£.L.L.LNOSS POLLUTiON
CONTROL
BOARI)
December 20, 1995
FOREST PRESERVE DISTRICT
)
OF DUPAGE COUNTY,
Complainant,
v.
)
PCB 96—84
)
(Enforcement
-
Land)
MINERAL
AND
LAND RESOURCES
)
CORPORATION, SOUTHWIND
FINANCIAL,
LTD.,
formerly
)
known as ABBOTT CONTRACTORS,
)
INC.,
BLUFF CITY MATERIALS,
)
INC.,
Respondents.
ORDER OF THE BOARD
(by M. McFawn):
This matter is before the Board on a complaint filed by
complainant. Forest Preserve District of DuPage County
(Forest
Preserve) against respondents Mineral and Land Resources
Corporation (Mineral and Land), Southwind Financial,
Ltd.
(Southwind), and Bluff City Materials,
Inc.
(Bluff City
Materials).
The complaint alleges violations of the following
sections of the Environmental Protection Act
(Act)
(415 ILCS 5/1
et
seq.):
Section 21(a), Section 21(b), Section 21(d), Section
21(e), Section 12(d), Section 21(o)(1), Section 21(o)(7), Section
21(o) (10), section 21(p) (4).
The alleged violations arise out of
mining and fill activities conducted by respondents on a site
owned by the Forest Preserve, located at 31W501 Stearns Road in
Bartlett, DuPage County.
The Forest Preserve seeks an order
requiring respondents to abate the improper material at the site
by:
(1) conducting a comprehensive environmental analysis of the
site;
(2) removing all improper material from the site;
(3)
undertaking the complete environmental remediation of the site;
and
(4)
to do and perform such other acts as the Board deems
appropriate.
The Board has received several other filings in this matter:
(1) a November
6,
1995, motion to quash service, filed by
respondents Southwind and Bluff City Materials;
(2)
a November
13,
1995 response to the notion to quash, filed by the Forest
Preserve;
(3)
a November 6,
1995 motion to dismiss, filed by
respondent Mineral and Land Resources;
(4) a November 13,
1995
response to the motion to dismiss, filed by the Forest Preserve,
(5)
a November 28,
1995 motion to withdraw motion to quash and to
extend time to answer,
filed by respondents Southwind and Bluff
City Materials;
(6)
a December
5, 1995
answer,
filed by
respondents Southwind and Bluff City Materials;
(7)
a December 6,
1995 motion to withdraw motion to dismiss and for leave to file
an answer, filed by respondent Mineral and Land Resources;
(8)
a
December 11, 1995 motion to strike and dismiss defenses alleged
in answer of Southwind and Bluff City Materials,
filed by
complainant Forest Preserve; and
(9)
a December 19,
1995 response
to the motion to strike and dismiss defenses filed by Southwind
and Bluff City Materials.
We grant respondents Southwind and
Bluf
r
City Materials’ motion to withdraw the motion to quash, and
its motion to extend time to answer.
We therefore accept its
answer as timely.
We also grant respondent Mineral and Land
Resources’ motion to withdraw its motion to dismiss, and grant
its request for leave to file its answer, which is now due on or
before December 27,
1995.
We therefore will not further address
any of the filincjs concerning these motions.
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))
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 Ill. Adm. Code 103.124.)
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,
64 PCB 263; League of 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)
There is no evidence before the Board to indicate this
matter is identical or substantially similar to any matter
brought in another forum, nor is there any evidence that the
Board cannot grant the relief requested.
At this time,
therefore, the Board finds that, pursuant to Section 103.124(a),
3
the complaint is neither duplicitous nor frivolous.
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.
In the December 11, 1995 motion to strike and dismiss
defenses,
complainant Forest Preserve requests that the Board
strike the six defenses alleged in the December
5,
1995 answer of
Southwind and Bluff City Materials.
The claimed defenses are as
follows:
1) the complaint fails to state a claim entitling
complainant to any relief;
2) complainant cannot establish that
respondents have violated any provision of the Act or Board
regulations;
3)
no remediation is required, since complainant
cannot show injury to the environment or public health, welfare
or property;
4)
complainant’s
conduct constitutes
a
waiver of any
claims against respondents;
5) complainant is barred by laches
from asserting any claims against respondents;
6)
complainant is
estopped from asserting any claims against respondents.
Complainant asserts that these defenses should be stricken,
since
there is no authority for alleging defenses in an answer, and
since defendants did not plead sufficient facts to establish
affirmative defenses.
Complainant asserts that it is not aware
of the purported bases of the defenses, and that it may therefore
be subject to surprise and unfair prejudice.
We find that respondents’
first defense, that the claim
fails to state a claim upon which relief can be granted should be
stricken, since complainant has properly alleged a violation of
the Act for which the Board can grant relief.
Concerning
defenses two through six, we find that they have been alleged
with sufficient specificity to give complainant notice of the
grounds upon which they are based.
The bases for and validity or
these defenses can be further developed during discovery and at
hearing.
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 bearing, 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.
4
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Boaçd, hereby certify that the above order was adopted on the
a?4)t1
day of
,9(YC~n~_tex.-’
,
1995, by a vote of
70
~
4’
£~
Dorothy N.
G4tin, Clerk
Illinois
P071 ution Control Board
