ILLINOIS POLLUTION CONTROL BOARD
    January 7, 1999
    CARL BRUNSON AND NINA BRUNSON,
    Complainant,
    v.
    MCI WORLDCOM, INC., and
    IXC CARRIER, INC.,
    Respondent.
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    PCB 99-71
    (Enforcement - Noise, Citizens)
    ORDER OF THE BOARD (by M. McFawn):
    On November 25, 1998, complainants Carl Brunson and Nina Brunson filed a
    complaint with the Board alleging violations of Sections 23, 24, and 25 of the Illinois
    Environmental Protection Act (Act) (415 ILCS 5/23, 24, 25 (1996)) and 35 Ill. Adm. Code
    900.101, 900.102, and 900.103, against respondents MCI WorldCom, Inc., and IXT Carrier,
    Inc. The basis of the complaint is noise from regeneration/cooling facilities located adjacent to
    complainants’ property.
    Section 103.124(a) of the Board’s procedural rules directs the Board to determine
    whether or not a citizen’s complaint is duplicitous or frivolous. 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
    requests relief which the Board cannot grant. Lake County Forest Preserve Dist. v. Ostro
    (July 30, 1992), PCB 92-80.
    Nothing before the Board indicates that there is an identical or similar matter pending
    in another forum. The Board cannot find that the complaint is duplicitous.
    Several of the statutes and regulations respondents are alleged to have violated are
    incapable of violation. Section 23 of the Act contains legislative statements of purpose; there
    can be no violation of Section 23. Section 25 of the Act sets forth standards under which the
    Board promulgates rules governing noise pollution; that section cannot be violated by a private
    entity. Similarly, 35 Ill. Adm. Code 900.101 contains only definitions; there can be no
    violation of Section 900.101. Finally, 35 Ill. Adm. Code 900.103 authorizes the Illinois
    Environmental Protection Agency to adopt procedures for measuring sound, and identifies the
    procedures applicable under other parts of the noise regulations. None of these provisions is
    applicable based on the allegations in the complaint. Thus, to the extent the complaint alleges
    violations of Sections 23 or 25 of the Act or 35 Ill. Adm. Code 900.101 or 900.103, those
    allegations are frivolous, and are hereby stricken.
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    However, the complaint also alleges violations of Section 24 of the Act and 35 Ill.
    Adm. Code 900.102. The facts alleged in the complaint, if proven, could support violations
    of these two sections. Complainants ask the Board to order respondents to remove
    regeneration/cooling facilities from their vicinity and to cease and desist from violations. This
    relief is within the Board’s broad grant of authority to fashion a remedy for a violation. See
    415 ILCS 5/33(a), (b) (1996). The Board concludes that with respect to alleged violations of
    Section 24 of the Act and 35 Ill. Adm. Code 900.102 the complaint is not frivolous.
    The Board accordingly accepts this matter 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 procedural rules. 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 the
    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.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 7th day of January 1999 by a vote of 5-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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