ILLINOIS POLLUTION CONTROL BOARD
November
29,
1990
LEFTON IRON AND METAL COMPANY
)
INC., A MISSOURI CORPORATION,
and LEFTON LAND AND DEVELOPMENT
COMPANY,
INC.,
A MISSOURI
CORPORATION,
Complainant,
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,
Counterclaimant,
v.
LEFTON IRON
& METAL COMPANY,
INC.,
A MISSOURI CORPORATION,
and LEFTON
LAND AND DEVELOPMENT CO.,
INC.,
A
)
t4ISSOURI CORPORATION,
Counterdefendants.
OPINION AND ORDER OF THE BOARD
(by J.D.
Dumelle):
This matter comes before the Board due
to
a citizen
enforcement action filed
on November
30,
1987 by Lefton Iron and
Metal
Inc.
(“Lefton”)
alleging that Kerr—McGee Chemical
Corporation
(“Kerr—McGee”) and its subsidiary, Moss—American
Corporation
(“Moss—American’) have violated. sections 21(a)
and
(e)
of the Illinois Environmental Protection Act
(“Act”).
Lefton
later amended this complaint
at hearing to include section 12(d)
of
the Act.
On December
29,
1988, Kerr—McGee
filed a cross
complaint maintaining
that Lefton was also responsible for
violations of
the Act encompassing the same sections.
1 lf—219
—2—
FACTS
From 1927 until
1968,
Kerr—McGee
or its subsidiary, Moss—
American, operated a wood treatment facility near the
intersection of South
20th Street and Upper Cahokia Road in
Sauget,
St. Clair County,
Illinois
(“site”).
From 1969 until
1973, while still retaining ownership, Kerr-McGee no longer
treated wood products at the site.
In 1973, Kerr—McGee sold the
forty—acre parcel to Lefton.
Under Kerr—McGee’s ownership and until 1969,
the company
operated a wood treatment facility on the site.
During the
course of this operation,
creosote and its by—products were
allowed to spill or
leak upon the land,
into surface impoundments
and into groundwater
at the site.
From 1969 until 1973
(the
period of
time between Kerr—McGee’s cessation of operations and
Lefton’s purchase) Kerr—McGee stored creosote and various
creosote wastes at
the site
in storage tanks, waste piles and on—
site ponds.
Subsequent to Lefton’s purchase
of the site in 1973
(ostensibly for use as
a scrap yard)
very little activity
occurred.
Lefton’s principal owner died shortly after the
purchase and tentative plans never materialized.
Lefton did,
however, engage an independent contractor
to salvage some of the
storage tanks.
In the course thereof,
some of the creosote was
removed from these tanks and pumped into
55 gallon drums.
Moreover, between 1973 and 1986 some household refuse was
deposited onto the site by unknown individuals.
In 1981, Kerr—McGee notified USEPA that hazardous materials
had been used and were stored within the site.
Lefton was not
notified of
this information.
In 1986,
the Illinois
Environmental Protection Agency
(“Agency”) notified both Lefton
and Kerr—McGee that both parties were potentially subject
to
liability in connection with the site.
In
1987, Lefton filed
suit against Kerr—McGee with the Board.
In 1988,
the State
initiated an action against both parties
in the Circuit Court
of
St. Clair County
(No. 88—CH—4).
As a result of
the state enforcement action, Kerr—McGee
entered into a consent decree with the Attorney General.
In this
decree, Kerr—McGee incurred responsibility for the cleanup and
agreed
to certain payments.
For example, Kerr—McGee paid $25,000
in lieu of
a civil penalty, paid $28,093
in reimbursement cost to
the State, set up on escrow account for $50,000
for
the State to
withdraw from as provided for within the consent agreement and
agreed to pay up to $35,000 in oversight costs to the State
annually.
116—220
—3--
The consent decree also states
that:
The State shall prosecute this pending
action against Lefton Iron and Lefton
Land to recover the complete relief to
which the State is entitled to at
law and
in equity.
To this end, nothing herein
is intended
to release any claims, causes
of action or demand at law or
in equity
against Lefton Iron or Lefton Land for
any liability they may have arising out
of the matters alleged
in the complaint.
(Respondent’s Motion to Stay, Exhibit
B at p.
10—11)
When the Agency tested the site
in 1986,
the hazardous
constituents present
included creosote,
benzene, carbon
disulfide,
toluene, pentachiorophenol,
naphthalene as
well
as
various chlorinated solvents.
Evidence admitted at hearing
revealed that the contamination was
so severe that some of these
chemicals were present at bedrock level
—
115 feet below
the
surface area of the site.
PROCEDURAL HISTORY
On November
30,
1987 Lefton filed this enforcement action
with the Board against
respondents Kerr—McGee and Moss-
American.
Shortly thereafter,
the State of Illinois filed an
enforcement action against both parties
in the Circuit Court of
St.
Clair County.
As
a result of the
state enforcement
action,
Kerr—McGee entered into a consent decree assuming full liability
for clean—up of the contaminated site.
Kerr—McGee also filed
a
counterclaim against Lefton
in the circuit court
on February
12,
1988 seeking equitable remedies
in contract indemnification,
contribution
(among
joint tortfeasors) and private recovery costs
under CERCLA and SARA.
On January 14,
1988 Kerr—McGee also sought
a stay of the
Board proceedings pending the outcome of the circuit court
action.
This motion was granted by the hearing officer on March
11,
1988.
Subsequent
to this, Kerr—McGee also filed a motion
to
dismiss.
The Board denied Kerr—McGee’s motion
to dismiss even
though it noted in its Order of April
21,
1988 that the same
violations were alleged
in
the state action and the same relief
was sought.
The Board held that in the absence of legal
justification for dismissal
or an Order
of the Court,
“this
matter before the Board
will
proceed”.
On July 8,
1988, the hearing officer, apparently based upon
the April
21,
1988 ruling of the Board, vacated his grant of
Kerr—McGee’s motion to stay.
Even though the April Board Order
only addressed the motion
to dismiss,
the hearing officer
116—221
—4—
apparently interpreted the language that “this matter will
proceed”
to include a lifting
of the stay.
One month
later,
a
new hearing officer was assigned to the case.
On December 29,
1988 Kerr—McGee filed
a counterclaim against
Lefton before the Board.
On March
9,
1989
the Board accepted
this counterclaim holding that it was not duplicative.
In its
ruling,
the Board addressed Kerr-McGee’s counterclaim in circuit
court but did not consider the pending enforcement action by the
State as against Lefton.
Hearing
in the case before the Baord
was held on November 1st and 2nd
in 1989.
DISCUSSION
The Board initially notes that this
is
a somewhat unusual
case.
Here we have two private parties disputing the extent of
their liability while
the same matters are pending before another
jurisdiction.
Moreover,
a consent decree has been entered into
which documents Kerr-McGee’s operation and the contamination
which resulted due to that operation.
Due
to the existence of the consent decree,
the question of
whether Kerr—McGee has violated Sections
12 and 21 of
the Act
is
moot.
Kerr—McGee has undertaken full liability and,
as
such,
the
purpose of the Act has been achieved.
Their contamination of the
site by virtue of forty—two years of treating wood
is evident
within the record and
set forth within the consent decree.
During the period the site
was
operated as
a
wood treatment facility,
creosote and creosote
wastes were handled
in such a manner that
creosote and creosote wastes were allowed to
spill and/or leak upon the land and into the
surface impoundments and groundwater
at the
site.
Upon cessation of operations
in 1968
and continuing until October 1972, Moss and
Kerr—McGee stored creosote and various
creosote wastes at
the site
in storage tanks,
waste piles, and two on—site ponds.
Neither
Moss nor Kerr-McGee disposed
of these
materials off—site or addressed the
contamination resulting from operations at the
site prior
to the sale of the site.
(Respondent’s Motion to Stay,
Exhibit B,
pg.
3)
Kerr—McGee has not used the site
in twenty-one years and has
agreed to a cleanup.
Thus
to fine Kerr—McGee
or to issue
a cease
and desist order
as Lefton pleads
in their complaint would serve
no purpose under the Act.
In terms of
a
fine,
Kerr—McGee
has
already tendered a civi
penalty and committed to other,
continuing obligations.
The appellate courts have held that the
116—2
22
—5—
pupose of Board imposed fines
is
to achieve compliance with the
Act while punitive concerns are secondary.
Modine Manufacturing
v. PCB,
193
Ill. App.
3d 643
(1990).
For the Board to levy a
fine
in the instant case would only be punitive given
the extent
of the consent decree.
Accordingly,
the Board declines
to do so
today.
The Board may also issue
a cease and desist order and find
one or both parties in violation of the Act, but to do so would
have little,
if any effect under
these particular
circumstances.
The source of the pollution which contaminated
this site has not been in operation for over two decades.
The
effect of a stop order therefore, would be
in name only.
Moreover, Kerr-McGee has assumed liability and entered into an
agreement
to clean up the site.
The remaining issue then becomes
whether Lefton violated the Act and,
if
so, how much liability
it
will incur.
The allegations that Lefton violated the Act were brought
before the Board by Kerr—McGee’s counterclaim filed on December
29,
1988.
The state enforcement action against Lefton was filed
on January
6,
1988, almost
a full year earlier.
Yet even
if the
Board elected to retain jurisdiction
in this matter,
its power
under
the circumstances would be limited to whether
a violation
of the Act occured.
The Circuit Court, on the other hand, also
has before it equitable considerations which will allow it
to
rule upon all aspects of
the case.
Had the state enforcement
proceeding been brought before the Board,
it would likewise
possess jurisdiction over all the issues presented in the instant
case.
Instead,
the Board
is only left with the question of
whether Lefton violated the Act
-
the very same issue
the Circuit
Court has before it.
If,
for example,
the Board were to retain jurisdiction and
find both parties
in violation of the Act,
these very same
parties would be in Circuit Court arguing the extent of their
liability.
In point of fact,
they are already there.
And the
Circuit Court has the power to declare that either party is
in
violation
of
the Act and further,
to order either party
to
proceed in accordance with its determination,
regardless of
whether
it
is
based upon equity or law
—
or. as
is
likely in this
case,
a combination thereof.
Although the Board is not precluded from considering
equitable issues,
it holds
today that the Circuit Court of
St.
Clair County
is
in
a much better position to do so.
The Circuit
‘Had the Attorney General brought this enforcement action
before the Board,
the Board would have almost certainly accepted
the Consent Decree pursuant
to Chemetco v.
IPCB,
140 Ill. App.
3d
283
(5th Dist.
1986).
116—223
—6—
Court entered the consent decree executed by the State and Kerr—
McGee, and has
a complete factual background of the case.
Further, as
a court sitting
in chancery,
it has undoubtedly
considered many of the pendent
issues such as contract law and
contribution among
joint tortfeasors
in prior circumstances.
Finally,
the presence of only one adjudicator would alleviate the
possibility of
two dissimilar rulings and future litigation.
The Board
notes
that this is not the first time
it has
divested itself of
jurisdiction
in the name of judicial
economy.
Indeed,
in Northern Illinois Anglers Assn.
v.
City of
Kankakee,
PCB 88—183
(January
5,
1989), we stated:
It
is the Board’s position that
in instances
where the Board has concurrent jurisdiction
with the Circuit Court,
substantially similar
matters previously brought before the Circuit
Court can similarly be dismissed by the Board.
Id.
at
5.
Also see, Brandle v.
Ropp,
PCB 85—68
(June
13,
1985).
It should be noted
that in Northern Anglers the Board used
the language “previously brought before the Circuit Court”.
While the issue of Kerr—McGee’s liability under
the Act was
initially brought before the Board,
the reasons contained
in this
Opinion highlight why the Circuit Court
is better equipped
to
handle this matter
in this circumstance.
CONCLUSION
Given the unique facts
in
the case at bar,
the Board is
convinced that deferring jurisdiction
to the circuit court is
in
the best interest of every party.
As a result of the enforcement
case filed against
it, Kerr—McGee has assumed full liability,
subject to state approval,
for cleanup of
the contaminated
site.
Thus the environmental damage
is being
rectified.
The
remaining question of Lefton’s liability, both under
the Act and
in equity,
are currently pending before the circuit court.
Because the court
is empowered to consider issues in equity and
law,
it can make
a complete determination and craft a final
resolution.
Therefore, due
to the highly unusual circumstances
involved here,
the Board hereby defers jurisdiction to the
circuit court.
116—224
—7—
ORDER
For the reasons stated herein,
this docket
is hereby
dismissed.
IT
IS SO ORDERED.
Board Members J.C. Marlin and J. Anderson dissented.
I, Dorothy
M. Gunn,
Clerk of
the Illinois Pollution Control
Board hereby c~rtifythat
t
ion and Order was adopted
on the
___________
day of
____________
1990 by a vote
of
~
.
C
~roth~,
~
Clerk
Illinois Po
1
tion Control Board
1F6—225