ILLINOIS POLLUTION CONTROL BOARD
    April 27, 1989
    NORTHERN ILLINOIS ANGLERS’
    )
    ASSOCIATION, an Illinois
    )
    Corporation,
    Complainant,
    V.
    )
    PCB 88—183
    THE CITY OF KANKAKEE,
    )
    a ~4unicipa1 Corporation,
    Respondent.
    ORDER OF THE BOARD (by J. Marlin):
    On March 17, 1989, the City of Kankakee (Kankakee) filed its
    Answer to Amended Complaint. By its Order of March 23, 1989, the
    Board construed Kankakee’s filing as a motion to dismiss the
    amended complaint and assess costs against Northern Illinois
    Anglers’ Association (NIAA). The Board’s Order also allowed NIAA
    to file a response to the motion, and NIAA filed its response on
    April 4, 1989.
    After considering these filings, the Board finds no reason
    to dismiss NIAA’s amended complaint, Kankakee’s motion is denied.
    In Kankakee’s ?larch 17, 1989 filing, Kankakee seems to be
    raising a res judicata defense to NIAA’s amended complaint. That
    is, Kankakee is effectively asserting that NIAA’s amended
    complaint is completely barred due to a February 7, 1989 judgment
    issued by the
    circuit court of Kankakee County. That circuit
    court order enforced a May
    26, 1987 consent decree against
    Kankakee concerning a monthly discharge standard for fecal
    coliform.
    Kankakee was assessed a penalty by the court of
    $5,500.00 for
    “fecal coliform violations from January 1, 1988
    until November 30, 1988.” (Paragraph I, Order of circuit court,
    attached to Kankakee’s March 17, 1989 filing.)
    One must raise the defense of
    res
    judicata either by way of
    an affirmative defense in
    an answer or by way of a motion to
    dismiss so as to giv’e adequate notice of the defense prior to
    hearing.
    Environmental Protection ~~ency v. Peterson/Puritan,
    Inc., PCB 78—278, 39 PCB
    409, 410 (September 4, 1980). The Board
    rinds that Kankakee’s defense has been raised at the appropriate
    time with respect to the hearing in this matter.
    98—26 5
    —2—
    The burden of providing information and argument to support
    a res judicata defense is upon the respondent. When a former
    adjudication is relied upon as a complete bar to a subsequent
    action, the questions to be determined are whether the cause of
    action is the same in the two proceedings, whether the two
    actions are between the parties or their privies, whether the
    former adjudication was a final judgment upon the merits, and
    whether it was within the jurisdiction of the court rendering
    it.
    Peterson/Puritan,
    Inc., 39 PCB at 410—411; Environmental
    Protection Agency v. Giacnini, PCB 77—143, 33 PCB 547, 550—551
    (May 24, 1979); Spiller v. Continental Tube Co., 95 ill. 2d 423,
    447 N.E.2d 834, 838 (1983).
    Given the March
    17th filing, Kankakee has not shown that the
    doctrine of res judicata bars NIAA’s amended complaint due to the
    circuit court’s February 7, 1989 order. However, Kankakee may
    attempt to prove
    a res judicata defense at hearing and in its
    post—hearing brief.
    As a final note, the Board’s decision concerning the
    duplicitous or
    frivolous determination pursuant to Section 31(b)
    of the Environmental Protection, as evidenced by the Board’s
    Orders of January 5, 1989 and March 9, 1989, remains unchanged
    notwithstanding the recently received circuit court order of
    February 7, 1989.
    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
    ~‘?1~
    day of
    ________________,
    1989, by a vote of
    70
    ___
    ~I77,
    ______
    ~~EhyM.u~,C1~k
    Illinois P~L1utionControl Board
    98—266

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