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,

)

Counter—respondent.

ORDER OF THE BOARD

(by M. McFawn):

This matter is before the Board on two motions to dismiss.

The first is a joint motion to dismiss two counts of the State of

Illinois’ complaint’

(Counts V and VI) which was filed by Waste

Hauling Landfill,

Inc.

(WHLI)

and Waste Hauling,

Inc.

(WHI)

on

September

11,

1995.

The second

is motion to dismiss filed by

Bell Sports,

Inc.

on September 18,

1995 seeking to strike a

counterclaim brought by WHLI and WHI against Bell Sports,

Inc.

Responses to each of the motions were timely filed by the State

and WHLI/WHI respectively.

For reasons more fully explained

below, we deny both motions to dismiss and return this case to

the hearing officer for scheduling of discovery and hearing.

‘The

original complaint

was

filed by the Attorney General on behalf of

the Illinois Environmental Protection Agency and the State of Illinois on June

14,

1995.

---

2

WEL AND

WRI’S

MOTION TO DISMISS

COUNTS

V

AND

VI

OF

THE

COMPLAINT

WHLI and WHI’s September 11,

1995 motion to dismiss is the

second motion to dismiss filed in this case by these parties.

In

denying WHLI and

WHI’s

June 14,

1995 first motion to dismiss on

August

3,

1995, the Board rejected WHLI and

WHI’s

argument that

the entire complaint before the Board arose out of the “same

transaction or occurence” as another matter pending before the

circuit court in Macon County,

Illinois since 1992 and that it

was therefore subject to dismissal pursuant to Section 2-

619(a) (3)

of the Illinois Code of Civil Procedure.

The Board,

instead,

found this case was not substantially similar to the

matter pending in circuit court and that it was appropriate for

this case to proceed to hearing before the Board.

We agreed with

the Attorney General that the two actions are different in that

this case involves alleged violations of the State’s Resource

Conservation and Recovery Act provisions, while the case before

the circuit court involves alleged violations for operating a

sanitary waste landfill out of compliance with the Act and the

Board’s regulatory sanitary landfill requirements.

(See Board

Order of August

3,

1995 at 2.)

In the instant motion, WHLI and WHI renew their objection to

the complaint going forward; however only as to Counts V and VI.

In the instant motion, WHLI and

WHI

again argue under the

principles of

.res

judicata

and

estoppel,

and additionally for the

first time,

under the common law doctrine of claim splitting,2

that the State of Illinois can not proceed against WHLI and WHI

before the Board while a case involving similar facts and

allegations remains pending in the circuit court.

WHLI and WHI

further argue that the State of Illinois is barred by

res

judicata

from obtaining relief before the Board when the State

has already been awarded preliminary injuntive relief from the

circuit court order regarding the substance of Counts V and VI.

In response, the Attorney General argues that the Board

already decided the question of whether the complaint

(or any

portion thereof) should be dismissed on the basis that this case

arises out of the “‘same occurrence or transaction’ as another

matter pending before the circuit court”, when the Board denied

WHLI and Will’s first motion to dismiss on August

3,

1995.

The

Attorney General argues that on this ground alone,

the motion

should be denied.

The Attorney General also argues that claim

splitting does not prohibit the Attorney General from exercising

his prosecutorial discretion of bringing this action before the

‘Under the rule against claim splitting a plaintiff is not permitted to

sue for part of a claim in one action and then sue for the remainder in

another action.

(Rein

v. David A.

Noyes

& Co.

list Dist.

1995)

649 N.E.2d

65,

208

Ill.

Dec.

232.)

---

3

Board while a complaint remains pending in the circuit court.

The

Attorney General believes this is especially true here where

Counts V and VI of the complaint before the Board relate to

hazardous

waste

and

Counts

I

and

VI

of

the

complaint

in

circuit

court concern solid waste,

rendering the two matters

substantially different and thus, the complaint sufficient to

survive a motion to dismiss.

(Response at 5.)

We

deny

WHLI

and

WHI’s

second motion to dismiss and do so

for the same reasons as articulated in our order of August

3,

1995.

WHLI and

Will

have failed to raise any new legal argument

or

present

any other reason to alter or reconsider our earlier

decision

denying

WHLI

and

Will’s

first motion to dismiss.

While

WITLI

and

Will

now

raise,

for

the first time,

the issue of “claim

splitting” after we have entered our August

3 order, we do not

find this argument to be any more compelling than WHLI and Will’s

prior

estopped. and res judicata

arguments previously raised on

this issue.

All of these legal theories share the same public

policy concerns against avoiding the unnecesssary harassment of

multiplicitous lawsuits rising out of the same transaction or

occurence

(See Rein,

208 Ill. Dec.

at 235.)

In this instance,

the Board has already determined that the case pending before the

Board

was

appropriatly

brought

by

the

Attorney

General

and

it

is

not substantially similar to warrant dismissal.

We note

additionally that the circuit court has made a similar finding.3

Therefore, we believe it appropriate that the Attorney General

may

bring

the

action

before

the

Board,

and

we

will

not

dismiss

Counts V and VI.

BELL SPORTS’ MOTION TO DISMISS

THE COUNTERCLAIM OF

WHLI AND WHI

Also pending before the Board is a September 18,

1995 motion

to dismiss the counterclaim of

WHLI

and Will filed by Bell Sports.

As part of WHLI and WHI’s answer to the complaint (filed on

September 11,

1995), these two respondents included a

counterclaim against Bell Sports which essentially alleges that

the paint sludge by—products at issue in this case were generated

by

Bell

Sports

without

regard

to

the

RCRA

permitting, hazardous

waste determination, or marking or analysis requirements of the

Board’s

regulations.

WHLI

and

Will further allege that Bell

Sports’ actions have caused WHLI and Will to be subjected to

potential civil penalties through “no fault of

its own and due

30n September 14,

1995,

the circuit court in denying a motion for

preliminary injunction to prevent the Attorney General from proceeding against

Waste Hauling Landfill,

Inc. before the Board in the instant action,

held

that it could not enjoin the Director of the IEPA from proceeding because this

case is “not technically a multiplicitous action” to the matter pending in

circuit court.

(People v.

Waste Hauling Landfill,

Inc.,

No.

92—CH-5,

September

14,

1995,

Order at

2.)

---

4

solely to the failure of the Respondent,

Bell Sports,

Inc.,

to

conduct its operations in such a manner as to determine whether

its paint sludge may or may not contain excess levels of

substances alleged to be hazardous waste.”

(WHLI and

Will

Answer/Counterclaim

at

18.)

WHLI

and

Will

thus request that the

Board assess civil penalties against Bell Sports only and

“exonerate”

WHLI

and

WHI.

(Id.)

The

motion

to

dismiss brought by Bell Sports argues that the

counterclaim is “duplicative” of the complaint filed by the State

of Illinois and frivolous and should therefore be dismissed under

the Board’s standards for “frivolous and duplicitous

determinations”.

(Motion at 3-4.)

Bell Sports also argues it is

“frivolous” because the counterclaim can be read to seek monetary

compensation

from

Bell

Sports

to

reimburse

WHLI

and

Will

for

their

share of any civil penalites that may be assessed in this case.

We deny the motion to dismiss and do so because it is clear

that

WHLI

and

Will

have the right to file a private citizen

enforcement actions against Bell Sports pursuant to Section 31(b)

of the Act.

(415 ILCS 5/31(b).)

Therefore,

for administrative

efficiency and because the claims involve the same site and the

same parties as the principal case,

it is equally appropriate

that a counterclaim

(or crossclaim)

also be allowed.

(See e.g.

Lefton Iron and Metal

Co.

v. Moss-American Corp.

and Kerr-McGee

Chemical Corp.

(March

9,

1989)

PCB

87—191,

97 PCB 110

(the

procedural rules do not necessarily preclude allowing a

counterclaim).)

In several private citizen enforcement actions,

the Board has allowed the filing of a counterclaim4 and in one

case,

has consolidated a separate citizens’ enforcement action

together with a State—initiated enforcement action, so as to

adjudicate the case in the same proceeding.

(People

v. Boyd

Brothers,

PCB 94-275 and Boyd

Brothers

v. Abandoned Mined Lands

Reclamation Council,

PCB 94—311 (consolidated December

1,

1994)

.)

In denying the motion to dismiss we find that the

counterclaim is neither frivolous nor duplicitous as we believe

that WHLI and

Will

are entitled to argue,

among other things, and

present evidence on the issue of responsible parties,

liability

for violating the Act and any corresponding regulations.

Importantly, WHLI and

WHI

are entitled.to offer evidence on the

issue of the proper apportionment of any civil penalties that the

Board may award.

Accordingly, both the joint motion to dismiss two counts of

the State of Illinois’ complaint (Counts V and VI)

filed by

WHLI

41n addition to

Lefton Iron and Metal

Co.,

the Board has also allowed

counterclaims

in

Miehle

v.

Chicago Bridge an

Iron Co.

(December 16,

1993)

PCB

93-150)

and

Mandel

v.

Kulpaka

(February 25,

1995 and August

2,

1995)

PCB

92—

33.

---

5

and

Will

on September 11,

1995,

and the Bell Sports’ motion to

dismiss the counterclaim brought by WHLI and Will,

are denied.

As

a hearing officer has been assigned to this case,

this matter

shall proceed to hearing.

We expect the proof at hearing will

conform with the elements of the complaint brought by the State

of Illinois and there will be a nexus to the hazardous waste

violations,

and the State should not prove up violations that are

pending in circuit court.

Additionally, Bell Sports has

requested in a motion filed both on October

2,

1995 and November

1,

1995, an extension of time in which to file an answer to WHLI

and WHI’s counterclaim.

The motion

is granted.

The answer is

now due on or before December 21,

1995.

IT IS SO ORDERED.

Board member J. Theodore Meyer concurred in part and

dissented in part.

I, Dorothy N.

Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that

th,s-)

above order was adopted on the

7’~—~

day of

~

,

1995,

by a vote

of

,.3~.,’

Dorothy M. ~nn,

Clerk

Illinois Po&’lution Control Board