ILLINOIS POLLUTION CONTROL BOARD
    October 17, 1996
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    BENTRONICS CORPORATION,
    Respondent.
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    PCB 97-20
    (Enforcement - Water)
    ORDER OF THE BOARD (by R.C. Flemal):
    This matter is before the Board on a complaint filed on July 19, 1996 by the Illinois
    Attorney General, on behalf of the People of the State of Illinois (People), at the request of the
    Illinois Environmental Protection Agency (Agency). At issue are the discharging of chemicals
    into a creek adjacent to Bentronics Corporation (Bentronics) property, the deposition of
    contaminants upon land, and the discharge of contaminants to the Village of Bensenville’s
    (Village)
     
    Publicly Owned Treatment Works (POTW). The People allege that Bentronics’
    operational practices violated Sections 12(a), (d), and (f) of the Illinois Environmental
    Protection Act (Act), 415 ILCS 5/12 (a), (d), and (f) (1994), and 35 Ill. Adm. Code,
    307.1101(a)(1), 307.2301(c)(1), and (2).
    On August 8, 1996 Bentronics filed a Motion for Leave to File Motion to Dismiss
    Instanter
     
    and a Motion to Dismiss. The People filed their response to the motion on August
    16, 1996, and on August 27, 1996 Bentronics filed a reply under the caption “Response to the
    State’s Motion to Strike the Motion to Dismiss”.
    Bentronics asserts that the matters alleged are barred under the theories of statute of
    limitations, double jeopardy under the United States and Illinois Constitutions,
    res judicata
    ,
    failure to state a claim upon which relief can be granted. Accordingly, Bentronics asserts that
    the claim
    1
    should be dismissed with prejudice.
    The People object to the motion to dismiss and requests that it be denied. The People
    maintain that the complaint is sufficiently specific to inform Bentronics of the violations, and
    that the complaint is not precluded by
    res judicata
    . The People assert that there is no statute of
    limitations in this matter, and that double jeopardy is inapplicable to the case at bar.
    1
    Bentronics also alleges that the complaint is duplicitous, but does not make any argument
    based on this theory. Therefore, the Board will not address the issue.

    2
    BACKGROUND
    Bentronics was an electronic manufacturing company located on Bryn Mawr Avenue, in
    the Village of Bensenville, DuPage County, Illinois (Facility). (Comp. at 1.)
    2
    In July 1992
    Bentronics requested the Village POTW terminate its process water discharge permit to the
    Village’s South Treatment Plant, allegedly because it could not meet the Village’s permit limits
    for copper and lead. (
    Id.
    at 7.) Bentronics installed an internal system to filter and recycle all
    of its rinse and cooling water in a closed-loop system. The purpose of the closed-loop system
    was to eliminate the need to discharge any process wastewater into the Village’s sanitary sewer
    system. (
    Id
    . at 7.) On August 25, 1992 a Village inspection found that the process wastewater
    discharge lines emanating from Bentronics’ plant were disconnected from the sanitary sewer
    and capped off, thus preventing discharges into the Village POTW. (
    Id
    . at 7.)
    The complaint states that the Village’s South Treatment Plant laboratory detected
    increased levels of copper and lead in its raw influent during February 1993. (
    Id.
    at 7.) On
    March 22, 1993 Village inspectors took a grab sample out of the main sewer line on Bryn
    Mawr Avenue which is downstream from the Bentronics’ Facility. (
    Id
    at 7.) The laboratory
    analysis of the samples disclosed elevated levels of copper and lead. Count I of the complaint
    further states that on March 24, 1993 Village inspectors investigated Bentronics’ premises to
    ascertain the source of the copper and lead contamination in the Village’s sanitary sewer. (
    Id.
    at
    2.) The complaint states that inspectors discovered a slop sink in the process area of the plant
    and that the slop sink hooked directly to the Village’s sanitary sewer. The complaint alleges
    that Bentronics was dumping its waste into the Village’s system by either dumping buckets of
    waste or pumping out drums directly into the slop sink. (
    Id.
    at 8.)
    The complaint states on June 13, 1993 the Agency was notified by officers of the
    Village’s POTW that Bentronics was allegedly dumping chemicals into a storm drain located
    on Bentronics’ property. (
    Id.
    at 2.) The Agency’s Emergency Response Unit and Bureau of
    Land inspectors investigated the Facility on June 13, 1996. The investigation revealed that
    chemicals released from a waste accumulation tank had settled in the parking lot and eventually
    discharged into the nearby creek. The investigators took samples from: the waste tank;
    accumulated waste in the parking lot; and the bank of the creek adjacent to the facility.
    Laboratory analysis of the samples taken from the waste tank and the accumulated waste in the
    parking lot revealed concentrations of copper of 277 milligrams per liter (mg/L) and 77 mg/L,
    respectively. (
    Id.
    at 2.) Accordingly, in Count II of the Complaint the People allege that
    Bentronics’ conduct violated Section 12(a) of the Act. The People further allege that sometime
    prior to June 13, 1993 and continuing until August 18, 1993, Bentronics caused or allowed the
    depositing of liquid waste, which contained high concentrations of copper, in the Facility
    parking lot and on the bank of the adjacent creek in violation of Section 12(d) of the Act. (
    Id.
    at 5.) In Count III Bentronics is alleged to have caused, threatened or allowed the discharge
    2
    The Board will cite to the Agency’s complaint as (Comp. at ____); Bentronics’ motion to
    dismiss as (Mot. to Dismiss at ____); and the Agency’s response to Bentronics’ motion to
    dismiss as (Resp. at ____).

    3
    of contaminants to the Village’s POTW in violation of Section 12(f) of the Act and 35 Ill.
    Adm. Code, 307.1101(a)(1), 307.2301(c)(1), and (2).
    Based on Bentronics’ operational practices and the sampling data, the People request
    that the Board find Bentronics in violation of Sections 12(a), (d), and (f) of the Act and 35 Ill.
    Adm. Code 307.1101(a)(1) and 307.2301(c)(1) and (2); order Bentronics to cease and desist
    from further violations; authorize a hearing; and order Bentronics to pay costs pursuant to
    Section 42(f) of the Act. (Comp. at 4, 6, 10.)
    Bentronics’ motion to dismiss states that a similar prosecution, involving seven criminal
    complaints, was filed in April 1993 against Bentronics by “the People of the State of Illinois,
    the Village of Bensenville” in the DuPage County Circuit Court. (Mot. to Dismiss at 2.)
    Those seven complaints alleged violations of local ordinances. Bentronics contends the
    criminal complaints were based on grab samples taken by the Village on March 22, 1993. (
    Id
    .
    at 2.) The criminal case concluded in November 1993 with Bentronics paying a $14,000 fine.
    Bentronics argues that the instant June allegations could and should have been raised prior to
    the conclusion of the Circuit Court case in November 1993. Bentronics ceased doing business
    at the end of 1994.
    DISCUSSION
    Bentronics contends that the People’s complaint should be dismissed based on several
    theories. Bentronics argues that the matters alleged are barred under theories of statute of
    limitations, double jeopardy under the United States and Illinois Constitutions,
    res judicata
    ,
    and failure to state a claim upon which relief can be granted.
    Procedural Issues
    The Board notes that Bentronics’ Motion to Dismiss was filed a week after the deadline
    provided for such motion pursuant to Section 103.140(a) of the Board’s procedural rules.
    However, the People have neither raised the issue of timeliness, nor asserted that they have
    been prejudiced by the delay. The Board accordingly grants the motion to file instanter.
    Bentronics’ filing of August 27, 1996 captioned “Respondent’s Response to the State’s
    Motion to Strike the Motion to Dismiss” erroneously characterizes the Agency’s “Response to
    Respondent’s Motion to Dismiss” as a motion to strike. Pursuant to 35 Ill. Adm. Code
    101.241(c), Bentronics has no right to reply to the Agency’s Response, nor Bentronics
    requested such a right, or alleged material prejudice. Therefore, the Board will not accept
    Bentronics August 27, 1996 response.
    The People argue that Bentronics’ motion to dismiss is defective because it did not cite
    whether it was brought pursuant to Section 2-615 or 2-619 of the Illinois Code of Civil
    Procedure. Section 101.100 of the Board's procedural rules specifically states that the Code of
    Civil Procedure shall not expressly apply to proceedings before the Board. Therefore, we will
    not automatically deny Bentronics’ motion to dismiss because it may have failed to satisfy the
    Code’s requirements.

    4
    Statute of Limitations
    Bentronics contends that this complaint seeks a statutory penalty, and that therefore the
    two-year statute of limitations found at Section 13-202 of the Illinois Code of Civil Procedure
    applies. Bentronics argues that since the complaint was filed more than two years after the
    alleged violations, the instant action is barred by the statute of limitations. The People cite
    Pielet Bros. Trading Co. v. PCB for the proposition that the statute of limitations does not
    apply if the state is asserting a public right on behalf of all the people of the state versus the
    private rights on behalf of a limited right. (110 Ill. App. 3d 752, 442 N.E.2d 1374 (5th Dist.
    1982).) We agree with the People that the instant action is being brought on behalf of the
    public, and therefore that the statute of limitations does not apply.
    Moreover, as noted above, the Board is not bound by the Illinois Code of Civil
    Procedure. The People’s complaint was brought pursuant to Sections 31 and 42 of the Act.
    Sections 31 and 42 of the Act do not contain by their terms express limitation periods within
    which a complaint must be filed. Additionally, nowhere does the Act contain an express
    statutory limitation period. (Pielet Bros; People of The State of Illinois v. Environmental
    Control and Abatement, Inc. (January 4, 1996), PCB 95-170.) For this reason as well the
    Board rejects Bentronics statute of limitations argument.
    Double Jeopardy
    Bentronics argues that the instant action is barred under the double jeopardy clause of
    the fifth amendment of the U.S. Constitution and Article I, Section 10, of the Illinois
    Constitution. Bentronics contends that the People are trying to punish Bentronics for the same
    violations charged by the Village in the April 1993 complaint. In response, the People argue
    that the double jeopardy doctrine only prohibits a second criminal prosecution or punishment;
    it does not prohibit subsequent civil actions which are remedial. The People argue that the
    civil penalties provided under the Act are remedial and not for the purposes of punishment.
    (People v. Fiorini; 143 Ill. 2d 318, 349, 574 N.E.2d 612,625 91991); Modine Manufacturing
    Co. v. IPCB, 193 Ill. App.3d 643, 549 N.E.2d 1379 (2nd Dist. 1990).) Finally, according to
    the People, “[t]he only similarity between the prior criminal prosecution and the current civil
    enforcement action is the presence of high levels of lead an [
    sic
    ] copper in the sewer.” (Resp.
    at 13.)
    Bentronics obscures the purpose of the People’s proposed civil penalty with the
    criminal penalty collected by the Village from Bentronics. The People’s complaint alleges
    violation under the Act, and seeks a civil penalty to enforce that Act. There is no prohibition
    preventing the Government from criminally prosecuting a defendant and imposing a criminal
    penalty upon him, and then bringing a separate civil action based on the same conduct and
    receiving a judgment, as long as that judgment is not irrationally related to the goal of making
    the Government whole. (U.S. v. Halper, 490 US 435, 109 S.Ct. 1892 at 1903 (1989); see also
    U.S. v. Ursery, 116 S.Ct. 2135 (June 1996).) There is no argument in this matter that the
    People are pursuing a judgment against Bentronics that is irrationally related to the goals
    expressed in the Act.

    5
    Furthermore, the People’s requested relief does not rise to the level of punishment for
    purposes of double jeopardy analysis. The primary reason for Section 42 authorization of civil
    penalties is to provide a method to aid in the enforcement of the Act. (Modine v. IPCB.) Any
    punitive considerations are secondary. (Southern Illinois Asphalt Co. v. Pollution Control
    Board, 60 Ill. 2d 204, 207 (1975); City of Monmouth v. Pollution Control Board, 57 Ill. 2d
    482, 490 (1974).) The enforcement action against Bentronics does not constitute punishment
    within the meaning of the double jeopardy clause because the underlying purpose of the
    People’s sanction is to enforce the Act.
    Lastly, the criminal complaint was based upon sampling taken in March, 1993 (Mot. to
    Dismiss at 2), whereas this complaint is also based upon an inspection and sampling conducted
    by the Agency in June, 1993. (The Board notes that we do not have copies of the criminal
    complaints.) Therefore, Bentronics has failed to establish that the criminal citations against
    Bentronics were for the same offenses as alleged in this complaint. Therefore, the Board finds
    this action is not prohibited by the Double Jeopardy Clause.
    Res Judicata
    Bentronics contends that the doctrine of
    res
    judicata
    is an absolute bar to the People’s
    action. (Mot. to Dismiss at 3.) First, Bentronics states that a final judgment was entered
    against it in November 1993. Second, the exact same dates, samples, and acts are at issue in
    the instant matter, and all were or could have been included in the circuit court case. (
    Id.
    at
    4.) Lastly, the Village adequately represented the legal interests of the State, and therefore
    stands in privity to the State. As a result, Bentronics claims that the instant complaint should
    be barred by
    res judicata
    .
    The People argue that the Act provides a distinct and separate bases for penalizing
    persons for civil versus criminal violations, citing Sections 42(a-h) and 44(a-o) of the Act, and
    that therefore the complaint is not barred by
    res judicata
    . The People claim they are not
    pursuing the same cause of action that the Village pursued under its criminal ordinance. To
    support this assertion, the People argue not only that the evidence required to sustain the
    present civil conviction would have been inadequate to sustain the prior criminal action, but
    that a different core of operative facts was involved in the two actions.
    Under the doctrine of
    res judicata
    , 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 the
    judgment precludes the parties from entering into a subsequent action involving the same
    claim, demand, or cause of action. (Torcasso v. Standard Outdoor Sales, Inc.
    ,
    193 Ill.Dec.
    192, 626 N.E.2d 225 (1993); Rodney B. Nelson, M.D. v. Kane County Board et al (May 18,
    1995), PCB 95-56.) Res judicata bars all matters that were actually raised or could have been
    raised in the prior proceeding. (Torcasso, 193 Ill.Dec. 192, 195, 626 N.E.2d 225; People v.
    Chicago & Illinois Midland Ry. Co., 196 Ill.Dec. 369 at 371, 629 N.E.2d 1213; A.W.
    Wendell and Sons, Inc. v. Qazi, 193 Ill.Dec. 247, 256, 626 N.E.2d 280 (Ill.App. 2d Dist.
    1993); see also Rodgers v. St. Mary's Hospital of Decatur, 173 Ill.Dec. 642, 647, 597
    N.E.2d 616. (1992).) An order dismissing a suit with prejudice is considered a final judgment

    6
    on the merits for purposes of applying res judicata. (Chicago & Illinois Midland Ry. Co., 196
    Ill.Dec. 369 at 371, 629 N.E.2d 1213.) Where there is identity of parties, subject matter, and
    cause of action, res judicata extends not only to every matter that was actually determined in
    the prior suit but to every other matter that might have been raised and determined in it.
    (Torcasso, 193 Ill.Dec. at 195.)
    The test generally employed to determine the identity of a 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, referred to as the “same evidence” test. (Torcasso, 193 Ill.Dec. at 195,
    citing Redfern v. Sullivan, 111 Ill.App.3d 372, 376, 67 Ill.Dec. 166, 444 N.E.2d 205 (4th
    Dist. 1982).) Alternatively, courts have employed a "transactional" approach, which considers
    whether both suits arise from the same transaction, incident or factual situation. (Rodgers, 173
    Ill.Dec. 642 at 647, 597 N.E.2d 616.)
    Examining the facts in this matter under both of the traditional tests, Bentronics fails to
    prove that the cause of action before the Board is the same for purposes of res judicata, as was
    the prior action in circuit court. Foremost, the People’s complaint states that samples were
    taken on June 13, 1993, two months after the complaints addressed in the circuit court;
    accordingly, the violations are alleged to have occurred at different times and therefore rely on
    different evidence. Additionally, the People allege a different statute was violated than did the
    Village. The People argue that Bentronics violated the Act, whereas the Village alleged
    violations of a local ordinance. Next, the People’s action alleges a civil violation, whereas the
    Village’s action alleged a criminal violation. Lastly, the relief requested in each action is
    different.
    Bentronics includes ambiguous documentation to support its theory of
    res judicata
    . It
    includes an order from the DuPage Circuit Court accepting a guilty plea and fining the violator
    $14,000, a Non-Arrest Complaint and Arrest Ticket citing seven violations of local ordinances
    dated April 21, 1993, and three other Non-Arrest Complaint and Arrest Tickets. (Mot. to
    Dismiss, Exh. 2.) First, it is unclear from the filing what alleged violations Bentronics plead
    guilty to in the court order, as the ordinances are not included. Second, it is equally unclear
    whether the three complaints refer to some part of the seven complaints, whether the three are
    separate and distinct from those seven complaints, and whether the three complaints were
    included in the November 16, 1993 circuit court order.
    As a result of the differences in the actions before the circuit court and the Board, the
    Board denies Bentronics’ motion to dismiss based upon
    res judicata
    .
    Failure to State a Claim Upon which Relief can be Granted
    Bentronics contends that the Agency failed to collect samples from the creek, and only
    obtained samples from the ground. Bentronics argues that ground samples cannot maintain a
    cause of action that Bentronics discharged contaminants into a creek in violation of the Act.
    (citing Jerry Bliss, Inc. v. EPA, 138 Ill. App. 3rd 699, 485 N.E.2d 1154 (5th Dist., 1985).)
    Bentronics argues that a sample from the creek is an essential element in establishing that it
    discharged contaminants into the creek adjacent to its Facility. Bentronics also argues that it is

    7
    an abuse of discretion to impose any penalty three years after the alleged violations. (Mot. to
    Dismiss at 7.)
    The People argue that the counts satisfy the minimum pleading requirements, and
    clearly and accurately inform Bentronics of the nature of the claims against it. (Resp. at 3-5.)
    The Board rejects Bentronics’ contention that the People have failed to state a claim
    upon which relief can be granted. When reviewing a motion to dismiss, all well-pleaded facts
    alleged in the complaint are taken as true, and the reviewing body considers whether any set of
    facts could be proved that would entitle the plaintiff to relief. (Porter v. Urbana-Champaign
    Sanitary Dist., 178 Ill.Dec. 137, 141, 604 N.E.2d 393 (4th Dist. 1992), People of the State of
    Illinois, v. Greyslake Gelatin Company et al (January 11, 1995), PCB 94-288.) The People
    have pleaded facts sufficient to fairly and accurately inform Bentronics of the claims against it.
    In addition, the People need not present evidence on every essential element in pleadings.
    Therefore, the Board finds that the People have presented well-pled facts sufficient to clearly
    support this cause of action against Bentronics.
    CONCLUSION
    Having found that the instant complaint is not precluded by the statute of limitations,
    double jeopardy under the United States and Illinois Constitutions,
    res judicata
    , or failure to
    state a claim upon which relief can be granted, the Board denies Bentronics motion to dismiss
    and directs Bentronics to answer the complaint within 30 days of service of this order.
    Accordingly, this matter will proceed to hearing. The hearing must be scheduled and
    completed in a timely manner, consistent with Board practices. The Board will assign a
    hearing officer to conduct hearings consistent with appropriate directions to the assigned
    hearing officer consistent with this order.
    The assigned hearing officer shall inform the Clerk of the Board of the time and
    location of the hearing at least 40 days in advance of hearing so that public notice of hearing
    may be published. After hearing, the hearing officer shall submit an exhibit list, a statement
    regarding credibility of witnesses and all actual exhibits to the Board within five days of the
    hearing. The hearing officer and the parties are encouraged to expedite this proceeding as
    much as possible.
    IT IS SO ORDERED.
    Board Member K. Hennessey abstained.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the _________ day of ______________________, 1996 by a
    vote of ______________.

    8
    _________________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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