ILLINOIS POLLUTION CONTROL BOARD
December 7, 2000
CHRYSLER REALTY CORPORATION,
Complainant,
v.
THOMAS INDUSTRIES, INC., and
TDY INDUSTRIES, INC.,
Respondents.
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PCB 01-25
(Enforcement – Citizens, UST)
ORDER OF THE BOARD (by M. McFawn):
On August 7, 2000, Chrysler Realty Corporation (CRC) filed a complaint against Thomas
Industries, Inc., and TDY Industries, Inc. (collectively, respondents). Respondent TDY (TDY)
filed an answer on September 5, 2000. On October 12, 2000, TDY filed several motions for its
attorneys to appear
pro hac vice
. In this order, the Board determines whether the complaint is
duplicitous or frivolous, and rules on the
pro hac vice
motions. The Board finds that the
violations alleged in the complaint are not duplicitous or frivolous and therefore accepts this case
for hearing, and grants the motions to appear
pro hac vice
.
BACKGROUND
In 1965 and 1971, CRC acquired two parcels of land located at 622 East Northeast
Highway in DesPlaines, Illinois (property), from parties with connections to both named
respondents.
1 From sometime in 1965, until 1996, CRC constructed and leased a dealership
showroom with a vehicle service garage on the property. In 1996, CRC decided to sell the
property, and contracted for an environmental site assessment. The assessment revealed a
200,000-gallon underground storage tank (UST), soil and groundwater contamination
surrounding the tank, and soil contamination in various locations elsewhere on the property. The
complaint alleges that these conditions are the result of the respondent’s operations and activities
at the property. The complaint asks the Board to enter an order finding that the respondents have
violated the Leaking Underground Storage Tank Program (LUST) and applicable regulations
(415 ILCS 5/57
et seq.
(1998) and 35 Ill. Adm. Code 732), and Sections 12(a), (d) and 21(e) of
the Environmental Protection Act (Act) (415 ILCS 5/12(a), 12(d), and 21(e) (1998)). As relief,
1
As alleged in the complaint, the property in question was acquired in 1918 by the Benjamin
Electric Manufacturing Company (Benjamin). In the late 1950s, Thomas Industries (Thomas)
acquired Benjamin, including the property. In 1964, Thomas transferred the property to the
Frederick Post Company (Frederick). From 1965 through 1970, the property was conveyed to
a series of Frederick-related entities, until conveyed in 1970 to a predecessor to respondent
TDY.
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the complaint asks the Board to issue a cease and desist order against respondents for each of the
alleged violations, award CRC costs it has incurred and will incur, and other such relief the
Board deems just and consistent with the underlying goals of the Act.
In it’s answer, TDY raises several affirmative defenses to the allegations contained in the
complaint. Among these are the following:
9.
CRC is precluded from recovering under the [Act] against TDY Industries
because said Act does not provide a private cause of action for the
requested relief.
10.
CRC’s claims are barred, in whole or in part, by the common law
doctrines of the case, collateral estoppel and/or
res judicata
, in that a
federal district court already has held that CRC’s claims are not cognizable
under Illinois law. TDY Ans. Par. 9 and 10.
2
On October 5, 2000, the Board entered an order directing TDY to file a memorandum that
provided additional information regarding its tenth affirmative defense. The order also granted
Thomas additional time to file its answer to the complaint.
On November 13, 2000, TDY filed its memorandum re:
res judicata
(memorandum).
TDY’s memorandum alleged that on January 4, 2000, CRC filed a complaint in the District
Court for the Northern District of Illinois, Eastern Division (federal complaint). In addition to
alleged violations of federal law, negligence, and unjust enrichment, the federal complaint
included substantially the same alleged violations as those found in CRC’s complaint filed before
the Board. Thomas moved that court to dismiss the state violations. In granting that motion, the
federal court held that it had no jurisdiction to hear the state claims, as the Act does not sanction
a private right of action absent state enforcement. See Chrysler Realty Corporation v. Thomas
Industries, 97 F. Supp. 2d 877 (2000).
DUPLICITOUS OR FRIVOLOUS DETERMINATION
Section 31(d) of the Environmental Protection Act (Act) (415 ILCS 5/31(d) (1998))
requires the Board to set citizen’s enforcement actions for hearing unless the Board determines
that the complaint is “duplicitous or frivolous.” The Board and the courts consistently have
interpreted “duplicitous” to mean duplicative. See Winnetkans Interested in Protecting the
Environment (WIPE) v. Illinois Pollution Control Board, 55 Ill. App. 3d 475, 478-479, 270
N.E.2d 1176, 1178-1179 (1st Dist. 1977); People v. State Oil Company (August 19, 1999), PCB
97-103, slip op. at 2-3.
Section 103.124(a) of the Board’s procedural rules provides in part as follows:
If [a] complaint is filed by a person other than the Agency . . . the Chairman shall
2
TDY’s answer will be referred to as “TDY Ans. Par. __.”
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place the matter on the agenda for Board determination whether the complaint is
duplicitous or frivolous. 35 Ill. Adm. Code 103.124(a).
Below, the Board determines whether the complaint is duplicitous or frivolous.
Duplicitous
A complaint is duplicitous if the matter is identical or substantially similar to one brought
in this or another forum. See Walsh v. Kolpas (September 23, 1999), PCB 00-35; Brandle v.
Ropp (June 13, 1985), PCB 85-68. While the allegations in the complaint before the Board arise
from the same basic set of facts as those alleged in the federal complaint, the federal district court
dismissed the allegations related to state law. The federal court can no longer address any
alleged violations of the LUST program. CRC’s only remedy, if any, for violations of state law
must now be found in this action before the Board. The Board therefore finds that the complaint
is not duplicitous.
Frivolous
A complaint is frivolous if it requests relief that the Board does not have the authority to
grant or fails to state a cause of action upon which the Board can grant relief. See People v. State
Oil, PCB 97-103, slip op. at 3; Lake County Forest Preserve Dist. v. Ostro (July 30, 1992), PCB
92-80. In it’s answer, TDY challenges a party’s authority to file a private cause of action for the
requested relief under the Act.
CRC requests, among other things, that the Board award it costs that is has incurred and
will incur to address the contamination at the property. The Board has consistently held that it
has the authority to award cleanup costs to private parties for a violation of the Act. See Lake
County Forest Preserve District v. Ostro (March 31, 1994), PCB 92-80; Herrin Security Bank v.
Shell Oil Co. (September 1, 1994), PCB 94-178; Richey v. Texaco Refining and Marketing, Inc.
(August 7, 1997), PCB 97-148; and Dayton Hudson Corporation v. Cardinal Industries, Inc., and
Daniel E. Cardinal, Jr. (August 21, 1997), PCB 97-134. As noted in Ostro, this holding is based
on the broad language of Section 33(a) of the Act (415 ILCS 5/33(a) (1998)) as well as the
Illinois Supreme Court decision in People v. Fiorini, 143 Ill. 2d 318, 574 N.E.2d 612 (1991).
In Fiorini, the Illinois Supreme Court considered the issue of private cost recovery in the
context of a third-party complaint that sought, among other things, cleanup costs incurred
because of an alleged violation of Section 21 of the Act. In denying a motion to dismiss the
third-party complaint, the Supreme Court stated that, “[w]hile cleanup costs are not expressly
provided for in these [Sections 33(b) and 42 through 45] of the Act, we decline to hold here that
an award of cleanup costs would not be an available remedy for a violation of the Act under
appropriate facts. Rather, we believe that such a determination is properly left to the trial court's
discretion.” Fiorini, 143 Ill. 2d at 350, 574 N.E.2d at 625.
Using this rationale, the Board has repeatedly upheld its ability to award cleanup costs
under the Act. The instant case involves a citizen's enforcement action brought under Section 31
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(d) of the Act. 415 ILCS 5/31(1) (1998). The recovery of cleanup costs sought by CRC is a
remedy within the Board's authority.
CRC also requests that the Board direct respondent to cease and desist from further
violations. Contrary to TDY’s assertion, Section 33(b) of the Act provides clear authority for the
Board to order a party to cease and desist from violations of the Act or of the Board’s rules and
regulations. 415 ILCS 5/33(b) (1998). Thus, the complaint seeks relief which the Board could
grant and is, therefore, not frivolous.
CONCLUSION
The Board finds that the complaint is neither duplicitous nor frivolous and is therefore
accepted for hearing.
The hearing should 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 with section 103.125 of the Board’s procedural rules. 35 Ill. Adm. Code 103.125.
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.
MOTIONS TO APPEAR
PRO HAC VICE
On October 12, 2000, the Board received motions to appear
pro hac vice
from attorneys
Paul K. Stockman, Richard D. Dworek, and Richard W. Hosking. Stockman, Dworek, and
Hosking are all licensed attorneys in the Commonwealth of Pennsylvania, and seek to represent
TDY in this matter before the Board. The Board allows Stockman, Dworek, and Hosking to
appear
pro hac vic
e.
IT IS SO ORDERED.
Board Member R.C. Flemal dissented.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the
above order was adopted on the 7th day of December 2000 by a vote of 6-1.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
