ILLINOIS POLLUTION CONTROL BOARD
August 24, 2000
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
DOREN POLAND, LLOYD YOHO, and BRIGGS
INDUSTRIES, INC.,
Respondents.
)
)
)
)
)
)
)
)
)
)
PCB 98-148
(Enforcement – Land)
ORDER OF THE BOARD (by E.Z. Kezelis):
On July 17, 2000, Briggs Industries, Inc. (Briggs) filed a motion for leave to join additional parties.
Complainant filed its response on July 24, 2000.
1
In its motion, Briggs seeks to join additional parties pursuant to 35 Ill. Adm. Code 103.121(c). Section
103.121(c) of the Board’s procedural rules provides, in pertinent part, “[i]f a complete determination of a controversy
cannot be had without the presence of other parties, the Board or Hearing Officer shall order them to be brought in.”
35 Ill. Adm. Code 103.121(c). Briggs argues that Loren and Michelle West should be joined as additional parties in
this proceeding.
BACKGROUND
The complaint in this matter was filed on April 30, 1998. The three-count complaint alleges violations
stemming from respondents alleged ownership and operation of an unpermitted dump site in Knox County, Illinois
(site). The complainant alleges that from on or before April 18, 1994, and continuing through the date of filing of the
complaint, the respondents caused or allowed open dumping on a site not permitted as a sanitary landfill. The
complainant alleges that the respondents caused or allowed the development and operation of a solid waste
management site without proper permits, and that the development and operation of the solid waste management
site was in violation of standards for development of new solid waste sites.
The complainant alleges in its complaint that, at all times relevant to the complaint, Doren Poland and
Lloyd Yoho were the owners of the site. The complainant also alleges that Briggs Industries, Inc., is an assumed
name for Briggs Plumbing Products, Inc., a Michigan corporation, not in good standing in the State of Illinois as of
the filing of the complaint. According to the complaint, the wastes deposited at the site originated from Briggs.
MOTION FOR LEAVE TO JOIN ADDITIONAL PARTIES
Briggs’ Motion
According to Briggs, Loren and Michelle West acquired Doren Poland’s one-half interest in the site on June
30, 1996. Mot. at 3. Furthermore, Briggs alleges that waste materials continued to be disposed of on the site as late
as June 1997. Mot. at 3-4. Therefore, Briggs argues that Loren and Michelle West, as owners and arguably operators
of the site are potentially liable under counts I and II of the pending complaint. Mot. at 4. Additionally, Briggs
maintains that any relief involving the site will necessarily involve Loren and Michelle West, as one-half owners of
the site.
Id.
1
Briggs’ motion for leave to join additional parties will hereinafter be referred to as “Mot. at __.” Complainant’s
response to Briggs’ motion will hereinafter be referred to as “Res. at __.”
2
In support of the argument that Loren and Michelle West are potentially liable under counts I and II of the
complaint, Briggs refers the Board to Perkinson v. PCB, 187 Ill. App. 3d 689, 543 N.E.2d 901 (3rd Dist. 1989); and
IEPA v. Baker (September 12, 1972), PCB 72-23. The court in Perkinson found that the owner of a pollution source
can be found to have caused or allowed the pollution, unless the owner lacked the capability to control the source or
had taken extensive precautions to prevent it. Perkinson, 187 Ill. App. 3d at 694-95.
Complainant’s Response
The complainant objects to the joinder of Loren and Michelle West as parties to this action. Complainant
maintains that it does not have a good faith basis to allege violations by Loren and Michelle West and that the motion
by Briggs is untimely. Res. at 2. Complainant maintains that the purpose of the motion is to delay the hearing in this
matter, tentatively scheduled for November 7 and 8, 2000.
Id
.
In support of its position, complainant states that, “[t]he Board should not speculate as to the [sic] whether
or how the anticipated requirement that the wastes either be properly permitted or removed might affect interest of
Loren West and Michelle West in the property.” Res. at 2. Given that Loren and Michelle West do appear to be
partial owners of the site, however, the Board need not speculate in order to conclude that their property interests
would be potentially impacted by a final decision affecting the site.
The complainant suggests that the Board should consider whether adding these parties would result in a
prejudicial delay to the complainant, insofar as one of the other respondents is “relatively old” and that the
“memories of the likely witnesses may decrease with the further passage of time.” Res. at 2-3. Complainant also
comments that the environmental impacts resulting from the alleged violations will continue unabated if the hearing
in this case is delayed. Res. at 3.
DISCUSSION
The Board acknowledges Briggs’ argument that as part owners of the property, Loren and Michelle West
may bear some of the liability for the violations now being alleged by the complainant. However, the Board is
hesitant to direct the complainant to file an amended complaint naming these individuals as respondents, because
the complainant has asserted that it lacks the evidence upon which to make good faith allegations against Loren and
Michelle West. Additionally, the Board does appreciate the complainant’s desire to proceed expeditiously with the
hearing dates tentatively set for November 7 and 8, 2000. Accordingly, in an attempt to satisfy both concerns, the
Board hereby grants leave to Briggs to file a third- party complaint naming Loren and Michelle West as third-party
respondents. If a third-party complaint is to be filed by Briggs, it must be filed within 30 days of the date of this
order.
The Board notes that Loren and Michelle West were not served with a copy of Briggs’ motion to join
additional parties. Because the Board’s current procedural rules do not require such service on persons not yet a
party to the case, the Board will not require it. Nevertheless, any arguments or defenses Loren and Michelle West
wish to make in opposition to their inclusion in this matter may still be raised in an appropriate responsive pleading
to the third-party complaint, if one is filed.
As previously stated, tentative hearing dates of November 7 and 8, 2000, have been set. The Board directs
the hearing officer to consult with the parties as soon as practicable to determine what changes, if any, need be made
in the discovery and hearing schedule already in place. The Board notes, however, that the underlying action may
proceed to hearing as scheduled. There is nothing in the Board’s procedural rules that would prevent the hearing on
the underlying complaint from going forward as scheduled and having the third-party complaint heard at a later
date.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above order was
adopted on the 24th day of August 2000 by a vote of 7-0.
3
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board