ILLINOIS POLLUTION CONTROL BOARD
    November 1, 2007
    CASEYVILLE SPORT CHOICE, LLC,
    Complainant,
    v.
    ERMA I. SEIBER, ADMINISTRATRIX OF
    THE ESTATE OF JAMES A. SEIBER,
    DECEASED, and ERMA I. SEIBER,
    INDIVIDUALLY,
    Respondents.
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    PCB 08-30
    (Citizens Enforcement - Land)
    ORDER OF THE BOARD (by G.T. Girard):
    On October 3, 2007, Caseyville Sport Choice, LLC (complainants), filed a complaint
    (Comp.) against Erma I. Seiber, administrtrix of the estate of James A. Seiber and individually
    (respondents).
    See
    415 ILCS 5/31(d)(1) (2006); 35 Ill. Adm. Code 103.204. On October 22,
    2007, respondents filed a motion to dismiss (Mot.) the complaint. Also on October 22, 2007, the
    complainant filed a response to the motion (Resp.). For the reasons discussed below the motion
    to dismiss is denied and this matter is accepted for hearing.
    COMPLAINT
    Complainants allege in the complaint that respondents violated Sections 21 (a), (d) and
    (e) of the Environmental Protection Act (Act) (415 ILCS 5/21(a), (d) and (e) (2006)) and 35 Ill.
    Adm Code 807.201 and 807.202 of the Board’ rules. Comp. at 3. Complainants further allege
    that respondents violated these provisions by depositing tons of horse manure mixed with
    “municipal trash” on the surface of the three parcels of land in St. Clair County. Comp. at 2-3.
    Complainants ask the Board to order respondents to reimburse the complainants for the cost of
    cleaning up the site. Comp. at 4. The Board finds that the complaint meets the content
    requirements of the Board’s procedural rules.
    See
    35 Ill. Adm. Code 103.204(c), (f).
    STATUTORY AND REGULATORY BACKGROUND
    Section 31(d)(1) of the Act (415 ILCS 5/31(d)(1) (2006)) allows any person to file a
    complaint with the Board. Section 31(d)(1) further provides that “[u]nless the Board determines
    that such complaint is duplicative or frivolous, it shall schedule a hearing.”
    Id.
    ;
    see also
    35 Ill.
    Adm. Code 103.212(a). A complaint is duplicative if it is “identical or substantially similar to
    one brought before the Board or another forum.” 35 Ill. Adm. Code 101.202. A complaint is
    frivolous if it requests “relief that the Board does not have the authority to grant” or “fails to state
    a cause of action upon which the Board can grant relief.”
    Id.
    Within 30 days after being served
    2
    with a complaint, a respondent may file a motion alleging that the complaint is duplicative or
    frivolous. 35 Ill. Adm. Code 103.212(b).
    DISCUSSION
    The Board will first address the motion to dismiss the complaint as duplicative. Then the
    Board will discuss a finding on whether or not the complaint is frivolous. Finally, the Board sets
    this matter for hearing.
    Duplicative
    The respondents argue that the complaint should be dismissed, as the complaint is
    identical or substantially similar to a case pending in the U.S. District Court for the Southern
    District of Illinois. Mot. at 3. Respondents note that the compliant even refers to the two-count
    complaint filed in federal court and the federal complaint is seeking a judgment in the amount of
    $4,528,500. Mot. at 2. Therefore, respondents argue the complaint before the Board should be
    dismissed. Mot. at 3.
    In response, complainants argue that the Board has previously ruled that a formal
    complaint filed with the Board is not duplicative of a complaint in federal court. Resp. at 2,
    citing Dayton Hudson Corporation v. Cardinal Industries, PCB 97-134 (Aug. 21, 1997) and Lake
    Forest Preserve District v. Ostro, PCB 92-80 (July 30, 1992). Respondent asserts that the federal
    complaint is brought upon common law theories of breach of contract and fraud and therefore
    does not render the complaint before the Board duplicative.
    Id
    .
    The Board has consistently found that a complaint before the Board is not
    per se
    duplicative of a complaint in federal court. The Board has found that even where the complaint
    in federal court involves the same parties, the same timeframe, and the same actions, if the
    complaints are based on different legal theories, the complaints are not duplicative. Lake Forest,
    slip op. at 3; Dayton Hudson, slip op. at 10. Further, in Chrysler Realty Corp. v. Thomas Indus,
    Inc., PCB 01-25 (Dec. 7, 2000), the Board held the complaint was not duplicative of a complaint
    in the federal court where the complaint in federal court was based on federal law, negligence,
    and unjust enrichment. And in Grand Pier Center LLC, and American International Specialty
    Lines Insurance Co. v. River East LLC, Chicago Dock And Canal Trust, Chicago Dock And
    Canal Company, and Tronox LLC, PCB 05-157 (May 19, 2005), the Board reiterated the finding
    in Chrysler, stating:
    In both cases, a complaint was filed in federal courts involving the same parties
    and the same basic set of facts. In Chrysler, the federal court dismissed the
    alleged violations of the State Act, leaving the only remedy for violations of the
    State Act to be found with the Board. Chrysler, slip op. at 5. Even though the
    federal complaint references the Act, the Board is not convinced that the federal
    complaint is based on allegations of violation of the Act. The Board finds that at
    this time the only remedy for alleged violations of the Act in this proceeding are
    also to found with the Board. Therefore, as in Chrysler
    , the Board finds that the
    complaint is not duplicative. Grand Pier
    , slip op. at 4-5.
    3
    In this case, the federal complaint is brought under common law theories of breach of
    contract and fraud. The federal complaint does not allege violations of the Act. Therefore, the
    Board denies the motion to dismiss the complaint as duplicative.
    Frivolous Finding
    The motion to dismiss makes no allegations that the complaint is frivolous. The Board
    finds that the complaint states a cause of action upon which the Board may grant relief and
    requests relief that the Board has the authority to grant. Therefore, the Board finds that the
    complaint is not frivolous.
    Set for Hearing
    The Board accepts the complaint for hearing.
    See
    415 ILCS 5/31(d) (2002); 35 Ill. Adm.
    Code 103.212(a). A respondent’s failure to file an answer to a complaint within 60 days after
    receiving the complaint may have severe consequences. Generally, if respondents fail within
    that timeframe to file an answer specifically denying, or asserting insufficient knowledge to form
    a belief of, a material allegation in the complaint, the Board will consider respondents to have
    admitted the allegation. 35 Ill. Adm. Code 103.204(d). The Board directs the hearing officer to
    proceed expeditiously to hearing.
    CONCLUSION
    The Board denies the motion to dismiss, as the complaint is not duplicative of the federal
    complaint. The complaint before the Board alleges violations of the Act, while the federal
    complaint is brought on theories of common law. Further, the Board finds the complaint is not
    frivolous and directs that the parties proceed to hearing.
    IT IS SO ORDERED.
    I,
    John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
    the Board adopted the above order on November 1, 2007, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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