ILLINOIS POLLUTION CONTROL BOARD
    June
    10,
    1987
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Complainant,
    )
    v.
    )
    PCB 83—163
    LARRY BITTLE d/b/a
    )
    Southern Recycling,
    a
    )
    dissolved Illinoig
    )
    corporation, WILLIAM GAMBER,
    )
    LEONARD
    C.
    BITTLE, and
    )
    J.
    MAX
    MITCHELL,
    Respondents.
    )
    ORDER OF THE BOARD
    (by R.
    C.
    Flemal):
    This matter comes before the Board upon the May 19,
    1987,
    motion
    for reconsideration
    filed
    by Respondent
    3.
    Max Mitchell.
    Mitchell generally requests that the Board “reconsider
    its
    opinion and modify its order
    of April
    16,
    1987”, and specifically
    asks that:
    1.
    The Board reconsider
    its finding treating
    J.
    Max
    Mitchell as being
    of equal culpability with Larry Bittle
    and William Gamber;
    2.
    The Board consider the effect of the refusal
    of Larry
    Bittle and William Gamber to cooperate in submitting or
    implementing
    a remedial plan upon the responsibility of
    Mitchell therefore;
    3.
    The Board reconsider
    its
    finding that the action filed
    against Mitchell
    in this matter was not unfairly
    brought.
    The Agency filed
    an objection to Mitchell’s motion on May
    27, 19871.
    The Board
    finds that no new issues have been raised in
    Mitchell’s May 19 motion.
    The motion
    is therefore denied.
    Each
    of Mitchell’s contentions, however, will
    be addressed
    in turn.
    Mitchell first argues that the Board
    is treating him “as
    being
    of the same level
    of culpability as both Larry Bittle and
    1 This filing did not include
    a certificate
    of service.
    The
    Agency refiled
    its objection, complete with such certificate, on
    June
    1,
    1987.
    78-352
    —2—
    William Gamber while
    the facts as
    found by
    the Board indicate
    that Mitchell was not directly responsible
    for the threat to the
    environment, but was only the owner
    of the land upon which the
    activities of the other respondents took place”.
    The discussion
    contained
    in the Board’s April
    16,
    1987 Opinion
    (pages 5—10)
    explains the rationale for why this view is appropriate.
    As
    stated
    there, the standard utilized by the Board
    to determine
    owner—lessor liability turns on whether an owner—lessor could
    have reasonably exercised control
    in order
    to prevent past or
    continuing pollution.
    Mitchell’s characterization of himself as
    “only”
    the owner
    of the land does not diminish his liability in
    that capacity.
    As explained
    in the April 16,
    1987 Opinion, pages
    8—10, Mitchell did nothing to control pollution at the site even
    after learning of Agency’s concern about conduct at the site
    during
    the pendency of the lease.
    Moreover,
    he continued
    to do
    nothing after
    he obtained complete control upon cessation of the
    lease.
    Mitchell also requests that
    the Board modify
    its April
    16,
    1987 Order
    to provide for the contingency that Larry Bittle and
    William Gamber refuse
    to cooperate with Mitchell
    in the
    preparation, submission, and implementation of a remedial plan
    for the site in question.
    The Board continues to believe that
    the imposition of joint and several liability was proper
    in this
    instance.
    Mitchell, Larry Bittle, and William Gamber jointly
    brought about the environmental problems at issue
    in this case as
    a result of their actions.
    Mitchell’s role involved leasing
    to
    the other individuals the land upon which the carbon recovery
    operation took place.
    The Board notes that this action gained
    him more than $100,000
    (April 16,
    1987 Opinion, page 33).
    If
    in
    fact Bittle and Gamber do not end up cooperating with the
    provisions of the Board’s Order, Mitchell will still retain a
    right of contribution against them because
    of their
    status as
    jointly liable.
    Finally, Mitchell continues
    to argue that this action was
    “unfairly”
    brought against him, and suggests that the Board
    incorrectly dismissed “without due consideration” the equitable
    defenses of laches,
    estoppel, and waiver which he raised before
    the Board.
    The focus of Mitchell’s argument pertaining
    to the
    “fairness” of the action brought against him here by the Ag~ncy
    appear’s
    to be a 1979 Franklin County Circuit Court action
    Mitchell was not
    a party to that suit.
    There
    is no legal
    impediment
    to the Agency’s action against Mitchell here
    as
    a
    consequence of the 1979 action.
    Under the provisions of the
    Environmental Protection Act, the Agency had every right to file
    this case with the Board.
    Mitchell may feel that the remedy
    2 For
    a complete description of that litigation,
    see the April
    16,
    1987 Opinion, page
    4.
    78-35~
    —3—
    imposed
    by the Board
    is “unfair”,
    but such a concern does not
    impact
    the propriety of
    the filing of the action.
    Regarding the
    equitable defenses raised
    by Mitchell,
    the Board notes that it
    did not dismiss them “without due consideration”.
    Rather,
    it
    found them inapplicable
    to the present situation where an action
    is properly brought pursuant to a statutorily created cause of
    action.
    The Board continues
    to be of this view.
    The May
    19,
    1987 motion of 3. Max Mitchell
    is denied.
    IT
    IS SO ORDERED.
    Board Member Joan Anderson concurred.
    I, Dorothy M.
    Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Order was adopted on
    the
    /O~’ day of
    ______________,
    1987, by a vote
    of
    _____________
    Dorothy M. ~unn, Clerk
    Illinois Pollution Control Board
    iS~S54

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