ILLiNOIS
VOLLUTX(.Th
CON’XKOL
bOA&(D
September 7,
1995
OLIVE STREIT and LISA STREIT,
Complainants,
v.
)
PCB 95—122
(Enforcement—UST)
OBERWEISS DAIRY, INC., RICHARD
)
J. FETZER and JOHNNIE W. WARD
)
d/b/a SERVE—N-SAVE, and RICHARD
)
J. FETZER,
individually,
AMOCO
)
OIL COMPANY, MOBIL OIL
)
CORPORATION and ILLINOIS
)
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondents.
DISSENTING OPINION
(by J. Theodore Meyer):
I dissent from the Board’s order because I believe this
matter to be duplicitous.
As the Board’s order correctly states,
in citizen
enforcement actions, the Board must make a determination as to
whether the complaint is frivolous or duplicitous before sending
the matter to hearing.
(415 ILCS 5/31(b) (1994);
35 Ill.
Adm.
Code 103.104.)
A matter is considered duplicitous if the
allegations are identical or substantially similar to matters
previously before the Board or to matters brought in another
forum.
(Brandle v.
Ropp, PCB 85—68,
64 PCB 263
(June
13,
1985).)
On April
4,
1995,
Olive Streit and Lisa Streit filed a
complaint before the Board alleging contamination of their water
well by one or more of the named defendants.
(Pet.
at
1.)
In
1992, Olive Streit and Lisa Streit had filed a complaint in Kane
County, Illinois, under case name L KA 92-0406 in which the
exact
same allegations were made.
This case was pending at the time of
the Board filing on April
4,
1995, although it was subsequently
dismissed on April 12,
1995.
I believe that the filing of a
subsequent action with substantially similar allegations makes
the subsequent action duplicitous, even if the prior action is
withdrawn.
The orderly administration of justice should not
permit a party to proceed on a matter for 4 years in civil court,
only to file a second action with the same complaints
in another
forum.
Not only does this drain the state’s resources, but also
forces respondents to refile answers to the same allegations.
For these reasons,
I respectfully dissent.
J~t~~ó~fl!èyer
B
rd Member
2
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
was filed
Board, hereby certify ~
on the
_________
day of
________________
__________
___________________
1995
V
,)1~
~~othy
M/~unn,Clerk
Illinois ~p’11utionControl Board