ILLINOIS POLLUTION CONTROL BOARD
    August 7, 1997
    DEBRA CONWAY,
    Petitioner,
    v.
    WINONA AND EDWARD JOHNSON,
    Respondents.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB 97-221
    (Enforcement-Air-Water)
    ORDER OF THE BOARD (by G.T. Girard):
    On June 5, 1997, Debra Conway (complainant) filed an enforcement action against
    Winona and Edward Johnson (respondents). The complaint (Comp.) alleges violations of 35
    Ill. Adm. Code 101.160, 101.161, 101.162, 101.241, 101.243, 101.260, and 101.280.
    Comp. at 3. The complaint then describes the alleged pollution as sewer back-up in the
    basement and the bathtub of her apartment that is rented from respondents. Complainant asks
    the Board for relief in the form of a monetary penalty, an order directing respondent to cease
    and desist from further back-ups, cleaning of the complainant’s apartment for three years,
    paying all hospital bills, written and verbal apologies, and free rent for three to seven years.
    On June 13, 1997, the respondents filed a response to the complaint and on June 20,
    1997, respondents filed a motion to dismiss (Mot.). Respondents assert that it had been
    brought to their attention that complainant was experiencing back-up problems in
    complainant’s bathroom in April. Mot. at 2. Respondents assert that they questioned other
    tenants and inspected the building and basement for plumbing and back-up problems.
    Id
    . As
    a result of this inspection, respondents found only a leaky valve which they assert will be
    repaired during annual maintenance on the building.
    Id
    . Respondents maintain that they
    notified complainant that they would inspect her apartment but were unable to gain entrance to
    the apartment. Respondents ask the Board to dismiss this action, to bar complainant from
    further harassment and for complainant to vacate the apartment. Mot. at 1.
    Complainant has not responded to the motion to dismiss. Therefore, complainant is
    deemed to have waived objection to the granting of the motion. 35 Ill. Adm. Code
    101.241(b).
    For the reasons discussed below the Board grants the motion to dismiss.
    2
    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.)
    Section 103.124(a) of the Board's procedural rules, which implements Section 31(b) of
    the Environmental Protection Act (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
    Complainant alleges that respondents violated several sections of the Board’s rules.
    However, the sections indicated are Board rules establishing the procedures to be followed by
    parties in proceedings before the Board. Thus, respondents could not be in violation of those
    regulations during the time the alleged violations occurred because this case was not yet before
    the Board. Therefore, the portion of the complaint alleging violations of the Board’s
    procedural rules does not state a cause of action upon which relief can be granted in this
    proceeding.
    The complaint does describe alleged pollution violations as sewer back-ups. However,
    the complaint does not cite to any provisions of the Act or Board regulations which correspond
    to such an alleged violation. Section 103.122(c)(1) of the Board’s rules (35 Ill. Adm. Code
    103.122(c)(1)) requires a formal complaint to contain a reference to the provisions of the Act
    and regulations which the respondents are alleged to be violating. A description of sewer
    back-up is not in itself sufficient to state a cause of action upon which relief can be granted.
    3
    Finally, the complaint requests numerous forms of relief should the Board find a
    violation of the Act or the Board’s regulations. Of the relief requested, the Board could only
    grant two forms of relief requested, a monetary penalty and a cease and desist order. The
    remaining forms of relief are beyond the Board’s authority.
    The complaint does not sufficiently plead a cause of action upon which relief can be
    granted. Therefore, the complaint as filed is frivolous and the Board grants the motion to
    dismiss.
    The Board also notes that respondents have asked the Board to bar complainant from
    further harassment and order complainant to vacate the apartment. Respondents did not cite
    any authority in either the Act or the Board’s regulations which would allow the Board to issue
    such a ruling and the Board can find no such authority. Therefore, the Board cannot act on
    those requests by respondents.
    The complaint is hereby dismissed and the docket closed.
    Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
    the appeal of final Board orders to the Illinois Appellate Court within 35 days of the date of
    service of this order. Illinois Supreme Court Rule 335 establishes such filing requirements.
    See 145 Ill. 2d R.335; see also 35 Ill.Adm.Code 101.246 Motions for Reconsideration.
    IT IS SO ORDERED.
    Board Member K.M. Hennessey abstained.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 7th day of August 1997, by a vote of 5-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

    Back to top