APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge. presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
This is an appeal by the plaintiffs, Bulk Terminals Company and Gerald L. Spaeth, from an order of the Circuit Court of Cook County, dismissing their complaint. The complaint requested the court to halt proceedings pending before the Illinois Pollution Control Board charging them with violations of the Illinois Environmental Protection Act and air pollution regulations.
Plaintiff, Bulk Terminals Company (hereinafter Bulk), operates a bulk storage facility at 12200 South Stony Island Avenue in Chicago. Plaintiff, Gerald L. Spaeth, is the president of the firm and is in charge of its daily operations. For several months Bulk stored in its tanks a chemical, silicon tetrachloride, which was owned by Cabot Corporation. On April 26, 1974, a leak developed in one of the storage tanks containing the chemical, and as it reacted with the moisture in the air, it formed hydrochloric acid vapor and silicon dioxide.
Thereafter the city of Chicago served Bulk and Spaeth with a series of complaints alleging violations of section 17-2.6 of the Municipal Code of the city of Chicago. *fn1 The City alleged that the emissions of hydrochloric acid vapor and silicon dioxide, commencing on April 26, 1974, and continuing through and including May 26, 1974, constituted "atmospheric" pollution in violation of that section. The complaints were entitled "In the Name and by the Authority of the People of the State of Illinois City of Chicago a municipal corporation, Plaintiff v. Bulk Terminals Company."
On July 19, 1974, a trial was held in the Circuit Court of Cook County and Bulk was found guilty of violating section 17-2.6 on each and every day from April 26, 1974, up to and including May 9, 1974. The court assessed fines for the violations, and Bulk has paid them.
On or before July 31, 1974, all silicon tetrachloride previously stored by Bulk had been removed from the premises.
Complaints were also filed against Bulk before the Illinois Pollution Control Board (hereinafter Board) by Citizens for a Better Environment (hereinafter CBE) and the Environmental Protection Agency (hereinafter EPA), defendants herein, in connection with the storage tank leak. In the CBE's complaint, Bulk is charged with violations of section 9(a) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1009(a)) and related Rule 102 of chapter 2 of the Illinois Pollution Control Board Rules and Regulations for causing air pollution as a result of the leak. *fn2 Gerald L. Spaeth, Bulk's president, is named as a co-defendant in the CBE's complaint, and is alleged to have been responsible for the maintenance of Bulk's storage facilities. In the EPA complaint Bulk is also charged with violations of section 9(a) of the Environmental Protection Act, and with a violation of Rule 102 of chapter 2 of the Rules and Regulations. Both actions were consolidated before the Board. Bulk and Spaeth filed answers to the complaints with the Board and therein set forth facts relating to the prosecution by the City of Chicago, alleging thereby that the prosecution pending before the Board was barred by the doctrine of double jeopardy and res judicata. In addition, Bulk and Spaeth filed before the Board a motion to dismiss and an amended motion to dismiss predicated on the above defenses. The amended motion to dismiss was denied by the Board on September 5, 1974.
Thereafter Bulk and Spaeth filed an action in the circuit court praying for a declaratory judgment with injunctive relief and a writ of prohibition against the EPA, the CBE, and the Board. By this action they sought to terminate the CBE and EPA actions before the Board. It was contended that the State of Illinois should be prevented from twice prosecuting them for the same offense. The trial court held, on defendants' motion to dismiss, that the action was premature since the plaintiffs had not exhausted all remedies under the Environmental Protection Act and the Administrative Review Act. The plaintiffs action was therefore dismissed, and this appeal followed.
The plaintiffs, herein Bulk and Spaeth, contend that both the Illinois and United States constitutional safeguards against double jeopardy (U.S. Const. amends. V and XIV; Ill. Const. art. I, sec. 10 (1970)), and the doctrine of res judicata, preclude the actions pending before the Pollution Control Board. Double jeopardy is said to have applicability because the plaintiffs are being exposed to punishment for alleged unlawful conduct which they have already been punished for once by the State of Illinois through its political subdivision, the city of Chicago. Res judicata is said to have applicability because both the city action and the Board actions arise from the same subject matter, are in essence the same cause of action, and involve the same parties. It is further urged that this is a proper case for the exercise of the circuit court's power to issue a writ of prohibition or to order injunctive relief, and that the relief requested is not precluded by the failure to obtain first a final order from the Board.
The defendants respond first that the relief sought is premature, and that the proper procedure is an appeal to this court from a final decision of the Board. It is further urged by the defendants that, in any event, the constitutional mandate against double jeopardy and the doctrine of res judicata are for various reasons inapplicable as a bar to the Board proceedings.
We hold herein that, in view of the previous prosecution and fine under the city ordinance, the pending proceedings before the Board are barred either under a theory of double jeopardy or res judicata, and that the request for relief in the circuit court was not premature. We accordingly reverse the order of the circuit court.
As indicated, the circuit court dismissed the plaintiffs' complaint without reaching the merits of the controversy because it viewed the action as premature in that plaintiffs did not exhaust their administrative remedies. This threshold procedural issue must first be given some attention.
The ordinary procedure for reviewing a decision of the Pollution Control Board is pursuant to the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 264 et. seq.). *fn3 Section 2 thereof provides in part:
"This Act shall apply to and govern every action to review judicially a final decision of any administrative agency where the Act creating or conferring power on such agency, by express reference, adopts the provisions of this Act. In all such cases, any other statutory, equitable or common law mode of review of decisions of administrative agencies heretofore available ...