ILLINOIS POLLUTION CONTROL BOARD
    October 29,
    1992
    CITY OF DES PLAINES, GAIL
    )
    PAPASTERIADIS, and GABRIEL
    AND
    )
    LINDA GULO,
    )
    )
    Complainants,
    )
    v.
    )
    PCB 92—127
    (Enforcement)
    SOLID WASTE AGENCY OF NORTHERN
    )
    COOK COUNTY,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by R.C. Flemal):
    On September
    1,
    1992, complainants
    filed a complaint
    alleging violation by respondent of Section 22.14
    of the Illinois
    Environmental Protection Act
    (Ill.
    Rev.
    Stat.
    1991,
    ch.
    111½,
    par.
    1022.14) (Act).
    On September 14,
    1992 respondent filed a
    motion to dismiss on the basis that the complaint is duplicitous
    and frivolous.
    That motion was denied by Board order of October
    1,
    1992.
    On October 15,
    1992, respondent filed its answer to the
    complaint.
    At various points buried within the answer respondent
    moves that certain portions of the complaint be stricken.
    On October 16,
    1992, respondent filed
    a separate document
    entitled “Motion to Strike and Dismiss”,
    that contains
    essentially the same arguments to dismiss as are included in the
    answer.
    The October 16 motion to strike and dismiss is
    accompanied by a motion to file instanter.
    On October 22,
    1992,
    complainants filed their reply to respondent’s motion to strike
    and dismiss,
    and on October 23,
    1992,
    complainants filed a
    response to the respondent’s motion for leave to file the motion
    to strike and dismiss instanter.
    On October
    27,
    1992,
    respondent
    filed a motion for leave to file
    a reply to complainants’
    responses.
    On October 28,
    1992,
    complainants filed a response to
    respondents motion for leave to file a reply.
    The Board initially addresses respondent’s October 16 motion
    to file instanter.
    The Board’s procedural rules for enforcement proceedings
    require that “all motions by respondent to dismiss or strike the
    complaint or challenging the jurisdiction of the Board shall be
    filed within
    14 days after receipt of the complaint”.
    (35 Ill.
    Adrn.
    Code
    103.140).
    In
    its motion to file instanter, respondent
    claims that its motion to dismiss or strike the complaint could
    not be filed until after the Board made its determination on
    respondent’s previous motion to dismiss on the duplicitous—
    frivolous determination.
    Respondent further states that if the
    Board fails to consider its motion to strike and dismiss, the
    01 31-0073
    —2—
    respondent will be required to defend allegations of a violation
    which it believes do not constitute a violation under the Act.
    As part of the duplicitous or frivolous aetermination, the
    Board determines whether it has jurisdiction of a matter brought
    before it.
    The Board recognizes that a respondent may wish to
    wait to file a motion to dismiss until after the duplicitious-
    frivolous determination is made.
    However, where jurisdiction
    does exist, the date of filing is not forward-dated to the date
    of the Board’s duplicitous-frivolous determination.
    Even if the
    date of the Board’s determination were taken as the “date of
    filing” for the purposes of calculation of time under Section
    103.140, respondent’s motion is late.
    In this case, respondent has already taken the opportunity
    to file a motion to dismiss within
    14 days after filing of the
    complaint.
    Respondent’s previous motion to dismiss included
    allegations regarding matters other than those pertaining to the
    duplicitous-frivolous determination.
    Regarding those other
    matters, the Board found in its October 1,
    1992 order that the
    complaint sufficiently stated a cause of action.
    On respondent’s
    second argument that it would be prejudiced by being required to
    defend allegations
    it believes do not constitute a violation,
    the
    Board does not see how defense of an enforcement action alone
    would constitute prejudice.
    Any respondent in any enforcement
    action would be in the same position.
    Therefore,
    the Board fails
    to see how respondent would be prejudiced by the Board’s denial
    of its motion to file.
    Even
    if the Board were to grant the motion to file,
    it would
    find that the issues raised
    in the motion to dismiss and strike
    indicate that the facts and law are inextricably linked in this
    matter such that hearing on the merits is necessary before any
    determinations can be made.
    Respondent is free to argue the
    merits of its positions at the hearing in this matter.
    For these reasons, respondent’s October 16,
    1992 motion to
    file instanter is hereby denied.
    Also,
    to the extent that there
    are motions to dismiss and strike embedded within respondent’s
    filing of October
    15,
    1992,
    these motions are denied as untimely
    filed.
    Respondent’s October 27,
    1992 motion for leave to file
    its reply to complainants’ motions is denied as moot.
    As
    a final matter, the Board notes that neither respondent
    nor complainant has served the hearing officer with their
    filings.
    Such service
    is required under the procedural rules.
    (See,
    35 Ill. Adm. Code 103.104.)
    The parties are directed to
    properly serve the hearing officer with all documents filed.
    IT
    IS
    SO
    ORDERED.
    0
    37-OO7~4
    —3—
    I, Dorothy N. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify that the above order was adopted on the
    ~
    day of
    ____________________,
    1992,
    by a vote of
    7-L~
    Dorothy N./Ø2unn, Clerk
    Illinois ~Øllution Control Board
    01 3:~-QO75

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