ILLINOIS POLLUTION CONTROL BOARD
    May 3, 2001
     
     
    STUART C. NUSS,
     
     
    Complainant,
     
     
    v.
     
    VILLAGE OF DURAND,
     
     
    Respondent.
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    PCB 01-119
         
    (Enforcement – Citizens, Water)
    ORDER OF THE BOARD (by N.J. Melas):
    On February 26, 2001, Stuart C. Nuss filed a complaint (comp.) against the Village of
    Durand (Durand). On March 2, 2001, Durand filed a motion to dismiss (mot.). Nuss has not
    responded to the motion to dismiss.
     
    For the reasons below, the Board finds that Nuss’ complaint is frivolous, grants
    Durand’s motion to dismiss, and closes the docket.
     
    BACKGROUND
     
    The Complaint
     
     
    The allegations in the complaint arise from Durand’s installation of a sewer line in close
    proximity to a private well on Nuss’ property. Comp. at 1.
     
    Nuss alleges that Durand may have run afoul of Section 370.240 of the Illinois
    Environmental Protection Agency’s (Agency) regulations by deviating from Agency
    specifications in Durand’s permit for the sewer line. See 35 Ill. Adm. Code 370.320. Nuss
    also alleges that, as a result of deviating from the Agency’s design criteria at Section 370.320 of
    the Agency’s regulations, Durand has violated Section 309.241(a) of the Board’s regulations.
    In addition, Nuss alleges that there is a “potential for failure of the sewer pipe, which would
    threaten the complainant’s potable water well.” Comp. at 1.
     
    Nuss requests that the Board require minimal excavation to allow the sewer line to be
    examined. Nuss also requests that the Board compel Durand to come into compliance with “the
    required standards and specifications”. Comp. at 1.
     
    The Motion to Dismiss
     
    Durand asks that the Board dismiss the complaint. In the alternative to dismissal,
    Durand asks that Nuss submit evidence to allow the Board to determine if an excavation of the
     
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    site is necessary. If the Board determines that an excavation is necessary, Durand asks that the
    Board order the excavation to be performed in a manner that causes the least amount of damage
    to Nuss’ driveway. Durand also asks that Nuss be responsible for the excavation costs if the
    excavation reveals that there is no violation of Section 309.241 of the Board’s regulations.
    Mot. at 2.
     
    PCB 01-30
     
    Nuss made essentially the same allegations against Durand in a prior docket, PCB 01-30. In
    that docket, the Board examined the merits of some of the allegations that Nuss has made against
    Durand in the instant matter. The Board discussed the allegations regarding Part 370 of the Agency’s
    regulations. The Board then discussed Nuss’ allegations that sewer leaks could threaten his potable
    water supply. The Board determined that Nuss failed to cite specific provisions of the Environmental
    Protection Act (Act), regulations, or permits that had been violated. The Board found that it could not
    accept the complaint for hearing. However, the Board allowed Nuss to file an amended complaint.
    Nuss v. Durand (October 19, 2000), PCB 01-30, slip op. at 3-4. Nuss then filed an amended
    complaint but failed to properly serve Durand. Consequently, the Board dismissed the amended
    complaint and closed the docket. Nuss v. Durand (February 15, 2001), PCB 01-30.
     
    DUPLICITOUS/FRIVOLOUS DETERMINATION
     
    Section 103.212(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. The
    parties may file motions regarding the insufficiency of the pleadings if the Board rules that the complaint
    is neither duplicitous nor frivolous.
     
    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 85-68.
     
    The Board finds that the complaint is not duplicitous. The prior complaint has been dismissed,
    and the record does not indicate that the complaint is currently pending in another forum.
     
    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.
     
     
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    Potential Sewer Leaks
     
    In the October 19, 2000 order for docket PCB 01-30, the Board examined some of the
    merits of the allegations that Nuss has again made against Durand in the instant matter. Nuss
    alleged that sewer leaks could occur in the future, thereby threatening his water supply.
    However, Nuss did not cite any related provision in the Act or the regulations. Persons filing
    complaints must specifically identify the provision of the Act or the regulations that the
    respondent is allegedly violating. 415 ILCS 5/31(c) and (d) (1998); 35 Ill. Adm. Code
    103.204(c)(1). The Board held that Nuss’ allegations against Durand failed to cite specific
    provisions of the Act, regulations, or permits that had been violated. Nuss v. Durand (October
    19, 2000), slip op. at 4.
     
    In the instant docket, Nuss again does not cite to any related provisions of the Act or the
    regulations regarding the potential sewer leaks. Nuss has failed to allege a cause of action upon
    which the Board can grant relief. Thus, the allegations regarding the sewer leaks are frivolous.
     
    Section 309.241 of the Board’s Regulations
     
    In its October 19, 2000 order for docket PCB 01-30, the Board did not address the
    allegation that Durand may have violated Section 309.241 of the Board’s regulations. (Nuss
    first cited Section 309.241 in the amended complaint filed on November 22, 2000.) This same
    allegation is included in the complaint now before the Board. Section 309.241 provides as
    follows:
     
    Section 309.241
    Standards for Issuance
     
    a)
    The Agency shall not grant any permit required by this Subpart B, except an
    experimental permit under Section 309.206, unless the applicant submits
    adequate proof that the treatment works, pretreatment works, sewer, or
    wastewater source will be constructed, modified, or operated so as not to
    cause a violation of the Act or of this Subtitle and
     
    b)
    If the Agency has promulgated, pursuant to Section 309.262, criteria with
    regard to any part or condition of a permit, then for purposes of permit
    issuance proof of conformity with the criteria shall be prima facie
    evidence of no violation. However, non-conformity with the criteria shall
    not be grounds for permit denial if the condition of subsection (a) of this
    section is met.
     
    Section 309.241(a) of the Board’s regulations refers to the proof that a permit applicant
    must submit to receive a permit. It does not appear from the face of the complaint that Nuss is
    alleging a violation of Section 309.241(a).
     
    With respect to Section 309.241(b) of the Board’s regulations, Nuss alleges that Durand
    is not complying with the Agency’s design criteria at 35 Ill. Adm. Code 370. Even if Nuss’
     
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    allegations are true and if Durand is not meeting the condition at 35 Ill. Adm. Code 309.241(a),
    it is the Agency’s responsibility to issue and deny permits. The Board cannot find that Durand
    violated a regulation if the regulation directs the Agency to act or not to act. The Board cannot
    provide any relief to Nuss regarding this allegation. Therefore the Board finds that Nuss’
    Section 309.241 allegation is frivolous.
     
    CONCLUSION
     
    The Board finds that, pursuant to Section 31(d) of the Act (415 ILCS 5/31(d) (1998)) and
    Section 103.212(a) of its procedural rules, Nuss’ complaint is frivolous. The Board will therefore grant
    Durand’s motion to dismiss and will close the docket.
     
     
    IT IS SO ORDERED.
     
    Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1998)) provides for the
    appeal of final Board orders to the Illinois Appellate Court within 35 days of the date of service
    of this order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 172
    Ill. 2d R. 335; see also 35 Ill. Adm. Code 101.520, Motions for Reconsideration.
     
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above
    order was adopted on the 3rd day of May 2001 by a vote of 7-0.
     
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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