ILLINOIS POLLUTION CONTROL BOARD
July 30,
1992
LAKE
COUNTY FOREST
)
PRESERVE DISTRICT
)
Complainant,
PCB 92—80
v.
)
(Enforcement)
)
NEIL OSTRO, JANET OSTRO,
)
and BIG FOOT ENTERPRISES,
)
)
Respondents.
ORDER OF THE BOARD
(by J. Anderson):
•
This matter comes before the Board on respondents’ July 7,~
1992, motion to strike complaint and petitioner’s July
17,
1992,
response.
The time for filing the motion was extended
in the
Board’s Order of June 23, 1992.
The complaint was filed on Nay 29,
1992.
It alleges
violations of Sections 12(d)
and 21(a),
(b),
(e),
(f) and
(n)
of
the Environmental Protection Act
(Act), with respect to real
estate transferred, pursuant to a condemnation action, from
respondents to the complainant on December 22,
1989.
The
complaint alleges that the respondents:
deposited contaminants
on the land so as to create a water pollution hazard;
caused or
allowed open dumping of waste;
abandoned,
dumped and deposited
waste on public property;
stored and disposed of waste at a
facility which did not meet the requirements
of the Act and
regulations;
conducted hazardous waste disposal and storage
operations without a permit;
and, transferred
a site which had
been used for hazardous waste disposal without notifying the
State or the transferee.
While many of the allegations relate tc
actions which began long prior to the transfer of ownership,
the
complainant also alleges violations in connection with
unauthorized clean-up activities by respondents on the site after
the transfer of ownership.
The motion asks that the Board strike the complaint on four
grounds:
that the complaint is “duplicitous” with respect to a
U.S. District Court action involving the same parties;
that the
complaint seeks equitable remedies not possessed by the Board;
that the complaint seeks retroactive application of statutes;
and, that the cause of action is barred by the five year statute
of limitations
in Ill. Rev.
Stat.
ch.
110, Sec.
13—205.
The
response rejects each of these grounds.
Section 31(b)
of the Act and 35
Ill. Adm. Code 103.124
require that, for complaints other than those filed by the
0135-o 175
2
Illinois Environmental Protection Agency, the Board schedule a
hearing unless it determines that the complaint is “duplicitous
or frivolous”.
The Board may dismiss any complaint as
“duplicitous” that raises claims identical or substantially
similar to another action.
WIPE v. Pollution Control Board,
55
Ill. App.
3d 475,
480 (1st Dist.
1977).
A complaint would be
duplicitous
if another action was pending between the same
parties, alleging substantially the~sameviolations,
before
another tribunal with power to grant the same relief as the
Board.
A complaint would be “frivolous”
if it requested relief
which the Board could not grant.
Respondents have attached a copy of the complaint in Lake
County Forest Preserve District v. Neil Ostro.
Janet Ostro;
Harris Trust
& Savings Bank of Chicago and Big Foot Enterprises,
No.
92 C 3571,
in the U.S. District Court for the Northern
District of Illinois, Eastern Division.
The complaint was filed
on May
29,
1992, the same day as the complaint in this action.
Although the complaint involves the same parties (and one more),
the same time frame, and the same actions,
it is based on
statutes and legal theories other than the Act.
That complaint
alleges violations of Sections 107 and 310 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as amended,
42 U.S.C.
Sections 9601 et seq.
(CERCLA), and common
law counts including fraud,
negligence and trespass.
On the
other hand,
the complaint in this matter is strictly based on the
Act.
Moreover, this complaint asks for an order directing
respondents to cease and desist from violating the Act, and
requests a statutory penalty, which would be payable to the
State.
None of this relief is availabh~.in the District Court
action.
Respondents also contend that the complaint “seeks equitable
remedies” which the Board does not possess.
On the contrary, the
complaint is requesting statutory remedies which the Board can
grant pursuant to Sections 33(a)
and
(b), and 42 of the Act.
Respondents also contend that the complaint “seeks
retroactive application of the statutes it alleges to have been
violated”.
The motion is not, however,
specific as to which acts
predated which provisions.
Among other things, the complaint is
alleging violations which occurred on October 18,
1989,
long
after the effective dates of the-provisions alleged to have been
violated.
Moreover, some of the allegations are of continuing
violations,
for which the Board could find a violation and order
remedial action, even if they began long before the Act was
adopted.
Although the complainant may fail to prove that all of
thealleged violations occurred after the effective date of the
respective provisions,
this is no reason to strike the complaint
at the outset.
Respondents also contend that the complaint is barred by the
0135-0176
3
five-year statute of limitations in Ill. Rev.
Stat.
ch.
110,
Sec.
13—205.
However,
Section 13-205
is a limitation on personal
actions to recover damages.
In this action, the Lake County
Forest Preserve District is acting as a “private attorney
general” to protect the public’s rights and to collect penalties
which may be due the State.
Section 13-205 does not apply to an
action for the protection of the public’s right to a clean
environment.
Pielet Bros. Trading,
Inc.
v. Pollution Control
Board,
110 Ill.
App. 3d 752
(5th Dist.
1982).
For the foregoing reasons, the motion to strike is denied.
The Board finds that the complaint is not duplicitous or
frivolous.
A hearing officer will be designated and this matter
will be set for hearing.
IT IS SO ORDERED.
I, Dorothy M.
Günn,
Clerk of the Illinois Pollution Control
Boa~,hereby cert
t at the above order was adopted on the
~ day of
/
,
1992 by a vote of
-
C
~
/~
~Dorothy N. ,4inn, Clerk
Illinois P~,IlutionControl Board
O~35~0171