ILLINOIS POLLUTION CONTROL BOARD
    October 5, 2000
    MICHAEL E. MELLON and
    REBECCA J. MELLON,
    Complainants,
    v.
    ILLINOIS DEPARTMENT OF TRANSPORTATION,
    Respondent.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB 01-21
    (Enforcement - Noise, Air, Citizens)
    ORDER OF THE BOARD (by N.J. Melas):
    This matter comes before the Board on an August 16, 2000 filing of a citizens’ complaint (complaint) by
    Michael E. Mellon and Rebecca J. Mellon (complainants) against the Illinois Department of Transportation
    (respondent). Respondent did not file a motion to dismiss or a challenge to the Board’s jurisdiction within the
    allotted 14 days, nor did respondent file any other type of response within 30 days. See 35 Ill. Adm. Code 103.122,
    103.140(a). Therefore, the Board makes its determination based on the allegations in the complaint.
    The Board finds that the air pollution allegation pertaining to Section 9(b) of the Environmental Protection
    Act (Act) and the noise pollution allegation pertaining to Section 23 of the Act and are frivolous and will not accept
    those allegations for hearing. The Board finds that the remaining air and noise pollution allegations in this matter
    are not duplicitous or frivolous and therefore accepts those allegations for hearing.
    BACKGROUND
    Complainants reside at 5520 W. Edmunds Street in Chicago, Cook County, Illinois. Respondent has a
    maintenance yard (yard) at 5027 North Central Avenue, also in Chicago, which shares a common boundary with
    complainants’ residence. Complainants allege that the operation of trucks (including snowplows) at the yard cause
    noise pollution. Complainants specifically object to noise from the idling and acceleration of engines, backup
    warning alarms, banging of tailgates during the delivery of salt, garbage dumping, and the movement of garbage
    dumpsters around the yard. Complainants also allege that exhaust from the trucks in the yard causes air pollution.
    Complainants further allege that the air and noise pollution adversely affect their sleep, depress the value of their
    property, and generally have a negative impact on the use and enjoyment of their residence. Complaint at Rider.
    Complainants claim that respondent is violating Sections 9(a), 9(b), 23, and 24 of the Act, and Section
    900.102 of the Board’s rules. 415 ILCS 5/9(a), 9(b), 23, and 24 (1998); 35 Ill. Adm. Code 900.102.
    DUPLICITOUS/FRIVOLOUS DETERMINATION
    Section 103.124(a) of the Board’s procedural rules directs the Board to determine whether or not a citizen’s
    complaint is duplicitous or frivolous. If the complaint is duplicitous or frivolous, the Board shall enter an order
    setting forth reasons for so ruling and shall inform 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(a).
    Duplicitous
    An action before the Board is duplicitous if the matter is identical or substantially similar to one brought in
    this or any other forum. Walsh v. Kolpas (September 23, 1999), PCB 00-35; Brandle v. Ropp (June 13, 1985), PCB 85-
    2
    68. Nothing in the complaint indicates that this action has been brought before another forum. The complaint is not
    duplicitous.
    Frivolous
    A complaint before the Board is frivolous if it requests relief that the Board does not have the authority to
    grant or fails to state a cause of action upon which the Board can grant relief. People v. State Oil (August 19, 1999),
    PCB 97-103, slip op. at 3; Lake County Forest Preserve District v. Ostro (July 30, 1992), PCB 92-80.
    Complainants allege that respondent has violated Section 23 of the Act. Section 23 is merely the General
    Assembly’s statement of purpose for Title VI of the Act, which is the Title that addresses noise. Section 23 contains
    neither a directive nor a prohibition. The Board cannot grant relief here because there can be no violation of Section
    23. Brunson v. MCI Worldcom, Inc. (January 7, 1999), PCB 99-71. The alleged violation of Section 23 is frivolous,
    and the Board dismisses it.
    Complainants also allege that respondent has violated Section 9(b) of the Act. Section 9(b) provides, in
    pertinent part, that no person shall operate any equipment or vehicle that causes air pollution without an Illinois
    Environmental Protection Agency (Agency) permit or in violation of an Agency permit. Complainants do not allege
    any facts in the complaint related to respondent’s permits or violations of permits. See Loschen v. Grist Mill
    Confections, Inc. (June 5, 1997), PCB 97-174, slip op. at 5. The alleged violation of Section 9(b) is frivolous, and the
    Board dismisses it as well.
    With respect to the remaining air and noise pollution allegations, complainant correctly cites the air and
    noise pollution provisions in the Act and the Board’s rules. Complainant also alleges facts which, if proved at
    hearing, could result in a finding of air and/or noise pollution. Complaint at Rider. The Board has the authority to
    grant relief from the alleged air and noise pollution provisions if the facts are proved at hearing.
    CONCLUSION
    The Board finds that, pursuant to Section 103.124(a) of its procedural rules the air pollution allegations at
    Sections 9(a) of the Act and the noise pollution allegations at Section 24 of the Act and Section 900.102 of the Board’s
    rules are neither duplicitous nor frivolous. Those allegations will be accepted for hearing. The Board finds that the
    air pollution allegation pertaining to Section 9(b) of the Act and the noise pollution allegation pertaining to Section
    23 of the Act are frivolous and will not accept those allegations for hearing.
    The hearing in this matter must be scheduled and completed in a timely manner consistent with Board
    practices. The hearing officer and the parties are encouraged to expedite this proceeding as much as possible.
    This opinion constitutes the Board’s findings of fact and conclusions of law in this matter.
    IT IS SO ORDERED.
    Board Member E.Z. Kezelis abstained.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above order was
    adopted on the 5th day of October 2000 by a vote of 6-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

    Back to top