ILLINOIS POLLUTION CONTROL BOARD

May

23,

1991

LEFTON IRON AND METAL COMPANY,

INC.,

a Missouri Corporation

and LEFTON LAND AND DEVELOPMENT

COMPANY, INC.,

a Missouri

Corporation,

Complainants,

PCB 87—191

v.

)

(Enforcement)

MOSS-AMERICAN CORPORATION,

a

)

Delaware Corporation, and

)

KERR-McGEE CHEMICAL CORPORATION

)

a Delaware Corporation,

Respondents.

KERR-MCGEE CHEMICAL CORPORATION

a Delaware Corporation,

Cunterclaimant,

v.

LEFTON IRON

& METAL COMPANY,

INC.

A Missouri Corporation, and

LEFTON LAND AND DEVELOPMENT CO.,

INC.,

a Missouri Corporation,

Counterdefendants.

ORDER OF THE BOARD

(by R.C. Flemal):

This matter comes before the Board on Lefton

Iron and Metal

Company’s,

Inc.

(“Lefton”) Motion to Reopen Docket filed on April

29,

1991.

A response was filed by Kerr—McGee Corporation (“Kerr-

McGee”) on May

7,

1991.

The Board dismissed this enforcement action on November

29,

1990.

It did so for

several reasons.

First,

Kerr-McGee assumed

liability for the clean—up via a consent decree entered with the

Attorney General in the Circuit Court of

St.

Clair County.

Second, within that same lawsuit, an action by the People against

Lefton was still pending.

Third, and perhaps most

important,

any

decision rendered by this Board

in the case would be limited

in

that the

issues at bar not cnly involve violations of the

Illinois Environmental Protection Act

(“Act”), but include

equitable remedies outside the scope of the Act.

122—231

---

—2—

In its motion of April 29,

1991, Lefton asserts that on

October

29,

1990, unbeknownst

to the parties,

“the Circuit Court

of St.

Clair County entered an Order granting Lefton’s Motion to

Dismiss on the grounds that the Pollution Control Board had

primary jurisdiction of the matter...”

In its Reply Motion,

Kerr-McGee initially points ou~that Lefton did not file a motion

for reconsideration within

35 days of

the Board’s November

29,

1990 Order.

Kerr—McGee also claims

that Lefton’s factual basis for

requesting relief,

as stated

in their motion

is misleading.

Moreover, Kerr—McGee states that a motion for reconsideration

is

currently pending •before the Circuit Court and regardless

of the

outcome,

that court

still retains jurisdiction over one count

of

Kerr—McGee’s counterclaim.

We agree

with

Kerr-McGee.

Two full months after Lefton’s

alleged discovery of the Circuit Court’s action, Lefton has come

before

this, administrative body and asks that we reopen this

case.

Kerr—McGee

is correct that Lefton did not file a motion

for

reconsideration .within 35 days of the November

29th Order.

Even if Lefton did not discover the Circuit Court’s action until

March

1,

1991,

Lefton also failed

to file within

35 days

of that

discovery.

The Board accordingly finds Lefton’s motion untimely.

In addition

to the timeliness problem, Lefton’s motion

is

also factually incorrect.

The Circuit Court of St.

Clair County

did not dismiss the bulk of the case

—

let alone state

(or even

imply)

that the Board has primary jurisdiction.

Moreover,

the

court retained one count of Kerr—McGee’s counterclaim which

pertains to equitable issues.

Finally,

two other counts of Kerr—

McGee’s counterclaim are currently under reconsideration by the

Circuit Court

—

a fact which Lefton conveniently omitted.

Accordingly, Lefton’s motion to reopen the docket

is denied.

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 ~

day of

~2’)~)~

,

1991,

‘y a vote

of

~-o.

Dorothy

M. ~unn, C

eric

Illinois P~lutionControl Board

122—232