ILLINOIS POLLUTION CONTROL BOARD
    April 15, 1999
    TERRENCE G. GRAF, JOE GRAF,
    MARCELLA GRAF, LOUISE
    GROTHPIETZ, MARJORIE OLSZEOSKI,
    LEAONARD OLSZEOSKI, MIKE
    CZEBOKOWSKI, LOIS CZEBOKWSKI,
    MILDRED OWEN, KATHERINE
    WASHBURN, ROBERT WASHBURN,
    GEORGE ARULEAF, ANNA
    KOZARZEWSKI, and LUCY CATLOW,
    Complainants,
    v.
    VALIQUIET, INC., EMERALD
    LANDSCAPING, and CPK
    LANDSCAPING,
    Respondents.
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    PCB 99-125
    (Enforcement - Citizens, Noise)
    DISSENTING OPINION (by G.T. Girard, R.C. Flemal, and N.J. Melas):
    We respectfully dissent from the majority order on April 15, 1999, because we believe
    that it is premature for the Board to find that this complaint is not duplicitous or frivolous. We
    base this dissent on the clear language of Section 31(d) of the Environmental Protection Act
    (Act). 415 ILCS 5/31(d). Section 31(d) forms the basis for the Board’s procedural rules at 35
    Ill. Adm. Code 103.120, 103.121, 103.122, 103.123, and 103.124. The majority order is
    predicated on a narrow reading of Section 103.124(a) which ignores the clear language of
    Section 31(d) of the Act.
    Section 31(d) of the Act provides that any person may file with the Board a complaint
    against any person alleging violations of the Act and Board regulations. Section 31(d) further
    requires that the “complainant shall immediately serve a copy of such complaint” upon the
    named respondents. 415 ILCS 5/31(d). Section 31(d) then provides that “unless the Board
    determines that such complaint is duplicitous or frivolous, it shall schedule a hearing. . .” and
    serve notice of the hearing upon the parties. 415 ILCS 5/31(d). Thus, the Act clearly
    requires service of a complaint without delay, which establishes a primary action. The
    Board’s procedural rules at Section 103.122 also mirror this statutory intent by providing that
    “an enforcement action shall be commenced by the service of a notice and formal complaint
    upon all respondents and the filing of 10 copies of the notice and formal complaint with the
    Clerk [of the Board].” Thus, the Board’s rules indicate that an action has not commenced
    prior to service of the complaint.
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    The majority order adopted today is making a determination on the complaint prior to
    proof that the respondents have been served with the complaint. Based on the clear language
    of the Act and a contextual reading of the Board’s procedural rules, we believe that a finding
    that the complaint is not duplicitous or frivolous is premature.
    For these reasons, we respectfully dissent.
    G. Tanner Girard, Board Member
    Ronald C. Flemal, Board Member
    Nicholas J. Melas
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above dissenting opinion was submitted on the 26th day of April 1999.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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