ILLINOIS POLLUTION CONTROL BOARD

November

14,

1972

ENVIRONMENTAL PROTECTION AGENCY

v.

)

*

72—155

ILLINOIS CENTRAL RAILROAD

Preliminary Opinion

&

Order of

the Board on Motion

to Dismiss

(by Mr.

Currie)

The complaint charges the railroad with open burning

of

railroad

ties and/or other refuse

in Decatur Township on

August

4,

1971.

The railroad responds that

it was called

to answer

for the same acts

in

a court proceeding

to show

cause why

it should not be held

in contempt of

a prior

court order

forbidding such burning,

and

that

a final judgment

in

its

favor was entered on that charge.

The central plea,

in addition

to familiar procedural

objections

and attacks on the constitutionality

of

the Act

which we have earlier rejected,

is res

judicata.

The issue

in the contempt proceeding,

however, was whether

or not

ties had been burned “knowingly,

intentionally

and willfully.”

An adverse finding on that charge does not mean the railroad

i~not responsible

for open burning

as

is charged

in

the

present complaint,

since the statute does

not require knowing,

intentional,

or willful burning.

See EPA v. Neal Auto Sal-

vage,

Inc.,

#70—5,

1 PCB

71

(Oct.

28,

1970).

To the extent,

however,

that the~urt’s action estab-

lished that no willful intentional,

or knowing burning took

place,

that decision

is binding on the

parties under

the

doctrine

of collateral

estoppel,

Before proceeding

to

hearing we will require statements

from the parties

as

to

whether

or not

the judgment did establish

this

fact,

and,

if

so, what the establishment

of this

fact leaves of

the Agency’s

case

on

the present complaint.

We shall allow

20

days

for

the submission

of such statements, which

in

the case of

the

Agency should include

a specification

of just what it will

seek

to prove

to establish the alleged violation.

The Railroad

urges

a broader doctrine of

res

judicata

or election

of remedies

that

it says precludes

the State from

litigating before us issues that were not asserted

in

the

court proceeding.

Much

the same issue was raised but not

decided in EPA

V.

Steelco Chemical Corp.,

#71-137,

2 PCB

453

(Sept.

16,

1971)

,

in which

a respondent asked us

to dismiss

6

—

215

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a complaint because a complaint seeking temporary and

permanent relief for the same occurrence had been filed in

Circuit Court.

Because the State elected to proceed only in

court and withdrew its Board complaint, we did not decide

the question.

We did observe, however, that while “the same

case”

(on the merits)

“should not be tried on both” forums,

the fact that the Board lacked statutory power to grant

temporary relief should not oust the Board of jurisdiction

over the complaint for permanent remedies:

“we do not

think

that this statutory gap means the Board cannot try

on the merits cases in which preliminary court relief has

been sought.”

In light of the clear statutory design to the

Board as a primary forum for pollution en~~orcement,the

prosecutor should not have to forfeit his right to seek

ancillary preliminary relief the Board cannot give in order

to preserve his right to litigate the main case before us.

The same considerations are decisive here.

The statute

envisions that complaints for violating its provisions may

be brought before a specialized Board;

there

is no

suggestion

in the statute that this right must be forfeited in order

to vindicate the quite independent right of adherence to a

prior court order by

a petition seeking relief the Board

cannot give.

The statutory reference to “duplicitous” com-

plaints is designed to prevent repeated complaints on the

same basis by different people;

it does not apply to com-

plaints filed by the State at all, and the present complaint

is

filed on

a different basis.

See League of Women Voters

v.

North Shore Sanitary District, #70—7,

1 PCB 35

(Oct.

8,

1970)

We find no impermissible vagueness in the complaint,

which adequately apprises the railroad of the date and nature

of the violations alleged.

We

shall await the additional statements indicated above

before acting on the motion to dismiss.

It is

so ordered.

I, Christan Moffett, Clerk of the Pollution Control Board,

certify that the Board adopted the above Preliminary Opinion

&

Order

of the Board on Motion to Dismiss this

14th day

of November,

1972, by a vote of ~—C

‘2~

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