ILLINOIS POLLUTION CONTROL BOARD
    June 21, 2001
     
    DAVID P. HOUGHTALING,
     
     
    Complainant,
     
     
    v.
     
    TIRE MANAGEMENT, INC.,
     
     
    Respondent.
    )
    )
    )
    )
    )
    )
    )
    )
    )
     
     
     
     
    PCB 01-154
    (Enforcement – Citizens, Noise)
     
     
    ORDER OF THE BOARD (by G. T. Girard):
     
    On May 11, 2001, David P. Houghtaling (complainant) filed a complaint against Tire
    Management, Inc., (respondent). The complaint alleges that the respondent violated Section 23 and 24
    of the Environmental Protection Act (Act) (415 ILCS 5/23 and 24 (2000)) and 35 Ill. Adm. Code
    900.102, “900.102, a & b,” and 901.104 on real property located at 725 Aurora Avenue, Aurora,
    Illinois.
     
     
    As evidenced by the certificate of service filed on May 11, 2001, the respondent was served
    with the complaint and notice of filing on April 30, 2001. No other pleadings have been filed.
     
     
    Section 103.212(a) of the Board’s procedural rules directs the Board to determine whether or
    not a citizen’s complaint is duplicitous or frivolous. The Board finds that the complaint is not duplicitous
    or frivolous, and therefore accepts it for hearing.
      
    DUPLICITIOUS/FRIVOLOUS DETERMINATION
     
    Section 103.212(a) of the Board’s procedural rules implements Section 31(d) of the Act. It
    provides:
    Any person may file with the Board a complaint against any person allegedly violating
    the Act or any rule or regulation thereunder or any permit or term or condition thereof.
    When the Board receives a citizen’s complaint, unless the Board determines that such
    complaint is duplicitous or frivolous, it shall schedule a hearing. 35 Ill. Adm. Code
    103.212.
    Duplicitous
     
    An action before the Board is duplicitous if the matter is identical or substantially similar to one
    brought before the Board or in another forum. Brandle v. Ropp (June 13, 1985), PCB 85-68, 35 Ill.
    Adm. Code 101.202.
     
    2
     
    The Board has not identified any other cases, identical or substantially similar to this, pending in
    other forums. Therefore, based on the record before us, this matter is not duplicitous.
    Frivolous
     
    An action before the Board is frivolous if it requests relief which the Board cannot grant or if the
    complaint fails to state a cause of action upon which the Board can grant relief. Lake County Forest
    Preserve Dist. v. Ostro (July 30, 1992), PCB 92-80, 35 Ill. Adm. Code 101.202. The Board finds
    that the complaint is frivolous regarding the alleged violations of Section 23 of the Act and Section
    900.102 a and b. Section 23 of the Act contains only legislative purposes as opposed to prohibitions
    on activity. The Board has previously held that there can be no violation of Section 23 of the Act. See
    Brunson v. MCI Worldcom, Inc. (January 7, 1999), PCB 99-71 and Schlax v. Evanston Hospital
    (November 2, 2000), PCB 01-60. Therefore the allegations that respondent violated Section 23 of the
    Act is frivolous and will be stricken. As to the allegation regarding Section 900.102 a and b, the Board
    notes that Section 900.102 contains no subsections. Therefore, the alleged violations of Section
    900.102 a and b are frivolous and are stricken from the complaint. The Board further notes that the
    complaint contains an allegation that Section 900.102 was violated by the respondent. That part of the
    complaint is not stricken.
    CONCLUSION
     
    The Board finds that, pursuant to Section 103.212(a), the remainder of the complaint, is neither
    duplicitous nor frivolous and is accepted for 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
    Section 103.414 of the Board’s rules. 35 Ill. Adm. Code 103.414. The Clerk of the Board shall
    promptly issue appropriate directions to the assigned hearing officer.
     
    The assigned hearing officer shall inform the Clerk of the Board of the time and location of the
    hearing at least 30 days in advance of hearing so that a 21-day 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 hearing.
     
    Any briefing schedule shall provide for final filings as expeditiously as possible. If, after
    appropriate consultation with the parties, the parties fail to provide an acceptable hearing date or if, after
    an attempt, the hearing officer is unable to consult with all of the parties, the hearing officer shall
    unilaterally set a hearing date. 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 21st day of June 2001 by a vote of 7-0.
     
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

    Back to top