ILLINOIS POLLUTION CONTROL BOARD

June 2, 1994

DOROTHY b. HOFFMAN,        

)

Complainant,

)

v.

)

PCB 94—146

)

(Enforcement)

CITY OF COLUMBIA,         

)

a municipal corporation,      

)

Respondents.

ORDER OF THE BOARD (by C.A. Manning):

This matter is before the Board pursuant to a complaint

filed May 5, 1994 by Dorothy L. Hoffman against respondent, the

City of Columbia (City). The complaint alleges that respondent

violated 415 ILCS 5/23 and 5/24 of the Environmental Protection

Act (Act) and 35 Ill. Adin. Code 900.102, in its operation of the

City’s trucks at its Public Works Department facility, resulting

in noise pollution.’ On May 11, 1994, the City filed a motion to

dismiss the complaint arguing that the complaint is frivolous and

duplicitous. As of the date of this order the Board has not

received a response to the motion to dismiss from Dorothy

Hoffman. The Board denies the motion to dismiss for the reasons

stated below.

The Board recently denied a motion to dismiss brought on

frivolous and duplicitous grounds in another citizen’s

enforcement case involving noise pollution. Joseph A. Schrantz

v. Village of Villa Park, (October 21, 1993), PCB 93—161. In

Schrantz, the Board explained the meaning of “frivolous”:

The Board has construed “frivolous” to mean “failure 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. The Board stated in Farmers Opposed to Extension

of the Illinois Toliway v. Illinois State Toll Highway

Auth., (September 16, 1971) PCB 71—159, 2 PCB 119: “The

‘frivolous’ provision is designed to avoid expensive

and time-consuming hearings on claims that cannot

The Board’s regulations at 35 111. Adm. Code 901.102(a) and (b)

establish numerical limits for sound emission levels for certain land use

classifications. Sections 23 and 24 of the Act are the general provisions

prohibiting persons from emitting noise beyond the boundaries of his property

50 as to 

unreasonably

interfere with the enjoyment of life or any lawful

bun mess or

activity

so as to

violate any 

requlat ion or standard adopted by

ho Board 

under the P.ct

2

prevail even if the 

facts 

alleged are true.” After

examining these two Board holdings, and Webster’s

dictionary2, the Appellate Court of Illinois, First

District, defined a “frivolous” pleading as “one that

is either legally or factually deficient.” Winnetkans

Interested in Protecting the Environment (WIPE)

v.Illinois Pollution Control Board, 13 I11.Dec. 149,

153, 370 N.E.2d 1176 (1st Dist. l977)~.

The instant complaint requests that the Board issue an order

directing respondent to cease and desist from the alleged

violations, and to permanently reduce the noise by ceasing

operations at that location. The Board has the authority to

grant such relief if the alleged facts are proven at hearing.

Therefore the Board finds that the complaint is not frivolous.

Schrantz also discussed the meaning of “duplicitous” and in

doing so stated the following:

In Brandle 

Ropp, (June 13, 1985), PCB 85—68, 64 PCB

263, the Board held:

Duplicitous is not defined in the Act but has

been interpreted to apply to complaints which

duplicate allegations identical or

substantially similar to matters previously

brought before the Board. (Citation

omitted.) A complaint is also duplicitous if

it is identical or substantially similar to

one brought in another forum.

In League of Women Voters v. North Shore Sanitary

Dist., (October 8, 1970) PCB 70—1,1 PCB 35, the Board

held “that the reason for the prohibition of

duplicitous complaints is the apprehension that private

citizens’ complaints ‘might flood the Board with too

many cases raising the same issue and might unduly

harass a respondent.” WIPE v. IPCB, 13 I11.Dec. at

153, citing, League of Women Voters, at 36.

2 Webster’s Third New Dictionary 913 (1971) defined ~frivo1ous” as ~of

little weight or importance: having no basis in law or fact. 

...“

“The Board can grant relief by ordering a Respondent to stop the

polluting activity and by imposing a fine. The Board cannot grant monetary

compensation 

for

damage done to 

health or property and it cannot impose criminal

sanctions such an a jail term.

Thus, any request

for

monetary compensation or

the imposItion of criminal Hdnctionu would be considered frivo1oun~”

(In the

Matter

Of

!)upl i

Cit 0*03

ui Fr

i

Vol oUt)

tCU,fli

nat

10!), 

(June 8, 1989)

RES 89—2,

Slip Op_ at

~‘

The City’s motion alleges that the complaint filed before

the Board by Dorothy Hoffman is duplicitous. In support of the

motion the City states that Dorothy Hoffman was the plaintiff in

an action before the Monroe County Circuit Court entitled Dorot~y

Hoffman v. the City of Columbia, No. 9l-L--26. In that action,

Dorothy Hoffman filed a Second Amended Complaint wherein in

paragraph 4(c) of Count II and paragraph 4(d) of Count III she

complains of disruptive noises emanating from the property of the

City and requests an injunction prohibiting the City’s use of the

property. The complaint states that the alleged noise pollution

occurred in 1990 and 1991. On December 15, 1993, the Monroe

County Circuit Court entered an order dismissing Dorothy

Hoffman’s Second Amended Complaint in its entirety. However,

Dorothy Hoffman appealed the Monroe County Circuit Court’s

decision to the Fifth District Appellate Court and that appeal is

now pending.

Dorothy Hoffman’s complaint filed with the Board on May 5,

1994 alleges that the noise pollution occurred in 1993 and 1994.

Thus the alleged violation before the Board resulted from actions

by the City on different dates than those alleged in the Second

Amended Complaint which is before the 5th District Appellate

Court and Monroe County Circuit Court. Pursuant to Brandle and

League of Women Voters the complaint before the Board is not

duplicitous.4 The complaint is not duplicitous or frivolous and

this matter is directed to hearing.

The hearing must be scheduled and completed in a timely

manner consistent with Board practices. The Clerk of the Board

shall promptly issue appropriate directions to the assigned

hearing officer consistent with this order.

The 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 the credibility of witnesses and all actual

exhibits to the Board within 5 days of the hearing.

If after appropriate consultation with the parties, the

parties fail to provide an acceptable hearing date or if after an

attempt the hearing officer is unable to consult with the

parties, the hearing officer shall unilaterally set a hearing

date in conformance with the schedule above. The hearing officer

and the parties are encouraged to expedite this proceeding as

much as possible.

~ So~ a I

ttOI

NOJI hOZU

I I I

!‘I°2i~’

J°ofl*jlCit)~ l’o0130C1d1

101)11

V.

The City of

K~tnk.jwe,

(J~ittto1ry

~o,

I’)flfl)

f’(~l3 88

18t

4

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above order was adopted on the 

day of  

(i~

1994, by a vote of 

‘~-‘

Dorothy M. 9~rnn, Clerk

Illinois Po~3!Lution Control Board