ILLINOIS POLLUTION CONTROL BOARD
July 10, 1997
ENVIRONMENTAL SITE DEVELOPERS,
INC., an Illinois corporation,
Complainant,
v.
WHITE & BREWER TRUCKING, INC., an
Illinois corporation,
Respondent.
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
WHITE & BREWER TRUCKING, INC., an
Illinois corporation,
Respondent.
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PCB 96-180
(Enforcement - Water - Citizens)
PCB 97-11
(Enforcement - Water)
ORDER OF THE BOARD (by M. McFawn):
This case is before the Board on a number of motions, including a motion by respondent
White & Brewer Trucking, Inc. (White & Brewer) to stay the proceedings, a motion by
complainant Environmental Site Developers, Inc. (ESDI) for partial summary judgment, and a
motion by ESDI to consolidate this case with People v. White & Brewer Trucking, PCB 97-11,
another enforcement action brought against White & Brewer by the Illinois Attorney General on
behalf of the people of the State of Illinois.
BACKGROUND
This case concerns leachate from a landfill owned and operated by White & Brewer near
Coffeen, Illinois. The relevant circumstances and events, as derived from allegations in the
pleadings filed by parties in the various lawsuits described below, are as follows.
White & Brewer purchased the landfill from ESDI on August 23, 1990. All permits
relating to the landfill were subsequently transferred to White & Brewer, and White & Brewer is
2
currently the owner and operator of the landfill.
1
At the time the landfill was sold, four of the five
cells of the landfill (Cells A through D) were closed; only Cell E was (and is) open and receiving
waste. Since at least October 1992, leachate has been flowing out of Cell D of the landfill and
ultimately into the waters of Shoal Creek. The amounts of certain substances in the leachate
exceed the amounts permitted in the various permits issued by the Illinois Environmental
Protection Agency (Agency).
On August 2, 1995, White & Brewer filed a lawsuit in federal district court for the Central
District of Illinois in Springfield against ESDI, among others, alleging claims under the federal
Solid Waste Disposal Act, 42 U.S.C. § 6901
et seq.
, as amended by the federal Resource
Conservation and Recovery Act of 1976 (RCRA), as well as breach of contract,
misrepresentation, fraudulent misrepresentation, and violation of the Consumer Fraud and
Deceptive Business Practices Act, 815 ILCS 505/2. The federal case is still pending. The gist of
the federal case, as it relates to this case, is that the leachate problem is due to acts or omissions
by ESDI when it owned and operated the landfill, that White & Brewer was unaware of the
problem when it bought the landfill, and that White & Brewer has never “operated” Cell D of the
landfill, the cell from which the leachate flows. Among the relief sought by White & Brewer in
the federal case is an order requiring ESDI and its president to correct all violations of RCRA
(i.e., remediate the leachate problems at the landfill).
On February 15, 1996, ESDI filed the complaint in this case with the Board. ESDI alleges
that the flow of leachate into Shoal Creek violates various provisions of the Illinois Environmental
Protection Act, 415 ILCS 5/1
et seq.
(Act), and seeks an order directing White & Brewer to
cease and desist from violating the Act (i.e., remediate the leachate problems at the landfill) as
well as imposition of monetary penalties against White & Brewer. ESDI bases its claim on
allegations made by White & Brewer in the complaint filed in the federal case. ESDI contends
that through the allegations in the federal complaint, White & Brewer has admitted violations of
the Act.
On July 15, 1996, the Attorney General filed the complaint in case number PCB 97-11
with the Board, seeking the same relief as ESDI, for violations of the Act based on the leachate
flow from the landfill.
PENDING MOTIONS
Eleven motions in total are presently pending before the Board. In its “Motion to
Amend Respondent’s Response in Opposition to Motion to Consolidate and Motion for Stay of
Decision on Consolidation and Response to Motion for Partial Summary Judgment” (Motion to
Amend) filed on February 28, 1997, White & Brewer indicated that it no longer sought the
relief requested in “Respondent’s Motion for Stay of Decision on Consolidation,” filed on
1
White & Brewer asserts in a number of places in filings with the Board that it never
“operated” the closed cells of the landfill. Under Board regulations, however, where there is
no other person conducting a waste treatment, waste storage or waste disposal operation, the
owner is the
de jure
“operator” of a facility. See 35 Ill. Adm. Code. 807.104, 810.103.
3
January 14, 1997.
2
The Motion to Amend will be granted, and the latter motion withdrawn.
In six of the remaining nine pending motions, the parties seek leave to file various documents
relating to the other pending motions. These six motions are:
1.
Respondent’s Motion for Leave to File Response in Excess of Page Limits
(regarding ESDI’s motion for partial summary judgment) (1/14/97)
2.
Complainant’s Motion for Leave to File Reply re Motion for Partial Summary
Judgment (1/23/97)
3.
Complainant’s Motion for Leave to File Reply re Motion for Consolidation
(1/27/97)
4.
Respondent’s Motion for Leave to file Memorandum of Law in Support of Motion
to Stay Proceedings in Excess of Page Limits (3/31/97)
5.
Complainant’s Motion for Leave to File Response in Excess of Page Limit (re stay
motion) (4/25/97)
6.
Respondent’s Motion for Leave to File Reply to Complainant’s Response in
Opposition to Motion to Stay Proceedings (5/12/97)
The remaining three motions raise more substantive issues:
7.
Complainant’s Motion to Consolidate (12/9/96)
8.
Complainant’s Motion for Partial Summary Judgment (12/9/97)
9.
Respondent’s Motion to Stay Proceedings (3/31/97)
No responses have been filed with the Board in opposition to any of the first six motions listed
above. The Board believes that the various documents which the parties seek leave to file will be
helpful to the Board in resolving the remaining pending motions, and accordingly these motions
will be granted.
We turn then to the three remaining motions. Because resolution of “Respondent’s
Motion to Stay Proceedings” could obviate the need for a ruling on “Complainant’s Motion to
Consolidate” or “Complainant’s Motion for Partial Summary Judgment,” we consider that motion
first, although it was filed after the other two motions. In granting “Complainant’s Motion for
Leave to File Reply re Motion for Partial Summary Judgment” (item 2 above), the Board grants
ESDI fourteen days to file its reply. The Board will rule on “Complainant’s Motion for Partial
Summary Judgment” after considering any additional arguments which ESDI may raise.
2
Not to be confused with “Respondent’s Motion to Stay Proceedings,” a separate motion filed
on March 31, 1997, which is discussed below.
4
Respondent’s Motion to Stay Proceedings
White & Brewer has moved to stay proceedings in this case based on the pending federal
case. ESDI, as noted, is a defendant in the federal case. White & Brewer contends that
resolution of the federal case, which was filed before this case, could impact this case and
consequently this case should be stayed pending resolution of the federal case to avoid possible
conflicting judgments and the waste of judicial resources.
The Illinois Supreme Court has identified four factors to be considered in determining
whether the later-filed of two arguably related actions should be stayed: (a) comity, (b)
prevention of multiplicity, vexation and harassment, (c) likelihood of obtaining complete relief in
the foreign jurisdiction, and (d) the
res judicata
effect of a foreign judgment in the local forum.
A. E. Staley Mfg. Co. v. Swift & Co., 84 Ill.2d 245, 254, 419 N.E.2d 23, 27-28 (1980). The
Board concludes that none of these factors militates in favor of a stay in this case.
Comity
Comity is the principle under which courts will give effect to the decisions of a court of
another jurisdiction as a matter of deference and respect (Black’s Law Dictionary, 6
th
Ed. (1990)).
Where another court has taken jurisdiction over a controversy, a court with jurisdiction over the
same controversy as a result of a later-filed suit will generally, as a matter of comity, defer to the
first court in ruling on the matter before both courts. The Board concludes, however, that the
case before the Board is not the same as the case before the federal court, and consequently the
Board need not, under principles of comity, defer to (i.e., stay proceedings here pending) the
ruling of the federal court.
Although both this case and the federal case involve alleged violations of environmental
law at the landfill, and both seek, among other relief, orders requiring cessation of pollution from
the landfill, the federal case involves claims under RCRA against ESDI and its president, whereas
this case involves claims for violation of the Act by White & Brewer. In suggesting that the two
cases are connected because both cases seek the same ultimate outcome, i.e., cessation of
pollution at the landfill, White & Brewer ignores fundamental distinctions between the two: each
seeks that relief from a different party under a different regulatory scheme. The issues before the
Board are not before the federal court, and vice versa.
Issues very similar to those before the Board on White & Brewer’s stay motion were
considered by the federal court in its review of a motion for judgment on pleadings, which
included a prayer for abstention. The federal court denied the motion. A copy of the federal
court’s opinion (cited herein as “Fed. Op.”) was attached to the Motion to Amend, and includes
the following enlightening quotes:
Plaintiff [White & Brewer] argues that neither Illinois’ environmental regulatory
scheme nor its permit process are at issue in the instant case. * * * Plaintiff states
5
that if the Court abstains, it will be left without meaningful relief because Counts I & II
are brought pursuant to [RCRA], which is exclusively a federal claim.
* * *
. . . Illinois environmental policies and scheme are not at issue in the instant case.
* * * In each of the cases cited by Defendants, abstention was proper because had
the court not abstained, it would have been required to review the state’s
environmental permit process.
On the other hand, the case at bar raises no issues as to Illinois’ policies and
regulations regarding the issuance or the renewing of landfill permits. There is no
dispute that [White & Brewer] owns and operates the disposal site under validly issued
permits. There also seems to be little question that those permits were violated. The
only issue raised is who should be responsible for bringing the disposal site into
compliance with said permits. The Court cannot say that the issue of who is
responsible would require it to delve into the intricacies of Illinois’ environmental law.
* * *
[T]he Court is unsure that there will be a conflict between it and the Illinois
administrative process. Illinois’ concerns with environmental violations are,
presumably: (1) that they never occur, or (2) if they do occur, that they are resolved.
The Court fails to see how resolution of the issues before it would jeopardize those
concerns or the State’s environmental policy. Fed. Op. at 7, 12-13.
Not only does the federal case involve a different regulatory scheme and seek relief from a
different party than in the case before the Board, but apparently White & Brewer, the party
requesting a stay here, has argued (successfully) in federal court that the cases are unrelated. The
only potential intersection of the two cases would occur if both parties were simultaneously
required to stop the alleged pollution from the landfill. The federal court, however, cites authority
holding that RCRA citizen suits can be “harmonized” with state law where necessary. Fed. Op. at
13. We agree.
Multiplicity, Vexation or Harassment
There has been no allegation of vexation or harassment in this case, but White & Brewer
does contend that continued prosecution of this case will result in multiplicity of litigation. As
noted above, however, we believe that this case and the federal case are fundamentally different in
character, given that relief is sought against different parties under different regulatory schemes.
The claims against White & Brewer for violations of the Act are not before the federal court, and
will not be decided in the federal case. The Board accordingly finds that the progress of the two
cases simultaneously will not result in multiplicity of litigation.
Complete Relief in Foreign Forum
6
For the same reason, resolution of the federal case will not result in complete relief to
ESDI. Among the relief sought from the Board in this case is an order directing White & Brewer
to cease and desist from violating the Act. Inasmuch as there are no claims pending against White
& Brewer in the federal case, ESDI will not obtain complete relief from the federal court upon
resolution of the federal case.
Res Judicata
The last factor to be considered in determining whether related actions should be stayed
concerns the doctrine of
res judicata
. It is the conclusion of the Board that the potential
res
judicata
effects of a judgment entered by the federal court are too speculative to require a stay of
these proceedings.
Res judicata
is the legal doctrine which states that “once a cause of action has been
adjudicated by a court of competent jurisdiction, it cannot be retried again between the same
parties or their privies in a new proceeding.” Burke v. Village of Glenview, 257 Ill.App.3d 63,
69, 628 N.E.2d 465, 469 (1st Dist. 1993). The elements of
res judicata
are (1) a final judgment
on the merits rendered by a court of competent jurisdiction, (2) an identity of cause of action, and
(3) an identity of parties, or privity between subsequent parties and the original parties. People
ex
rel.
Burris v. Progressive Land Developers, Inc., 151 Ill.2d 285, 294, 602 N.E.2d 820, 825
(1992). Where these elements are present, a judgment in a suit between the parties will be
conclusive of all questions decided as well as questions which could have been litigated and
decided, and will bar relitigation of any such issues in a subsequent action. People
ex rel.
Burris
v. Progressive Land Developers, Inc., 151 Ill.2d 285, 294, 602 N.E.2d 820, 825 (1992).
As we have noted, the claims against White and Brewer in this case for violations of the
Act are not before the federal court. If such claims could be brought as counterclaims in the
federal case, and would not be subject to abstention by the federal court (issues which we do not
address), then a judgment in the federal case would have a
res judicata
effect in this case. For
two reasons, however, the Board will not stay these proceedings pending the outcome of the
federal case, even assuming the aforementioned conditions were met.
First, we note that the “Scheduling Order” entered by the federal court on March 24,
1997, has set a trial date in the federal case of, at the earliest, May 5, 1998. Given the posture of
this case, we believe that the issues before the Board can be resolved well in advance of that date.
If they are, then the Board’s order may have a
res judicata
effect on the federal case, and prevent
relitigation of the issues before us in that forum. The only effect of staying proceedings here
would be the needless delay of resolution of the issues involved in this case. Under these
circumstances, to stay proceedings in this case would be inconsistent with the Board’s obligation
as a unit of state government to manage its activities so as to minimize environmental damage.
(See Section 2(a)(iv) of the Act.)
Second, the
res judicata
doctrine, even if applicable in this case, would have no effect on
People v. White & Brewer Trucking, PCB 97-11, an enforcement action brought against White &
7
Brewer by the Attorney General involving essentially the same circumstances as this case, as is
discussed in more detail below in the Board’s discussion of ESDI’s Motion to Consolidate.
Staying the proceedings in this case will not prevent litigation of the issues involved here, nor
would it prevent the possibility of entry of conflicting judgments by the Board and the Federal
Court on the issue of White & Brewer’s liability. Accordingly, we believe the better course,
particularly in light of the scheduling order in effect in the federal case, is to proceed with this
case, so that the issues before us are determined completely and efficiently.
Based on the foregoing analysis of the four factors to be considered in deciding whether
this matter should be stayed, the Board concludes that a stay of proceedings is not appropriate in
this case, and “Respondent’s Motion to Stay Proceedings” will be denied. We now proceed to
consider “Complainant’s Motion to Consolidate.”
Complainant’s Motion to Consolidate
ESDI has moved to consolidate this case with People v. White & Brewer Trucking, PCB
97-11, an enforcement action brought by the Attorney General against White & Brewer based on
the same circumstance which underlies both this case and the federal case, namely, leachate from
the Landfill pooling and flowing ultimately into Shoal Creek. Filings in this case indicate that the
Attorney General was served with “Complainant’s Motion to Consolidate” and the briefs filed by
ESDI and White & Brewer. We have received no response from the Attorney General.
Under 35 Ill. Adm. Code 103.141, “in the interest of convenient, expeditious, and
complete determination of claims, the Board may consolidate or sever enforcement, variance,
permit or other adjudicative claims involving any number of parties, and may order additional
parties to be brought in pursuant to the provisions of Section 103.121.” In evaluating the
propriety of consolidation of cases, among the factors considered by the Board are whether “both
proceedings arise from the same alleged incident at the same site and concern identical factual
circumstances and violations.” People v. Boyd Brothers, Inc. (December 1, 1994), PCB 94-311.
There can be no dispute that the “same alleged incident at the same site” test is met here.
Although the facts and circumstances alleged in the ESDI and Attorney General complaints are
not “identical,” resolution of each of the five claims in the ESDI complaint will be determined by
(or determine) resolution of one or more of the claims in the Attorney General’s complaint. More
specifically, the ESDI complaint alleges the following violations of the Act:
6.
Beginning on or about October 28, 1992, and continuing from time to time
thereafter, contaminants deposited at the Landfill have been discharged into the
environment, including waters of the State, or have threatened to be so
discharged, so as to:
a.
Cause or tend to cause water pollution;
b.
Create a water pollution hazard;
8
c.
Violate discharge limitations imposed by an NPDES permit issued by the
Illinois Environmental Protection Agency for the Landfill;
d.
Violate post-closure care and monitoring conditions imposed by permits
issued by the Illinois Environmental Protection Agency for the Landfill; and
e.
Violate effluent, water quality, and groundwater quality standards adopted by
the Pollution Control Board
Each alleged violation listed in paragraph 6 above is also the basis of at least one claim in the
Attorney General’s complaint in PCB 97-11. The Attorney General’s complaint in PCB 97-11
alleges in Count I:
23. From November 7, 1991, to at least August 11, 1995, and continuing to a date
known only by the Respondent, the Respondent caused or allowed
concentrations of inorganic chemical constituents to exceed established
standards for Class I groundwater. In so doing, the Respondent has caused
water pollution and thereby violated Section 12(a) of the Act . . . .
24. From November 7, 1991, to at least August 11, 1995, and continuing to a date
known only by the Respondent, the Respondent caused or allowed
concentrations of inorganic chemical constituents to exceed the established
standards for Class II groundwater. In so doing, the Respondent has caused
water pollution and thereby has violated Section 12(a) of the Act . . . .
25. From at least November 7, 1991, to at least August 11, 1995, and continuing
to a date known only by the Respondent, the Respondent’s activities at the site
have caused allowed contaminants to be deposited upon the ground in such
place and manner so as to create a water pollution hazard. In so doing, the
Respondent has violated Section 12(d) of the Act . . . .
Count II of the Attorney General’s complaint alleges:
22. During, but not limited to, the period between March 1991 and May 1996, the
Respondent discharged effluent which exceeded the limits set forth in its
NPDES Permit No. IL0064735 for total suspended solids, boron, sulfate,
manganese, and pH, as evidenced by information reported on the [Discharge
Monitoring Reports submitted to IEPA].
23. By causing or allowing discharges of total suspended solids, boron, sulfate,
manganese, and pH in excess of permitted limitations, the Respondent has
violated Section 12(f) of the Act . . . .
9
24. By discharging contaminants into waters of the State so as to cause or tend to
cause water pollution in Illinois, W&B has violated Section 12(a) of the
Act . . . .
Count III of the Attorney General’s complaint alleges:
18. Since at least November 24, 1992, and continuing to the present date, a liquid
substance originates from Cell D, flows to the northeast, and enters a drainage
pattern in Cell E that flows into the east branch of Shoal Creek. The liquid
contains a red solid that is deposited on the stream floor.
19. The liquid, as described in the foregoing paragraph 17 [sic], constitutes
“leachate” as that term is defined in [35 Ill. Adm. Code 807.104].
20. Since at least March 29, 1995, and continuing to the present date, leachate
pools have formed on the ground on the east side of the landfill in Cell D.
23. By causing or allowing the discharge of contaminants to flow from the site into
waters of the environment of the State so as to cause water pollution, the
Respondent has violated Section 12(a) of the Act . . . .
24. By causing or allowing leachate pools to form on the ground at the site,
Respondent has created a water pollution hazard and, in so doing, has violated
Section 12(d) of the Act . . . .
Count VI of the Attorney General’s complaint alleges:
14. On January 9, 1992, the Illinois EPA approved certification of closure for Cells
A-D, with the 15-year post-closure care period beginning on January 8, 1992.
15. On November 24, 1992, and continuing to a date better known to the
Respondent, a portion of the east side of the landfill in the area of Cell D was
eroded such that waste material was exposed.
16. By failing to maintain adequate final cover at the site, the Respondent has
violated Section 21(d)(1) and (2) of the Act . . . .
17. Since at least November 24, 1992, and continuing to the present date, a
leachate seep has emanated from Cell D and flowed northeast to Cell E where
it continues eastward to Shoal Creek.
18. By failing to take necessary remedial action after site closure to abate the
continuing leachate seeps from Cell D, Respondent has violated Section
21(d)(1) and (2) of the Act . . . .
10
ESDI’s claims correspond to the Attorney General’s allegations as follows:
•
ESDI’s allegation in paragraph 6(a) of its complaint, that since October 28, 1992,
White & Brewer has discharged contaminants from the Landfill so as to cause or
tend to cause water pollution, is subsumed by the Attorney General’s allegations in
paragraphs 23 and 24 of Count I and paragraph 24 of Count II, and subsumes the
Attorney General’s allegations in paragraph 23 of Count III.
•
ESDI’s allegations in paragraph 6(b) of its complaint, that since October 28, 1992,
White & Brewer has discharged contaminants from the Landfill so as to create a
water pollution hazard, is subsumed by the Attorney General’s allegations in
paragraph 25 of Count I, and subsumes the Attorney General’s allegations in
paragraph 24 of Count III.
•
ESDI’s allegations in paragraph 6(c) of its complaint, that since October 28, 1992,
White & Brewer has discharged contaminants from the Landfill so as to violate
discharge limitations imposed by an NPDES permit issued by the Agency for the
Landfill, either subsume or are subsumed by the Attorney General’s allegations in
paragraphs 22 and 23 of Count II.
•
ESDI’s allegations in paragraph 6(d) of its complaint, that since October 28, 1992,
White & Brewer has discharged contaminants from the Landfill so as to violate
post-closure care and monitoring conditions imposed by permits issued by the
Agency for the Landfill, are subsumed by the Attorney General’s allegations in
paragraphs 16 and 18 of Count VI.
•
ESDI’s allegations in paragraph 6(e) of its complaint, that since October 28, 1992,
White & Brewer has discharged contaminants from the Landfill so as to violate
effluent, water quality, and groundwater quality standards adopted by the Pollution
Control Board, are subsumed by the Attorney General’s allegations in paragraphs
23 and 24 of Count I.
Given the extent to which the claims are congruent, the Board finds under the
circumstances present that it is in the interest of convenient, expeditious, and complete
determination of the claims against White & Brewer that this case be consolidated with PCB 97-
11. “Complainant’s Motion to Consolidate” will be granted.
11
ORDER
1.
Complainant's Motion to Consolidate is granted. This case is hereby
consolidated with People v. White & Brewer Trucking, PCB 97-11.
2.
Respondent's Motion for Leave to File Response in Excess of Page Limits re
ESDI's motion for partial summary judgment is granted.
3.
Respondent's Motion for Stay of Decision on Consolidation is withdrawn.
4.
Complainant's Motion for Leave to File Reply re Motion for Partial Summary
Judgment is granted. Complainant may file a reply in support of its Motion for
Partial Summary Judgment within fourteen days of adoption of this Order by the
Board.
5.
Complainant's Motion for Leave to File Reply re Motion for Consolidation is
granted.
6.
Respondent's Motion to Amend Response in Opposition to Motion to
Consolidate and Motion for Stay of Decision on Consolidation and Response to
Motion for Partial Summary Judgment is granted.
7.
Respondent's Motion for Leave to file Memorandum of Law in Support of
Motion to Stay Proceedings in Excess of Page Limits is granted.
8.
Respondent's Motion to Stay Proceedings is denied.
9.
Complainant's Motion for Leave to File Response in Excess of Page Limit re
Respondent’s Motion to Stay Proceedings is granted.
10.
Respondent's Motion for Leave to File Reply to Complainant's Response in
Opposition to Motion to Stay Proceedings is granted.
IT IS SO ORDERED.
Board Member K.M. Hennessey abstained.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of the date of
service of this order. Illinois Supreme Court Rule 335 establishes filing requirements. See
145 Ill. 2d R. 335; see also 35 Ill.Adm.Code 101.246, Motions for Reconsideration.
12
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 10th day of July 1997, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
