ILLINOIS POLLUTION CONTROL BOARD
May 28,
1987
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
v.
)
PCB 79—145
)
CELOTEX CORPORATION, and
)
PHiLIP CAREY COMPANY,
)
Respondents.
ORDER OF THE BOARD
(by J.D. Dumelle):
On December
5, 1986,
the Board entered an order requesting
the Illinois Environmental Protection Agency
(Agency)
to submit a
brief on the issues of
(1)
the existence of the Philip Carey
Company and
(2)
the Board’s authority to e~tera default
judgement against the Philip Carey Company
(Company).
The
Agency filed
its brief
on January
5, 19~i7.
On January
6, 1987,
Celotex filed
a request to respond to the Agency’s brief to
address matters pertaining
to Celotex, which was granted.
Celotex filed
its brief
on February 9, 1986.
Since
the filing
of those briefs,
the Board has undertaken
a
review of the record to determine the precise status of the
Company
as
to this proceeding.
Based
on this review and the
briefs, the Board hereby finds that the Company is not a proper
party
to this action and therefore dismisses the allegations
against the Philip Carey Company.
In its brief
filed on January 5, 1987,
the Agency outlines
the historical existence of the Philip Carey Company.
The
Certificate of Amendment to the Articles
of
the
“XPRtJ
Corporation”, changing its name to the “Philip Carey
Manufacturing Company”, was adopted May 24,
1967 and filed with
the State
of Ohio on June
1,
1967.
The Certificate of Amendment
to Articles of the
“Philip Carey Manufacturing Company”,
changing
its name
to the “Philip Carey Corporation,” were adopted on
February 9,
1968, and filed with the State
of Ohio on February
16,
1968,
On April 10,
1970,
a merger agreement was effectuated,
*
Although the Complaint names
the Philip Carey Company as
respondent,
the Agency’s brief
notes only the existence of the
“Philip Carey Manufacturing Company”
and subsequently,
the
“Philip
Carey
Corporation”.
The
Board,
for
the
sake
of
clarity
will
refer
to
the
named
respondent
as
“Company”,
and
will
refer
to the other entities by their complete names.
78-121
—2—
merging the “Philip Carey Corporation” with the “Briggs
Manufacturing Company”, resulting
in the “Panacon Corporation.”
Finally,
on June 28,
1972,
a merger agreement was effectuated,
merging the “Panacon Corporation” with the “Celotex Corporation”,
resulting
in
the “Celotex Corporation”.
Thus,
as of April
10,
1970,
the Philip Carey Corporation ceased
to exist as such.
The Agency has neither
alleged nor submitted any substantive
evidence of wrong—doing by the Philip Carey Company during the
time of its existence,
i.e. until April 10, 1970.
The Agency’s
complaint alleged that the Philip Carey Company violated the
Environmental Protection Act “since
at least June 9,
1971” and
thereafter.
The Philip Carey Company could not have violated the
Act since June 1971,
because
it had ceased
to exist over
a year
earlier.
Somewhat inconsistent with the position taken
in its
Complaint,
the Agency stated in its January
5, 1987,
brief that
Philip Carey Company was named because
it held title
to the
property in question.
After April of 1970, however,
the Philip
Carey Company could not have held title,
despite its name
remaining on the deed, because
it had already ceased
to exist.
The successor—in—interest
to the property, i.e. the true “holder”
of title, although not named as such,
is Celotex according to the
history of succession outlined
in the Agency’s brief.
Therefore,
the Philip Carey Company, as such, cannot and should not be named
as a proper party to this action.
The Board
notes that Celotex has previously been dismissed
out of this proceeding.
If, by outlining the succession of
interests and liabilities in the January 5,
1987 brief the Agency
is seeking
to impute any liability of the Philip Carey Company
remaining from before its merger with Briggs,
the Agency has not
met its burden of proof.
There is no evidence
in the record
referring to any wrong—doing by Philip Carey Company before 1970.
All allegations against the Philip Carey Company
(i.e.
Philip Carey Corporation)
are therefore dismissed.
Finally,
the
Board notes
that with this dismissal and with the dismissal of
Celotex, there
is no liability to impute
to the Jim Walter
Corporation.
Therefore the motion
to amend the Complaint to add
the Jim Walter Corporation as
a Respondent is dismissed.
The
Clerk
is hereby directed to close the docket in this proceeding.
IT
IS
SO ORDERED.
I, Dorothy
N.
Gunn, Clerk of the Illinois Pollution Control
Board, he e,~~certifythat the above Order was adopted on
the
_______________
day
of
-__,
1987 by a vote
of
______________.
7
/~?~~~/‘27.
,~/
Dorothy M. ~unn, Clerk
Illinois P~’llutionControl Board
78-122