ILLINOIS POLLUTION CONTROL BOARD
    December 7,
    1995
    PEOPLE OF THE STATE OF ILLINOIS,
    )
    Complainant,
    )
    v.
    BELL SPORTS,
    INC.
    a California
    )
    Corporation,
    AND
    WASTE HAULING
    )
    LANDFILL,
    INC.,
    an Illinois
    )
    Corporation,
    AND
    WASTE HAULING,
    )
    INC., an Illinois Corporation,
    )
    Respondents.
    —
    )
    PCB 95—91
    )
    (Enforcement
    -
    Land)
    WASTE HAULING LANDFILL,
    INC.,
    )
    an Illinois Corporation,
    AND WASTE HAULING,
    INC.,
    an
    )
    Illinois Corporation,
    )
    Counterclaimants,
    )
    v.
    BELL SPORTS,
    INC.
    a California
    )
    Corporation,
    Counterrespondent.
    DISSENTING OPINION
    (by J. Theodore Meyer):
    I concur in part and dissent in part from the majority order
    in this matter.
    I agree that Bell Sports’ Motion to Dismiss must
    be denied because Waste Hauling Landfill
    (WHL)
    and Waste Hauling,
    Inc.
    (Will),
    as private entities, clearly have the right to file
    an enforcement action against
    Bell Sports.
    It is also
    appropriate to consolidate this counterclaim with the State-
    initiated enforcement action because the claims involve the same
    site and same parties.
    I disagree with the majority in its denial of WilL’s and
    Will’s Motion to Dismiss.
    I continue to hold that the doctrine of
    res judicata
    applies in this matter.
    The doctrine of
    res
    judicata
    prohibits a court from ignoring an action pending in
    another court when that action involves the same parties on the
    same subject.
    (First Nat. Bank of Skokie v.
    Puetz,
    124
    Ill.App.3d 240, 464 N.E.2d 704
    (1st Dist.
    1984).)
    Res judicata
    also prevents relitigation of those issues actually raised in the
    first proceeding,
    as well as any issue that might have been
    raised.
    (Rein
    V.
    David A.
    Noyes and Company,
    271 Ill.App.3d 768,
    649 N.E.2d 64
    (2nd Dist.
    1995) (Emphasis added).)
    The proper test
    2
    to determine the application of the doctrine is whether the
    actions are based upon a common core of operative facts,
    or
    whether the same evidence would sustain both actions.
    (Horton v.
    Caterpillar, Inc., 260 Ill.App.3d 150,
    632 N.E.2d 1061 (3rd Dist.
    1994).)
    In the instant matter, the Attorney General’s office chose
    to bring an action in circuit court on January 23,
    1992 alleging
    violations of the Environmental Protection Act, the Board’s Waste
    Disposal Regulations, and certain sections of the Administrative
    Code.
    The complaint encompasses violations which have been
    ongoing since
    1987 and which pertain to permit violations and
    lack of closure and post—closure plans.
    (See
    People of the State
    of Illinois v.
    Waste Hauling Landfill,
    Inc., 92—CH—5 at Exhibit
    “A” of Respondent’s Motion to Dismiss.)
    On March 14,
    1995,
    the Attorney General filed
    its complaint
    with the Board,
    alleging hazardous waste violations based upon
    evidence seized pursuant to a search warrant obtained during the
    prosecution of the above—mentioned case.
    (Respondent’s Motion to
    Dismiss,
    p.2.)
    These alleged violations involve the same site,
    a
    common core of operative facts,
    and parties whose interests are
    sufficiently similar even though they differ in name and number,
    thus satisfying the “same parties” requirement.
    (See
    Skipper
    Marine Electronics,
    Inc.
    v. Sibernet Marine Products,
    120
    Ill.App.3d 692,
    558 N.E.2d 324
    (1st Dist.
    1990).)
    Although
    additional evidence may have been necessary in order to file
    hazardous waste violations against the parties,
    I find it
    compelling that this evidence was found pursuant to a search
    warrant obtained during the prosecution of the case before the
    circuit court.
    Since all prongs of the
    res judicata
    test have been met, the
    Board must decline taking this case,
    even if the complaint before
    the circuit court does not raise the issue of hazardous waste
    violations.
    The state will in no way be prejudiced by dismissal
    of its action before the Board because the alleged hazardous
    waste violations relate back to the case pending before circuit
    court, thus allowing for an amended complaint.
    Additionally,
    complainant should be estopped from arguing
    that it can bring
    a cause of action before the Board when it had
    previously argued before the circuit court that the circuit
    court, rather than the Board, was the proper and most appropriate
    forum.
    For these reasons,
    I respectfully dissent
    ~
    J. Theodore Meyer
    Board Member
    3
    I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above dissenting opinion was filed
    on the
    ~?/~4~1~
    day of
    ______________,
    1995
    Dorothy N.
    Illiois
    Control Board

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