ILLINOIS POLLUTION CONTROL BOARD
    July
    16,
    1987
    ILLINOIS ENVIRONMENTAL
    PROTECTION
    AGENCY,
    and the
    PEOPLE OF TUE STATE OF
    ILLINOIS,
    Complainants,
    v.
    )
    PCB 86—160
    FITZ-MAR,
    INC., A Corporation,
    Respondent.
    ORDER OF ThE BOARD
    (by
    3.D.
    Dumelle):
    This matter comes before the Board upon an May 26,
    1987,
    Motion to Dismiss
    filed
    by
    the Respondent,
    Fitz-Mar,
    Inc.
    (Fitz-
    Mar).
    Fitz—Mar asserts that because of
    a concurrent action
    pending
    in the Circuit Court of Cook County
    involving the same
    issues and facts,
    it would be
    an unreasonable economic hardship
    and fundamentally unfair
    to require
    it to
    litigate both actions
    in both forums.
    On June
    10,
    1987,
    the Illinois Environmental Protection
    Agency (Agency) opposed Fitz—Mar’s motion by stating that these
    actions do not
    involve
    the
    same
    issues and facts
    and are
    substantially different.
    The Agency states that the Complaint
    before
    the Board contains
    nine counts and alleges that:
    (a)
    Respondent
    has
    operated,
    from
    June
    25,
    l9o4,
    until
    July
    10,
    1985
    landfill
    trenches
    6,
    7,
    8
    &
    9 without
    an operating permit,
    (b)
    Respondent
    has
    operated
    from June
    25,
    l9a4,
    to
    at
    least
    July
    10,
    1985,
    landfill
    trenches
    10
    and
    11 without having
    an operating permit,
    Cc)
    Respondent
    has,
    from July
    1,
    1985,
    until
    the
    filing
    of complaint
    (September
    30,
    1986),
    failed
    to
    cover
    exposed
    faces
    of
    old
    refuse
    which
    was
    moved
    from trenches
    6,
    7,
    8
    &
    9
    to
    trenches
    10
    and 11, causing
    odor problems
    to
    residents
    residing nearby,
    (d) Respondent
    has
    failed
    to
    apply daily
    and intermediate
    cover
    to
    exposeã
    refuse,
    (e)
    Respondent
    has caused
    or
    allowed
    litter
    to
    remain
    uncollected
    at
    the
    landfill,
    (f)
    Respondent
    has
    failed
    to
    79-41
    —2—
    file
    a
    leachate
    management
    plan
    for
    the
    landfill,
    (g)
    Respondent has pumped
    leachate
    into standing water
    on
    the landfill
    site,
    (h)
    Respondent
    has discharged
    a
    contaminant into
    State
    waters
    by
    pumping
    leachate
    into
    standing water on the site,
    as alleged
    in
    “g”
    above,
    and
    (i)
    Respondent
    has
    failed
    to
    supervise and failed to compact as refuse was
    deposited
    in
    its
    landfill.
    The Agency states that the Complaint before
    the Chancery Division
    of the Circuit Court of Cook County,
    Illinois
    (87—CH--1909)
    contains
    2 counts and alleges
    that:
    (a)
    Respondent
    has
    engaged
    in
    a pattern
    and
    practice
    of
    dumping
    in
    unpermitted
    areas,
    including
    on
    or
    before
    October
    6,
    1986,
    and
    continuing
    thereafter,
    and
    continuing
    unless
    the Chancery Court
    restrained Respondent,
    by
    dumping
    in
    areas
    12,
    13,
    14
    &
    15,
    while not
    having
    an
    operating
    permit
    for
    those
    areas,
    and
    (b)
    Respondent
    has,
    on
    or
    about
    October
    6,
    1986,
    pumped
    contaminant
    discharge
    from
    area
    16
    into
    a
    creek
    located
    east
    of
    the
    landfill
    site,
    and
    that
    Respondent
    has
    engaged
    in
    a
    pattern
    and practice,
    and would
    continue
    to
    do
    so
    unless
    restrained,
    of
    pumping
    leachate
    and
    contaminants
    into
    Illinois
    waters
    within
    and
    without
    the
    boundaries of the landfill
    site.
    The Board
    agrees that these actions do
    not involve the same
    precise issues
    and facts.
    Further,
    the remedies sought differ.
    The Complaint
    in PCB 86-160
    requests the Board
    to issue
    an order
    requiring Fitz—Mar
    to
    (1)
    cease and desist from further
    violation,
    and
    (2)
    impose
    a monetary penalty.
    The Complaint
    before the Circuit Court requests an Order
    (1)
    enjoining
    Fitz-
    Mar
    from further violations,
    (2)
    imposing monetary penalties,
    and
    (3)
    permitting
    the inspection of Fitz—Mar by the Agency.
    In the
    enforcement
    of the Act,
    the Board
    and the Circuit Court have
    different, but concurrent roles.
    A notable difference lies
    in
    the
    form of relief requested.
    The Act does not give
    the Board
    the power
    to grant
    injunctions.
    The Courts may.
    Each of the
    actions
    is brought
    in the forum most suited
    to granting the
    relief requested.
    The Board has jurisdiction of the enforcement
    action before
    it pursuant
    to
    Section
    31
    of the Act.
    It
    is no
    defense that litigation
    in another proceeding may cause economic
    hardship, and further,
    it
    is not fundamentally unfair.
    Fitz—
    Mar’s motion
    to dismiss is denied.
    IT
    IS
    SO ORDERED.
    79-42
    —3—
    I,
    Dorothy M.
    Gunn, Clerk of the
    Illinois Pollution Control
    Board, her,~ycertify that
    t
    a ove Order was adopted on
    the
    /c~~
    day of
    ___________,
    1987
    by
    a vote
    of
    .
    2
    Dorothy
    M. Gunn, Clerk
    Illinois Pollution Control Board
    79-43

    Back to top