ILLINOIS POLLUTION CONTROL BOARD
    March 19, 1998
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    ROGERS O’HARE MOTOR TERMINAL
    LIMITED, an Illinois partnership and
    CAROLINA FREIGHT CARRIERS
    CORPORATION, a North Carolina
    corporation,
    Respondent.
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    PCB 96-240
    (Enforcement - UST)
    ________________________________________
    ROGERS O’HARE MOTOR TERMINAL
    LIMITED, an Illinois partnership,
    Complainant,
    v.
    ABF FREIGHT SYSTEMS, INC., a
    Delaware corporation,
    Respondent.
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    PCB 98-107
    (Enforcement - UST)
    (Consolidated)
    ORDER OF THE BOARD (by G.T. Girard):
    On February 18, 1998, Rogers O’Hare Motor Terminal Limited (Rogers) filed a
    complaint (Comp) against ABF Freight Systems, Inc. (ABF) alleging violations of the
    Environmental Protection Act (415 ILCS 5/100
    et seq
    .) (Act) and asking that the Board order
    ABF to reimburse Rogers for clean-up of the site. The alleged violations arise from the
    removal and clean-up of leaking underground storage tanks. Currently pending before the
    Board is a May 23, 1996, complaint filed on behalf of the People of the State of Illinois
    against Rogers and Carolina Freight Carriers Corporation.
    1
    PCB 96-240, People v. Rogers
    O’Hare Terminal Limited and Carolina Freight Carriers Corporation (PCB 96-240). In PCB
    96-240, the complaint alleges violations of various provisions of the Act all relating to removal
    and clean-up of leaking underground storage tanks. Rogers asserts in its complaint that “[t]he
    1
    Rogers alleges in its complaint that Carolina Carriers Corporation merged with ABF in
    October of 1996 obtaining all assets and liabilities of Carolina Carriers Corporation.
    2
    State of Illinois has filed a complaint against Rogers and Carolina [Freight Carriers
    Corporation] in PCB 96-240, which alleges the same incident.” Comp. at 4.
    Section 103.124(a) of the Board's procedural rules, which implements Section 31(d) of
    the Act (415 ILCS 5/31(d)), 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. 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. 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, PCB 85-68, 64 PCB 263 (1985).
    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., PCB
    73-173, 8 PCB 46 (1973).
    The Board notes that this is not the first time a complaint has been filed by a private
    citizen against a co-respondent in a case filed by the People. In PCB 95-91, People v. Bell
    Sports
    et al
    ., the Board allowed the filing of a cross-claim by co-respondents Waste Hauling
    Landfill, Inc.(WHLI) and Waste Hauling, Inc. (WHI) against Bell Sports. People v. Bell
    Sports
    et al
    . PCB 95-91, (December 7, 1995). The Board denied a motion to dismiss a cross-
    claim and determined that WHLI and WHI had the right to file a private citizen enforcement
    action against Bell Sports. For administrative efficiency, the Board found it was appropriate to
    allow the cross-claim. People v. Bell Sports
    et al
    . PCB 95-91, (December 7, 1995) at 4. The
    Board also noted that in several private citizen enforcement actions, the Board has allowed the
    filing of a cross-claim and in one case has consolidated a separate citizens’ enforcement action
    together with a State-initiated enforcement action so as to adjudicate the case in the same
    proceeding. People v. Boyd Brothers, PCB 94-275 and Boyd Brothers v. Abandoned Mined
    Lands Reclamation Council, PCB 94-311 (consolidated December 1, 1994). People v. Bell
    Sports
    et al
    . PCB 95-91, (December 7, 1995) at 4. The Board also stated:
    In denying the motion to dismiss we find that the counterclaim [cross-claim] is
    neither frivolous nor duplicitous as we believe that WHLI and WHI are entitled
    to argue, among other things, and present evidence on the issue of responsible
    parties, liability for violating the Act and any corresponding regulations.
    Importantly, WHLI and WHI are entitled to offer evidence on the issue of the
    proper apportionment of any civil penalties that the Board may award. People
    v. Bell Sports
    et al
    . PCB 95-91, (December 7, 1995) at 4.
    3
    After reviewing the complaint filed by Rogers and the complaint filed in PCB 96-240
    by the People, the Board finds that this case is analogous to the case in People v. Bell Sports
    et
    al
    . PCB 95-91, (December 7, 1995). Therefore, the Board finds that the complaint is not
    duplicitous or frivolous. Further, the Board on its own motion will consolidate this case with
    PCB 96-240 for administrative efficiency and economy. The caption reflects the consolidation
    of these matters.
    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 19th day of March 1998, by a vote of 7-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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