ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS POLLUTION CONTROL BOARD
IT IS SO ORDERED.

June 4, 2009

JERRY R. WEST II,

Complainant,

NOKOMIS QUARRY COMPANY,

Respondent.

)

PCB 09-45

(Citizens Enforcement - Air)

ORDER OF THE BOARD (by T.E. Johnson):

On January 5, 2009, Jerry R. West II (West) filed a complaint

pro se

against Nokomis

Quarry Company (Nokomis Quarry). The complaint concerns limestone particles allegedly

emitted from Nokomis Quarry’s site located at 23311 Taylorville Road in Nokomis,

Montgomery County. On February 5, 2009, Nokomis Quarry filed a motion to dismiss West’s

complaint. For the reasons below, the Board grants Nokomis Quarry’s motion, dismisses the

complaint, and closes the docket. The Board will describe the relevant procedural history of this

case before discussing the pleadings and the Board’s ruling.

PROCEDURAL HISTORY

As noted, West filed the complaint (Comp.) on January 5, 2009. On February 5, 2009,

the Board issued an order directing West to file, by March 5, 2009, proper proof that he had

served the complaint on Nokomis Quarry or its authorized agent. The Board’s order did not

accept the complaint for hearing and accordingly reserved ruling on whether the complaint is

duplicative or frivolous.

On February 5, 2009, an appearance of counsel was filed on behalf of Nokomis Quarry,

accompanied by the motion to dismiss (Mot. Dism.) the complaint. In the motion, Nokomis

Quarry acknowledges that the complaint was served upon counsel for Nokomis Quarry on

January 14, 2009. Mot. Dism. at 1.

On March 12, 2009, the Board received a pleading from West entitled “Plaintiffs [sic]

Answer to Respondents [sic] Motion to Dismiss Formal Complaint filed by Jerrald West II”

(Resp.). The Board considers this pleading as a response both to the Board’s February 5, 2009

order and to Nokomis Quarry’s February 5, 2009 motion to dismiss. In West’s pleading, he

notes, among other things, that Nokomis Quarry’s motion acknowledges service of the

complaint. Resp. at 2. West’s pleading was U.S. Mail-postmarked on March 4, 2009, making

the filing timely as a response to the Board’s order.

See

35 Ill. Adm. Code 101.300(b)(2)

(“mailbox rule”). Responses to motions are due within 14 days after service of the motion, but

the Board will accept West’s pleading as a response to the motion for dismissal to avoid any

potential for material prejudice.

See

35 Ill. Adm. Code 101.500(d).

West filed public comments on March 17, 2009, and May 15, 2009.

PLEADINGS

West’s complaint alleges that “multiple activities with limestone based products” have

caused the emission of “fine particles,” resulting in pollution. Comp. at 2-4. West requests

numerous forms of relief, including an order assessing a civil penalty and mandating the

cessation of “processes” that allow “fugitive particles.”

. at 4. West also asks for a Board

order requiring “cities and states to use road material which does not aerosolize” and requiring

an “acknowledgment by doctors for cummulative [sic] exposure.”

Nokomis Quarry moves to dismiss the complaint as frivolous and duplicative. Mot.

Dism. at 3-4. Nokomis Quarry argues that while it is “difficult, if not impossible, to determine

what Jerrald West is alleging and requesting,” it “appears that the relief being sought is not relief

the Board has the authority to grant.”

. at 5. Nokomis Quarry further argues that the

complaint’s allegations are “void of facts” that reasonably inform Nokomis Quarry of the

manner and extent of any alleged violations.

. at 4. Nokomis Quarry adds that the complaint

is duplicative based on a dismissed Montgomery County Circuit Court action brought by West

against Nokomis Quarry. According to Nokomis Quarry, the court action had “allegations

identical or substantially similar” to those of the instant complaint.

. Nokomis Quarry

concludes that: “As indicated in his Montgomery County lawsuit and in this Complaint, the goal

of Jerrald West is to obtain a money settlement with Nokomis Quarry Company.”

. at 5.

West responds to the motion by suggesting that his complaint properly pled “the relief

sought” without “draw[ing] into question the Board’s authority.” Resp. at 3. West reiterates: “I

will again describe the relief I am seeking. 6 Million Dollars for damages incurred both

economic and none [sic] economic.”

. at 5. West’s public comment of March 17, 2009, states

that “[i]f there is any doubt based on the amount I have sought I offered in good faith to resolve

this issue by reducing the amount to 100K.” Also, in his response to the motion, West asserts

that he has provided sufficient facts. Resp. at 4. Finally, West agrees that the circuit court action

was “the same case” but maintains that the case has now been “refiled with an educated Pollution

Control Board better suited to judge the facts.”

DISCUSSION

Legal Framework

Under the Environmental Protection Act (Act) (415 ILCS 5 (2006)), any person may

bring an action before the Board to enforce Illinois’ environmental requirements.

See

415 ILCS

5/3.315, 31(d)(1) (2006); 35 Ill. Adm. Code 103. Section 31(d)(1) of the Act provides that

“[u]nless the Board determines that [the] complaint is duplicative or frivolous, it shall schedule a

hearing.” 415 ILCS 5/31(d)(1) (2006);

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.” 35 Ill. Adm. Code 101.202.

The Act requires a complaint to “specify the provision of the Act or the rule or regulation

or permit . . . under which [the respondent] is said to be in violation, and a statement of the

manner in, and the extent to which [the respondent] is said to violate the Act or such rule or

regulation or permit . . . .” 415 ILCS 5/31(c)(1) (2006);

see also

415 ILCS 5/31(d)(1) (2006).

The Board’s procedural rules require that a complaint include:

The dates, location, events, nature, extent, duration, and strength of discharges or

emissions and consequences alleged to constitute violations of the Act and

regulations. The complaint must advise respondents of the extent and nature of

the alleged violations to reasonably allow preparation of a defense. 35 Ill. Adm.

Code 103.204(c)(2).

Even though “[c]harges in an administrative proceeding need not be drawn with the same

refinements as pleadings in a court of law” (Lloyd A. Fry Roofing Co. v. PCB, 20 Ill. App. 3d

301, 305, 314 N.E.2d 350, 354 (1st Dist. 1974)), the Act and the Board’s procedural rules

“provide for specificity in pleadings” (Rocke v. PCB, 78 Ill. App. 3d 476, 481, 397 N.E.2d 51,

55 (1st Dist. 1979)) and “the charges must be sufficiently clear and specific to allow preparation

of a defense” (Lloyd A. Fry Roofing, 20 Ill. App. 3d at 305, 314 N.E.2d at 354).

Within 30 days after being served with a complaint, a respondent may file a motion

alleging that the complaint is frivolous or duplicative.

See

35 Ill. Adm. Code 103.212(b). In

ruling on a motion to dismiss, the Board takes all well-pled allegations as true and draws all

reasonable inferences from them in favor of the non-movant.

See

e.g.

, Beers v. Calhoun, PCB

04-204, slip op. at 2 (July 22, 2004).

Board Ruling

The Board’s remedial authority includes the ability to impose civil penalties and to issue

orders to cease and desist from violations.

See

415 ILCS 5/33, 42 (2006). However, the Board

finds that some of the relief requested by West is beyond the Board’s authority to grant. West

seeks $6,000,000 in damages and an order requiring that cities, states, and doctors undertake

various measures. The Board lacks the authority to award money damages.

See

Decatur Auto

Auction v. Macon County Farm Bureau, Inc., PCB 93-192, slip op. at 2 (Dec. 16, 1993). Nor

does the Board have the power to order actions by non-parties.

See

Village of Montgomery v.

Aurora Sanitary District, PCB 79-269, slip op. at 1 (Mar. 20, 1980).

Further, West’s complaint fails to state a cause of action upon which the Board can grant

any

relief. The provision of the Act that Nokomis Quarry has allegedly violated is the definition

of “air pollution” (415 ILCS 5/3.115 (2006)). Comp. at 3. The definition cannot be violated.

See

Patterman v. Boughton Trucking and Materials, Inc., PCB 99-187, slip op. at 2 (Sept. 23,

1999) (alleged violations of definitions are frivolous). Additionally, although West

criticizes

Nokomis Quarry’s purported permits and a Board regulation on fugitive particulate matter (35

Ill. Adm. Code 212.301), he does not allege their violation. Comp. at 3. The complaint merely

states that:

It appears as well that permits have been issued to pollute as a minor source.

Measurement by the LB is deceiving since lime is very heavy. Title #35 Sec.

212.301 entitled fugitive particulate matter is flawed.

West has therefore not alleged the violation of any provision of the Act that can be violated, nor

has he alleged the violation of any permit or regulation.

See

415 ILCS 5/31(c)(1), (d)(1) (2006);

35 Ill. Adm. Code 103.204(c)(1).

West’s complaint is also factually deficient.

See

415 ILCS 5/31(c)(1), (d)(1) (2006); 35

Ill. Adm. Code 103.204(c)(2). The complaint does not specify the dates or duration and

frequency of the alleged emissions, or state whose health or enjoyment of life or property has

allegedly suffered as a result of the emissions. In addition, the complaint is ambiguous about the

nature of the “multiple activities” allegedly resulting in pollution and whether Nokomis Quarry

alone is carrying out those activities. Comp. at 2. “Construing the complaint, however liberally,

cannot generate those missing facts.” United City of Yorkville v. Hamman Farms, PCB 08-96,

slip op. at 22 (Oct. 16, 2008).

Taking all well-pled allegations as true and drawing all reasonable inferences from them

in favor of West, the Board finds that West’s complaint is frivolous. West’s circuit court case

was dismissed for failing to state a cause of action. Mot. Dism., Exh. F at 2. Under these

circumstances, the Board is not in a position to, and need not, determine whether the instant case

is duplicative of the court case. The Board grants Nokomis Quarry’s motion to dismiss West’s

complaint as frivolous. The Board accordingly dismisses the complaint and closes the docket.

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2006);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the

Board adopted the above order on June 4, 2009, by a vote of 5-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board