ILLINOIS POLLUTION CONTROL BOARD
    January 8, 1998
    MORTON COLLEGE BOARD OF
    TRUSTEES OF ILLINOIS COMMUNITY
    COLLEGE DISTRICT NO. 527,
    Complainant,
    v.
    TOWN OF CICERO,
    Respondent.
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    PCB 98-59
    (Enforcement-Land)
    ORDER OF THE BOARD (by G.T. Girard):
    This matter is before the Board on a motion to dismiss (Mot.) filed by respondent, the
    Town of Cicero (Cicero), on November 3, 1997. A response (Res.) was filed by the
    complainant, Morton College Board of Trustees of Illinois Community College District No.
    527 (College), on November 10, 1997. In addition, by Board order of December 4, 1997, the
    Board accepted: 1) a November 10, 1997, motion filed by respondent asking the Board to
    take judicial notice of the respondent’s complaint for declaratory and ancillary relief filed in
    Cook County Circuit Court; 2) a November 19, 1997, motion by complainant asking for time
    to file a supplement to complainant’s response to the motion to dismiss and a November 26,
    1997, supplemental response (S.Res.); and 3) a November 24, 1997, motion filed by
    respondent for leave to file a reply (Reply) to complainant’s response to the motion to dismiss.
    On December 10, 1997, the Board received from Cicero a motion for leave to file a
    supplemental reply (S.Reply) instanter. The Board grants that motion.
    After careful review of the arguments presented by the parties, the Board denies
    respondent’s motion to dismiss. The Board finds that the Board has jurisdiction over this
    matter and the complaint is neither duplicitous or frivolous. Therefore, the Board accepts this
    complaint and directs this matter to be set for hearing.
    BACKGROUND
    Before proceeding to a discussion of the arguments in the pleadings, a brief discussion
    of the facts as alleged in the complaint (comp.) will be helpful. The site at issue in this
    proceeding is located in the Cicero, Illinois. Cicero owned the property from 1986 to 1994
    when the College became the owner. Comp. at 2. A contract for the sale of the property was
    entered into on February 14, 1994 and the sale closed on November 30, 1994.
    Id
    . The
    complaint alleges that prior to the sale of the property, Cicero caused or allowed open
    dumping at the site.
    Id
    .
    ARGUMENTS
    2
    Cicero offers three main arguments why the Board should dismiss this complaint. First
    Cicero asserts that the Board lacks subject matter jurisdiction over the “threshold” issue in this
    case. Second, Cicero maintains that the circuit court’s jurisdiction is “paramount” to the
    Board’s jurisdiction over the contractual issue in the case. Finally, Cicero argues that the
    filing of the complaint is premature pursuant to provisions of the Resource Conservation and
    Recovery Act (RCRA) (42 USC 6901
    et seq.
    ) and the Comprehensive Environmental
    Response Compensation and Liability Act (CERCLA) (42 USC 9601
    et seq
    .).
    Subject Matter Jurisdiction
    Cicero concedes that the Board has jurisdiction over citizen’s enforcement and cost
    recovery cases. Mot. at 4 citing to People v. NL Industries, 152 Ill.2d 82, 604 N.E.2d 349
    (1992) (NL Industries). However, Cicero argues that the threshold issue in this case is
    whether the College has “assumed the environmental liability at the property.” Mot. at 4.
    Cicero argues that to resolve the issue of environmental liability requires construction of a
    contract between the parties which requires review of Illinois common law. Cicero states that
    the Board lacks the power to decide such issues as the Illinois General Assembly failed to
    endow the Board with that authority. Mot. at 4-5. Cicero recites the Board’s general statutory
    authority in the Environmental Protection Act (415 ILCS 5/1
    et seq
    .(1996)) (Act) at 415 ILCS
    5/5(a)-(d) and argues that nothing in the statue “either expressly or impliedly grants the power
    to the Board to construe a contract by determining as a matter of Illinois common law whether
    the parties bargained to transfer environmental liabilities to the buyer.” Mot. at 6.
    The College disagrees that the “threshold issue” is the contractual issue regarding
    environmental liability. Res. at 6. Rather, the College maintains that the threshold issue is the
    existence of violations of the Act. The College maintains that only after the Board has found a
    violation of the Act is the question of who may be responsible decided. Res. at 6. The
    College asserts that Cicero’s position “ignores the fact that the Act vests subject matter
    jurisdiction with the Board.” Res. at 6.
    The Board agrees with the College that the threshold issue in any enforcement action
    brought before the Board is whether or not a violation has occurred. If no violation has
    occurred, there is no need to determine responsibility. Clearly, the Act gives the Board the
    authority to review and determine violations of the Act. The six count complaint filed by the
    College alleges, in part, that Cicero violated the Act by causing or allowing open dumping and
    by disposing, treating, storing or abandoning waste at a site which does not meet the
    requirements of the Act or Board regulations. Although, Cicero may or may not have
    contracted with the College to assume responsibility for clean-up of the site, Cicero cannot
    contract for immunity from violations of the Act and civil penalties under the Act. The Act
    does not contain any provision which would allow such action by Cicero, nor can the Board
    find any case law which supports such a proposition. Therefore, the Board does have subject
    matter jurisdiction in this matter. Further, even if a contract between the College and Cicero
    did transfer responsibility for clean-up of the site, such a contract would not be a defense
    against alleged violations of the Act.
    Circuit Court Jurisdiction
    3
    Cicero argues that if the Board has jurisdiction in this matter, that jurisdiction is
    concurrent with the circuit court. Mot. at 8. Cicero cites to Section 22.2(f) of the Act in
    support of this argument. Section 22.2(f) provides, in part, that “costs of remedial action by a
    unit of local government may be recovered in an action before the Board.” Cicero maintains
    that it is this section of the Act that the Illinois Supreme Court “held sufficient to establish
    concurrent jurisdiction in both the circuit court and the Board to hear cost recovery cases.”
    S.Reply at 3-4, citing NL Industries.
    Cicero asserts that the Board does not have exclusive jurisdiction to hear citizen
    enforcement actions. Cicero quotes Employers Mutual Companies v. Skilling, 163 Ill.2d 284,
    644 N.E.2d 1163 (1994) (Employers Mutual) which states:
    The courts of Illinois have original jurisdiction over all justiciable matters.
    (Ill.Const. 1970, art. VI, § 9.) The legislature may vest exclusive original
    jurisdiction in an administrative agency. However, if the legislative enactment
    does divest the circuit courts of their original jurisdiction through a
    comprehensive statutory administrative scheme, it must do so explicitly. People
    v. NL Industries (1991) 152 Ill.2d 82, 96-97, 178 Ill.Dec. 93, 604 N.E.2d 349.
    Cicero also maintains that the circuit court’s jurisdiction is paramount in this matter.
    Mot. at 8. Cicero again cites to Employers Mutual to support Cicero’s position. Cicero
    asserts that since Cicero is seeking a determination of the construction of a contract, the issue
    is a question of law and the circuit court’s jurisdiction is paramount. Mot. at 10-11.
    The College argues that the Board has exclusive jurisdiction over citizen actions
    alleging violations of the Act. S.Res. at 3. The College maintains that NL Industries, which
    Cicero relies on to establish concurrent jurisdiction, is a case brought by the Attorney General
    not a citizen’s enforcement case. The College asserts that the Act creates separate enforcement
    avenues for government actions brought by the Illinois Attorney General or a state’s attorney
    (Section 31(a) and (b)) and action brought by private citizens (Section 31(d)). S.Res at 3.
    Section 31(d) of the Act provides that “any person may file with the Board a complaint . . .
    against any person allegedly violating this Act.” The College also cites several cases to
    support its proposition that the Board has exclusive jurisdiction. Those cases are Lake County
    Forest Preserve District v. Ostro, PCB 92-80 (March 31, 1994; City of Elgin v. County of
    Cook, 257 Ill.App.3d 186, 629 N.E.2d 86 (1
    st
    Dist. 1993), aff’d in part, rev’d in part on other
    grounds; and Shepard v. R.A. Cullinan & Sons, Inc., NO. 95-1227 (C.D.Ill July 16, 1997)
    (not reported).
    The Board is not persuaded, as Cicero argues, that the jurisdiction of the circuit court is
    paramount in this matter. Section 31(d) of the Act clearly states that “any person may file
    with the Board a complaint against any person allegedly violating this Act;” Section 31(d) of
    the Act does not specifically provide that “any person” may file a complaint with the circuit
    court. Thus, the plain language of Section 31(d) of the Act grants the Board jurisdiction over
    citizen enforcement actions such as this one before the Board.
    4
    With regard to Cicero’s arguments concerning the Employers Mutual case, the Board
    finds that the facts of that case are distinguishable from this matter. In that case, Employers
    Mutual Company filed a motion with the Illinois Industrial Commission requesting leave to be
    added as a party-respondent in a proceeding. Employers Mutual Company additionally filed a
    suit for declaratory judgment in the circuit court. The plaintiff in the action before the Illinois
    Industrial Commission, who was a defendant in the circuit court action, filed a motion to
    dismiss the circuit court action. In this matter we have the respondent before the Board filing
    a case in circuit court and then asking the Board to dismiss the case before the Board based on
    the circuit court action. Thus, the facts in the two cases are quite different.
    Even if Employers Mutual could be read to give concurrent jurisdiction to the circuit
    courts and the Board in citizen’s enforcement cases, Employers Mutual would support the
    Board proceeding with this case. The Court stated in that case that “[a]dministrative agencies
    are given wide latitude in resolving factual issues but not in resolving matters of law.”
    Employers Mutual at 1166. The complaint before the Board includes several allegations with
    regard to which the Board must resolve issues of fact before the contractual issue is even
    relevant. Therefore, the Board finds that the jurisdiction of the circuit court is not paramount
    to the Board’s jurisdiction in this case. The Board notes that if the parties believe that
    resolution of the circuit court case will expedite the Board’s decision, the parties are free to
    request the Board to grant a stay of this proceeding pending the outcome of the circuit court
    case. See, Pearl v. Bicoastal Corporation, Singer Corporation and Eaton Corporation, PCB
    96-265, (April 3, 1997).
    Premature Filing
    Cicero asserts that by letter dated October 8, 1997, the College gave notice to Cicero
    that it intended to sue for violations of CERCLA, RCRA and for violations of state law
    following expiration of a 60-day and 90-day notice provisions of CERCLA and RCRA. Mot.
    at 11. Cicero concedes that there is no requirement under Illinois law that a citizen provide
    notice to the Illinois Environmental Protection Agency prior to bringing a complaint. Mot. at
    13. However, Cicero argues that because the College did voluntarily give notice of its intent
    to sue, the College should not be “allowed to go back on its word.” Mot. at 13.
    The College responds that this is a state cause of action and not a federal cause of
    action. Res. at 8. The College argues that there is no “statue, regulation or judicial decision
    requiring a complainant to await the expiration of a federal notice period before enforcing non-
    federal rights.” Res. at 8.
    The Board finds Cicero’s argument without merit and declines to dismiss the complaint
    as premature.
    DUPLICITOUS/FRIVOLOUS DETERMINATION
    Section 103.124(a) of the Board's procedural rules, which implements Section 31(d) of
    the Environmental Protection Act (415 ILCS 5/31(d) (1996)) provides, in part:
    5
    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. Brandle v. Ropp, PCB 85-68, 64 PCB 263 (1985).
    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).
    Although, Cicero does not argue that the matter before the Board is either duplicitous
    or frivolous, the Board finds the record sufficient to make such a determination. The
    complaint filed in circuit court by Cicero is different from the complaint before the Board in
    several aspects. Therefore, the complaint is not duplicitous. Further, the complaint clearly
    states a cause of action upon which the Board may grant relief. Therefore, the complaint is
    not frivolous. Accordingly, this matter shall proceed 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 30 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.
    CONCLUSION
    The Board finds that the Board has jurisdiction over the issues in the complaint filed by
    the College and that the complaint was not filed prematurely. The Board further finds the
    complaint is neither duplicitous or frivolous and therefore this matter shall proceed to hearing.
    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 8th day of January 1998, by a vote of 6-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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