ILLINOIS POLLUTION CONTROL BOARD
    January 22, 2004
     
     
    TERESA L. SHEPRO, as executor of the
    estate of Justice W. Shepro, deceased, and
    FRANK WIEMERSLAGE, as beneficiaries
    under Trust No. 898 of the Chicago Trust
    Company,
     
    Complainants,
     
    v.
     
    NEWBY OIL COMPANY, DAVID E. TRIPP,
    and JANICE L. TRIPP,
     
    Respondents.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
     
      
     
     
     
     
    PCB 04-12
    (Enforcement – Land, Water)
     
     
    ORDER OF THE BOARD (by T.E. Johnson):
     
    On July 23, 2003, Teresa L. Shepro and Frank Wiemerslage (complainants) filed a
    complaint against Newby Oil Company, David E. Tripp, and Janice L. Tripp (respondents).
    See
     
    415 ILCS 5/31(d) (2002); 35 Ill. Adm. Code 103.204. The complainants allege that the
    respondents placed 55 gallon drums, above-ground storage tanks and semi-trailers on property
    owned by the complainants on Oakland Drive, DeKalb in Sycamore County that resulted in
    environmental contamination and a concern for safety of the complainants’ soil and
    groundwater.
     
    On October 16, 2003, the Board issued an order finding the complaint deficient and
    directing the complainants to amend the complaint to comply with the requirements of 35 Ill.
    Adm. Code 103.204. The Board did not rule on whether or not the complaint is duplicative or
    frivolous as required by Section 31(d) of the Act.
     
    On November 13, 2003, the complainants filed an amended complaint. Respondent
    Newby Oil Company (Newby) filed an answer to the amended complaint on November 24,
    2003; and respondents David E. Tripp and Janice L. Tripp (Tripps) filed an answer to the
    amended complaint on December 15, 2003.
     
    The amended complaint alleges that the respondents violated Sections 12(a) and (d) of
    the Environmental Protection Act (Act) (415 ILCS 5/12(a) and (2) (2002)), as well as the
    objectives set forth in 35 Ill. Adm. Code 742. The complainants allege that the respondents
    violated these provisions by causing or allowing the discharge and deposition of contaminants
    into the environment so as to cause water pollution or create a water pollution hazard.
     
    Section 31(d) of the Environmental Protection Act (415 ILCS 5/31(d) (2002)) allows any
    person to file a complaint with the Board. Section 31(d) further provides that “[u]nless the
     
    2
    Board determines that such complaint is duplicative or frivolous, it shall schedule a hearing.”
    Id.
    ;
    see also
    35 Ill. Adm. Code 103.212(a). A complaint is duplicative if it is “identical or
    substantially similar to one brought before the Board or another forum.” 35 Ill. Adm. Code
    101.202. A complaint 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.”
    Id.
    Within
    30 days after being served with a complaint, a respondent may file a motion alleging that the
    complaint is duplicative or frivolous. 35 Ill. Adm. Code 103.212(b). The respondents have filed
    no motion. Except as noted below, there is no evidence before the Board that indicates that the
    allegations of the complaint are duplicative or frivolous.
     
    The Board accepts the majority of the amended complaint for hearing.
    See
    415 ILCS
    5/31(d) (2000); 35 Ill. Adm. Code 103.212(a). However, the Board strikes that portion of the
    complaint alleging a violation of 35 Ill. Adm. Code Part 742. As stated in the Board’s
    October 16, 2003 order, a complaint must contain a reference to the provision of the Act and
    regulations that the respondents are alleged to be violating. 35 Ill. Adm. Code 103.204(c)(1). A
    reference to Part 742 - regulations that address the tiered approach to corrective action objectives
    - does not provide sufficient reference to provisions of the Act or associated regulations that
    respondents allegedly violated.
     
    A respondent’s failure to file an answer to a complaint within 60 days after receiving the
    complaint may have severe consequences. Generally, if respondent fails within that timeframe
    to file an answer specifically denying, or asserting insufficient knowledge to form a belief of, a
    material allegation in the complaint, the Board will consider respondent to have admitted the
    allegation. 35 Ill. Adm. Code 103.204(d). The Board directs the hearing officer to proceed
    expeditiously to hearing.
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on January 22, 2004, by a vote of 5-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

    Back to top