ILLINOIS POLLUTION CONTROL BOARD
    October 19, 1995
    RICHARD
    BURl,
    )
    )
    Complainant,
    )
    )
    PCJ3 95—165
    (Enforcement-RCRA)
    BATAVIA
    P
    INC.,
    )
    Respondent.
    ORDER OF THE BOARD (by G. T. Girard):
    On September 25, 1995, the Board received a motion for leave
    to file a’ motion to dismiss and a motion to dismiss filed by
    respondent. The Board granted the motion for leave to file and
    on October 12, 1995 respondent filed a second copy of its motion
    to dismiss. The complainant responded to the motion to dismiss
    on ‘October 4, 1995.
    Respondent argues that the complaint filed in this
    proceeding is duplicitous of a proceeding pending in the circuit
    court. (Bun v. Batavia Concrete. Inc. Case No. CH KA 0182,
    Circuit Court of the Sixteenth Judicial’ Circuit, Kane County,
    Illinois.) Respondent states that “the factual predicate for
    each of the three counts of the Complaint in the Circuit Court
    Action is that BTEX constituents are allegedly migrating from
    Batavia’s property onto Bun’s neighboring property”. (Mot. at
    2.) Respondent also cites to the rollowing similarities in the
    two actions: identical parties, identical properties, identical
    allegations concerning migration of contaminants, and
    “injunctive-type” relief is sought in both.
    (Id.)
    Respondent
    maintains that the Board should not “expend its resources
    adjudicating a matter which is substantially similar to Bun’s
    prior pending action” in the circuit court. (Mot. at 4.)
    Therefore, respondent argues based on “law and common sense” the
    Board action should be dismissed.
    Complainant does not dispute that the two actions involve
    the same parties and arise from contamination on Batavia’s
    property.. However, complainant argues that the “similarities end
    there”. (Recp. at 2.) Complainant maintains that the two
    actions seek substantially different relief. Complainant states
    that the circuit court action involves property damage to
    complainant’s property while the action before the Board
    addresses alleged regulatory violations on respondent’s property.
    (Id.)
    Therefore, complainant asserts that the two actions are
    not duplicitous.
    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;
    2
    ...
    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.
    It is well settled that an action before the Board is
    duplicitous if the matter is identical or substantially similar
    to one brought in another forum. (Brandle v. RolDp, PCB 85-68, 64
    PCB 263 (1985); DoAI1 Co.
    V.
    Skokie Valley Asphalt Company, Inc.,
    PCB 94-256 (July 7,
    1995).) In
    DoAll, the Board dizmissed a
    portion of a complaint as duplicitous because the circuit court
    action was “premised on the same facts, and seeks the same
    relief”. (DoAll at 3.) The Board was not persuaded by DoAll’s
    arguments concerning separate legal theories.
    (Id.)
    However,
    the Board also proceeded to hearing with portions of the
    complaint which sought civil penalties for violations at the
    site. (DoAll at 4.)
    •The Board finds that the action pending in Kane County is
    not duplicitous of the action before the Board. The relief
    sought in the Kane County case includes “consequential damages
    and loss of value of the property” (Not. Attch. A at 4.) Thus,
    in circuit court, complainant is seeking relief for damages
    complainant has suffered under common law. In the action before
    the Board, complainant is using the citizen enforcement
    provisions of the Environmental Protection Act (Act) to seek
    civil damages for violations of the Act and Board regulations.
    As the Board recently stated in People
    V.
    Bell Sports. Inc. and
    Waste Hauling Landfill, Inc~,PCB 95-91 (August 3, 1995):
    We also observe that the Board, as a statutorily-
    authorized forum to hear violations of the
    Environmental Protection Act and Illinois’ regulations,
    is comprised of technically qualified members
    designated to hold hearings on violations of the Act,
    determine issues of fact regarding the alleged
    violations and to consider any other ancillary issues
    to the complaint such as permitting and proper closure
    of a facility. (415 ILCS 5/5(a) and (d).) (See e.g.
    Employers I4utual companies v. SJuliing (1994) 163
    Ill.2d 284, 644 N.E.2d 1163, 206 Il1.Dec. 110, 113,
    where the Illinois Supreme Court held, citing Kellerman
    v. MCI Telecommunications Corp. (1986), 112 Ill.2d 428,
    3
    493 N.E.2d 1045, 98 Ill. Dec. 24, 25, that matters
    should be referred to an administrative agency when it
    has a specialized or technical expertise that would
    help resolve the controversy, or when there is a need
    for uniform administrative standards.)
    Therefore, the motion to dismiss is denied.
    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
    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 N. Gunn, Clerk of the Illinois Pollution Control
    Boa d hereby certify tJ~tthe above order was adopted on the
    _____
    day of ____________________, 1995, by a vote of 7~o.
    Dorothy N. p~inn,
    ~‘
    Clerk
    /~
    Illinois Pc~JflutionControl Board

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