ILLINOIS POLLUTION CONTROL BOARD
    December 16, 1993
    ROBERT MIEHLE
    )
    )
    Complainant,
    )
    v.
    )
    PCB 93—150
    (Enforcement)
    CHICAGO BRIDGE AND
    )
    IRON COMPANY,
    )
    )
    Respondent.
    ORDER OF THE BOARD (CA. Manning):
    This matter is before the Board pursuant to a two—count
    complaint filed August 18, 1993 by Robert Miehie (Miehle) against
    Chicago Bridge and Iron Company (CBI), located in Chicago, Cook
    County, Illinois. The complaint alleges that respondent violated
    415 ILCS 5/21(e) of the Environmental Protection Act (Act) in that
    respondent disposed or abandoned waste at a facility which does not
    meet the requirements of the Act, and 35 Ill. Adin. Code Section
    731.160, in that respondent failed to undertake corrective action
    regarding an alleged release of petroleum from underground storage
    tanks (USTs). On November 24, 1993, CBI filed its answer to the
    complaint containing seven affirmative defenses and two
    counterclaims.
    While the Board’s rules do not specifically require the Board
    to determine whether counterclaims are duplicitous or frivolous, it
    has been the Board’s past practice to make such a determination.
    (See, Lefton Iron and Metal v. Moss-American, (March 9, 1989) PCB
    87—191, 97 PCB 109 and Mandel v. Kulpaka, (August 26, 1993) PCB 92—
    33,
    PCB
    _.)
    Therefore, we turn to consideration of whether
    CBI’s counterclaim is duplicitous or frivolous.
    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) (1992)
    Also, the Board regulations in part provide:
    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
    2
    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
    The Board finds that the counterclaim is not duplicitous. 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). There is no evidence before the
    Board to indicate that the counterclaims are identical or
    substantially similar to any matter brought by CBI before the Board
    or in another forum. Therefore, based on the evidence before it,
    the Board finds that the counterclaim is not duplicitous under
    Section 31(b) of the Act.
    The Board also finds that the counterclaims are not frivolous.
    The counterclaim is frivolous if it fails to state a cause of
    action upon relief can be granted. The counterclaim alleges
    violations of specific sections of the Act which fall within the
    Board’s jurisdiction. In addition, without addressing the merits,
    the relief sought by CBI appears to be that which can be granted by
    the Board. Therefore, the Board finds that the counterclaims are
    not frivolous under Section 31(b) of the Act.
    In finding that the counterclaims are neither duplicitous or
    frivolous, the Board makes no ruling on the merits of the case. The
    underlying complaint in this case was accepted for hearing on
    September 9, 1993 and on November 4, 1993, the Board denied a
    motion to dismiss the complaint allowing the case to proceed to
    hearing. The counterclaims filed with the Board on November 24,
    1993 shall be taken with the case and shall be considered in the
    course of the hearing.
    IT IS SO ORDERED.
    I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
    Board~hereby certify that the above order was adopted on the
    “—
    day of
    ~
    ,
    1993, by a vote of
    Dorothy N. G~nn, Clerk
    Illinois Po4ution Control Board

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