ILLINOIS POLLUTION CONTROL BOARD
June
8,
1989
IN THE MATTER OF:
)
DIJPLICITOUS OR FRIVOLOUS
)
RES 89—2
DETER’4INATION~
RESOLUTION
OF THE BOARD:
(by R.
C.
Flemal)
Section Section
31(b)
of the Environmental Protection Act
(Act),
states that when
a citizen’s enforcement complaint
is
filed:
Unless
the
Board determines
that such complaint
is
duplicitous
or
frivolous,
it
shall
schedule
a
hearing...
Ill.
Rev.
Stat.
1987
ch.
111 1/2,
par.
1031(b).
Also, Board regulations
in part provide:
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
agenda for Board determination whether
the complaint
is duplicitous or frivolous.
If the Board
rules
that
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.
If the Board
rules
that
the complaint
is not
duplicitous
or
frivolous,
or
it
the
complaint
is
filed
by the Agency,
the Chairman shall
designate
a
Hearing Officer
and the Clerk shall notify the
parties
of
such
designation.
35
Ill.
Adm.
Code 103.124
The Board defined duplicitous
in Brandle
v.
Ropp, PCB 85—68,
54
PCB
263
(1985)
as
follows:
Duplicitous
is
not
defined
in
the
Act
but
has
been
interpreted
to apply
to complaints
which duplicate
allegations identical
or substantially similar
to
100-53
—2—
matters previously brought before
the Board.
Winnetkans Interested
in Protectin9 the Environment
(WIPE)
v.
Illinois Pollution Control Board,
55
Ill.
~p.
3d
375,
370 N.E.
2d 1176
(1st Dist.
1977).
A
complaint
is also duplicitous
if
it
is
identical
or
substantially similar
to one brought
in another
forum.
Frivolous has been construed by the Board
to mean “failure
to state
a cause of action upon which relief can be granted”
Citizens for
a Better
Environment
v.
Reynolds Metals Co., PCB 73—
173,
8 PCB
46
(1973).
The Board can grant relief by ordering
a
Respondent
to stop the polluting activity and by imposing
a
fine.
The Board cannot grant monetary compensation
for damage
done
to health
or property and
it cannot impose criminal
sanctions
such
as
a jail term.
Thus,
any request
for monetary
compensation
or the imposition
of criminal sanctions would be
considered frivolous.
To date,
the Board
has based
its determination
on whether
or
not a
citizen enforcement complaint is duplicitous
or frivolous
from information submitted orally at the “11:00 call”
at Board
meetings.
If neither party
is present when the case
is called,
the
Board
looks
at
the complaint and any other relevant inform~tion,
and decides whether
the action
is duplicitous or frivolous
.
The
Board would prefer not having
to make such an uninformed
decision.
The difficulties
of the present procedure include
having the parties attend the Board meeting,
the information
given by the parties
is not secured under
oath,
and
the
possibility of misinformation due to the parties
not clearly
understanding what the determination means and
its
consequences.
Thus,
the Board believes an improved procedure
is
warranted
to
provide
more
written
information
to the
parties
prior
to
a
~
te1~inatiOfl
and
to
:liminar:e
the
need
for
the
physical presence
of the parties at
the Board meetings.
Therefore,
upon
the adoption of this resolution,
this “11:00
call”
is eliminated
and the following procedure
is the method
by
which
the necessary information shall
be gathered for the Board
to make the required duplicitous or frivolous determination.
This
resolution
is applicable
to any person, other
than the
Illinois Environmental Protection Agency (Agency) and the
‘The duplicitous or
frivolous deter:ninaLion does not
have
to
be
made when
the Agency
or the Attorney General
is
the
Complainant.
100--54
—3—
Attorney General,
as defined
in Section
3.26 of
the Environmental
Protection Act
(Act)2.
NEW PROCEDURE
For all citizen enforcement complaints
received on
or
after
the adoption of this resolution,
a citizen requesting information
in person,
by phone,
or
by mail concerning
the filing of
a
complaint before the Board,
shall receive
the following
six
(6)
documents:
1)
An
informational letter
(Exhibit
A)
2)
An
informal complaint form
(Exhibit
B)
3)
A formal complaint form (Exhibit C)
4)
A Certificate of Service form (Exhibit D)
5)
A copy
of the Environmental Protection Act
6)
A copy
of the Board’s Procedural Rules
Upon the adoption of
this resolution,
the Clerk’s office
will not accept the existing complaint form.
When the Clerk’s
office receives an existing complaint
form,
except complaints
filed by the Agency or the Attorney General,
the Clerk’s office
will send
to
the citizen
the six documents described
a’oove.
The difference between
the informal complaint
and the formal
complaint
is that
if the citizen chooses
the informal complaint
route,
the complaint
is referred
to the Agency.
The Agency then
determines whether
it will prosecute
the case.
The formal
complaint,
if
accepted, holds
the citizen responsible
for
prosecuting
the entire case
for presentation
to
the Board.
2 Section
3.26
of the Act provides:
“Person”
is any individual,
partnership,
cc—
partnership,
firm,
company, corporation,
association,
joint
stock company,
trust,
estate,
political
subdivision,
state agency,
or any other
legal entity,
or
their legal representative,
agent
or assigns.
Ill.
Rev.
Stat.
1987 ch.
111
1/2 par.
1003.26.
100—55
—4—
I.
INFORMAL COMPLAINT PROCESS
If, after
reading the standard cover letter
(Exhibit A),
the
citizen chooses
to complete the informal complaint form (Exhibit
B),
the completed informal complaint form may be mailed either
to
the Agency or
to the Board.
If the Board receives the completed
informal complaint
form,
the Board will
forward
it
to
the
Agency.
Based upon the information received,
the Agency will
decide whether
to act as
the prosecutor
and file its own
enforcement complaint.
II.
FORMAL
COMPLAINT PROCESS
If the citizen chooses
to complete the formal complaint
form,
he or
she shall
file the completed formal complaint
form
with
the Board.
The citizen will
be designated
as Complainant
and must comply with all procedural
rules
as set forth
in
35
Ill.
Adm.
Code
103,
Subpart
B.
This
includes
the
requirement
that
the
Complainant
serve
on the Respondent or his authorized agent
a
copy
of
a
notice
and
complaint
by
registered
or certified
mail.
Proof
of
service
shall
be
made
by affidavit of
the person making
personal
service,
or
by properly executed registered
or certified
mail
receipt.
Proof
of
service
of
the
notice and complaint shall
be filed with the Clerk’s office immediately upon completion
of
service.
Once
the Respondent has been served with
a copy
of
the
complaint,
language
in the complaint
form will
inform
the
Respondent
of his
or her
rights concerning
the duplicitous
and
frivolous determination and the time allowed
to respond.
If the
Respondent believes the complaint
is duplicitous or frivolous,
he
or she shall
file an appropriate motion stating
the basis
for
such belief,
including any necessary affidavits
and supporting
documents.
If no
response
is
received within
two weeks
from the
date
of
service,
the
Board
will
interpret
t:he
silence
to
mean
the
i~uSfl)1~Cflt
c1~es nut
beli
eve
the
aetian
to
be
either
duplicitoue
Or
frivolous~
DISTRIBUTION
To ensure that affected persons are made aware of this
Resolution,
the Board will:
a)
Mail
a copy
of this Resolution
to all persons on the
R88—5 notice
list;
and
The
3oard
may
grant
a
Respondent
a
reasonable
extension
of
time
to
file
its
motion
if
the
Board
determines
that
the
Respondent:
has
shown
good
cause
for
additional
time
to
obtain
information
pertaining
to the frivolous
or duplicitous determination.
100—56
—5—
b)
Publish
the
text
of
this
Resolution
in
the
Environmental
Register.
Finally,
the
Board
would
appreciate
any
assistance
that
the
environmental
bar,
industry
and
trade
associations,
and
environmental
groups
can
give
in
making
this
information
known
to
their
members.
IT
IS
SO
RESOLVED.
I,
Dorothy M.
Gunn, Clerk
of the
Illinois
Pollution
Control
Board,
hereby
certify
th-a~t the
above
Resolution
was
adopted
on
the
7~’~
day
of
~
,
1989,
by
a
vote
of
-
~
//~2)
___________
DorothyM.
Gdn,
CIer~
Illinois Pol~ tion Control Board
100—57
—6—
EXHIBIT A
Date
Dear:
Please
read this
informational letter
in full
before making
any decisions regarding the filing
of your complaint.
Enclosed
are
two
pollution
complaint
forms,
a
Certificate
of
Service
form
and
copies
of
the
Environmental
Protection
Act
and
the
Board’s
Procedural
Rules.
If
you
wish
to
pursue
a
complaint,
you
must
choose
to
fill
out
one
or
the
other
of
the
complaint
forms
completely,
but
not
both.
The
Environmental
Protection
Act
and
the
Board’s
Procedural
Rules
are
to
assist
you
in
determining
the
Respondent’s
specific
violation(s).
If
you
choose
to
complete the informal complaint
form,
please
return
the
completed
form
to
the
Illinois Pollution
Control
Board
(Board).
The
Board
will
then
refer
the
informal
complaint
to
the
Illinois
Environmental Protection Agency
(Agency)
for
review
and
investigation.
Alternatively,
you
may
inform
the
Agency
of
the
pollution problem directly.
In
either
case,
it
is
then
up
to
the
Agency
to
investigate
the
problem
and
to
take
action
as
it
sees
fit.
Therefore,
please
provide
as
much
information
as
possible concerning
the pollution source,
the type
Of
pollution
involved,
the
frequency
and
duration
of
the
oollution events and the location.
This information will help
~acilitate
a thorough evaluation
and investigation.
The
Agency
will
inform
you
of
the
results
of
the
investigation.
The
report
may
state,
among
other
things,
that
1)
the
problem
has
been
resolved,
2)
the
problem
has
n~t
been
iesolve~
,
an
trio
Agency
inten:is
to
br incJ
an
enforcement
action
before
the
Board
or
a
court,
or
3)
the
problem
has
not
be~fl
resolved,
but
the
Agency
either
does
not
plan
to
or
cannot
quickly bring an enforcement action before the Board or
a court.
If
you
are
not
satisfied
with
the
results
of
the
informal
complaint,
or
choose not
to file
an informal complaint,
you may
file
a formal complaint.
In
a formal complaint
the Complainant assumes
the
responsibility
to
actively
proceed
with
the
case.
Neither
the
Board
nor
the
Agency
can
directly
assist
you
by
conducting
investigatfons
or
prOviding
1~al
advice.
If
you_choose
to
iflifiate
a
f~m~TT3ompaint
you
wiTTB~q~ii?~T
to
pr~~u~arid
T1d~EIEUj~
~
~
~
~ iT
pre~ntatio7~~TT?Tiehearing.
Board employees cannot ~pare
tE~sedocuments
for you or speak on your
behalf.
A
Complainant
100-53
—7—
may,
although
it
is
not
necessary,
hire
an
attorney
to
help
prepare
the
case
(pollution
sources usually hire attorneys
to
defend
them
in
this
type
of
action).
However,
the
Complainant
is
responsible
for
any
attorney
fees,
duplicating
costs,
travel
expenses,
etc.
If
you
wish
to
pursue
a
formal
complaint,
please
complete
the
formal
complaint
form.
You
must
then
file
the
original
and
nine
(9)
copies
of
the
Complaint
and
notice
with
the
Clerk
of
the
Board.
This
may
be
done
in
person
or
by
mail.
Also,
one
(1)
copy
of
the
complaint
and
notice
must
be
served
on
each
party
complained
against
(Respondents)
by
either
registered
mail,
certified
mail
or
by
personal
service.
You
may
not
use
any
other
type
of
service.
The
notice
is
to
be
directed
to
the
Respondent
notifying
him/her/them
of
the
filing
of
the
attached
complaint
and
that
attendance
at
a
hearing,
at
a
date
set
by
the
Board,
may
be
required.
If
you
serve
the
Respondent
by
either
certified
or
registered
mail,
you
must
provide
the
Board
with
a
copy
of
the
receipt.
Preferably,
the
receipt
should
be
attached
to
the
completed
Certificate
of
Service
form;
however
it
may
be
mailed
without
the
form.
If
you
choose
to
personally
serve
the
Respondent
or
his
authorized
agent,
you
must
return
to
the
Board
an
affidavit
that
you
have
served
the
Respondent.
The
affidavit
must
state
who
was
served
the
complaint
and
notice
and
when
it
was
served;
it
must
also
be
signed
by
the
person
making
service
and notarized.
(Refer
to
35
Ill.
Adm.
Code
103.122(a)
and
(b)
and
103.123(a)
of
the
enclosed
Board
Procedural
Rules).
Once
the
Clerk’s
office
receives
the
complaint
and
the
return
receipt
or
affidavit,
the
complaint
is
assigned
a
docket
number.
The
case
is
then
scheduled
for
initial
review by the
Board
at
a
Board
meeting.
The
initial
review
of
the
case
is
to
determine
whether
the
complaint
is
duplicitous
or
frivolous.
Duplicitous
means
that
a similar case
is pending
in another court
or
in
another
action
before
the
Board.
Frivolous
means
that
the
requested
relief
is
beyond
the
Board’s
authority
to
grant.
The
Board
has
the
authority
to
impose
fines
and
to
order
the
Respondent
to
cease
and
desist
the
polluting
activity
after
following
certain
procedures.
The
Board
does
not
have
the
authority
to
grant
monetary
compensation
to
a
complainant
for
damage
to
health
or
property,
or
to
order
the
polluting
activity
to
cease
while
the
case
is
pending.
If
the
Complainant
wishes
to
collect monetary compensation for damage done
to health
or
property or
to force
the pollution source
to cease and desist
Polluting
while
the
case
is
pending,
a
suit
must
be
filed
in
the
circuit court.
If
the
Board
finds
that
the
complaint
is
either
duplicitous
or
frivolous,
the
Board
will
dismiss
the
complaint
and
notify
the
Parties
of
its
decision.
The
losing
party
may
then
seek
relief
100—59
—8—
in the circuit court
(Ill.
Rev.
Stat.
ch.
ill 1/2, Section
1045(b)) or may file an appeal
of the Board’s decision with the
appellate court
for the district
in which the claim arose.
(Id.
Section 1041(a)).
If
a
formal
complaint
is
found
to
be
neither
frivolous
nor
duplicitous,
the
Board
will
authorize
the
matter
for hearing and
appoint
a
Hearing
Officer.
The Hearing Officer
will then contact
the
parties
to
set
a
hearing
date
and
location.
At
hearing, the
Complainant
is
required
to
present argument,
sworn
testimony,
and
evidence
to
support
the
alleged
violations
of
the
Environmental
Protection
Act
or
the
Board
regulations.
If
you
have
any
questions
regarding
these procedures, please
contact
me
at
312/917—3629.
Very
truly
yours,
Adaleen
Hogan
Assistant
Clerk
of
the
Board
AH: dw
Enclosures
100—60
—9—
EXHIBIT
B
STATE OF ILLINOIS
POLLUTION CONTROL BOARD
100
W.
RAt~DOLPH STREET,
SUITE
11—500
CHICAGO,
ILLINOIS 60601
INFORMAL COMPLAINT
1.
Your
Name,
Address,
and Phone:
___________
Phone
2.
Place where you can be
contacted
during
normal
-
business
hours
(if
different
_________—
from
above):
Phone
____
3.
Name
and
Address of Respondent
___________
(Alleged
Polluter)
Phone
(if
kno~7
4.
Type
of Pollution
(Check one
or more)
Noise
_____
Air
(including
odors)
______
Water
______
Hazardous
Waste
_____
Garbage
______
Drinking
Water
______
Sewer back—ups
Other
(Please
describe:)
100—61
—10—
5.
Describe the source and location of pollution
(be as specific
as you can)
6.
Describe the duration of pollution
(when was
it first noticed
and how frequently does
it occur,
including any particular
time of day
if occurs)
7.
Provide any additional
information which would help in the
investigation of this pollution.
Note:
A copy of this informal complaint will
be forwarded
to
the Illinois Environmental Protection Agency for investigation.
You will be informed of
the results of their investigation.
100— 62
—11—
EXHIBIT
C
STATE OF ILLINOIS
POLLUTION
CONTROL
BOARD
100 W.
RANDOLPH STREET,
SUITE 11—500
CHICAGO, ILLINOIS 60601
NOTE:
All
items must
be completed.
If there
is
insufficient
space to complete any item,
additional sheets may be attached,
specifying
the number of the item you are completing.
Once
completed, you must file the original
and
nine copies with the
Board.
FORMAL
COMPLAINT
BEF’ORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
(Insert your name(s)
on
lines above),
Complainant,
v.
)
PCI3
____________
___________
(For
use by the Board)
(Insert names
of alleged
polluter(s)
on
lines
above),
Respondent.
1.
Your
Name,
Address
and
phone:
Phone
100—63
—12—
2.
Place
where
you
can
be
contacted
during
normal
business
hours
(if
different
from
above):
Phone
3.
Name
and
Address
of
Respondent
______
(Alleged Polluter)
Phone
_____
(if known)
4.
Describe
the
type of business or
activity which you allege
(believe)
is causing pollution
(for example, manufacturing
company, grain elevator,
home repair
shop)
___________________
5.
List specific Sections of the Environmental Protection Act
and/or Board regulations which you allege
(believe)
are
being
violated.
______
100—64
—13—
6.
Describe
the
type
of
alleged
pollution
(for
example
air,
odor,
noise,
water,
drinking
water,
sewer
back—ups)
and
the
location
of
the
alleged
pollution.
Be
as
specific
as
possible
in
describing
the
pollution
discharge
or
emission.
7.
Describe
the
duration
and
frequency
of
the
alleged
pollution.
Be
as
specific
as
possible
about when you first
noticed
the
alleged
pollution,
how
frequently
it
occurs,
and
whether
it
is
still
continuing;
include dates and/or times of
day
if
available.
_________________________________________
8.
Describe
any
bad
effects
which
you
believe
the
alleged
pollution
has
on
human
health,
plant
or
animal
life,
or the
environment.
100—65
—14—
9.
Describe the relief you wish the Board
to grant
(for example,
an order
that the Respondent stop polluting, perform a
specific action, make a specific change
in
its operation,
and/or pay a money penalty;
the Board cannot
order Respondent
to pay you money damages, attorney’s fees or
any out—of—
pocket expenses which you
irteur by filing this complaint.)
10. State whether
you know
if there
is any court
or other
forum
in which you are or anyone else
is suing or complaining
against
this
Respondent
for
the
same alleged pollution
discharge
or
emission.
11.
CERTIFICATION
(Optional
but
encouraged)
I
______________________________
having
read
the
above
do
hereby
swear
and
attest
that
I
have
read
the
forgoing
and
I
have
filled
out
the
above
form
accurately
and
to
the
best
of
my
kriowleye.
Subscribed
to and Sworn
before
me
this
____
day
of
____________,
19
Notary
Public
My
Commission
Expires
100—66
—15—
NOTE:
THIS
FORM
MUST
BE
INCLUDED
IN
THE
SERVICE
TO
RESPONDENT
INFORMATION
FOR
RESPONDENT
RECEIVING
COMPLAINT
The
Board
will
not
accept
this
complaint
that
has
been
served
upon
you
if
the
case
is
determined
to
be
either
duplicitous
or
frivolous.
Duplicitous
means
that
a
similar
case
is
pending
in
another
court
or
in
another
action before the
Board.
The
response
to
question
#10
in
the
complaint
states
the
opinion
of
the
Complainant(s)
on
this
issue.
Neither
can
the
Board accept the complaint
if
the
action
is
frivolous.
Frivolous
means
that
the
requested
relief
is
beyond
the
Board’s
authority
to
grant.
For
example,
the
Board
has
the
authority
to
order
the
Respondent(s)
to
cease
and
desist
the
polluting
activity
and
order
a fine after following certain
procedures.
The
Board
does
not
have
the
authority
for
example
to
grant monetary compensation
to
the Complainant
for damage
to
health
or
property.
Also,
the
Board
cannot
order
the
polluting
activity
to
cease
while
the
case
is
pending,
except
under
special
circumstances.
The
response
to
question
#9
in
the
complaint
states
the
opinion
of
the
Complainant(s)
on
this
issue.
If
you
believe
this
case
is
duplicitous or frivolous,
please
file
a motion with
the
Board
within
two
weeks
from
the
date
of
service.
The motion must state
the basis
for which
the motion
is
made
and
a
concise
statement
of
the
relief
sought.
Memoranda,
affidavits,
and
any
other
relevant
documents
should
accompany
the
motion.
If
more
time
than
two
weeks
is
necessary
to
gather
supporting
evidence,
please
indicate
this
within
the
two
weeks
and
state
your
reasons
as
well
as
the
amount
of
additional
time
needed.
Upon
good
cause,
the
Board
may
grant
an
extension
at
its
next
Board
meeting.
Ten
(10)
copies
of
the
motion
must
be
filed
with
the
Clerk
of
the
Board
with
proof
of
service.
Service
may
be
done
either
personally
or
by
First Class United States mail.
Mail service
is
presumed
completed
four
days
after
mailing.
If
no
response
is
received
by
the
Board
within
two
weeks,
the
Board,
at
its
discretion,
may
find
that
the
complaint
is
not
duplicitous
or
frivolous
and
may
accept
the
case
for
hearing.
If
you
have
any
questions,
please
contact
the
Assistant
Clerk
of
the
Board,
Adaleen
Hogan,
at
(312)
917—3629.
100—67
—16—
EXHIBIT
D
CERTIFICATE OF SERVICE
The undersigned, being first sworn, states
that
an original
copy of the complaint and
a copy of the notice of filing was
mailed,
or personally served,
to the Respondent of this action at
the below listed address on this date __________________________by:
(Check appropriate line)
Certified
Mail
(attach copy
of receipt)
______
Registered Mail
(attach copy of receipt)
Personal Service
RESPONDENT’ S ADDRESS
NAME:
STREET:
CITY,
STATE AND ZIP:__________________________________
Complainant(s)
SIGNED
AND
SWORN
to
before
me
thj~
date
Notary Public
100—63
ILLINOIS
POLLUTION
CONTROL
BOARD
June
8,
1989
IN
THE
MATTER
OF:
)
JAMES
ESAREY,
)
AC
88—90
(IEPA
NO.
9212—AC)
Respondent.
ORDER
OF
THE
BOARD
(by
3.
Marlin):
This
matter
comes
before
the
Board
upon
the
Respondent’s,
James
Esarey’s,
June
1,
1989
Motion
For
Leave
To
File
Respondent’s
Brief
Instanter.
This
motion
is
hereby
granted.
IT
IS
SO
ORDERED.
I,
Dorothy
1.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certify
that
the
above
Order
was
adopted
on
the
_______________
day
of
_____________,
1989
by
a
vote
of
____________.
Illi
ution Control Board
100—69
I
I
