ILLINOIS POLLUTION CONTROL BOARD
    April 21, 1994
    JAMES H. TONNE and
    )
    JEANINE F. TONNE,
    )
    Complainants,
    PCB 93—44
    v.
    )
    (Enforcement)
    )
    LEAHINGTON FOODS,
    )
    Respondent.
    ORDER OF THE BOARD (by E. Dunham):
    On March 3, 1994, the Board ordered the parties to show
    cause why this matter should not be dismissed as no substantive
    action has taken place in this matter since the complaint was
    filed in March of 1993. On March 21, 1994, the Board received a
    letter from the Tonnes. Leamington Foods did not file a reply to
    the Board’s order.
    The Tonnes report that Leamington Foods no longer a tenant
    of the building in question and the refrigeration fans have not
    been operating. However, the building is currently being offered
    for rent to other food stores. In the letter the Tonnes inquire
    of the Board, if a violation is found, if the Board can “Red
    Tag’ (temporarily condemn) the equipment until certain
    modifications and tests are completed”. The Tonnes also question
    whether this matter should be indefinitely postponed until a time
    when the fans are in operation.
    The letter does not address why this matter should not be
    dismissed but makes inquiries of the Board and seeks guidance
    from the Board on which way to proceed in this matter. Such
    inquiries of the Board are inappropriate, because the Board is
    prohibited from discussing substantive matters with a party in a
    matter pending before the Board. (35 Ill. Adm. Code 101.200.)
    However, the Board recognizes that the Tonnes are appearing pro
    se and directs the complainants to Section 33 of the
    Environmental Protection Act which describes final actions by the
    Board. (415 ILCS 5/33 (1992).) In addition, the Board notes that
    it is averse to postponing a matter indefinitely.
    Upon the filing of a citizen complaint, the Board makes a
    determination on whether the complaint is duplicitous or
    frivolous. (35 Ill. Adin. Code 103.124.) On March 25, 1993, the
    Board determined that the complaint in this matter was not
    2
    duplicitous or frivolous.1 However, considering that the fans
    are no longer in operation and Leamington Foods no longer
    occupies the subject facility, the Board reconsiders that prior
    determination.
    The complaint alleges violations of the noise provisions of
    the Environmental Protection Act (415 ILCS 5/23 and 24 (1992))
    and requests the Board to order the respondent to cease and
    desist from further violations. If after presentation of
    evidence, the Board were to determine that the operation of the
    fans caused a violation of the Act, an order could be entered
    against Leamington Foods requiring Leamington Foods to cease and
    desist from further violations of the Act. To conform to the
    Board’s order Leamington Foods would be required to modify the
    operation of the fans to achieve compliance or cease operating
    the fans. As Leamington Foods is no longer an operator of the
    refrigeration fans it does not possess the authority to test or
    modify the refrigeration fans. While the Board could enter an
    order as requested if a violation were found, the Board believes
    that because Leamington Foods is no longer in control of the
    subject property such an order would be unenforceable.
    Considering the circumstances in this matter, the Board finds
    that because Leamington Foods has vacated the property, the Board
    is unable to effectively grant the relief requested in this
    matter. Where the Board is unable to effectively impose relief,
    the Board must dismiss the case as frivolous.
    The parties have failed to show cause why this matter should
    not be dismissed and the Board has determined that this matter is
    frivolous. Therefore, the Board dismisses this matter.
    Today’s action in no way prohibits the complainants from
    filing a new complaint if the refrigeration fans resume
    operation. In addition, the Board notes that the parties may
    file a motion for reconsideration of this final order pursuant to
    35 Ill. Adm. Code 101.246.
    IT IS SO ORDERED.
    1 A complaint is frivolous if it fails to state a cause of
    action upon which relief can be granted. (See, Fore v. Midstate
    Kart Club (October 7, 1993) PCB 93-171; Handel v. Kulpaka PCB
    92—33 (August 26, 1993); In re Duplicitous or Frivolous
    Determination (June 8, 1989), RES 89-2, 100 PCB 53.)
    3
    Section 4. of the Environmental Protection Act, (415 ILCS
    5/41 (1992)), provides for appeal of final orders of the Board
    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, Motion for Reconsideration.)
    I, Dorothy H. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify tha the above order was adopted on the
    ___________
    day of
    ________________,
    1994, by a vote of
    Control Board

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