ILLINOIS POLLUTION CONTROL BOARD
    September 18, 1997
    ENVIRONMENTAL SITE DEVELOPERS,
    INC., an Illinois corporation,
    Complainant,
    v.
    WHITE & BREWER TRUCKING, INC., an
    Illinois corporation,
    Respondent.
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    WHITE & BREWER TRUCKING, INC., an
    Illinois corporation,
    Respondent.
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    PCB 96-180
    (Enforcement - Water - Citizens)
    PCB 97-11
    (Enforcement - Water)
    ORDER OF THE BOARD (by M. McFawn):
    On August 18, 1997, White & Brewer Trucking, Inc. (White & Brewer) filed
    with the Board a “Motion to Reconsider” and “Memorandum of Law in Support of the
    Motion to Reconsider” (Memorandum or Mem.) seeking reconsideration of the Board’s
    order of July 10, 1997. In that order, the Board denied White & Brewer’s motion for
    stay of the proceedings and consolidated the two cases brought before the Board
    involving the same landfill: Environmental Site Developers, Inc. v. White & Brewer
    Trucking, Inc., PCB 96-180 and People vs. White & Brewer Trucking, Inc., PCB 97-
    11. In its motion, White & Brewer asks that the Board reconsider the denial of the stay
    and the consolidation of these two cases. Environmental Site Developers, Inc. (ESDI)
    filed its response to White & Brewer’s motion on August 21, 1997. The Attorney
    General did not file a response on behalf of the People of the State of Illinois (People).
    On July 10, 1997, the Board declined to stay the proceedings in PCB 96-180
    based on the pendency of a lawsuit in federal district court in Springfield between ESDI
    and White & Brewer. At that time, the parties had not informed the Board that ESDI
    had recently filed a counterclaim in the federal lawsuit. In support of its motion for
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    reconsideration, White & Brewer informs the Board that ESDI filed a counterclaim in
    the federal lawsuit on May 15, 1997 (Mem. at 4), and in its response, ESDI did not
    dispute this representation. The Board accepts this representation as true, and assumes
    that the counterclaim was pending when the Board ruled on White & Brewer’s motion
    for stay of proceedings. While the filing of the counterclaim is not “new” information
    since it occurred prior to the Board’s ruling of July 10, 1997, the Board believes that
    the counterclaim should be factored into its decision whether this matter should be
    stayed. Therefore, we will reconsider our order of July 10, 1997.
    In its order of July 10, 1997 the Board concluded that a stay of proceedings in
    PCB 96-180 was not appropriate, after considering the factors set forth by the Supreme
    Court in A. E. Staley Mfg. Co. v. Swift & Co., 84 Ill.2d 245, 419 N.E.2d 23 (1980):
    (a) comity, (b) prevention of multiplicity, vexation and harassment, (c) likelihood of
    obtaining complete relief in the foreign jurisdiction, and (d) the
    res judicata
    effect of a
    foreign judgment in the local forum. The Board now concludes that matters raised in
    ESDI’s counterclaim significantly impact the Board’s determination with respect to two
    of these factors: prevention of multiplicity of litigation, and the
    res judicata
    effect of a
    judgment by the federal court in the case before the Board.
    In paragraph 25 of count IV of its federal counterclaim, ESDI alleges violations
    of Illinois law which mirror the allegations in paragraph 6 of its complaint in PCB 96-
    180, wherein ESDI lists the actions it claims have resulted in violations of the Illinois
    Environmental Protection Act, 415 ILCS 5 (Act). Thus, the issues central to ESDI’s
    case before the Board are now before the federal court. Although ESDI has sought
    some different relief from the Board than the federal court (i.e., statutory penalties),
    clearly if PCB 96-180 and the federal case continue simultaneously, multiplicity of
    litigation would occur. Furthermore, since ESDI’s counterclaim in the federal case
    involves the same issues as its complaint in PCB 96-180, a final determination in the
    federal case would now have a
    res judicata
    effect in the case before us.
    The Board believes that these factors now shift the balance of considerations
    under the Staley analysis in favor of a stay of proceedings in PCB 96-180 pending
    resolution of the federal case. White & Brewer has apprised the Board of its pending
    motion to dismiss count IV of ESDI’s federal counterclaim. Mem. at 6 n.2. In the
    event that count IV is dismissed by the federal court, or in the event that the federal
    court abstains from consideration of count IV, the Board’s stay of proceedings in PCB
    96-180 will be lifted. We note that on August 21, 1997 the Board entered an order
    requiring the parties to file copies of all documents filed in the federal case with the
    Board, and to file with the Board copies of all orders entered by the court in the federal
    case. That order was entered to ensure that the Board issues no further orders without
    complete information. That order is still in effect under the stay to ensure that the
    Board is apprised of any developments in that case which would affect the stay ordered
    today.
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    We turn now to White & Brewer’s request for reconsideration of the Board’s
    consolidation of PCB 96-180 with PCB 97-11. Although the Board does not find
    White & Brewer’s arguments in its Memorandum persuasive, the Board will
    nevertheless vacate that portion of its July 10, 1997 order consolidating PCB 96-180
    with PCB 97-11.
    The allegations of the Attorney General in PCB 97-11, for the most part
    subsume the allegations of ESDI in PCB 96-180, however these allegations cover a
    wider range of time and additional violations of the Act. Resolution of the issues
    raised by ESDI in its counterclaim in the federal action will not resolve fully the claims
    of the Attorney General. Accordingly, the Board concludes that litigation of PCB 97-
    11, while it may overlap the subject matter of the federal court case at certain points, is
    not “multiplicious” of that litigation. Furthermore, since the complainant in PCB 97-
    11 is not a party to the federal litigation, a judgment in the federal court cannot have
    res judicata
    effect with respect to PCB 97-11, because application of
    res judicata
    requires identity of parties. People ex rel. Burris v. Progressive Land Developers,
    Inc., 151 Ill. 2d 285, 294, 602 N.E.2d 820, 825 (1992). The Board thus concludes
    that it is not appropriate to stay PCB 97-11. Because it is appropriate to stay PCB 96-
    180 but not to stay PCB 97-11, the Board concludes that consolidation of the two cases
    is not “in the interest of convenient, expeditious, and complete determination of
    claims,” 35 Ill. Adm. Code 103.141. Consequently, consolidation is no longer
    warranted. The Board will vacate that portion of its July 10, 1997 order.
    ORDER
    First, the Board grants White & Brewer’s motion that we reconsider our order
    of July 10, 1997, in light of the counterclaim recently filed by ESDI in the federal
    lawsuit. Upon reconsideration of that order, we hereby stay the proceedings in PCB
    96-180 pending resolution of the federal lawsuit or occurrence of one of the other
    circumstances set forth above. Finally, we vacate that portion of our July 10, 1997
    order consolidating PCB 96-180 and PCB 97-11.
    IT IS SO ORDERED.
    Board Member Kathleen M. Hennessey abstained.
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    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby
    certify that the above order was adopted on the 18
    th
    day of September 1997, by a vote
    of 6-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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