ILLINOIS POLLUTION CONTROL BOARD
September 7, 1995
MR. LEW D'SOUZA and
)
MRS. PATRICIA D'SOUZA,
)
)
Complainants,
)
)
v.
) PCB 96-22
) (Enforcement - Noise)
MR. RICHARD MARRACCINI and
)
MRS. JOANNE MARRACCINI,
)
)
Respondents.
)
ORDER OF THE BOARD (by J. Yi):
This matter is before the Board pursuant to a complaint filed August 1,
1995 by Mr. and Mrs. D'Souza, the complainants, against Mr. and Mrs.
Marraccini, the respondents. The complaint alleges that the respondents
violated Section 23 and 24 of the of the Environmental Protection Act (Act)
and the Board's noise emission level regulations set forth at 35 Ill. Adm.
Code 900.102, in the operation of their central air conditioning unit (unit)
located at the side of the their house at 552 Delmar Court, Elk Grove Village,
Illinois. (415 ILCS 5/23 and 5/24 (1994).) On August 10, 1995 the
respondents filed a motion to dismiss the complaint as being frivolous.
Pursuant to Section 31(b) of the Act the Board must make a determination as to
whether the complaint filed is frivolous or duplicitous. (415 ILCS 5/31(b)
(1994).)
The bases for the respondents' motion to dismiss are: a previous unit
was replaced in 1994 by the current unit; the Village of Elk Grove
"...verified that there were no violations in relation to the unit's
location"; a decibel reading that was taken by respondent did not exceed 55;
and, that the respondents have done everything to find a solution to the
complainants' complaints. (Mot. at 1-2.)
1
On August 28, 1995, the complainants filed a response to the motion to
dismiss. The complainants state that the relief requested is well within the
Board's authority to grant and therefore is not frivolous pursuant to the
Board's own definition. In addition the complainants state that they were not
served by the motion to dismiss.
The Board, on numerous occasions, has in its opinions discussed the
meaning of frivolous and duplicitous in the context of citizen enforcement
actions. In (Citizens for a Better Environment v. Reynolds Metals Co., (May
17, 1973) PCB 73-173, 8 PCB 46, we held that "frivolous" is the "failure to
state a cause of action upon which relief can be granted." In Farmers
Opposed to Extension of the Illinois Tollway v. Illinois State Toll Highway
Auth., (September 16, 1971) PCB 71-159, 2 PCB 119, we held that 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 our holdings in Citizens for a Better Environment and Farmers,
and additionally, Webster's dictionary
2
, the appellate court determined in
1
The respondents motion to dismiss will be referenced as "Mot. at ".
2
Webster's Third New Dictionary 913 (1971) defined
"frivolous" as "of little weight or importance: having no
2
Winnetkans Interested in Protecting the Environment (WIPE) v.Illinois
Pollution Control Board, 13 Ill.Dec. 149, 153, 370 N.E.2d 1176 (1st Dist.
1977), that a "frivolous" pleading is "one that is either legally or factually
deficient."
The instant complaint requests that the Board issue an order directing
respondents to cease and desist from the alleged violations, and to reduce the
noise by relocating the unit to a more suitable location. 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 and denies the
respondent's motion to dismiss. Although the Board is finding that the
complaint is not frivolous, we are not making a finding as to the merits of
the complaint. The Board will make its determination based on the evidence
presented at the hearing. It should be noted that even if there is no
violation of the Board's numerical noise emission standards established in 35
Ill. Adm. Code 900.102, a nuisance violation of Section 24 of the Act may
still be found.
On the issue of "duplicitous", in the case of Brandle v. Ropp, (June 13,
1985), PCB 85-68, 64 PCB 263, we 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 complainant states that there are no other cases arising from the
same issue in another forum or court. The Board is unaware of any other cases
arising from the same issue therefore the Board finds the complaint is not
duplicitous and this matter is directed to hearing.
The hearing must be scheduled and completed in a timely manner
consistent with Board practices. The 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 the credibility of witnesses and all actual exhibits to the Board
within five days of the hearing.
If after appropriate consultation with the parties, the parties fail to
provide an acceptable hearing date or if after an attempt the hearing officer
is unable to consult with the parties, the hearing officer shall unilaterally
set a hearing date in conformance with the schedule above. The hearing
basis in law or fact...."
3
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 Board,
hereby certify that the above order was adopted on the
day of
, 1995, by a vote of
.
________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board