ILLINOIS

POLLUTION CONTROL BOARD

January16,

1973

ENVIRONMENTAL PROTECTION AGENCY

#72—155

v.

ILLINOIS CENTRAL

RAILROAD

COMPANY,

a Corporation

ORDER OF THE BOARD

(BY SAMUEL T.

LAWTON,

JR.):

Motion to dismiss the above-captioned complaint has been filed

by the railroad on the basis of res judicata.

Injunction had been

entered against the railroad in the Circuit Court of Champaign County

enjoining the railroad from liknowingly,

intentionally and wLLfully

burning railroad tiesu,

The burning incident, which

is the subject

of

the present complaint, was asserted in the Champaign Circuit Court

as constituting a violation of said injunction based on a complaint

and petition for rule to show cause.

On March 30,

1972,

an Order was entered on this petition in favor

of the railroad and the rule to show cause discharged.

The contention

of the railroad is that the foregoing favorable order constitutes

res judicata so far as the present proceeding

is concerned.

The posi-

tion of the Agency

is

that the violation of the injunction recuired

a finding of wilful action whe~easthe complaint in the instant case

requires

only

a

demonstration

that

the

open

burning

was

threatened

or

allowed by

respondent

which,

of

course,

is

sufficient

to

constitute

violation of the Environmental Protection Act, Section 9(a).

In addition, we note that the railroad,

in an independent action,

entitledlllinois Central Railroad v. Environmental Protection Agency,

#72C563,

filed in the Circuit Court of Champaign County, had sought

to enjoin the Agency from prosecuting the instant complaint before

this Board premised on the concept of res judicata based on the March

30,

1972 order discharging the rule to show cause.

Order was entered by

the Circuit Court of Champaign County in the railroad~sinjunction

proceeding dismissing the complaint with prejudice and finding the

issues in favor of the Environmental Protection Agency.

Accordingly,

we

will

dismiss the rai1road~smotion to strike and dismiss this

proceeding based on the absence of res judicata as found by the Circuit

Court of Champaign County.

6

-~

501

---

~e

have

further

heli

that

failure

to

hold

hearing

within

stxtv

days

from

the

f~1inq

of

the

coniclaint

is not

a jurisdictional

defect

and

does

not

constitute

a

basis

for dismissal.

All other

ccntenttons

raised

in

the

motion

are

ec~ua1ly

lacking in merit.

The

mction

to

stri:~e~nd disn~ss

te

denied.

IT

IS

SO

ORDERED.

I,

Christan

Moffett,

Clerk

of

the

Illinois

Pollution

Control

Board

certify

that

the

above

Order

was

adopted

on

the

16th

Day

of

January,

1973,

by

a

vote

of

_____

to

_________

—2--

6

—

502