ILLINOIS POLLUTION CONTROL BOARD
November 16, 1995
JOSEPH BOGACZ,
)
)
Complainant,
)
)
v.
)
PCB 96-47
)
(Citizens Enforcement - Air)
COMMONWEALTH EDISON CO.,
)
)
Respondent.
)
ORDER OF THE BOARD (by R.C. Flemal):
This matter is before the Board on a complaint filed on
August 23, 1995 by Joseph Bogacz. At issue are certain high
voltage (HV) electric transmission lines and other equipment,
including transformers, operated by respondent Commonwealth
Edison Company (ComEd). Mr. Bogacz alleges that corona discharge
from the HV equipment produces ozone air pollution in violation
of Title II of the Environmental Protection Act (Act) (45 ILCS
5/1 et seq.) Sections 8, 9, 9.1, 9.5, 9.6 and "other applicable
Sections" (Complaint at ΒΆ5).
On September 20, 1995 ComEd filed a Motion to Dismiss
contending that the complaint is duplicitous and frivolous; Mr.
Bogacz filed a response and motion to amend complaint
1
. On
November 1, 1995 ComEd filed a response to complainant's motion
to amend complaint. The Board hereby grants complainant's motion
to amend complaint.
Prior to addressing the contention that the complaint is
duplicitous and frivolous, the Board first addresses that portion
of the complaint which specifies the Sections of the Act alleged
to have been violated, i.e., Sections 8, 9, 9.1, 9.5, 9.6 and
"other applicable Sections". The Board's procedural rules
require that a formal complaint contain a reference to the
provision of the Act or regulation alleged to be violated. (35
Ill. Adm. Code 103.122(c)(1).) The portion of the complaint
alleging violation of "other applicable Sections" does not comply
with this requirement, and the Board accordingly strikes that
portion of the complaint alleging violations of "other applicable
Sections".
1
Pursuant to Board order dated October 5, 1995, Mr. Bogacz
was given leave to file his response on or before October 24,
1995. On November 1, 1995 the Board received a copy of Bogacz's
original response, along with a copy of the certified mail
receipt indicating the original response was posted on October
23, 1995. On November 7, 1995 the Board received the original
response post-dated October 23, 1995.
2
The Board next notes that Sections 8, 9.5 and 9.6 of the Act
are improperly asserted in the complaint. Sections 8 and 9.5 of
the Act set forth legislative declarations and do not enumerate
prohibited acts. (415 ILCS 5/8 and 9.5 (1994).) Accordingly,
the Board hereby finds that ComEd cannot violate Sections 8 and
9.5 of the Act. Section 9.6 addresses the air pollution
operating permit fee scheme. (415 ILCS 5/9.6 (1994).) There are
no Board regulations requiring air pollution permits for
transmission lines. Therefore, the instant HV electric
transmission lines operated by ComEd are not sites which require
an air pollution operating permit under Section 9.6.
Consequently, complainant's allegation of a violation of Section
9.6 of the Act is improper. The Board hereby finds the alleged
violations of Sections 8, 9.5 and 9.6 of the Act are not properly
the subject of the instant enforcement action and, accordingly,
also strikes those Sections from the complaint.
The Board next addresses the issue of whether the complaint
is duplicitous or frivolous concerning the remaining alleged
violations of the Act, Sections 9 and 9.1. Section 103.124(a) of
the Board's procedural rules, which implements Section 31(b) of
the Environmental Protection Act (415 ILCS 5/31(b)), provides:
... 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.
The Board has held that an action is duplicitous if the
matter is identical or substantially similar to one brought in
another forum. (See, Fore v. Midstate Kart Club (October 7,
1993) PCB 93-171; Mandel v. Kulpaka PCB 92-33 (August 26, 1993);
In re Duplicitous or Frivolous Determination (June 8, 1989), RES
89-2, 100 PCB 53.)
ComEd claims the instant action is duplicitous because it
attempts to raise claims that were or could have been the subject
of a previous action filed by complainant before the Illinois
Commerce Commission (ICC) regarding transmission line corona.
(Bogacz v. Commonwealth Edison Company, ICC No. 93-0112.) ComEd
alleges that complainant has already had a full and fair
opportunity to litigate the issues of ionization and corona, and
3
that decision is
res judicata
. (Res. at 8-9.)
2
ComEd argues
that it is comprehensively regulated by the ICC and the Board
does not regulate electrical transmission lines.
Mr. Bogacz responds that the action is not duplicitous
because it does not involve the same cause of action and the
subject of the complaint before the Board is the new "issue of
ozone air pollution (which) was not in any way an issue in the
ICC case". (Com. Res. at 3.) Mr. Bogacz argues that "(n)o claim
of ozone air pollution exists within the ICC order, complaint or
hearing". (
Id
.)
The instant complaint alleges violations of the
Environmental Protection Act due to corona discharge resulting in
ozone formation. Within the Act it is the Board that is charged
to "determine, define and implement the environmental control
standards applicable in the State of Illinois" (415 ILCS 5/5(b)
(1994)) and the Board "shall have authority to conduct hearings
upon complaints charging violations of this Act" (415 ILCS 5/5(d)
(1994)). The ICC is not a court of concurrent jurisdiction with
regards to adjudicating violations of the Act. Therefore the
Board is the appropriate forum in which to adjudicate alleged
violations of the Act.
The Board also observes that the ICC order
3
in 93-0112 does
not address any alleged violations of the Act, nor the subject of
corona discharge from the transmission lines resulting in ozone.
Instead, the ICC order addresses Mr. Bogacz's complaint
regarding: 1) ComEd equipment causing television interference
(TVI) in his residence; 2) ComEd lines creating a health and
safety hazard on his property; 3) ComEd's failure to notify him
of the placement of additional lines near his property; and 4)
ComEd's responsibility for several power outages which
complainant experienced.
Given the information before the Board, this matter is not
identical or substantially similar to ICC 93-0112 or any matter
brought in another forum
4
. Therefore, the Board finds that,
2
Mr. Bogacz's amended complaint will be cited as (Comp. at
__); ComEd's Motion to Dismiss will be cited as (Res. at __);
Mr. Bogacz's response in opposition to ComEd's motion to dismiss
will be cited as (Comp. Res. at __); the amended complaint will
be referenced simply as the "complaint".
3
A copy of the complaint before the ICC in 93-0112 has not
been filed with the Board. Therefore the Board must look to the
corresponding ICC order.
4
Additionally the matter before the Board is not barred by
res
4
pursuant to Section 103.124(a), the complaint is not duplicitous.
Next the Board turns to whether Mr. Bogacz's complaint is
frivolous. 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).)
Mr. Bogacz requests that the Board: 1) order respondent to
stop polluting; 2) initiate, consider and adopt appropriate
regulations applicable to respondent; and 3) order respondent to
pay money penalties. First, the Board has specific statutory
authority to order a respondent to cease and desist from
violations of the Act. (415 ILCS 5/33(b) (1994).) If the Board
finds that respondent is violating the Act, it has the power to
order respondent to cease and desist from such activity.
Second, pursuant to Section 28(a) of the Act, any person may
present written proposals for the adoption of Board regulations,
and the Board may make such proposals on its own motion. Based
upon our statutory authority regarding rulemaking necessary to
accomplish the purposes of the Act (415 ILCS 5/26 (1994)),
opening a regulatory docket is relief the Board may grant.
The third relief requested by complainant is to order
respondent to pay money penalties. The Board has been granted
the statutory authority to impose civil penalties (415 ILCS
5/33(b) (1994)) and has frequently exercised this authority.
There is no reason why the Board cannot continue to utilize its
rights granted in the Act in this matter.
In sum, the Board can grant the relief requested in
complainant's amended complaint. Therefore, the Board finds
that, pursuant to Section 103.124(a), the complaint is not
frivolous.
Having found that the instant complaint is neither
duplicitous nor frivolous, the Board hereby denies ComEd's motion
to dismiss on these grounds. 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
judicata
because it fails both tests adopted by Illinois courts:
the "same evidence" test and the "transactional approach" test.
5
Board of the time and location of the hearing at least 40 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.
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
_______ day of _________________, 1995, by a vote of _______.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board