ILLINOIS POLLUTION CONTROL BOARD

May

27,

1982

ALICE

WElCH

AND HULDA WEICHg

)

Complainants,

V.

)

PCB 81—175

)

WILLARD VAN DRUNEN,

WARREN LINDELOF,

)

BEN BACHRACH,

AND JOHN BROWN,

)

Respondents.

ORDER OF THE

BOARD

(by J,D,

Dumelle):

On May

11, 1982

respondent Ben Bachrach filed

a motion to

stay and an alternative motion

to continue

proceedings

in this

matter.

In his motion for stay,

Bachrach contends:

1) that this

proceeding

is being misused by

Complainants to obtain a finding

of liability to be used as the

basis

for a damage claim

in an

associated damage action;

2)

that the Board cannot grant complete

relief due to the non-identity of parties in the two actions;

3)

that Bachrach would be exposed to multiple suits without the

benefit of res judicata

and 4)

that

the Board lacks jurisdiction

to decide Bachrach’s

counterclaim

against other respondents.

That motion is hereby denied.

First,

Complainants have established a cause of action and

have met all procedural requirements for going forward with this

action

(see Board Order of April

29,

1982).

The alleged “misuse”

of this action has not been established and is not generally

material to the issue of proceeding with it.

Second, there

is no

requirement that the Board be able to give “complete relief.”

The number of plaintiffs

is also

immaterial to

a determination

of whether environmental

harm has

resulted.

Third,

the Board is

uniquely suited to a determination of environmental issues and

the courts are uniquely suited

to

a determination of civil damages.

Complainants’ allegations,

if proven, show harm both to the environ-

ment and to the complainants.

In this context multiple lawsuits

may be the most appropriate procedures

Fourth,

the Board does have

the power to allocate penalties among parties.

If Bachrach can

establish that he was not the

source

of the problems alleged, no

penalty will be assessed against him,

If he

is one of multiple

sources the Board has the power to find separate or joint liability

for the penalty imposed.

If joint liability is imposed, that can

be worked out between the

liable parties.

2

The alternative motion for continuance is mooted by the fact

that the May 20, 1982 hearing date has already passed and the

motion has been ruled upon by the hearing officer.

IT IS SO ORDERED.

I,

Christan L.

Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify that the above Order was adopted on

the

~7~t~day

of

_________________,

1982 by a vote of

~,.

Christan L.

Moffett, ~~rk

Illinois Pollution Control Board

47-146