ILLINOIS POLLUTION CONTROL BOARD
    July 13, 2000
    MDI LIMITED PARTNERSHIP #42,
    Complainant,
    v.
    REGIONAL BOARD OF TRUSTEES FOR
    BOONE AND WINNEBAGO COUNTIES
    and BOARD OF EDUCATION OF
    BELVIDERE DISTRICT 100,
    Respondents.
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    PCB 00-181
    (Enforcement - Citizens, UST)
    ORDER OF THE BOARD (by G. T. Girard):
    On May 4, 2000, MDI Limited Partnership (complainant) filed a complaint against
    Regional Board of Trustees for Boone and Winnebago Counties (Regional Board) and Board of
    Education of Belvidere District 100 (Belvidere). The complaint alleges that the respondents
    violated specified provisions of the Environmental Protection Act (Act) (415 ILCS 5/1
    et seq
    .
    (1998)) pertaining to the remediation of contamination from two leaking underground storage
    tanks.
    On June 9, 2000, the Regional Board filed a motion to dismiss. In the motion to
    dismiss, the Regional Board maintains that the complainants cannot recover under the complaint
    and that the Regional Board’s holding of title to the property was a ministerial function imposed
    on the Regional Board by statute. On June 19, 2000, the complainant filed a response.
    For the reasons discussed below the Board denies the motion to dismiss.
    STANDARD OF REVIEW
    The courts have stated that a motion to dismiss a pleading should be granted where the well-
    pleaded allegations, considered in the light most favorable to the non-movant, indicate that no set of
    facts could be proven upon which the petitioner would be entitled to the relief requested. See Uptown
    Federal Savings & Loan Assoc. v. Kotsiopoulos, 105 Ill. App. 3d 444, 434 N.E.2d 476 ( 1982). The
    Board has stated “[a] motion to dismiss, like a motion for summary judgment, can succeed where the
    facts, taken in a light most favorable to the party opposing the motion, prove that the movant is entitled
    to dismissal as a matter of law.” BTL Specialty Resins v. Illinois Environmental Protection Agency
    (April 20, 1995), PCB 95-98.
    Section 103.124(a) of the Board’s procedural rules implements Section 31(d) of the Act.
    It provides:
    2
    The Clerk shall assign a docket number to each complaint filed
    *** the Chairman shall place the matter on the 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 (a).
    An action before the Board is duplicitous if the matter is identical or substantially similar
    to one brought in another forum. Brandle v. Ropp (June 13, 1985), PCB 85-68. An action
    before the Board is frivolous if it fails to state a cause of action upon which relief can be
    granted by the Board. Citizens for a Better Environment v. Reynolds Metals Co. (May 17,
    1973), PCB 73-173.
    DISCUSSION
    The Board notes that only the Regional Board has filed a motion to dismiss this matter.
    Therefore, the Board will first discuss the motion to dismiss and then the Board will discuss
    whether the matter is duplicitous or frivolous.
    Motion to Dismiss
    The Regional Board asserts two arguments in support of its motion to dismiss. First, the
    Regional Board maintains that pursuant to Section 22.2(f) of the Act (415 ILCS 5/22.2(f)), only
    the State of Illinois or a local unit of government may recover for the costs of removal or
    remedial action. Secondly, the Regional Board argues that although it held title to the property,
    the holding of title was purely “ministerial” and was imposed by statute. The Regional Board
    maintains that it “had no statutory authority or obligation to install, remove or maintain fuel
    tanks” and thus was not the proximate cause of the situation leading to the complaint.
    In response to the Regional Board’s assertion regarding 22.2(f) of the Act, the
    complainant maintains that the complaint alleges a violation of Section 21 of the Act not Section
    22.2(f). The complainant argues that pursuant to Lake County Forest Preserve District v. Ostro
    (March 31, 1994), PCB 92-80, the Board has the authority to award clean-up costs to a private
    party. In response to the argument that the Regional Board’s ownership was “ministerial”, the
    complainant maintains that the allegations of the complaint along with the admission of
    ownership are sufficient to state a claim for relief.
    The Board denies the motion to dismiss. The Board has consistently found that the
    Board has the authority to award clean-up costs to a private party. Lake County Forest
    Preserve District v. Ostro (March 31, 1994), PCB 92-80. In addition, the admission of
    ownership, no matter how ministerial, does appear to support a cause of action. Therefore, the
    motion to dismiss is denied.
    3
    Duplicitous
    An action before the Board is duplicitous if the matter is identical or substantially similar
    to one brought in another forum. Brandle v. Ropp (June 13, 1985), PCB 85-68.
    The Board has not identified any other cases, identical or substantially similar to this,
    pending in other forums. Therefore, based on the record before us, this matter is not
    duplicitous.
    Frivolous
    An action before the Board is frivolous if it requests relief which the Board cannot
    grant. Lake County Forest Preserve Dist. v. Ostro (July 30, 1992), PCB 92-80. The Board
    finds that the complaint is not frivolous.
    CONCLUSION
    The Board denies the motion to dismiss filed by the Regional Board. The Board finds
    that, pursuant to Section 103.124(a), the complaint is neither duplicitous nor frivolous and is
    accepted for hearing.
    The hearing must be scheduled and completed in a timely manner consistent with Board
    practices. The Board will assign a hearing officer to conduct hearings consistent with this order
    and Section 103.125 of the Board’s rules. 35 Ill. Adm. Code 103.125. The Clerk of the
    Board shall promptly issue appropriate directions to the assigned hearing officer.
    The assigned hearing officer shall inform the Clerk of the Board of the time and location
    of the hearing at least 30 days in advance of hearing so that a 21-day 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
    hearing.
    Any briefing schedule shall provide for final filings as expeditiously as possible. 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 all of the parties, the
    hearing officer shall unilaterally set a hearing date. The hearing officer and the parties are
    encouraged to expedite this proceeding as much as possible.
    IT IS SO ORDERED.
    Board Member R.C. Flemal dissented.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 13th day of July 2000 by a vote of 6-1.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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