ILLINOIS POLLUTION CONTROL BOARD

January 5, 1989

NORTHERN ILLINOIS ANGLERS’

)

ASSOCIATION, an Illinois

Corporation,

Petitioner,

)

v.

)

PCB 88—183

THE CITY OF KANKkKEE,

a Municipal Corporation,

)

Respondent.

ORDER OF THE BOARD (by J. Marlin)

By its Order of November 17, 1988, the Board ordered the

parties in this matter to brief the issue of whether a 1987

consent decree entered by the Kankakee County Circuit Court

precludes Board action on this complaint given the requirement of

Section 31(b) of the Environmental Protection Act (Act) that

complaints not be duplicitous or frivolous. Northern Illinois

Anglers’ Association (NIAA) filed its brief on December 8, 1988,

and the City of Kankakee (Kankakee) filed its brief on December

12, 1988.

NIAA asserts that its complaint should be accepted for

hearing because “the relief sought by complainant in this cause

is of a distinctively different character than the court

proceeding, arising as a result of an action created by statute,

in clear contrast to the court’s power to enforce its consent

decree by way of contempt proceedings”. As support for this

assertion NIAA relies primarily upon Janson v. Illinois Pollution

Control Board, 69 Ill. App. 30 324, 387 N.E. 2d 404 (3rd Dist.

1979).

In Janson, the Third District held that a complaint before

the Board was properly allowed by the Board and was not precluded

by an action in circuit court which sought the enforcement of

previously issued consent decree. The court found it “clearly

apparent that the separate proceedings are not identical and do

not involve a resolution of the same issues”. The court based

its holding on two findings.

First, the court addressed the issue of the requested

relief:

The relief sought in the circuit court action

was an injunction prohibiting future

pollution activities of the petitioner and

collection of the monetary penalty provided

95—69

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2

for in the court approved stipulation

order. The Pollution Control Board has no

authority to adjudicate the issue of

petitioner’s violation of the stipulation

approved by the circuit court action. The

Board has no authority to issue or enforce

injunctive relief as requested in the circuit

court or to punish for civil contempt.

387 N.E. 2d at 408.

Secondly, the court compared the relative timing of the

events underlying each action.

Also of great significance is the time span

that the petitioner allegedly engaged in

pollution activities. The circuit court

proceeding initially involved petitioner’s

pollution activities which occurred prior to

and resulted in the 1971 stipulation which

provided the petitioner would upgrade his

dump operation activities.

***

On the other hand the complaint before the

Pollution Control Board, as heretofore

indicated, alleged specific violations of the

Environmental Protection Act and the 1973

Solid Waste Rules of the Pollution Control

Board, and the latter did not become

effective until July 27, 1973.

Id.

Consequently, in Janson the circuit court and Board actions

were distinct in both legal and factual bases. On this issue,

the court concluded:

Although the two proceedings do have some

aspects in common we do not believe that they

are sufficient to classify them as identical

causes of action and thereby require the

abatement of one by the other.

387 N.E. 2d at 752.

Because the court found the two actions distinct, it held that

the doctrine of priority jurisdiction did not apply to the Janson

appeal. After recognizing that the Board and circuit court had

some concurrent jurisdiction under the Act, the court described

the doctrine of priority of jurisdiction.

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3

The doctrine of priority of jurisdiction

provides that where two actions between the

same parties on the same subject are brought

in different courts with concurrent

jurisdiction the first court which acquires

jurisdiction retains its jurisdiction.

387 N.E. 2d at 751.

Now that Janson has been reviewed, the Board can apply the

rationale of that court to the facts at hand. The circuit court

“action” relevant to this matter concerns a consent decree

entered by the Circuit Court of the Twenty—First Judicial

District, County of Kankakee, on May 26, 1987. The People of the

State of Illinois, as represented by the State’s Attorney of

Kankakee County, Illinois Environmental Protection Agency

(Agency) and Kankakee were parties to the settlement agreement.

NIAA was not a party to the agreement. The consent decree

resulted from a complaint brought by the People of the State of

Illinois, at the request of the Agency. The basis for the

action, and subsequent consent decree, were discharges to waters

of the State by Kankakee’s wastewater treatment system.

A copy of the consent decree is attached to Kankakee’s

brief. Under Section VII, entitled “Final Judgement Order”, the

decree provides:

This Court shall retain jurisdiction of this

matter for the purposes of interpreting,

implementing and enforcing the terms and

conditions of this Decree and for the purpose

of adjudicating all matters of dispute among

the parties.

(Consent Decree, p.12).

Also, under Section VII, the decree states:

Kankakee shall cease and desist from

violation of 35 Ill. Adm. Code 304.121 for

fecal coliform not later than January 1,

1988, in conformance with the monthly average

chlorine residual requirement in its NPDES

Permit. Kankakee shall cease arid desist from

violation of its NPDES Permit and 35 Ill.

Adm. Code 309.102 for BOD5, suspended solids

and for system overflows by July 1, 1989.

(Consent Decree, p.11)

NIAA’s complaint entails allegations which can be summarized

as follows.

95—7 1

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4

Basis for Alleged Violation Time Period of Alleged Violation

Five—day biochemical oxygen

1/1/88

—

7/31/88

demand (BOD5) discharge

Suspended solids

1/1/88

—

7/31/88

(SS) discharge

Fecal coliform discharge

1/1/88

—

7/31/88

SOD5, TSS

8/1/88

—

8/9/88

Fecal coliform discharge in

excess of permit requirements

which caused destruction of

aquatic life

Operating plant without

8/1/88

—

8/8/88

supervision of Certified

Class I Operator

and SSNIAAfor

allegesa

time

violationsperiod

includedfor

Kankakee’sby

the consentdischargesdecree’sof

BODcease5

and desist provision. That is, the consent decree requires

Kankakee to cease its BOD5 and SS violations by July 1, 1989, yet

NIAA’s allegations concerning those parameters concern alleged

incidents of violation before that date.

With regard to the alleged fecal coliform violations, NIAA

alleges that these violations occurred subsequent to January 1,

1988. The consent decree provides that Kankakee shall cease and

desist from violations of the fecal coliform standard not later

than January 1, 1988.

Unlike in Janson, the time span for the alleged pollution

activities involving discharges of BOD5 and SS as alleged by NIAA

in its complaint before the Board, is covered by the cease and

desist portion of the consent decree. However, as to fecal

coliform, the alleged violations took place subsequent to the

time—span covered by the cease and desist order. The Board

believes that a citizen action seeking to enforce Board

regulations concerning fecal colifom for a time period subsequent

to January 1, 1988 is not barred by the circuit court’s consent

decree.

With regard to NIAA’s allegation concerning the Certified

Operator violations, it appears that the consent decree did not

address that specific aspect of Kankakee’s activities during the

time frame alleged by NIAA.

Given these circumstances, it is the Board’s position that

it should defer to the circuit court as to adjudging Kankakee’s

activities concerning BODç and SS during that time span

referenced in NIAA’s complaint. Obviously, the circuit court

95—72

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5

addressed these activities and retained jurisdiction of the

matter prior to the Board’s current involvement. To that extent

the Board dismisses NIAA’s complaint.

However, the Board will accept the complaint insofar as the

allegations concerning fecal coliform after January 1, 1988 and

the Certified Operator violation. If the Board were to accept

Kankakee’s argument that a private citizen is barred from

bringing an enforcement action against Kankakee, the Board would

effectively be finding that no private citizen could ever seek

enforcement against Kankakee, so long as the consent decree has

not been vacated. Such an outcome seems to be counter to the

intent of the Act which clearly provides for citizen

enforcement.

The Board need not and does not address the issue of whether

NIAA would have standing to bring an enforcement action before

the circuit court seeking enforcement of the May 1987 consent

decree. Neither does the Board take a position as to whether

NIAA could properly pursue its complaint in the circuit court.

However, the Board does refer NIAA to Section 45(b) of the Act.

Today, the Board merely addresses the issue of whether NIAA’s

complaint is duplicative of a prior action before the circuit

court.

Although NIAA was not a party to the circuit court’s consent

decree, it is the actions of the respondent, Kankakee, which are

relevant to any enforcement action. The intent behind the

prohibition against “duplicitous” complaints is to avoid the

situation where private citizens’ complaints raise the same issue

and unduly harass a repondent. Pursuant to Section 31(b) of the

Act, the Board may “dismiss complaints raising allegations

identical or substantially similar to matters previously brought

before the Board”. Winnetkans Interested in Protecting the

Environment v. Pollution Control Board, 55 Ill. App. 30 475, 479

480, 370 N.E. 2d 1176 (2st Dist. 1977). It is the Board’s

position that in instances where the Board has concurrent

jurisdiction with the circuit court, substantially similar

matters previously brought before the circuit court can similarly

be dismissed by the Board. Brandle v. Ropp, PCB 85—68, 643 PCB

263(June 13, 1985).

For these reasons, the Board does not believe its action

today deprives NIAA of any statutory right to prosecute

Kankakee. The circuit court acted as the forum to adjudge the

andproprietySS for

oftheKankakee’stime

periodactionsreferencedconcerningin NIAA’sits

dischargescomplaint, ofandBOD5

the environment is no less protected as a result. As stated

above, the Board accepts the complaint to the extent of the fecal

coliform after January 1, 1988 and Certified Operator

allegations. The remainder of the complaint is dismissed.

IT IS SO ORDERED.

q5—73

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6

J. Anderon concurred.

I, Dorothy M. Gum, Clerk of the Illinois Pollution Control

Board, hereby certify that the ove Opinion and Order was

adopted on the

,5~1

day of

_________________,

1989, by a vote

of

7—c

~?~sM;1b~olBoa

95—74