ILLINOIS POLLUTION CONTROL BOARD
May 18,
1995
RODNEY B.
I
M.D.,
)
Complainant,
)
V.
)
PCB 95—56
)
(Citizen Enforcement
-
Land)
KANE
COUNTY
BOARD,
)
WARREN
KANMERER,
CHAIRMAN,
)
)
Respondent.
ORDER OF THE BOARD
(by M. NcFawn):
This matter is before the Board upon a complaint filed by
Rodney B. Nelson, M.D.
(Nelson)
on March 17,
1995.
The complaint
alleges that two of the conditions imposed by Kane County upon
its January 11,
1994 grant of siting approval for an expansion of
the Settler’s Hill Landfill constitute an unreasonable amendment
to the application, which render the entire application approval
invalid.
(Complaint at 2.)
Nelson therefore seeks to have the
Board declare that the siting approval granted by Kane County for
expansion of the Settler’s Hill Landfill
is invalid.
Pursuant to Section 31(b)
of the Environmental Protection
Act (Act), the Board must make a determination as to whether the
complaint is frivolous or duplicitous.
Section 103.124(a)
of the
Board’s procedural rules provides:
If
a complaint is filed by a person other than the
Agency, the Clerk shall also send a copy to the Agency;
the Chairman shall place the matter on the Board agenda
for Board determination whether the complaint
is
duplicitous or frivolous.
If the Board rules that the
complaint is duplicitous or frivolous,
it shall enter
an order setting forth its reasons for so ruling and
shall notify the parties of its decision.
If the Board
rules that the compliant is not duplicitous, this does
not preclude the filing of motions regarding the
sufficiency of the pleadings.
(35 Ill. Adm. Code 103.124.)
An action before the Board
is duplicitous if the matter is
identical or substantially similar to one brought in another
forum.
(Brandle v. Ropp,
PCB 85—68,
64 PCB 263
(1985).)
An
action before the Board is frivolous if it fails to state
a cause
of action upon which relief can be granted by the Board.
(Citizens for a Better Environment v. Reynolds Metals,
Co., PCB
73-173,
8 PCB 46
(1973).)
Because we find that the complaint
2
does not state a claim upon which relief can be granted, we find
that this action is frivolous.
As an initial matter, we note that this action was filed as
a citizen’s enforcement action.
Section 103.122(c) (1)
of the
Board’s procedural rules requires that a formal complaint contain
“a)
reference to the provision of the Act and regulations which
the respondents are alleged to be violating.”
(35 Iii. Adm. Code
103.122(c)(1).)
We find that Nelson’s complaint fails to allege
any violations of the Act which are properly the subject of an
enforcement action.
The only section Nelson alleges has been violated is Section
39.2; he does not allege that the County is polluting in
violation of the Act or Board regulations.
In response to
questions
6 and 7 of the Board’s citizen complaint package, which
ask the complainant to describe the type,
location, duration and
frequency of the alleged pollution, Nelson’s complaint responds
“not applicable”.
(Complaint at 12.)
Similarly,
in response to
question 8, which asks the complainant to describe any bad
effects of the alleged pollution on human health, plant or animal
life,
or the environment, Nelson’s complaint responds “not
applicable.”
(Complaint at 13.)
The Board therefore finds
that, when viewed as an enforcement action, the complaint fails
to state a claim upon which relief can be granted, and that this
action is therefore frivolous.
Concerning the alleged violations of Section 39.2, Nelson’s
complaint is an attempted challenge to the siting decision of the
Kane County Board, wherein siting approval was granted for the
expansion of the Settler’s Hill Landfill.
However, as set forth
below, when viewed in this light, the complaint fails to state a
claim upon which relief can be granted.
The Illinois siting law,
sometimes known as S.B.
172, which
is codified as part of the Act, gives county and municipal
governments a limited degree of control over the siting of new
solid waste disposal sites within their boundaries.
(See M.I.G.
Investments, Inc.
v. IEPA,
119 Ill.Dec.
533,
535; 523 N.E.2d
1
(Ill.
1988).)
Furthermore, Section 39.2(g)
of the Act provides
in relevant part:
The siting approval, procedures, criteria and appeal
procedures provided for in this Act for new pollution
control facilities shall be the exclusive siting
procedures and rules and appeal procedures for
facilities subject to such procedures.
The sole and exclusive mechanism,
then,
for a third party to
challenge a siting decision of a county board or the governing
body of a municipality is set forth at Section 40.1 of the Act.
This section provides
in relevant part:
3
If the county board or the governing body of a
municipality
.
.
.
grants approval under Section 39.2
of this Act,
a third party other than the applicant who
participated in the public hearing conducted by the
county board or governing body of the municipality may
petition the Board within 35 days for a hearing to
contest the approval.
(415 ILCS 5/40.1(b).)
Nelson asserts that his complaint is not barred by the
statutory time limits contained in the Act since the complaint is
not based on the record developed during the public hearing held
to consider the original application.
We disagree.
Because
Nelson is seeking to challenge conditions imposed as part of the
siting decision of a county board,
Section 39.2(g)
of the Act
requires that Nelson’s complaint be subject to the limitations
set forth in Section 40.1(b)
of the Act.
Since more than 35 days
have elapsed since the county board’s siting decision, this
action is time—barred.
Furthermore, Nelson has already attempted to challenge the
Kane County Board’s siting decision,
in the action docketed as
Rodney B. Nelson,
III,
M.D.
v. Kane County. Kane CountY Board,
and Waste Management of Illinois,
Inc.
PCB 94-51.
In an order
issued April 21,
1994,
the Board dismissed that action, finding
that Nelson did not participate in the public hearing process
before the county board as required by Section 40.1(b).
(Rodney
B.
Nelson.
III, M.D.
V.
Kane County, Kane County Boarch and Waste
Management of Illinois,
Inc.
(April 21,
1994)
PCB 94—51.)
As
set forth below, the Board finds that the present action is
barred by the doctrine of
res judicata.
The doctrine of res
judicata
provides that 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,
as to them,
constitutes an absolute bar to a subsequent
action involving the same claim, demand or cause of action.
(Torcasso v. Standard Outdoor Sales,
Inc.,
193 Il1.Dec.
192,
195,
626 N.E.2d 225
(Ill.
1993); People v. Chicago
& Illinois Midland
Ry.
Co., 196 Ill.Dec.
369,
371,
629 N.E.2d 1213
(Ill.App.
5 Dist.
1994).)
Res judicata
bars all matters that were actually raised
or could have been raised in the prior proceeding.
(Torcasso v
Standard Outdoor Sales,
Inc.,
193 Ill.Dec.
192 at 195, 626 N.E.2d
225; People v. Chicago
& Illinois Midland Rv. Co. at 195,
196
I1l.Dec.
369 at 371, 629 N.E.2d 1213; A.W. Wendell and Sons.
Inc.
v.
Oazi,
193 Il1.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.
(Ill.
1992).)
An order
dismissing a suit with prejudice is considered a final judgment
on the merits for purposes of applying res
judicata.
(People v.
4
Chicago
& Illinois Midland Ry.
Co.
196 Il1.Dec. 369 at 371,
629
N.E.2d 1213.)
The test generally employed to determine the identity of
cause of action for purposes of
ros judicata
is whether the
evidence needed to sustain the second cause of action would have
sustained the first.
(Torcasso v.
Standard Outdoor Sales,
Inc.,
193 Ill.Dec.
192 at 195,
626 N.E.2d 225
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 v.
St. Mary’s Hospital of Decatur,
173 Ill.Dec. 642 at
647,
597 N.E.2d 616.)
We find that under either test,
the
present action is barred by the Board’s action in Rodney B.
Nelson.
IlL. M.D.
V.
Kane County. Kane County Board, and Waste
Mana~ementof Illinois,
Inc.
(April 21,
1994) PCB 94—51;
appeal
dismissed sub nom.
Nelson
v. Pollution Control Board,
No.
2—94-
0946
(3rd Dist.
1994).)
In this action and the prior action, the parties are the
same,
and the Board is the proper forum with competent
jurisdiction.
The prior action in PCB 94-51 conclusively
determined Nelson’s right to challenge the Kane County Board’s
siting decision, and was a final determination on the merits as
to Nelson’s statutory right to seek relief.1
In the present
action, Nelson is again attempting to appeal the siting decision
of the Kane County Board, despite the prior adjudication which
held that he failed to participate in the public hearing process
before the county board as required by Section 40.1(b).
We
therefore hold that the prior action acts as an absolute bar to
the present action.
CONCLUSION
We find that this action, when viewed as an enforcement
action,
fails to allege
a violation of the Act or related
regulations, as required by Section 103.122(c) (1)
of the Board’s
procedural rules.
Alternatively,
if this action is viewed as a
challenge to the Kane County Board’s siting decision, we find
that it is subject to the limitations set forth
in Section
40.1(b)
of the Act, and that
it is therefore untimely, since it
was not filed within 35 days of the Kane County Board’s siting
decision.
Furthermore, such
a challenge to the Kane County
The Board reviewed the Kane County Board’s decision on
the merits in the related action City of Geneva
v. Waste
Management of Illinois,
Inc. and County Board. County of Kane.
State of Illinois (July 21,
1994)
PCB 94—58.
5
Board’s siting decision is barred by the doctrine of
res
judicata, due to the Board’s dismissal of Nelson’s prior action,
docketed as PCB 94-51.
We therefore find that this action does
not state a claim upon which relief can be granted, and is,
therefore,
frivolous.
This action
is hereby dismissed and this
docket is closed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1992)) provides for the appeal of final Board orders within
35 days of the date of service of this order.
The Rules of the
Supreme Court of Illinois establish filing requirements.
(See
also 35
Ill. Adm. Code 101.246. “Motions for Reconsideration”.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above order was adopted on the
~
day of
7Tha~_p
1995,
by a vote of
_______
Dorothy M. gunn, Clerk
Illinois P6~.lutionControl Board