POLLUTION CONTROL BOARD
June 15, 1995
GORDON KRAUTSACK,
)
Complainant,
v.
)
PCB 95—143
(Enforcement-Land)
BHOGILAL PATEL, an individual,
SUBHASH PATEL, an individual, and
)
ELECTRONIC INTERCONNECT, INC.,
)
an Illinois Corporation,
)
Respondents.
ORDER OF THE BOARD (by R.C. Flemal):
This matter is before the Board on a complaint filed on May
11, 1995 by complainant Gordon Krautsack, and a Motion to Dismiss
filed on June 1, 1995 by respondents Bhogilal Patel, Subhash
Patel, and Electronic Interconnect, Inc. Complainant filed a
Response to Motion to Dismiss on June 9, 1995.
The complaint alleges that respondents have violated
Sections 21(a), 21(e), and 2l(f)(1) of the Environmental
Protection Act (Act) (415 ILCS 5/21(a), 21(e), 21(f) (1) (1992)) as
a result of their storage and manufacturing of electronic
circuitboards at the site located at 800 Greenleaf Avenue, Elk
Grove Village, Illinois. The site was used by respondents from
1986 through 1994.
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. 35 Ill.
Adm. Code 103.124.
An action before the Board is duplicitous if the matter is
identical or substantially similar to one brought in another
forum. (See, Fore
V.
Midstate Xart Club (October 7, 1993) PCB
93—171; Mandel v. Kulpaka PCB 92—33 (August 26, 1993); In re
Duplicitous or Frivolous Determination (June 8, 1989), RES 89—2,
2
100 PCB 53.) There is no evidence before the Board to indicate
this matter is identical or substantially similar to any matter
brought in another forum. At this time, therefore, the Board
finds that, pursuant to Section 103.124(a), the complaint is not
duplicitous.
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., PCB
73—173, 8 PCB 46 (1973).) Complainant requests that the Board
find respondents have each violated Sections 21(a), 21(e) and 21
(f) (1) of the Act, assess civil penalties for each violation,
issue a cease and desist order from further violations of the
Act, and undertake corrective action to remove the wastes. There
is no evidence that the Board cannot grant the relief requested.
At this time, therefore, the Board finds that, pursuant to
Section 103.124(a), the complaint is not frivolous.
Next the Board must address respondents’ Motion to Dismiss.
When ruling upon a motion to dismiss, the Board relies upon the
same principles as applied in the Illinois Code of Civil
Procedure 2—615 and 2—619. (735 ILCS 5/2-615 and 5/2—619.) The
Board will take all well—plead allegations in the complaint as
true. (Miehle v. Chicago Bridge and Iron Company, PCB 93—150,
November 4, 1993.) The complaint should not be dismissed unless
no set of facts could be proven that would entitle complainant to
relief.
(~J
Respondents’ Motion to Dismiss includes a number of factual
assertions which are not of record and are not supported by
affidavit as required pursuant to Board procedural rule 35 Ill.
Adm. Code 101.242(b). Therefore those portions of the Motion to
Dismiss will not be considered by the Board.
Even if the Board were to consider respondents’ factual
allegations notwithstanding the absence of affidavit, those
assertions would not require dismissal of the petition. For
instance, respondents’ claim the complaint is improperly directed
at respondent Electronic Interconnect, Inc. because of a change
in legal status to Electronic Interconnect Corporation in 1991.
The arguement ignores the fact that the complaint alleges
violations of the Act from 1986 through 1994. Also, as to
respondents Bhogilal Patel and Subhash Patel (Patels), it asserts
that because they have not been owners or operators of the site
since the corporate change in 1991, the complaint is improperly
directed at them. First, this assertion ignores the alleged
violations against the Patels from 1986 through 1991. Second,
the complaint alleges violations of Sections 21(a), 21(e), and
21(f) (1) of the Act, which prohibit any “person” from violating
those provisions. The Patels have not clarified their status
with regards to these allegations and Electronic Interconnect
Corporation. Therefore the Patels may be liable for violations
3
after 1991 even if they are not owners or operators of Electronic
Interconnect Corporation. The Board hereby denies respondents’
Motion to Dismiss and sends this matter to hearing.
The hearing must be scheduled and completed in a timely
manner, consistent with Board practices. The Board will assign a
hearing officer to conduct hearings consistent with this order
and the Clerk of the Board 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 of the time and location of the hearing at least 40 days in
advance of hearing so that public notice of hearing may be
published. After hearing, the hearing officer shall submit an
exhibit list, a statement regarding credibility of witnesses and
all actual exhibits to the Board within five days of the hearing.
The hearing officer and the parties are encouraged to expedite
this proceeding as much as possible.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Boar~,hereby certif hat the above order was adopted ~n the
~
day of
_______________,
1995, by a vote of ~
Dorothy
M.,4?inn,
A~
C1~rk
Illinois P~&lutionControl Board