ILLINOIS POLLUTION CONTROL BOARD
    December
    1,
    1994
    PEOPLE OF THE STATE OF ILLINOIS,
    )
    )
    Complainant,
    )
    V.
    )
    PCB 94—275
    (Enforcement)
    BOYD
    I
    INC.,
    )
    an Illinois Corporation,
    )
    Respondent.
    BOYD BROTHERS,
    INC.,
    )
    an Illinois Corporation,
    Complainant,
    V.
    )
    PCB 94—311
    (Enforcement)
    ABANDONED MINED LANDS RECLAMATION
    )
    COUNCIL, an Illinois state entity,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by C.
    A. Manning):
    This matter is before the Board on a motion filed by Boyd
    Brothers,
    Inc.
    (Boyd Bros.), an Illinois Corporation, on October
    31,
    1994,
    to consolidate the above named matters.
    Neither the
    People of the State of Illinois
    (State) nor the Abandoned Mined
    Lands Reclamation Council
    (AMLRC)
    filed responses to the motion.
    On September 28,
    1994 the State filed an enforcement action
    against Boyd Bros. pursuant to Section 31(a)
    of the Environmental
    Protection Act
    (Act) which was docketed by the Clerk of the Board
    as PCB 94—275.
    (415 ILCS 5/31(a)
    (1992).)
    The complaint alleges
    that Boyd Bros. violated Section 12(a)
    of the Act and 35 Ill.
    Adin. Code 406.106 by causing or allowing the discharge of pH,
    acidity, iron and manganese at levels that violated the Board’s
    effluent standards.1
    (415 ILCS 5/12(a)
    (1992).)
    The State is
    also alleging that Boyd Bros., by causing or allowing the
    discharge of mine effluent containing floating debris, colored
    scum, and color of unnatural origin, violated Section 12(a)
    of
    1 Part 406 of the Illinois Administrative Code was
    promulgated to regulate mine waste effluent and water quality
    standards.
    In particular Section 406.106 states the effluent
    limitations for various chemical constituents.
    2
    the Act and 35 111.
    Adm. Code 406.l07.2
    The State
    is basing
    these violations on the July 31,
    1994 observations of an Illinois
    Environmental Protection Agency (Agency)
    inspector at the Peabody
    Utility Mine near Marion, Illinois.
    On October 31,
    1994,
    Boyd Bros. filed both a motion to
    consolidate and a citizens’ enforcement action against ANLRC
    pursuant to Section 31(b)
    of the Act.
    Boyd Bros.
    is alleging
    that ANLRC violated Section 12(a) of the Act and 35 Iii.
    Adm.
    Code 406.106 by causing or allowing the discharge of pH, acidity,
    iron and manganese at levels that violated the Board’s effluent
    standards and Section 12(a)
    of the Act and 35 Ill. Adm. Code
    406.107 by causing or allowing the discharge of mine effluent
    containing floating debris, colored scum, and color of unnatural
    origin.
    Boyd Bros.
    alleges that these violation occurred on July
    31,
    1994 at the Peabody Utility Mine near Marion,
    Illinois.
    DUPLICITOUS/FRIVOLOUS DETERMINATION
    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:
    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.
    An action before the Board is duplicitous if the matter is
    identical or substantially similar to one brought in another
    forum.
    (Brandle v. Ropp, PCB 85—68,
    64 PCB 263
    (1985).)
    An
    action before the Board is frivolous if it fails to state a cause
    of action upon which relief can be granted by the Board.
    (Citizens for a Better Environment v. Reynolds Metals Co., PCB
    73—173,
    8 PCB 46973).)
    AMLRC has made no filing addressing the
    2
    Section 406.107 states:
    In addition to the other requirements of this Chapter,
    no mine discharge effluent shall contain settleable
    solids, floating debris, visible oil, grease, scum or
    sludge solids.
    Color,
    odor and turbidity shall be
    reduced to below obvious levels.
    3
    duplicitous/frivolous issues.
    Accordingly, 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.
    Although Boyd Bros.’ complaint involves the same
    violation as alleged in the People’s complaint, the complaint is
    not “duplicitous” since the parties are not identical in the two
    actions.
    At this time,
    therefore, the Board finds that, pursuant
    to Section 103.124(á), 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 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.
    MOTION TO CONSOLIDATE
    The motion to consolidate states that the enforcement
    complaint against AMLRC and itself in PCB 94-275 is the result of
    the same discharge causing the same alleged violations of the Act
    and Board regulations.
    Accordingly, Boyd Bros. argues that both
    proceedings arise from the same alleged incident at the same site
    and concern identical factual circumstances and violations.
    Boyd
    Bros.
    requests the Board to consolidate these matters for
    efficiency of the proceedings.
    The Board has received
    no
    response to the motion to consolidate these matters from either
    the State or ANLRC.
    Section 103.141 of the Board’s procedural rules provides
    that the Board may consolidate enforcement proceedings in the
    interests of “convenient, expeditious, and complete determination
    of claims.”
    The Board finds that this case,
    which is in the
    nature of a cross—complaint,
    and PCB 94—275 would be more
    conveniently, expeditiously, and completely resolved if the two
    cases are consolidated.
    The Board grants the motion to
    consolidate these matters.
    IT IS SO ORDERED.
    4
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Boarçl, hereby certify that the above order was adopted on the
    /4~
    day
    of
    2~e~/
    ,
    1994,
    by a vote of
    7-~~)
    /‘~~ ~
    Dorothy N. ,,~unn,Clerk
    Illinois P~LlutionControl Board

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