ILLINOIS POLLUTION CONTROL BOARD
June 5, 1997
BERNICE LOSCHEN,
Complainant,
v.
GRIST MILL CONFECTIONS, INC.,
Respondent.
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PCB 97-174
(Enforcement - Citizens)
ORDER OF THE BOARD (by J. Yi):
This matter is before the Board on a complaint filed on April 3, 1997 by Ms. Bernice
Loschen. The complaint alleges that the respondent, Grist Mill Confections, Inc. (respondent
or Grist) has violated Sections 3.02, 3.03, 8, 9(a) and (b), and 9.5(a)(1) and (a)(2) of the
Environmental Protection Act (Act) (415 ILCS 5/3.02, 3.03, 8, 9(a) and (b), and 9.5(a)(1)
and (a)(2) (1994)) as a result of odor being emitted by respondent's facility.
On April 11, 1997, the respondent filed a motion to dismiss the complaint.
1
The
respondent argues that the complaint is frivolous because it requests relief beyond that which
the Board has the statutory authority to provide and that respondent has not violated the Act.
On April 21, 1997, complainant filed a response to the motion to dismiss.
2
Additionally, the
Board notes that complainant filed a motion for an extension of time on April 28, 1997, and a
motion to withdraw the motion for an extension of time on April 30, 1997. Finally, the
complainant on May 14, 1997 filed a motion to stay so that she may amend the prayer for
relief.
For the reasons stated below, the Board denies respondent's motion to dismiss and sets
this matter for hearing. The Board does strike complainant's allegations that respondent
violated Sections 3.02, 3.03, 8 and 9.5(a)(1) and (a)(2) of the Act because they do not contain
any prohibitions, Section 9(b) of the Act due to complainant's failure to state any facts to
support the allegation and complainant's request for monetary damages. Additionally, the
Board denies complainant's motion to stay and grants complainant's motion to withdraw the
motion for an extension of time.
1
The complaint will be referenced to as (Comp. at ) and the motion to dismiss will be
referred to as (Mot. at .)
2
The complainant's response will be referred to as (Resp. at .)
2
BACKGROUND
The respondent's factory is located at 805 N. Griffin Street, Danville, Vermillion
County, Illinois and has been operating at that location since 1990. (Mot. at 1, Comp. at 2.)
The plant receives raw materials such as cornstarch, corn syrup, sugar and juice concentrate,
and which, through the use of steam injection cookers, produces candy that is packaged off-
site. (Mot. at 2.) The respondent states that the plant operates from 6:00 a.m. until 5:00 p.m.
five to six days a week. (Mot. at 2.) The complainant purchased a home near respondent's
facility on January 25, 1997, but has not moved into the premises. (Comp. at 2.)
Complainant claims that she is afflicted with Multiple Chemical Sensitivity (MCS). (Resp. at
2.) Complainant asserts that the odors emitted from respondent's plant aggravated her
disability, MCS, to the point that she felt she should not move into the home. (Resp. at 2.)
Complainant lists the following times she visited the home when the odor was noticeable:
February 12, February 20, February 25, March 3 and March 11, 1997. (Comp. at 3.)
As a result the complainant is alleging a violation of Sections 3.02 and 3.03 of the Act
which define "Air Pollution" and "Air Pollution Control Equipment", respectively and Section
8 of the Act that sets forth the purpose of Title II of the Act and the General Assembly's
findings concerning pollution of the air. Furthermore, the complaint alleges a violation of
Section 9(a) of the Act which is the general prohibition against air pollution and Section 9(b)
of the Act which is the general prohibition to build and operate an emission source without
Illinois Environmental Protection Agency (Agency) permitting or in violation of a permit.
Finally, the complainant is alleging that respondent violated Sections 9.5(a)(1) and (a)(2) of
the Act which set forth the General Assembly's findings concerning toxic air emissions and the
adequacy of the federal programs concerning the listing of toxic air contaminants.
Complainant filed a motion to stay this matter so that she may file a motion to amend
her form of relief. Complainant indicates in her motion for stay that she is requesting the stay
so that she may amend her complaint to request that respondent build higher emission stacks so
that the chemical emissions will disperse and hopefully her symptoms will be alleviated.
Complainant has not filed the motion to amend her complaint and there has been no response
from respondent.
ARGUMENTS
The respondent's first argument is that the complaint requests the Board to grant relief
beyond the scope of the Board's statutory authority. (Mot. at 3.) Respondent, citing to CPC
Intern, Inc. v. Illinois Pollution Control Board, 24 Ill.App.3d 203, 321 N.E.2d 58 (1974),
asserts that the Board may not grant relief in the form of monetary or other compensatory
damages for injury to health or property. (Mot. at 3.) Respondent argues that the
complainant's request that the Board order respondent to purchase purifier machines for
complainant's use and/or to pay money to complainant so that she may purchase a new house
at a different location are beyond the Board's statutory authority to grant. Therefore,
respondent concludes that the complainant is frivolous. (Mot. at 3.)
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Next, respondent argues that it has not violated the Act. (Mot. at 4.) Citing to Wells
Manufacturing Company v. Illinois Pollution Control Board, 73 Ill. 2d 226, 383 N.E. 2d 148
(Ill. 1978), respondent asserts that, as in Wells, after weighing the factors of Section 33(c) of
the Act 9415 ILCS 5/33(c)(1994)) the Board could not possibly find that there is an
unreasonable interference. (Mot. at 4-6.) Furthermore, citing to Darling and Company v.
Illinois Pollution Control Board, 28 Ill. App. 3d 258, 328 N.E. 2d 1222 (1975), the
respondent asserts that "while compliance with the rules and regulations promulgated by the
Board under the Act is not a complete defense to an action alleging a violation of the Act, such
compliance constitutes a
prima facie
defense to any legal, equitable, criminal or administrative
action or proceeding and is sufficient unless and until rebutted by sufficient evidence. (Mot. at
6.) Respondent argues that an Agency inspection report (attached as Exhibit C to its motion)
which stated; "[t]he plant production areas have a distinct candy smell, but I didn't detect any
odors that would likely be offensive to a person with normal health" demonstrates that there is
no violation of the Act. (Mot. at 6.) Therefore, respondent based on these arguments claims
that it has not violated Section 9(a) of the Act and that this matter should be dismissed.
Finally, respondent argues that Sections 3.02, 3.03, 8, and 9.5(a)(1) and (a)(2) of the
Act do not contain any prohibition which could be violated by any person or entity. (Mot. at
7.) The respondent asserts that these sections either provide general legislative findings or are
definitions. (Mot. at 7.) Therefore, respondent concludes that it cannot violate these sections
and the complaint should be dismissed.
In response, complainant states that one of the requests for relief from the Board was to
order the respondent to stop polluting. (Resp. at 2.) Complainant asserts that this relief could
include improving emissions from respondent's plant, closing the plant or notifying
complainant when production will take place, all of which are not monetary compensation.
(Resp. at 2.) Regarding the specific alleged violations of Sections 3.02, 3.03, 8, and 9.5(a)(1)
and (a)(2) of the Act, complainant asserts that respondent's actions meet the described
legislative findings or definitions contained in those sections but does not argue whether
Sections 3.02, 3.03, 8, and 9.5(a)(1) and (a)(2) of the Act contain any prohibition. (Resp. at
4-7.) Additionally, complainant argues that the evidence that will be presented at hearing will
demonstrate that respondent has not met the "high standard required to reflect Grist Mills (sic)
prima facie defense." (Resp. at 8.)
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 (1982), 105 Ill.
App. 3d 444, 434 N.E.2d 476.) 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.)
4
Section 103.124(a) of the Board's procedural rules, which implements Section 31(b) of
the Act (415 ILCS 5/31(b)), provides:
...If a complaint is filed by a person other than the Agency, the Clerk shall also send a
copy to the Agency; the Chairman shall place the matter on the Board agenda for Board
determination whether 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.)
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, 64
PCB 263.) 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, 8 PCB 46.)
DISCUSSION
The Board denies the respondent's motion to dismiss. Respondent argues that this
matter is frivolous because certain forms of relief requested by the complainant cannot be
granted by the Board. The Board agrees with respondent that the Board cannot order the
respondent to pay monetary compensation so that complainant may purchase another house; we
accordingly strike that portion of the relief requested. However, as complainant asserts, the
Board may order respondent to cease and desist from violating the Act by taking appropriate
measures. Thus the Board finds that the complaint is not frivolous due to the requests for
monetary compensation because the complaint also requests relief that maybe granted.
Respondent also argues that it did not violate the Act. First, respondent argues that
when weighing the factors of Section 33(c) of the Act, as the court did in Wells, the Board
should find that there is no unreasonable interference. Illinois is a fact-pleading state which
requires the pleader to set out ultimate facts which support his cause of action. (LaSalle
National Trust N.A. v. Village of Mettawa, 249 Ill. App. 3d 550, 557, 616 N.E.2d 1297 (2d
Dist. 1993).) Despite the requirement of fact pleading, courts are to construe pleadings
liberally to do substantial justice between the parties. (Classic Hotels, Ltd. v. Lewis, 259 Ill.
App. 3d 55, 60, 630 N.E.2d 1167 (1st Dist. 1994).) However, case law is consistent in
finding that pleading requirements for administrative review are less exacting than for other
causes of action. (Mueller v. Board of Fire and Police Commissioners of the Village of Lake
Zurich, 267 Ill. App. 3d 726, 643 N.E.2d 255, 262 (2d Dist. 1994).)
Additionally, a complainant is not obligated to introduce evidence on each of the
Section 33(c) factors. (See Incinerator, Inc. v. Pollution Control Board, 59 Ill. 2d 290, 296,
319 N.E.2d 794, 797 (1974); Processing and Books, Inc. v. Pollution Control Board, 64 Ill.
2d 68, 75-77, 351 N.E.2d 865, 869.) Furthermore, the respondent has the burden of proof as
to the Section 33(c) factors "to the extent that a factor is not a necessary part of Complainants'
5
burden as to unreasonableness." (IEPA v. W.F. Hall Printing Company (September 15,
1977), PCB 73-30, 27 PCB 371,372, n.3 (citing Processing and Books, Inc., 64 Ill. 2d 68,
351 N.E.2d 865 (1976)).) The Board finds that it would be premature to weigh the factors of
Section 33(c) of the Act at this time, since complainant is not required to present facts in the
complaint concerning Section 33(c) of the Act in order to file a sufficient pleading but instead
may present facts at hearing. Therefore the Board denies respondent's motion to dismiss prior
to hearing because facts could be presented at hearing that demonstrate, after weighing the
factors of Section 33(c) of the Act, that respondent has violated Section 9(a) of the Act.
Furthermore, the Board agrees with respondent that Sections 3.02, 3.03, 8, and
9.5(a)(1) and (a)(2) of the Act do not contain prohibitions which can be violated and strikes
these allegations from the complaint. Additionally, the Board notes that respondent in its
motion to dismiss does not specifically address the alleged violation of Section 9(b) of the Act
and that complainant fails to allege any facts concerning this allegation. Since complainant
fails to allege any facts to support the allegation in her complaint the Board strikes this
allegation. However, the complainant alleges a violation of Section 9(a) of the Act, which
does contain prohibitions that can be violated. Therefore the Board denies respondent's
motion to dismiss and finds that this matter is not frivolous.
Respondent has not argued that this matter is duplicitous and we have no indication at
this time that the matter is identical or substantially similar to one brought in another forum.
Therefore we find that this matter is not duplicitous.
Complainant's motion for stay is denied. Complainant states she is requesting a stay so
that she may amend the form of relief in her complaint. Complainant's proposed amendment,
to require respondent build higher emission stacks, is not requesting any alternative form of
relief. Complainant has requested that respondent cease and desist from the alleged violations
and to request that respondent build higher emission stacks so that there will no longer be a
problem (violation) is merely providing an alternative compliance option for respondent.
Complainant may argue at hearing that building higher emission stacks is an economically
reasonable and technically feasible compliance option pursuant to Section 33(c) of the Act, but
complainant does not need to amend her complaint. (415 ILCS 5/33(c) (1996).)
Having found that this matter is neither duplicitous nor frivolous, the Board will set 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 the Clerk of the Board shall promptly issue appropriate
directions to the assigned hearing officer consistent with this order.
The assigned hearing officer shall inform the clerk of the Board of the time and
location of the hearing at least 40 days in advance of hearing so that 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 the
hearing. The hearing officer and the parties are encouraged to expedite this proceeding as
much as possible.
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IT IS SO ORDERED.
Board Member J. Theodore Meyer dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 5th day of June, 1997, by a vote of 6-1.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
