ILLINOIS POLLUTION CONTROL BOARD
    February 4, 1993
    JOHN ZARLENGA and
    )
    JEAN
    ZARLENGA,
    )
    )
    Complainants,
    )
    v.
    )
    PCB 92—178
    (Enforcement)
    HOWARD EDISON, BRUCE MCCLAREN,
    )
    and GARY LAXEN,
    )
    )
    Respondents.
    ORDER OF THE BOARD (by J. Anderson):
    • Currently before the Board are 1) a December 11, 1992 motion
    to strike or dismiss the complaint in this matter by Partnership
    Concepts, Howard Edison, Bruce McClaren, Cove Development
    Company, Thomas O’Brien, and Gary Laken (respondents), 2) a
    December 11, 1992 motion for leave to file the motion to strike
    or dismiss instanter by respondents, 3) a January 20, 1993 motion
    for an extension of time to file a response to respondents’
    motion to dismiss by John and Jean Zarlenga, and 4) a January 20,
    1993 motion for waiver from the Board’s recycled paper
    requirement by the Zarlengas.
    Respondents’ Motion for Leave to File Instanter
    On November 12, 1992, the Zarlengas filed a formal complaint
    in this matter. On November 19, 1992, the Zarlengas filed a
    motion to amend their complaint. The Board granted the
    Zarlengas’ motion to amend on December 3, 1992. 35 Ill. Adm.
    Code 103.140(a) provides that a respondent may file a motion to
    strike or dismiss the complaint within 14 days after receipt of
    the complaint.
    In their motion, respondents assert that they will suffer
    material prejudice if their motion is denied, in that they would
    be compelled to incur additional and substantial costs and
    attorneys fees in defending against allegations that have already
    been litigated in PCB 89-169. Respondents add that the Zarlengas
    will not suffer any prejudice if the motion is granted in that
    this action is in its earliest stages and no substantial
    proceedings have yet occurred.
    The Board hereby grants respondents’ motion for leave to
    file its motion to strike or dismiss instanter.
    Zar1enc~as’ Notion for Extension of Time
    0139-0073
    2
    In their motion, the Zarlengas ask that the Board grant them
    until January 27, 1993, to file their response to respondents’
    motion to dismiss. In support of their motion, the Zarlengas
    assert that they first retained counsel on January 11, 1993,
    having determined that further pro se representation was not in
    their best interest. The zarlengas further assert that their
    counsel has not had a reasonable opportunity to review the
    documents in this matter and in relation to PCB 89—169 so as to
    be able to respond to respondents’ motion to dismiss by the
    January 20, 1993, as ordered by the Board in its January 7, 1993
    order. Respondents have not filed a response to the motion.
    The Board hereby grants the Zarlengas’ motion to extension
    of time, until January 27, 1993, to file a response.
    Zarlenc~as’ Motion for Waiver from Recycled Paper Requirement
    In support of their motion, the Zarlengas assert that their
    counsel has been unable to locate a source of recycled paper
    stock for it January 20, 1993 filings, but will attempt
    to locate a supplier for all subsequent filings. Respondents
    have not filed a response to the motion.
    The Board hereby grants the motion.
    Respondents’ Motion to Strike or Dismiss
    As previously stated, respondents filed their motion to
    dismiss or strike on December 11, 1992. The Zarlengas filed
    their response to the motion on January 27, 1993.
    In support of their motion, respondents assert that, under
    the doctrine of ~ ludicata, the complaint should be dismissed
    as to all parties because it fails to allege any new facts, cause
    of action, claims, or injuries that were not conclusively
    determined and resolved by the Board’s July 30, 1992 order in PCB
    89—169.
    Respondents also note that the parties in this action
    include individual respondents which the Board specifically
    dismissed from the prior action (i.e., Partnership Concepts, Cove
    Development Company, and Thomas O’Brien). Respondents assert
    that the Zarlengas have failed to allege any facts showing that
    any of these respondents have acquired any interest in One
    Blooiningdale Place subsequent to the Board’s dismissal order.
    Respondents argue that, under the doctrines of ~g judicata and
    collateral estoppel, the Zarlengas are barred from bringing
    action against these parties and that the complaint should be
    dismissed as to these parties.
    At the outset, the Board notes that, in its Nay 9, 1991
    interim opinion and order in PCB 89-169, it dismissed Partnership
    013900Th
    3
    Concepts, Cove Development Company, and Thomas O’Brien from the
    action on the grounds that none of the respondents owned or
    operated One Bloomingdale Place. The Zarlengas, in their
    response to respondents’ motion to dismiss, have failed to allege
    any facts showing that any of these respondents have acquired any
    interest in One Bloomingdale Place subsequent to the Board’s
    dismissal order. Accordingly, the Board dismisses Partnership
    Concepts, Cove Development Company, and Thomas O’Brien from this
    cause of action.
    The Board also notes that, although the Zarlengas have named
    Bloomingdale Partners as a respondent in their motions in this
    matter, they never named Bloomingdale Partners as a respondent in
    their initial complaint or amended complaint. Moreover, the
    Zarlengas never served Bloomingdale Partners with their complaint
    or amended complaint. As a result, Bloomingdale Partners is not
    a party to this action. Accordingly, the Board will delete
    Bloomingdale Partners from the caption of this case.
    The theory of ~ judicata does not bar actions based on
    facts occurring after the initial judgment. Ossler v. Village of
    Norridge (N.D. Ill. 1983) 557 F. Supp. 219. In fact, the Board,
    in its September 17, 1992 order in PCB 89—169, stated:
    .if a party believes that a noise problem persists...
    that) party would be expected to file another
    complaint because any finding of a continuing noise
    problem would have to be based on the Board’s
    evaluation of new facts.
    In this instance, respondents have made several changes at One
    Bloomingdale Place in an effort to abate the noise emitted
    therefrom. Moreover, new numeric data has been collected after
    the Board’s July 30, 1992 final opinion and order in PCB 89-169,
    and after such changes had been made. Accordingly, there are new
    facts to be presented into evidence in this matter. Moreover, as
    the Zarlengas correctly note, a party may maintain a cause of
    action against another for the continuance of a nuisance.
    Admiral Builders Corp. v. Robert Hall Village (1st Dist. 1981),
    101 Il1.App.3d 132, 427 N.E.2d 1032, 1036—37 citing to Chicago,
    Burlington & Ouincv Railroad v. Schaffer (1988), 124 Ill. 112,
    121, 16 N.E. 239.
    Accordingly, for the foregoing reasons, the Board hereby
    grants respondents’ motion to strike or dismiss the Zarlengas’
    complaint as it relates to Partnership Concepts, Cove Development
    Company, and Thomas O’Brien. The Board also will delete
    Blooxningdale Partners from the caption of this case. The Board,
    however, denies respondents’ motion to dismiss or strike the
    Zarlengas’ complaint in its entirety.
    IT IS SO ORDERED.
    0139-0075
    4
    I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above order was adopted on the
    2/#
    day of
    _______________,
    1993, by a vote of
    ~e
    Dorothy N. ,4unn, Clerk
    Illinois P~lution Control Board
    0139-0076

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