ILLINOIS POLLUTION CONTROL BOARD

July 7,

1995

DOALL COMPANY, DOALL CREDIT

)

CORPORATION,

 and THE

)

RAMS-HEAD COMPANY,

)

Complainants,

v.

)

 PCB 94—256

)

 (Enforcement-Land)

SKOKIE VALLEY ASPHALT

)

COMPANY, INC., and

SEPTRAN,

 INC.,

Respondents.

ORDER OF THE BOARD

 (by N. McFawn):

On September 16,

 1994, complainants DoAll Company,

 DoAll

Credit Corporation, and the Rams-Head Company

 (collectively,

DoAll), filed this enforcement action against respondents Mobil

Oil Company

 (Mobil), Skokie Valley Asphalt Company,

 Inc.

 (SVA),

and Septran,

 Inc.

 (Septran) alleging violations of the

Environmental Protection Act

 (Act), seeking the imposition of

penalties, and seeking to recover cleanup costs arising out of

contamination of a site located at 1228 Harding Avenue, Des

Plaines, Illinois.

 On October 25,

 1994, Mobil filed a motion to

dismiss,

 accompanied by a motion to file instanter.

 On October

20,

 1994, the Board granted the motion to file instanter and

accepted the motion to dismiss.

 On November 16,

 1994,

 SVA filed

a motion to dismiss with supporting memorandum, accompanied by a

 motion to file instanter, wherein SVA sought to join Mobil’s

motion to dismiss and incorporate the applicable substantive

legal arguments of Mobil’s motion.

 By order dated December

1,

1994, the Board granted SVA’s motion to file instanter and

accepted SvA’s motion to dismiss.

 After being granted several

extensions, DoAll timely filed its response to SVA’s motion to

dismiss on March

20,

 1995.

 On April

12,

 1995,

 Septran filed a

motion to join in SVA’s motion to dismiss.

On

 May 2,

 1995,

Mobil and DoAll filed a joint motion to dismiss all claims

against Mobil, which the Board granted by order dated May 4,

1995.

 Mobil is therefore no longer a party to this action.

Thus,

 several filings are currently pending before the

Board: SVA’s motion to dismiss, DoAll’s response to SVA’s motion

to

dismiss, and Septran’s

motion to join in SvA’s motion to

dismiss.

 Additionally, pursuant to Section

 31(b)

 of the Act, the

Board must make a determination as to whether the complaint is

frivolous or duplicitous.

As an initial matter, the Board hereby grants Septran’s

April 12, 1995 motion to join in SVA’s motion to dismiss.

Septran merely seeks to join in SVA’s motion to dismiss,

 and does

not seek to add any additional arguments.

 Septran therefore

asserts that DoA11 will not be prejudiced by the Board’s granting

of the motion.

 DoA11 has not responded to Septran’s motion.

We

find that allowing Septran to join the motion to dismiss will not

cause prejudice to DoAll, and grant the motion accordingly.

Section 31(b)

 of the Act states that when a citizen’s

enforcement complaint is filed:

Unless the Board determines that such complaint is

duplicitous or frivolous,

 it shall schedule a hearing.

(415 ILCS 5/31(b)

 (1992).)

Section 103.124 of the Board’s procedural rules provides:

If

 a complaint is filed by a person other that 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 Iii.

 Adm. Code 103.124.)

An action before the Board is cluplicitous

if

the matter is

identical or substantially similar to one brought before the

Board or in another forum.

 (Brandle

Ropp,

(June

13,

1985),

PCB 85-68,

 64 PCB 263; League or Women Voters

 v. North Shore

Sanitary Dist.,

 (October 8,

 1970)

 PCB 70-1,

 1 PCB 35.)

 An action

before the Board is frivolous if it fails to state a cause of

action upon which relief can be granted.

 (Citizens for a Better

Environment v. Reynolds Metals Co.,

 (May 17,

 1973)

 PCB 73-173,

8

PCB 46.)

In their motions to dismiss, respondents seek to dismiss the

complaint on the following grounds:

1)

 The complaint is frivolous because it

inappropriately requests the Board to award

complainants their costs of remedicttion;

2)

 The complaint is duplicitous because the request

for reiuediation is already the subject of an

action pending in another forum; and

3)

 The complaint is frivolous because it requests the

Board to impose civil penalties with respect to a

site that has already been cleaned up.

In support of their motions, respondents state that the

Board

 is without authority to entertain DoAll’s request for

reiuediation costs, since the Act does not provide for private

cost recovery.

 Additionally, respondents assert that this action

before the Board is duplicative of an action filed before the

Circuit Court of Cook County, titled D0ALL

 et al.,

v.

Mobil Oil Company. et al., No 94 L 11724.

 A copy of the

complaint before the circuit court was attached to Mobil’s

October 25,

 1994 motion to dismiss, the relevant portions of

which were incorporated by reference into SVA’s motion to

dismiss,

 and subsequently into Septran’s motion to dismiss.

Respondents assert that the circuit court action is premised

on the same facts and seeks recovery of the same cleanup costs

DoA11 seeks to recover in the present action before the Board.

In response, DoA1I asserts that the circuit court action is

premised on state common law theories, while the complaint before

the Board seeks reimbursement of past cleanup costs for

violations of the Act.

An examination of the complaint in the circuit court action

reveals that it is premised on the same facts, and seeks the same

relief, as the cost recovery portions of this action before the

Board.

 The Board is not persuaded by DoAll’s assertions

concerning separate legal theories.

 In both actions, DoA11 seeks

to hold the same parties responsible for the same costs DoA11

incurred in remediating the same contamination.

 We therefore

find that the cost recovery portions or the complaint are

substantially similar to the circuit court action, and we

therefore strike as duplicitous the cost recovery portions of the

complaint.

 This renders moot any consideration of whether DoA11

properly seeks recovery of its costs in this action.

Wholly-Past Violations

Respondents assert that the complaint is frivolous because

it requests the Board to impose civil penalties with respect to a

site that has already been cleaned up.

 Respondents assert that

there is no need for Board intervention, since the site has

already been cleaned up, and that there is therefore no need for

the Board to exercise its authority

to issue

 a cease and desist

order requiring respondents to clean up the site.

 Furthermore,

respondents assert that civil penalties are “unwarranted and

unnecessary,” since the imposition of penalties would not aid

enforcement of the Act, but would only serve to punish.

In its complaint, DoAll alleges that SVA and Septran each

caused or allowed the following violations at the site:

1)

causing or allowing open dumping of waste

 violation of Section

21(a)

 of the Act;

2)

 storing, disposing and abandoning waste at

the site in a manner which did not meet the requirements of the

Act and Board regulations in violation of Section 21(e)

 of the

Act; and 3) causing or allowing the open dumping of waste at the

site

 in violation of Section

 21(a)

 of the Act in a manner which

resulted in standing or flowing liquid discharge from the site in

violation of Section 21(p)

 of the Act.

While the alleged violations are wholly—past and the site

has already been cleaned up, the Board has authority to impose

penalties for wholly—past violations.

 (415 ILCS 5/33(a);

see

also

 Modine Manufacturing v. Pollution Control. Board,

 549 N.E.2d

1379,

 1382,

 193 Ill.App.3d 643

 (2d Dist.

 1990).)

 While the

wholly—past nature of a violation must be considered when

determining an appropriate penalty,

 it does not excuse the

violation of the Act.

 (Modine Manufacturing at 1384;

 see also

Illinois Environmental Protection Agency v.

 Barry, PCB 88-71 at

31, 111 PCB 41.)

 We therefore find that DoAll’s complaint

properly alleges violations of the Act, and properly seeks the

imposition of penalties for those violations.

 The Board

is

clearly the appropriate forum for adjudication of alleged

violations of the Act.

 Accordingly, this matter shall proceed to

hearing.

The hearing must be scheduled and completed in a timely

manner, consistent with Board practices.

 The Chief Hearing

Officer shall assign a hearing officer to conduct hearings.

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

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 certif

 hat the above order was adopted on the

day of _________________,

 1995,

 by a vote of

7—

I

ion

Control

Board