ILLINOIS POLLUTION CONTROL BOARD
    December 16, 1993
    DECATUR AUTO AUCTION,
    )
    )
    Petitioner,
    )
    v.
    )
    PCB 93—192
    (Enforcement)
    )
    MACON COUNTY FARM BUREAU,
    INC.,
    )
    an Illinois Corporation, MACON
    )
    COUNTY FAIR ASSOCIATION, and
    )
    MACON COUNTY HORSEMAN’S
    )
    ASSOCIATION,
    )
    Respondents.
    ORDER OF THE BOARD (by M. Nardulli):
    On October 14, 1993, Decatur Auto Auction (Decatur
    AUtO)
    filed a complaint with the Board against Macon County Farm
    Bureau, Macon County Fair Association, and Macon County
    Horseman’s Association (Macon) alleging that Macon emits dust in
    violation of 35 Ill. Adm. Code 212.301 of the Board’s
    regulations.
    Section 31(b) of the Environmental Protection Act (415 ILCS
    5/31(b) (1992)) (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 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
    Decatur Auto included in its petition before the Board a
    2
    copy of a petition for a temporary restraining order and
    preliminary injunction filed in circuit court. (Decatur Auto
    Auction v. Macon County Farm Bureau (6th Ill. Cir.) 93 MR 114)
    On November 18, 1993, the Board directed Decatur Auto to file~a
    document addressing whether the complaint before the Board is
    identical or substantially similar to the matter before the
    Circuit Court.
    On December 8, 1993, Decatur Auto filed with the Board a
    copy of the circuit court’s September 17, 1993, judgment and
    order denying Decatur Auto’s petition for temporary restraining
    order and preliminary injunction. In addition, Decatur Auto
    filed a copy of the circuit court’s October 1, 1993, order
    dismissing Decatur Auto’s complaint, holding that Decatur Auto
    must first exhaust its administrative remedies before the Board.
    Decatur Auto argues that should the Board dismiss this matter as
    duplicitous, there will be no forum to consider the complaint.
    In general, the Board will dismiss a citizen’s complaint as
    duplicitous where an identical or substantially similar matter
    has been brought before another forum. (Fore v. Midstate Kart
    Club (October 7, 1993) PCB 93-171; Mandel v. Kulpaka (August 26,
    1993) PCB 92-33; In re Duplicitous or Frivolous Determination
    (June 8, 1989), RES 89-2, 100 PCB 53..) The record before us
    indicates that Decatur Auto brought a substantially similar
    matter before the circuit court. However, the matter before the
    circuit court was dismissed, prior to full adjudication, due to
    petitioner’s failure to exhaust its remedies before the Board.
    The Board agrees with Decatur Auto’s contention that should the
    Board dismiss this matter as duplicitous, petitioner will be left
    without a forum to hear its complaint. The Board bases this
    conclusion on the circuit court’s holding that Decatur Auto must
    first exhaust its remedies before us. Therefore, the Board will
    not dismiss Decatur Auto’s complaint as duplicitous.
    As the Board noted in its order of November 18, 1993,
    Decatur has requested the Board to “order and direct
    (respondents)
    ***
    to pay any and all damages to Complainant.”
    Under Section 42 of the Act, the Board is without authority to
    order one person to pay money damages to another person.
    Penalties ordered by the Board are to be paid into the
    Environmental Trust Fund. We further note that Decatur has
    requested other relief which is within the Board’s authority to
    order. Therefore, the Board hereby strikes that portion of
    petitioner’s complaint requesting the Board to direct Macon to
    pay any and all damages to complainant.
    The Board finds that the complaint is not frivolous. A
    complaint is frivolous if it fails to state a cause of action
    upon relief can be granted. (See, Fore v. Midstate Kart Club
    (October 7, 1993) PCB 93-171; Mandel v. Kulpaka PCB 92—33
    (August 26, 1993); In re Duplicitous or Frivolous Determination
    3
    (June 8, 1989), RES 89—2, 100 PCB 53.) The claim alleges
    violations of a specific section of the Board regulations and
    seeks relief which may be granted by the Board. Therefore, the
    Board finds that the claim is not frivolous within the meaning of
    Section 31(b) of the Act.
    Lastly, we direct Decatur Auto to keep the Board apprised of
    any matter concerning the complained of activity, in which
    Decatur Auto is a party.
    For the reasons discussed above, the Board hereby finds that
    Decatur Auto’s complaint is not duplicitous or frivolous within
    the meaning of Section 31(b) of the Act. In so finding, the
    Board makes no ruling on the merits of the case; the Board finds
    only that this case is properly before it pursuant to Section
    31(b). A finding that the matter is not duplicitous or
    frivolous, does not preclude the filing of motions regarding the
    sufficiency of the pleadings. 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.
    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.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Boa~d,hereby certify hat the above order was adopted on the
    /~.—rZ7 day of
    ________________________,
    1993, by a vote of
    -o
    •
    ~
    ~.
    Dorothy N. ~nn, Clerk
    Illinois Pot~LutionControl Board

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