ILLINOIS POLLUTION CONTROL BOARD
April 4, 2002
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
JERSEY SANITATION CORPORATION, an
Illinois corporation,
Respondent.
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PCB 97-2
(Enforcement – Land, Water)
ORDER OF THE BOARD (by N.J. Melas):
On July 8, 1996, the Attorney General’s Office, on behalf of the People of the State of
Illinois (People) initiated this action by filing a complaint. The People filed their second
amended complaint on January 8, 2001 (Sec. Am. Comp.). The People alleged that respondent
Jersey Sanitation Corporation (Jersey) violated various sections of the Environmental Protection
Act (Act), the Board’s regulations, and several permit conditions with respect to Jersey’s
operation of a sanitary landfill in Jerseyville, Jersey County.
This matter is before the Board on a motion for summary judgement (Mot.) filed by
Jersey on November 5, 2001. The motion only pertains to portions of two counts in the
complaint relating to alleged violations of disputed permit conditions.
See infra
pp. 3-4.
For the reasons outlined below, the Board grants Jersey’s motion for summary judgment.
The Board finds that Jersey did not violate conditions A.4., C.2., C.3., and C.4. of its
Supplemental Permit No. 1999-209-SP. Consequently, Jersey did not violate related Sections of
the Act and the Board’s regulations, namely 415 ILCS 5/21(d)(1), 5/21(d)(2), 5/22.17(a) and
5/22.17(b) (2000); and 35 Ill. Adm. Code 745.181 and 745.201.
PROCEDURAL MATTERS – THE INSTANT CASE
After the filing of the motion for summary judgment, the People filed a
motion to strike
and response to Jersey’s motion for summary judgment (Mot. Str.) on December 11, 2001. On
December 21, 2001, Jersey filed its
response to the People’s motion to strike. (Resp.)
On January 2, 2002, the People filed a motion for leave to file a reply to Jersey’s
response, claiming that new arguments were included in Jersey’s response and that the People
would be materially prejudiced if not allowed to address the new argument. On January
17, 2002, in the response to People’s leave to file a reply, Jersey argued that it was not injecting
new theories of arguments into the enforcement case and claimed that the people were not
materially prejudiced. In a January 18, 2002 order, Board Hearing Officer Steven Langhoff
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denied the People’s leave to file a reply because the People did not show that they were
materially prejudiced.
On January 23, 2002, the People filed a motion for leave to amend by interlineation,
clarifying a citation in its motion to strike and in its leave to file a reply. The Board grants the
motion for leave to amend with respect to the motion to strike only. On January 24, 2002, Jersey
filed an errata sheet correcting a case citation in its response. The Board notes the correction.
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings and depositions, together with any
affidavits and other items in the record, show that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason,
181 Ill. 2d 460, 693 N.E.2d 358 (1998). In ruling on a motion for summary judgment, the Board
“must consider the pleadings, depositions, and affidavits strictly against the movant and in favor
of the opposing party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.
Summary judgment “is a drastic means of disposing of litigation,” and therefore it should
be granted only when the movant’s right to the relief “is clear and free from doubt.” Dowd, 181
Ill. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871
(1986). However, a party opposing a motion for summary judgment may not rest on its
pleadings, but must “present a factual basis which would arguably entitle [it] to a judgment.”
Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).
THE RELATED PERMIT APPEAL
On October 5, 1999, the Illinois Environmental Protection Agency (Agency) granted
Jersey a post-closure permit for its sanitary landfill, also known as Supplemental Permit No.
1999-209-SP. Jersey was required to comply with several conditions in the Supplemental
Permit. After the Board granted a joint request for extension of the appeal period, on January 3,
2000 Jersey timely filed a permit appeal to challenge the following conditions in the
Supplemental Permit: A.4., B.6., C.1., C.2., C.3, C.4., and C.8. On June 21, 2001, the Board
granted Jersey’s motion for summary judgment and also struck the aforementioned conditions
from Jersey’s permit. In that order, the Board found that Jersey had demonstrated that, absent
the conditions, the Supplemental Permit would not violate the Act or the Board’s regulations.
Jersey Sanitation Corp. v. IEPA, PCB 00-82,
slip op. at 15 (June 21, 2001). The Board
subsequently issued an order on September 20, 2001, denying the People’s motion for
reconsideration in PCB 00-82.
On October 25, 2001, the People submitted to the Illinois Appellate Court, Fifth Judicial
Circuit a Notice of Filing and Petition for Direct Review of the Board’s orders of June
21, 2001 and September 20, 2001 in PCB 00-82 (No. 5-01-0845). Mot. Str. at 2. On November
8, 2001, Jersey filed a Notice of Filing and Petition for Cross Appeal/Review.
Id.
These matters
are still pending before the appellate court.
THE INSTANT CASE:
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DISPUTED CONDITIONS IN THE SUPPLEMENTAL PERMIT
Jersey claims that there is no genuine issue of material fact regarding the stricken
conditions in the Supplemental Permit and claims that summary judgment in its favor is therefore
proper in the instant enforcement matter. Jersey claims that the Board needs only to determine if
the stricken conditions in the Supplemental Permit and the related provisions in the Act and the
Board’s regulations are applicable to Jersey. Jersey requests summary judgment on conditions
A.4., C.2., C.3, and C.4 in the Supplemental Permit. Jersey also requests summary judgment on
the alleged violations of the Act and the Board’s regulations related to the alleged permit
violations: Sections 21(d)(1), 21(d)(2), 22.17(a) and 22.17(b) of the Act; and 35 Ill. Adm. Code
745.181 and 745.201.
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Mot. at 4-5. The disputed permit conditions and related alleged
violations of the Act and the Board’s regulations are found in two counts (IV(D) and IX) of the
second amended complaint.
Count IV(D)
Condition A.4. of the Supplemental Permit requires that the person responsible for post-
closure care at a sanitary landfill have a valid prior conduct certification. The People alleged that
no one responsible for post-closure care at Jersey’s landfill had a current valid prior conduct
certification. Therefore, the People alleged that Jersey was in violation of Condition A.4., and,
as a result, the People also alleged that Jersey was in violation of 35 Ill. Adm. Code 745.181 and
745.201 and Sections 21(d)(1) and 21(d)(2) of the Act. Sec. Am. Comp. at 22-24. Sections
745.181 and 745.201 of the Board’s regulations mandate that chief operators of waste disposal
sites have a prior conduct certification. Sections 21(d)(1) and 21(d)(2) of the Act state that no
one shall conduct a waste-storage or waste-disposal operation in violation of a permit condition
or in violation of any Board regulation.
In PCB 00-82, the Board found that the closure and post-closure care of Jersey’s sanitary
landfill is governed by 35 Ill. Adm. Code 807. The Board found that since Jersey’s sanitary
landfill had a certificate of closure and was in post-closure care, it had ceased day-to-day
operations. Thus, Jersey was not required to have a chief operator as defined by 35 Ill. Adm.
Code 745. The Board found that, as a matter of law, Condition A.4. of the Supplemental Permit
was unnecessary. Jersey Sanitation Corp., PCB 00-82,
slip op. at 7, 9.
Conditions C.2. and C.3. of the Supplemental Permit mandate that the operator of
Jersey’s sanitary landfill evaluate groundwater quality. The operator is also supposed to provide
groundwater sampling and an analysis of groundwater limit exceedences. The People alleged
that Jersey failed to engage in such monitoring and reporting and therefore violated Conditions
C.2. and C.3. As a result, the People also alleged that Jersey violated Sections 21(d)(1) and
21(d)(2) of the Act. Sec. Am. Comp. at 26-28.
Condition C.4. of the Supplemental Permit requires that during the post-closure care
period, Jersey was to monitor and remediate any gas, water, or settling problems. The People
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The People allege other violations of Sections 21(d) and 22(a) of the Act related to other
permits and other conditions at Jersey’s sanitary landfill that are not at issue here.
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alleged that that Jersey failed to engage in such monitoring and remediation and therefore
violated Condition C.4. As a result, the People also alleged that Jersey violated Sections
21(d)(1), 21(d)(2), 22.17(a), and 22.17(b) of the Act. Sec. Am. Comp. at 25-26. Sections
22.17(a) and 22.17(b) of the Act state that the owner and operator of a sanitary landfill must
monitor and remediate any gas, water, or settling problems at closed landfills.
In PCB 00-82, the Board found that Jersey did not waive the right to contest Conditions
C.2., C.3., and C.4. because Jersey did not contest them when they were in a prior permit. The
Board also struck Conditions C.2., C.3., and C.4. because they were unnecessary to accomplish
the purposes of the Act and the Board’s regulations. Absent these conditions, the permit would
not have violated the Act or the Board’s regulations. Although Section 22.17 of the Act requires
monitoring for gas, water, and settling at closed landfills, neither the Act nor the Board’s
regulations require additional specificity. The Board found that Jersey’s own plan for
monitoring was sufficient. Jersey, PCB 00-82, slip op. at 12-14.
Count IX
The People alleged that at Agency inspections on November 19, 1998 and June 6,
2000, Jersey did not have a current chief operator with prior conduct certification at its sanitary
landfill. The People alleged that, as a result, Jersey was in violation of Section 21(d)(2) of the
Act and 35 Ill. Adm. Code 745.181 and 745.201. Sec. Am. Comp. at 40-42. However, in PCB
00-82 the Board found that Jersey was not required to have a chief operator with prior conduct
certification.
See supra
p. 3.
ARGUMENTS/DISCUSSION
The People claim that, despite the holding in the prior permit appeal, there are still
genuine issues of material fact and law at issue in this enforcement action and that a summary
judgment in favor of Jersey is inappropriate at this time. Mot. Str. at 4.
Res Judicata
Res judicata
is a legal doctrine which states that once a court decides a cause of action,
that cause of action cannot be retried between the same parties. ESG Watts, Inc. v. IEPA, PCB
96-181, slip op. at 2 (July 23, 1998) and ESG Watts, Inc. v. IEPA, PCB 97-210, slip op. at 2
(July 23, 1998), citing Burke v. Village of Glenview
et. al
, 257 Ill. App. 3d 63, 69, 628 N.E. 2d
465, 469 (1st Dist. 1993). The elements of
res judicata
are: (1) a final judgment on the merits
rendered by a court of competent jurisdiction; (2) an identity of cause of action; and (3) an
identify of parties. ESG Watts, PCB 96-181 and 97-210, slip op. at 2, citing People
ex rel.
Burris
v. Progressive Land Developers, Inc., 151 Ill. 2d 285, 294, 602 N.E.2d 820, 825 (1992).
Arguments
Jersey argues that
res judicata
does not apply. Instead Jersey claims that it is not in
violation of the Conditions A.4, C.2, C.3, and C.4 and the related provisions in the Act and the
Board’s regulations because those conditions no longer exist. Resp. at 5. However, the Board
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finds that Jersey is basically arguing that
res judicata
does apply in claiming that the decision
from the permit appeal does not need to be decided again in the enforcement action.
The People state that a prior decision in a permit appeal is not
res judicata
in a
subsequent enforcement action. Mot. Str. at 4, citing People v. Panhandle Eastern Pipeline Co.,
PCB 99-191 (Nov. 15, 2001); Panhandle Eastern Pipeline Co. v. IEPA, PCB 98-102 (May 20,
1999); Panhandle Eastern Pipeline Co. v. IEPA, PCB 98-102 (Jan. 21, 1999).
Discussion
In the Panhandle cases, the Board affirmed the Agency’s denial of Panhandle’s revised
air pollution permit. The Board held that
res judicata
would not apply in a subsequent
Panhandle enforcement case because “a permit appeal and an enforcement action are not the
same cause of action, and therefore a decision in a permit appeal has no binding effect in a
subsequent enforcement action”. Panhandle, PCB 98-102, slip op. at 7-8 (May 20, 1999). The
Board later found Panhandle liable for violations of the Act and the Board’s regulations in the
enforcement action, but did not base its finding on the holding in the Panhandle permit appeal.
Panhandle, PCB 99-191 (Nov. 15, 2001).
The Board found that
res judicata
did not apply in ESG Watts because permit appeals
and enforcement cases are not the same causes of action, there is a different inquiry in each one,
and the burdens of proof rest on different parties. ESG Watts, Inc. v. IEPA, PCB 96-181, slip
op. at 2 (July 23, 1998).
The Board finds that
res judicata
does not apply in the instant matter for the same reason
that it found
res judicata
did not apply in Panhandle and ESG Watts. The PCB 98-102 permit
appeal and this enforcement case are not the same cause of action.
Collateral Estoppel
Collateral estoppel can preclude relitigation of a specific issue even where
res judicata
does not apply. The Illinois Supreme Court has set three minimum threshold requirements for
applying collateral estoppel: (1) the issue decided in the prior adjudication is identical with the
one presented in the instant matter; (2) there was a final judgment on the merits in the prior
adjudication; and (3) the party against whom estoppel is asserted was a party or a party in privity
with a party to the prior adjudication. ESG Watts, PCB 96-181 and 97-210, slip op. at 2-3, citing
Talarico v. Dunlap, 177 Ill. 2d 185, 191; 685 N.E.2d 325, 328 (1997).
To begin with, the Board finds that the first and third parts of the minimum threshold test
have been met here. The same disputed permit conditions are at issue in PCB 00-82 and the
instant matter. Estoppel is being asserted against the People in the instant matter, and the People
are in privity with the Agency, the party opposing Jersey in PCB 00-82.
With respect to the second part of the threshold test, the People argue that the Board’s
order in PCB 00-82 may be reversed. Since Jersey’s motion for summary judgment in this
matter is based entirely on the Board’s holding in the June 21 and September 20 orders in PCB
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00-82, the People claim that the motion for partial summary judgement is not ripe until the 5th
District Appellate Court decides this matter. Mot. Str. at 3-4. Jersey responds to the People’s
argument by stating that appeals do not affect the finality of or suspend operation of Board
orders. Resp. at 4, citing 35 Ill. Adm. Code 101.904.
Section 101.904 of the Board’s procedural regulations does not control here as it only
provides that motions for reconsideration do not affect finality or suspend operation of Board
orders. Nevertheless, the Board notes that the Act and the procedural regulations refer to Board
orders on appeal as “final”.
See
415 ILCS 5/41 (2000); 35 Ill. Adm. Code 101.906. The Board
finds that the summary judgment order in PCB 00-82 was a final judgment on the merits of that
case for purposes of collateral estoppel. Accordingly, the three threshold requirements for
collateral estoppel are met here.
There are exceptions to the applicability of collateral estoppel. Collateral estoppel must
not be applied to bar a party from presenting a claim or defense unless no unfairness results to
the party being estopped. ESG Watts, PCB 96-181 and PCB 97-210, slip op. at 2-3, citing
Talarico, 177 Ill. 2d at 191-192.
See also
Van Milligan v. Board of Fire and Police
Commissioners, 158 Ill. 2d 85, 96-97; 630 N.E.2d 830, 836 (1994). The Board finds that this
exception does not apply to the facts herein. The People have not been barred from presenting
claims of defenses.
In the ESG Watts cases, the Board also found that collateral estoppel does not apply if the
burden of proof has shifted from the party against whom the doctrine is to be applied to its
adversary. ESG Watts, PCB 96-181 and PCB 97-210, slip op. at 2-3, citing the Restatement
(Second) of Judgments § 28(4). In the ESG Watts cases the burden shifted from the Agency (the
complainant in the related enforcement action PCB 96-107) to ESG Watts. ESG Watts was the
movant in a motion for summary judgment in those permit appeals. The Board found that
collateral estoppel did not apply.
Id.
In the instant matter, there has been no burden shift. In PCB 00-82, Jersey was the
petitioner in a motion for summary judgment and had the burden of proof there: that the
challenged conditions were not necessary to accomplish the purposes of the Act. In the instant
matter, Jersey is again the petitioner in a motion for summary judgment and still has the burden
of proof: that the stricken conditions do not apply to it and that lack of compliance with them
does not result in a violation of the Act or Board regulations. The Board finds that the burden
shifting exception does not apply here and thus finds that collateral estoppel does apply. It is not
necessary to relitigate those conditions that the Board struck in the permit appeal.
In applying collateral estoppel, the Board finds that its decision from the PCB 00-82
permit appeal on the invalidity of the contested permit conditions applies to the instant
enforcement case.
CONCLUSION
The Board grants Jersey’s motion for summary judgment. The Board finds that Jersey
did not violate the stricken conditions A.4., C.2., C.3., and C.4. of its Supplemental Permit No.
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1999-209-SP. Consequently, Jersey did not violate related Sections of the Act and the Board’s
regulations, namely 415 ILCS 5/21(d)(1), 5/21(d)(2), 5/22.17(a) and 5/22.17(b) (2000); and 35
Ill. Adm. Code 745.181 and 745.201.
The Board orders the remaining allegations in this matter to hearing consistent with the
Board’s resources.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on April 4, 2002, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
