ILLINOIS POLLUTION

CON~OLBOARD

June

13,

1985

PATRICK

BRANDLE,

JOEL DALY,

)

LESTER HOSTE, STEPHEN

LAI4BERTX

)

MICHAEL PASSNORE and CHARLES

)

WELTY,

)

Complainants,

)

v.

)

PCB 85—68

)

DONALD ROPP,

)

)

Respondent.

ORDER

OF THE BOARD (by J. Theodore Meyer):

This matter comes before the Board on a May 6,

1985

complaint filed

by Patrick Brandle, Joel Daly,

Lester Boste,

Stephen Lamberti, Michael Paasmore and Charles Welty

(Complainants)

against Donald Ropp (Respondent)0

The complaint

alleges that on or about

the

1st day of March, 1985 Respondent

began operating a waste disposal operation without a permit

issued by the Illinois Environmental Protection Agency (Agency)

in violation of Section 21(d)(1)

of the Illinois Environmental

Protection Act (Act).

The Respondent moved on May

28

to dismiss

the complaint stating that the instant proceeding was duplicative

of

an action presently pending in Circuit Court.

Complainants

responded to the motion to dismiss on June

5,

1985.

Complainants state that they have no objection

to resolving

this matter

in Circuit Court and that it

is their intent to do

so.

However,

they suggest that

it would be “more appropriate” to

enter

a general continuance of the Board proceeding until what

matters will be resolved in the court are known.

Under Section 30(b)

of the Act the Board

is required to

schedule hearing in enforcemt~ntcases such as this unless it

determines that the complaint

is !~duplicitousor

frivolous”.

Duplicitous is not defined in

the

Ac~but has been Interpreted to

apply to complaints which duplicate “allegations identical or

substantially similar to matters previously brought before the

Board.”

Winnetkans Interested

izi Protecting

the Environment

(WIPE)

v.

Illinois pollutioñi~óñ?ro1Board, 370 N.E. 2d 1176,

(111

App.

Ct~1977J.

A compiiint

is also duplicitous if

it is

identical

or substantially similar

to one brought in another

forum.

The complaint herein consists of ten allegations;

allegations eight through ten concern

the

alleged waste—disposal

?4-263

---

—2—

operation.

The Board

finds that

the allegations are duplicitous

of those currently pending

in the Circuit Court for th~

Fourteenth Judicial District in Cause No.

85—MR—104.

Although the complaints

are not precisely identical the

issues are substantially similar to those pending before the

Circuit Court.

One of

the

issues at

the court level concerns

whether

a Development Permit was properly issued in accordance

with

an ordinance of the Village of Colona; resolution of the

issue of whether an Agency permit is required

is a prerequisite

to

the outcome, The defendant (Respondent herein) disputes the

necessity of obtaining

an Agency permit and in fact, has filed a

third—party complaint against the Agency requesting a Declaratory

Judgeinent to deterwthe whether the activity complained of

requires an Agency permit.

The Board

finds that the most expeditious and complete

resolution of this issue

will

be accomplished at the court

level,

Continuance

is inappropriate where, as here,

the

complaint

cannot meet the threshold test for Board acceptance.

Accordingly,

this

matter

is dismissed, without prejudice.

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

the /~t~dayof

~,

1985,

by a vote

of~.

0

~f)i,

Dorothy M.

Gunn, Clerk

Illinois Pollution Control Board

84.~84