ILLINOIS POLLUTION CONTROL BOARD
    December 2, 1999
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    ESTATE OF LLOYD WIEMANN and
    CHERYL HALBROOKS,
    Respondents.
    ______________________________________
    ESTATE OF LLOYD WIEMANN,
    Cross-complainant,
    v.
    CHERYL HALBROOKS,
    Cross-respondent.
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    PCB 93-191
    (Enforcement - UST)
    PCB 93-191
    (Enforcement - UST, Citizens)
    (Cross-Complaint)
    DISSENTING OPINION (by M. McFawn):
    On August 10, 1999, the People filed a complaint against Cheryl Halbrooks. On November 8,
    1999, the Estate of Lloyd Wiemann (Estate) filed a cross-complaint against Halbrooks. The allegations
    in the cross-complaint filed by the Estate are identical to counts I and II of complaint brought by the
    People. In its Resolution In the Matter of: Duplicitous or Frivolous Determination, RES 89-2, 100
    PCB 53 at 100-54, the Board has stated that duplicitous “has been interpreted to apply to complaints
    which duplicate allegations identical or substantially similar matters previously brought before the
    Board.” Therefore, the Estate’s cross-complaint is clearly duplicitous. It is the second complaint filed
    and it is identical to a portion of the People’s complaint. Contrary to the majority, I would find the
    Estate’s complaint to be duplicitous and dismiss it without prejudice.
    In support of its finding that the Estate’s compliant is not duplicitous or frivolous, the majority
    simply cites to People v. Bell Sports, Inc. (December 7, 1995), PCB 95-91. The majority is correct
    that the Bell Sports, Inc. order is analogous: the counterclaim in that case was filed after the People’s
    case and was identical to parts of the People’s complaint. Unfortunately, after further examination, that
    order was in error.
    2
    In its December 7, 1995 order, the Board found the counterclaim filed by two fellow
    respondents against Bell Sports, Inc. to be neither duplicitous nor frivolous because it believed that
    those two respondents were entitled to “present evidence on the issue of responsible parties, liability for
    violations of the Act and any corresponding regulations.” Slip op. at 4. These same or similar
    evidentiary issues may be present in this case. However, upon examination they do not support a
    finding that the cross-complaint is not duplicitous. Dismissing a cross-complaint does not eliminate the
    respondent’s right to present such evidence and arguments at the hearing on the complainant’s case (or
    at a hearing on a proposed settlement should such become necessary). As a respondent in the People’s
    case, the Estate can present such evidence and arguments.
    Furthermore, Section 31(d) of the Environmental Protection Act (415 ILCS 5/31(d) (1998))
    provides (emphasis added):
    Any person may file with the Board a complaint . . . against any person allegedly
    violating this Act or any rule or regulation thereunder or any permit or term or condition
    thereof. *** Unless the Board determines that such complaint is duplicitous or
    frivolous, it shall schedule a hearing and serve written notice thereof upon the person or
    persons named therein . . . .
    Thus, citizens may bring enforcement actions under the Act, but such complaints are subject to a
    duplicitous and frivolous determination by the Board, unlike the cases brought by the Attorney General
    on behalf of the People. The citizen suit under Section 31(d) is subject to the duplicitous and frivolous
    test for a variety of reasons, among which are to insure that the Attorney General and the “private
    attorney general” do not duplicate efforts and that a respondent is not required to defend against a
    claim more than once. Based on Section 31(d), when the two complaints are identical, that filed by the
    private citizen can and should be dismissed as duplicitous.
    I agree with the majority that this matter should proceed expeditiously to hearing, but on the
    People’s complaint alone. The evidentiary concerns cited by the majority could still be addressed at
    such hearing by the Estate as a respondent. I would find the Estate’s cross-complaint to be duplicitous
    and dismiss it without prejudice. I therefore dissent from today’s ruling by the Board.
    Marili McFawn
    Board Member
    3
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above
    dissenting opinion was submitted on the 6th day of December 1999 .
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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