\\PCB_SPI\DATA2\HTDOCS\PCB\OPINION\Z961219\97079D.DOC
    01/02/97 1:35 PM
    ILLINOIS POLLUTION CONTROL BOARD
    December 19, 1996
    JANE GRAHAM AND KATHY CREECH,
    Complainants,
    v.
    CITY OF PARIS,
    Respondent.
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    PCB 97-79
    (Enforcement - Citizens)
    ORDER OF THE BOARD (by J. Theodore Meyer):
    On October 31, 1996 Jane Graham and Kathy Creech (Citizens) filed a citizen’s
    enforcement complaint against the City of Paris (Paris) alleging that Paris had violated
    Sections 9(a) and 9(c) of the Illinois Environmental Protection Act (Act) due to a city
    ordinance which allows the burning of combustible refuse within Paris’ municipal boundaries.
    The complaint requests the Board to issue a cease and desist order precluding the open burning
    of trash in the city of Paris. On November 13, 1996 Paris timely filed a motion to dismiss
    claiming that this action is frivolous because the Board does not have the authority to grant the
    specific relief requested. No response to the motion to dismiss was filed.
    This matter is before the Board today pursuant to Section 31(a)(2) of the Act and the
    Board’s procedural rule at 35 Ill. Adm. Code 103.124(a) which require the Board to determine
    whether a citizen’s complaint is frivolous or duplicitous. Additionally, the Board will rule on
    the motion to dismiss.
    COMPLAINT
    The Citizens allege that air and odor pollution are produced in the city of Paris by
    “hundreds of ‘burn barrels’ used by [r]esidents who burn items including, but not excluded
    to[:] paper, plastic, metals, garbage, human and animal excrement, grass, leaves and
    landscape waste, motor oil, asbestos shingles, carpet, tires, etc.” (Comp. at 2.)
    1
    The
    complaint did not include any evidence of these allegations. Citizens further claim that this
    type of pollution causes acute nose, throat and eye irritation, as well as headaches, nausea,
    allergic reactions and asthma attacks. (Comp. at 3.) The complaint acknowledges that a Paris
    city ordinance allows for burning of combustible waste under certain conditions, but claims
    that enforcement of the ordinances are made “only on a ‘call and complaint’ basis”. (Comp.
    at 2.) Citizens therefore request the Board to order Paris to cease and desist from allowing
    open burning within the city limits, and further order Paris to “develop and implement a
    solution for enforcing total compliance” with state laws and city ordinances. (Comp. at 3.)
    1
    The complaint will be cited as (Comp. at __.) and the Motion to Dismiss will be cited as
    (MTD at __.).
    2
    MOTION TO DISMISS
    In its Motion to Dismiss, Paris first asserts that Citizens incorrectly named it as a
    respondent in that the city itself does not engage in open burning. (MTD at 1.) Secondly,
    Paris argues that the mere presence of an ordinance that allows for certain burning within the
    city limits does not constitute a violation of the Act by the city. (MTD at 2,
    citing to
    City of
    Lake Forest v. Pollution Control Bd., 146 Ill. App. 3d 848, 497 N.E.2d 181 (2
    nd
    Dist. 1986).)
    Paris asserts that the Board does not have authority to grant the specific relief requested and
    therefore the complaint should be dismissed as frivolous. (MTD at 2.)
    REGULATORY BACKGROUND
    As stated previously, in a citizen’s enforcement action, the Board is required to first
    determine whether or not the complaint is frivolous or duplicitous. (415 ILCS 5/31(b); 35 Ill.
    Adm. Code 103.124(a).) Section 103.124(a) of the Board’s regulations provides that if the
    Board determines that the complaint is frivolous or duplicitous, “it shall enter an order setting
    forth its reasons for so ruling and shall notify the parties of its decision”. (35 Ill. Adm. Code
    103.124(a).) If the Board rules that the complaint is neither frivolous nor duplicitous, the case
    proceeds to hearing; however, such a ruling “does not preclude the filing of motions regarding
    the insufficiency of the pleadings”. (Id.)
    An action before the Board is duplicitous if the matter is identical or substantially
    similar to one brought in another forum. (Brandle v. Ropp, (June 13, 1985) PCB 85-68, 64
    PCB 263.) 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., (May 17, 1973) PCB 73-173, 8 PCB 46.)
    DISCUSSION
    In its motion to dismiss, Paris cites to City of Lake Forest, an appellate decision which
    found that the mere presence of an ordinance which allows for burning of landscape is not a
    violation of Section 9(a) of the Act. ((City of Lake Forest, 497 N.E.2d at 186.) The court
    concluded that the Board exceeded its statutory authority by ordering Lake Forest to cease and
    desist from allowing leaf burning, and in essence, repeal its municipal ordinance regulating the
    disposal of leaves. (Id. at 185.)
    The Board agrees with the position presented in the motion to dismiss. Paris has an
    ordinance which allows for burning of “combustible refuse” within its city limits, but only
    under certain circumstances. (Comp. at 6, Paris Ord. No. 68-26, Sec. 1, 6-17-68.) The mere
    presence of this ordinance is not evidence of a violation of Sections 9(a) and (c) of the Act.
    Therefore, the Board has no authority to order Paris to cease and desist the allowance of
    burning combustible waste. In essence, the Board would be directing Paris to repeal its
    ordinance, a power clearly outside the Board’s statutory authority. However, the Board notes
    that the decision in City of Lake Forest does not curtail the Board’s authority to hear citizens
    enforcement cases involving violations of the open burning prohibitions found in the Act and
    Board regulations.
    3
    In conclusion, the Board finds that this complaint is frivolous because it fails to state a
    claim upon which relief can be granted by the Board. The motion to dismiss is granted; this
    docket is closed.
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) provides for
    appeal of final Board orders within 35 days of the date of service of this order. The Rules of
    the Supreme Court of Illinois establish filing requirements. (
    See also
    35 Ill. Adm. Code
    101.246 “Motions for Reconsideration”.)
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the _____ day of ___________, 1996, by a vote of
    ______________.
    ___________________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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