ILLINOIS POLLUTION CONTROL BOARD

August

11, 1994

COUNTY OF OGLE,

)

Complainant,

)

v.

)

AC 94—37

(Administrative Citation)

ROCHELLE DISPOSAL SERVICE,

)

INC.,

and CITY OF ROCHELLE,

)

ILLINOIS,

)

Respondents.

ORDER OF THE BOARD

(by C.

A. Manning):

This action was initiated on June

27, 1994,

by the filing of

an administrative citation by the County of Ogle

(County).

The

administrative citation was filed pursuant to Section 31.1 of the

Illinois Environmental Protection Act

(Act).

The authority to

issue administrative citations was delegated to the County

pursuant to Section 4(r)

of the Act.

(415 ILCS 5/31.1 and 5/4(r)

(1992).)

The administrative citation charges Rochelle Disposal

Services (Disposal)

and the City of Rochelle

(City) with

violation of Section 21(o)(1),

21(o)(5)

and 21(0) (12)

of the

Act.’

Disposal filed a motion to strike and dismiss itself from

the complaint on the same day the administrative citation was

filed.

The County filed a response on July

6,

1994.

On July

7,

1994, Disposal filed a “Motion for Bill of Particulars.”

The

County as of the date of this order has not filed

a response to

the motion.

Disposal argues that it is not the holder of the operating

permit issued by the Agency to operate the landfill and therefore

it is not a proper party to the administrative citation.

Disposal cites Environmental Protection Agency v. Pollution

Control Board,

186 Ill.

App.

3d 995,

134 Ill.

Dec.

634,

542 N.E.

2d 1141

(1989)

as authority for its position.

In that case the

court affirmed the Board’s ruling that the Agency could not file

an administrative citation to an operator of an unpermitted

landfill under the section of the Act which applied to permitted

landfills.

That case is inapplicable because in this case there

is a permitted sanitary landfill, and it is appropriate to issue

1Section

21

of

the Act

was amended

by Public

Act

87-752,

effective

January

1,

1992.

As

a

result,

the

two

subsections

enforceable through the administrative citation process have been

changed from 21(p)

and 21(q)

to 21(0)

and 21(p)

respectively.

---

2

an administrative citation to the operator of a permitted

landfill.

In previous cases the Board has held that when where

the County has issued administrative citations to both the City

and Disposal, Disposal is a proper party to the action.2

The

Board finds no reason today to overturn those prior decisions.

Disposal also argues that because the Agency in a prior

case, Rochelle Disposal Service v.

Illinois Environmental

Protection Agency, AC 89-68,

stipulated that the parties agreed

that the City of Rochelle would be responsible for the subject

sanitary landfill and payment of the civil penalties, Disposal is

not a proper party in the present proceeding.

The fact that the

Agency stipulated in AC 89-68

that Disposal was not responsible

carries no weight in this proceeding.

The contents of that

stipulation are particular to that case at hand and cannot be

used for evidentiary purposes or precedent in another matter.

Therefore the motion to strike and dismiss is denied.

Disposal argues that the allegations in the administrative

citation issued by the County are so wanting in details that a

bill of particulars

is necessary.3

Disposal states that,

since

the administrative citation was issued against both itself and

the City, but refers to the “Respondent” in the allegations of

violations, Disposal

is unable to determine what allegations

apply to it.

The Board procedural rules do not contain a provision

allowing for a motion for a bill of particulars.

The Board

procedural rule at 35

Ill. Adm. Code 101.100 states that in the

absence of a specific provision in the Board’s procedural rules

the parties may argue that a particular provision of the Code of

Civil Procedure and the Illinois Supreme Court Rules should

apply.

In this instance, Disposal is arguing that the Board

should apply

Section 5/2-607 of the Code of Civil Procedure to

this matter.

A bill of particulars is designed to appraise an

opposing party of claims made in order to guide the opposing

party in trial preparation, and ordinarily

~,

party is limited to

2See County of Ogle v. Rochelle Disposal Service and City of

Rochelle, Illinois

(August 26, 1993), AC 92—64; County of Ogle v.

Rochelle Disposal Service and City of Rochelle,

Illinois,

(October

1, 1992), AC 92—64; County of Ogle v. Rochelle Disposal Service and

City of Rochelle,

Illinois,

(September

23,

1993),

AC 91—32;

and

County of Ogle v. Rochelle Disposal Service and City of Rochelle.

Illinois, (June

4,

1992),

AC

91-32.

The Board notes

that these

cases have been appealed to the Appellate Court.

(App.

No. 2-93-

1384 (AC 91—32) and App. No. 293—1383.)

3The Code of Civil Procedure Section 5/2-607 discusses the use

of the bill of particulars.

(735 ILCS 5/2—607

(1992).)

---

3

proof of matters particularized.

(Kolberci

v. Cities Service Oil

~.,

1951,

343 Ill. App.

355,

99 N.E.2d 152.)

The allegations

in the administrative citation are explicit

and not wanting in details as to what violations are alleged and

to what Disposal and the City are to prepare for trial.

The fact

that

the administrative citation is not clear as to whether the

allegations apply to both the City and Disposal jointly or

severally does not persuade the Board to grant the motion for the

bill of particulars.

Joint and several liability is presumed and

the complaint

is not wanting in detail.

(See County of Ocile

v.

Rochelle Disposal Service and

City

of Rochelle, Illinois,

(August

26,

1993), AC 92—64.)

The motion for bill of particulars

is

denied.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the

Illinois Pollution Control

Board, hereby certify that~heabove order was adopted on the

_________

day of ______________________,

1994,

by ~/Avoteof

-0

1/

~

~-D~r6thy M. Gunñ, Clerk

Illinois Pollution Control Board

(‘I