ILLINOIS POLLUTION CONTROL BOARD
November 19, 1998
SCOTT and SHELLY BEHRMANN,
Complainants,
v.
OKAWVILLE FARMERS ELEVATOR -
ST. LIBORY,
Respondent.
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PCB 98-84
(Enforcement - Noise, Citizens)
ORDER OF THE BOARD (by J. Yi):
This matter is before the Board on respondent’s September 28, 1998 motion to strike or
dismiss the third amended complaint (complaint). On December 11, 1997, the Board received
a citizen’s enforcement complaint filed by Scott and Shelly Behrmann (Behrmanns). The
Board denied Okawville Farmers Elevator - St. Libory’s (Farmers Elevator) first motion to
dismiss on March 19, 1998, and ordered this matter to proceed to hearing. On April 2, 1998,
the Board accepted the Behrmanns’ first amended complaint. On June 4, 1998, the Board
accepted the Behrmanns’ second amended complaint. On July 8, 1998, the Board denied
Farmers Elevator’s motion to dismiss the second amended complaint. On September 3, 1998,
the Board accepted the Behrmanns’ third amended complaint. As noted, Farmers Elevator
filed the instant motion to dismiss on September 28, 1998. The Behrmanns filed their
response on October 6, 1998.
MOTION TO DISMISS
In its motion, Farmers Elevator asserts a number of reasons to dismiss the complaint.
First, the motion notes that complainant has recently filed a complaint in the Circuit Court of
the Twentieth Judicial Circuit, St. Clair County, Illinois. The respondents argue that the State
Court complaint seeks substantially the same remedies as requested in the complaint before the
Board. Mot. at 1.
1
The motion to dismiss next asserts that the complaint contains conclusory and
prejudicial allegations that Farmers Elevator’s grain storage facility is an industrial business,
and that the Behrmanns’ land is residential for the purposes of the Illinois Environmental
Protection Act (Act). 415 ILCS 5/1
et seq
. (1996). Mot. at 2. Farmers Elevator asserts that
the Behrmanns’ land should be classified as Class C, not Class A land for the purposes of the
Act because it contains a hog breeding operation.
1
References to the motion to dismiss will be cited as Mot. at __. References to the response
to the motion to dismiss will be cited as Resp. at __.
2
Farmers Elevator argues that the complaint makes no allegation of fact as to the social
and economic value of the suitability or unsuitability of the alleged pollution source, or the
technical practicability or economic reasonableness of reducing or eliminating any alleged
emissions from the source. Mot. at 2. Farmers Elevator cites cases stating that such
allegations are required by law. The respondent next asserts that the Behrmanns detailed
instruction to the Board regarding what civil penalties to assess is frivolous, prejudicial, and
should be stricken from the complaint.
The respondent cites the Illinois Farm Nuisance Act (740 ILCS 70/3 (1996)) which
defines “farm” as being any parcel of land with an agricultural use, and provides that no farm
shall become a private or public nuisance because of any changed conditions in the
surrounding area occurring after the farm has been in operation for more than one year if the
farm was not a nuisance at the time it began operations, and the nuisance is not resulting from
negligent or improper operation of any farm appurtenances. Mot. at 3. Farmers Elevator
argues that the complaint requests relief based on nuisance actions as the result of dust and
noise from respondent’s grain storage operation, and that Farmers Elevator’s operations has
not changed since 1962. Thus, posits Farmers Elevator, the nuisance counts in the complaint
should be dismissed.
Id
.
Finally, Farmer’s Elevator asserts that the requested attorney fees, expert witness fees,
and the assessment of a bond against respondent are remedies not available to the
complainants. The respondent moves the Board to strike the complaint as being duplicitous, or
alternatively, to strike those portions which are frivolous and insufficient as a matter of
administrative law.
RESPONSE TO MOTION TO DISMISS
In response, the Behrmanns ask that the motion to dismiss the complaint be denied.
The Behrmanns first state that the motion to dismiss was filed well outside the 14 day response
limit set by the Board. Thus, assert the Behrmanns, the motion should not be considered, and
should be stricken.
The Behrmanns next address the assertion that the complaint is duplicative. The
Behrmanns note that the State Court complaint includes three counts: nuisance, trespass, and
proceedings to prevent violation of the St. Libory Zoning Code. Resp. at 2-3. The
Behrmanns argue that the State Court complaint does not allege noise or dust pollution, or
violations of the Act. The Behrmanns conclude that the allegations and the relief sought in the
State Court complaint are different and distinct than those sought in the complaint before the
Board, and attach a copy of the first amended State Court complaint to their response as
exhibit A.
The Behrmanns contend that Farmers Elevator’s attempts to raise factual issues
concerning land use classification is improper, and, regardless, reaches invalid conclusions.
Resp. at 4. The Behrmanns assert that their land use is residential, that their lot contains no
hog breeding operation, and that the only animal contained on their property is a small beagle.
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Resp. at 5. The Behrmanns note that a small hog lot did exist on the south side of
respondent’s property, but that such lot is no longer in use.
Id
.
Next, the Behrmanns maintain that the cases cited by Farmers Elevator regarding the
social and economic value of the alleged pollution source, or the technical practicability or
economic reasonableness of reducing or eliminating any alleged emissions from the source
were not fully explained by the respondent. The Behrmanns contend the cases also state that
the Board should take into consideration the character and degree of injury to, or interference
with the protection of the health, general welfare, and physical property of the people. Resp.
at 5. The Behrmanns note that Farmers Elevator’s refusal to utilize the appropriate technology
to reduce the great amount of dust and noise it creates is baffling.
Id
.
The Behrmanns disagree with respondent’s characterization of their grain storage
facility as a “farm.” The Behrmanns also state that Farmers Elevator has dramatically
changed the use of its property, and that from the evidence presented through discovery and at
the hearing in this matter, it will become blatantly clear to the Board that the respondent is
operating its grain elevator in a negligent and improper manner. Resp. at 6. The Behrmanns
dispute that respondent’s property has been used as a grain storage business since 1962, and
assert that respondent began its industrial grain elevator business in September of 1994. Resp.
at 7.
Finally, the Behrmanns maintain that Farmers Elevator’s continued assertion of
inaccurate statements to the Board is an attempt to mislead the Board and delay the final
hearing of this matter. The Behrmanns state that the respondent continues to operate its
business in total disregard of complainant’s physical and emotional health and well-being, and
is depriving complainants of sleep at night and of the use and enjoyment of their property.
DISCUSSION
The motion to dismiss was not timely filed. However, while acknowledging
complainant’s assertion that respondent is attempting to delay this proceeding, the Board notes
that complainant has itself amended its complaint three times, and is partially responsible for
any delay that has occurred. Thus, the Board accepts respondent’s motion to dismiss.
A complaint should not be dismissed unless it clearly appears that no set of facts could
be proven that would entitle a complainant to relief. The Board will take all well-pleaded
allegations in the complaint as true. Gorden Krautsack v. Bhogilal Patel, Subhas Patel, and
Electronic Interconnect, Inc. (June 15, 1995), PCB 95-143; Miehle v. Chicago Bridge and
Iron Co. (November 4, 1993), PCB 93-150.
An action before the Board is duplicative if the matter is identical or substantially
similar to one brought in another forum. Brandle v. Ropp, (June 13, 1985), PCB 85-68.
However, an action before the Board is not duplicative to an action involving the same parties
in a different forum if the second action is based on statues and legal theories other than the
Act. Lake County Forest Preserve District v. Ostro, (July 30, 1992), PCB 92-80. Dayton
Hudson v. Cardinal Industries, Inc., and Daniel E. Cardinal, (August 21, 1997) PCB 97-134.
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The State Court complaint is based on legal theories and statutes that are separate and distinct
from those in the complaint before the Board. The State Court complaint is based on the
common law theories of trespass and nuisance, and the St. Libory Zoning Code. The
complaint before the Board is based solely on the Act, and the regulations promulgated
thereunder. The Board finds that the matter before the Board is not duplicative, and denies the
motion in this regard.
The Board next considers the classification of the land involved in this matter. The
parties disagree on the classification of each parcel of property in question. The classification
of the land cannot be decided on the evidence currently available, and is an issue of fact to be
determined at hearing. For the purpose of the motion to dismiss, however, the allegations in
the third amended complaint are well plead, and must be accepted as true. Thus, this portion
of the motion to dismiss must be denied.
The Board finds that the complaint makes sufficient allegations of fact to proceed to
hearing. Respondent has argued that because complainant did not allege certain factors as
listed in Section 33(c) of the Act, 415 ILCS 5/33(c) (1996), that the complaint is deficient.
This is not accurate. When making a determination, the Board must consider each factor listed
in Section 33(c) that bears upon the reasonableness of an emission. However, the complainant
does not need to submit evidence on each factor, or prevail at hearing on each factor, to meet
their burden. See,
e.g
., Processing & Books, Inc. v. Pollution control Board, 64 Ill. 2d 68,
76, 351 N.E.2d 865, 869 (1976).
The Board finds that the Illinois Farm Nuisance Act (Farm Act) does not apply to this
matter. The Farm Act concerns nuisance actions. As noted, the complaint before the Board
concerns alleged violations of the Act. These violations require the Board to determine,
inter
alia
, whether noise or air pollution has occurred. That the facts supporting such a finding may
also support a nuisance action is immaterial. Because there are not nuisance counts before the
Board, respondent’s request that such counts be stricken is moot, and denied.
Finally, the Board considers Farmers Elevator assertion that the requested attorney
fees, expert witness fees, and the assessment of a bond against respondent are remedies not
available to the complainants. The Behrmanns did not respond to this argument. The Board
finds in favor of Farmers Elevator in part. Attorney fees and expert witness fees are not
available to a citizen complainant. Dayton Hudson (August 21, 1997) PCB 97-134. Such
costs and fees are allowed by Section 42(f) of the Act, but only when the Attorney General or
State’s Attorney prevails in an enforcement action brought on the behalf of the People of the
State of Illinois. See 415 ILCS 5/42(f) (1996). Accordingly, the Board strikes that portion of
the request for relief seeking attorneys fees and expert witness fees. The Board does not,
however, strike the request for an assessment of a bond against respondent. This is an
appropriate request for relief pursuant to Section 33(b) of the Act. 415 ILCS 5/33(b) (1996).
CONCLUSION
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The request for relief seeking attorney fees and expert witness fees is stricken from the
complaint. The remainder of Farmers Elevator’s motion to dismiss is denied. The parties are
directed to proceed to hearing with all due expediency.
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 19th day of November 1998 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
