ILLINOIS POLLUTION CONTROL BOARD
March 6, 1997
SANGAMON COUNTY,
Complainant,
v.
ESG WATTS, INC.,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
AC 94-28 AC 94-81
AC 94-29 AC 94-82
AC 94-48 AC 94-90
AC 94-49 AC 94-91
AC 94-50 AC 94-95
AC 94-51 AC 95-8
AC 94-52 AC 95-18
AC 94-58 AC 95-21
AC 94-59 AC 95-28
AC 94-60 AC 95-29
AC 94-61
(Administrative Citations)
ORDER OF THE BOARD (by M. McFawn and G.T. Girard):
This matter is before the Board on a motion for summary judgment, filed by
respondent ESG Watts, Inc. (ESG Watts) on January 7, 1997. Complainant Sangamon County
(County) filed a response to the motion for summary judgment on February 4, 1997. Finally,
ESG Watts filed a reply in support of the motion for summary judgment on February 5, 1997,
accompanied by a motion for leave to file. The motion for leave to file is granted, and the
Board will consider the reply in ruling on the motion for summary judgment.
In its motion for summary judgment, ESG Watts claims that several of the counts
included in the consolidated administrative citations are barred by the doctrine of
res judicata
.
Specifically, ESG Watts asserts that the alleged violations of Section 21(o)(11) of the
Environmental Protection Act (Act) for failure to submit reports, set forth in AC 94-29, AC
94-48, AC 94-49, AC 94-50, AC 94-51, AC 94-52, AC 94-58, AC 94-59, AC 94-60, AC 94-
61, AC 94-81, and AC 94-91, were litigated by the Illinois Attorney General before the Board
in PCB 94-127. Additionally, ESG Watts asserts that allegations concerning the depositing of
refuse in any unpermitted portion of the landfill in AC 95-8, AC 95-18, AC 95-21, AC 95-28,
and AC 95-29 were previously litigated in the circuit court case People of the State of Illinois
and County of Sangamon v. Watts Trucking Service, Inc. and ESG Watts, Inc., No. 91-CH-
242 (Cir. Ct. of Sangamon County, February 2, 1994).
SUMMARY JUDGMENT
Summary judgment is appropriate where there are no issues of material fact to be
considered by the trier of fact and the movant is entitled to judgment as a matter of law.
(Waste Management of Illinois, Inc. v. Illinois Environmental Protection Agency (July 21,
1994) PCB 94-153; ESG Watts v. Illinois Environmental Protection Agency (August 13,
1992), PCB 92-54; Sherex Chemical v. Illinois Environmental Protection Agency (July 30,
1992), PCB 91-202; Williams Adhesives, Inc. v. Illinois Environmental Protection Agency
2
(August 21, 1991), PCB 91-112.) We find that material issues of fact remain regarding the
alleged depositing of materials in unpermitted portions of the landfill, and deny summary
judgment on those counts. However, because we find there are no genuine issues of material
fact regarding the alleged failure to submit reports, we find that summary judgment is
appropriate on those counts, and for the reasons set forth below, grant that portion of ESG
Watts’ motion for summary judgment.
RES JUDICATA
The doctrine of
res judicata
provides that a final judgment rendered by a court of
competent jurisdiction on the merits is conclusive as to the rights of the parties and their
privies, and as to them, constitutes an absolute bar to a subsequent action involving the same
claim, demand, or cause of action. (Torcasso v. Standard Outdoor Sales, Inc., 193 Ill.Dec.
192, 195, 626 N.E.2d 225 (Ill. 1993); People v. Chicago & Illinois Midland Ry. Co., 196
Ill.Dec. 369 at 371, 629 N.E.2d 1213.) The test generally employed to determine the identity
of cause of action for purposes of
res judicata
is whether the evidence needed to sustain the
second cause of action would have sustained the first. (Torcasso, 193 Ill.Dec. at 195, 626
N.E.2d 225.) Courts have also employed a transactional approach, which considers whether
both suits arise from the same transaction, incident or factual situation. (Rodgers v. St.
Mary’s Hospital of Decatur, 173 Ill.Dec. 642 at 647, 597 N.E.2d 616.)
Watts asserts that the counts concerning the failure to file reports were previously
litigated before the Board in People v. James Lee Watts, (May 4, 1995) PCB 94-127, and that
the counts concerning overfill were previously litigated in the Illinois circuit court action
People of the State of Illinois and County of Sangamon v. Watts Trucking Service, Inc. and
ESG Watts, Inc., No. 91-CH-242 (Cir. Ct. of Sangamon County, February 2, 1994). It is not
disputed that both these decisions constituted final determinations on the merits by a forum of
competent jurisdiction. Similarly, it is not disputed that the County was a party or in privity
with a party to the prior actions. The County was a named party in the circuit court case, and
the County’s authority to bring administrative citations is based on a delegation agreement with
the State. Therefore, the sole issue to be determined is whether the claims which are the
subject of the listed citations were previously litigated in the prior actions.
Failure to File Reports
ESG Watts asserts that the factual basis for the “failure to submit reports” alleged in
the aforementioned administrative citations is the failure to submit the April 15, 1996 solid
waste fee report and the significant modification application. ESG Watts asserts that these
matters were litigated in People v. James Lee Watts, (May 4, 1995) PCB 94-127, and that the
allegations concerning failure to submit reports are therefore barred by the doctrine of
res
judicata
.
In its response, Sangamon County asserts that the decision in PCB 94-127 should not
bar the administrative citations, since that action did not address whether Watts filed the 1994
Third Quarter and Fourth Quarter Reports for the Sangamon Valley facility. The County
asserts that the administrative citations allege failure to file these reports, as well as the April
3
15, 1996 report. Additionally, the County asserts that the complaint in PCB 94-127 did not
allege that Watts failed to submit the reports on the dates of the administrative citation
inspections, which extend from May 9, 1994 through September 27, 1994. The county also
asks that the Board penalize respondent for each day that it failed to file the report.
In the Board’s May 4, 1995 order in PCB 94-127, the Board found that ESG Watts had
failed to timely submit six reports, including: 1) the 1993 Fourth Quarter Report for the
Sangamon Valley facility; 2) the 1994 First Quarter Report for the Sangamon Valley facility;
3) the 1994 Second Quarter Report for the Sangamon Valley facility; 4) the 1993 Fourth
Quarter Report for the Taylor Ridge facility; 5) the 1994 First Quarter Report for the Taylor
Ridge facility; and 6) the 1994 Second Quarter Report for the Taylor Ridge facility. The
Board found that a flat penalty of two thousand five hundred dollars ($2,500.00) should be
assessed for each of the six violations, for a total penalty of fifteen thousand dollars
($15,000). Additionally, the Board found that ESG Watts failed to timely file its significant
modification applications for the Sangamon Valley facility, which was due on May 1, 1993,
and the biennial revision for Sangamon Valley facility, which was due on March 3, 1994.
Although the County asserts that the administrative citations allege that Watts failed to
file its 1994 Third Quarter and Fourth Quarter reports for the Sangamon Valley facility, an
examination of the inspection reports attached to each of the administrative citations reveals
that each refers only to Watts’ failure to file the 1994 First Quarter Report, due April 15,
1994, and there is no mention of Watts’ failure to file the 1994 Third and Fourth Quarter
Reports. Therefore, the County cannot rely on the 1994 Third and Fourth Quarter Reports to
support the asserted violations. The Board will only consider the 1994 First Quarter Report in
determining the validity of the alleged violations.
As stated above, the County asserts that the complaint in PCB 94-127 did not allege
failure to submit reports on the dates of the administrative citation inspections. In PCB 94-
127, the People filed a superseding complaint on October 14, 1994, which introduced a new
count to charge the untimely submission of reports as a separate violation of the Act. This
complaint states that the Agency received Watts’ 1994 first quarter report on August 8, 1994.
In its post-hearing brief in that proceeding, the Agency stated that the report was received 105
days late. In its May 4, 1995 opinion and order, the Board stated:
The Board finds that respondent, ESG Watts violated Sections . . . 21(o)(11) [failure to
submit reports] as alleged by all four counts of the supplemental complaint.
(People v. James Lee Watts, (May 4, 1995) PCB 94-127, slip op. at 6.)
The record thus makes clear that the alleged violations in PCB 94-127 covered the
entire 105-day period during which Watts failed to submit its First Quarter Report for the
Sangamon Valley Landfill. Because the Board’s decision in PCB 94-127 addressed the entire
time period Watts failed to submit this report, we find that all allegations concerning the
failure to submit this report are barred by the doctrine of
res
judicata
. We therefore grant
Watts’ motion to dismiss these counts of the administrative citations.
4
Depositing Refuse in Unpermitted Portions of the Landfill
Watts asserts that the factual basis for the alleged violations of Section 21(o)(9) of the
Act for “depositing of refuse in any unpermitted portion of their landfill,” set forth in AC 95-
8, AC 95-18, AC 95-21, AC 95-28, and AC 95-29, is the overfill identified and sanctioned in
the circuit court action People of the State of Illinois and County of Sangamon v. Watts
Trucking Service, Inc. and ESG Watts, Inc., No. 91-CH-242 (Cir. Ct. of Sangamon County,
February 2, 1994).
The circuit court decision in People of the State of Illinois and County of Sangamon v.
Watts Trucking Service, Inc. and ESG Watts, Inc., No. 91-CH-242 (Cir. Ct. of Sangamon
County, February 2, 1994), issued February 4, 1994, found that Watts had violated the Act as
set forth in counts 1 through 12 of the complaint. Count 1 of the complaint included alleged
violations of Section 21(o)(9) of the Act for depositing refuse in an unpermitted portion of the
landfill.
In its response, the County concedes that violations occurring prior to the time the
complaint in the circuit court action was filed on February 2, 1992 have been adjudicated on
the merits. However, the County alleges that the pending administrative citations allege
violations occurring after the circuit court action was decided. The inspections which form the
basis for the administrative citations occurred on the following dates:
AC 95-08, December 27, 1994
AC 95-18, January 17, 1995
AC 95-21, January 31, 1995
AC 95-28, February 28, 1995
AC 95-29, March 14, 1995.
The County points out that the alleged violations are based on inspections which
occurred almost a year after the circuit court made its finding of violation, and a year after it
determined the appropriate monetary sanctions. The County therefore asserts that these
violations constitute new causes of action which are not barred by the circuit court’s decision.
The County asserts that the same evidence would not support both the circuit court action and
the administrative citations, and that the subsequent evidence, i.e. the inspections, were needed
to support the administrative citations.
As part of its order, the circuit court ordered:
7.
[Watts] shall immediately undertake the following actions in strict compliance
with Agency permits
E.
The excavation and appropriate disposal of all refuse previously
deposited in unpermitted lateral and vertical areas of Area 1.
5
8.
The court is aware that [Watts] has been undertaking measures to come into full
compliance with some of the conditions but all of these conditions must be met
by May 31, 1994.
(People v. Watts Trucking Service, No. 91-CH-242, (Cir. Ct. of Sangamon County,
February 2, 1994.)
We find that the administrative citations concerning overfill are not barred by the
doctrine of
res judicata
. Even if the overfill in the administrative citations is the same overfill
which was the subject of the circuit court action, the existence of overfill at the Sangamon
County Landfill at the time of the inspections, which were performed subsequent to the circuit
court action, constitute separate, additional violations of the Act. Additionally, because the
violations alleged in the administrative citations occurred later in time, they rely on different
evidence than that necessary to support the circuit court action, and they could not have been
litigated in the circuit court action. We therefore deny Watts’ motion to dismiss these counts
of the administrative citations.
CONCLUSION
The Board finds that the alleged violations of Section 21(o)(11) of the Act for failure to
submit reports in AC 94-29, AC 94-48, AC 94-49, AC 94-50, AC 94-51, AC 94-52, AC 94-
58, AC 94-59, AC 94-60, AC 94-61, AC94-81, and AC 94-91, are barred by the doctrine of
res judicata
. These alleged violations were previously adjudicated in People v. James Lee
Watts, (May 4, 1995) PCB 94-127. However, the alleged violations of Section 21(o)(9) of the
Act for depositing refuse in an unpermitted portion of the landfill set forth in AC 95-8, AC 95-
18, AC 95-21, AC 95-28, and AC 95-29, were not previously litigated in People of the State
of Illinois v. Watts Trucking Service, Inc. and ESG Watts, Inc., No. 91-CH-242 (Cir. Ct. of
Sangamon County, February 2, 1994), and are therefore not barred by the doctrine of
res
judicata
.
Administrative citations AC 94-28, AC 94-82, AC 94-90, AC 94-95, AC 95-8, AC 95-
18, AC 95-21, AC 95-28, and AC 95-29, as well as the remaining counts of AC 94-29, AC
94-48, AC 94-49, AC 94-50, AC 94-51, AC 94-52, AC 94-58, AC 94-59, AC 94-60, AC 94-
61, AC94-81, and AC 94-91, shall proceed to hearing. The hearing officer is directed to
establish an appropriate hearing date.
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 _____ day of ___________, 1997, by a vote of
______________.
___________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
6