ILLINOIS POLLUTION CONTROL BOARD
November
2,
1989
LEFTON IRON AND METAL COMPANY,
INC.,
a Missouri
Corporation,
and
LEFTON LAND AND DEVELOPMENT
COMPANY,
INC.,
a Missouri
Corporation,
Complainants,
V.
)
PCB 87—191
(Enforcement)
MOSS-AMERICAN,
INC.,
a Delaware Corporation, and
KERR-MCGEE CHEMICAL CORPORATION,
a Delaware Corporation,
Respondents.
KERR-MCGEE CHEMICAL CORPORATION,
a Delaware Corporation,
Counterclaimant,
v.
LEFTON IRON AND METAL COMPANY,
INC.,
a Missouri Corporation,
and
)
LEFTON LAND AND DEVELOPMENT
)
COMPANY,
INC.,
a Missouri
Corporation,
Counterrespondent.
)
ORDER OF THE BOARD
(by J. Theodore Meyer):
On October
6,
1989, Moss—America, Inc.
and Kerr—McGee
Chemical Corporation
(hereafter referred to collectively
as
respondents) filed a Motion for Clarification.
Lefton Iron and
Metal Company,
Inc.,
and Lefton Land and Development Company,
Inc.
(collectively,
Lefton),
has not
filed a response.
Specifically,
the respondents request
that the Board clarify
the
meaning of
its September
28,
1989 order which denied various
motions for summary judgment.
While
the Board takes
the position
that the words of the September
28,
1989 order are unambiguous
and clear,
the Board will respond to the concerns raised by the
respondents.
To that extent,
the motion
is granted.
105-01
—2—
The respondents assert
that the Board’s order
is not based
on the facts of this case.
According to the respondents, the
order includes “criticism unfairly directed toward the
respondents” and is “highly prejudicial” against the respondents.
The respondents specifically refer to that portion of the
September 28th order which addressed the respondents’ contention
that they were entitled to summary judgment because Moss—
American,
Inc.,
not Moss—American Corporation, was the
predecessor in interest to Kerr—McGee Chemical Corporation.
The
complainants had named Moss—American Corporation as a
respondent.
In response to that argument,
the complainants
requested leave to amend its pleadings to correct the misnomer.
The Board granted the complainants’ request, citing 35
Ill. Adm.
Code 103.121(b).
The September 28th order
further stated:
Additionally,
the
Board
is
concerned
that
this
misnomer
was
not
brought
to
its
attention
earlier.
Lefton’s
complaint
was
filed
on November
30,
1987.
Now, almost two
years
later,
the
respondents
have
informed
the
Board
that Lefton
has wrongly
named
one
respondent.
It certainly has been clear from
the
beginning
of
this
proceeding
that
Lefton’s
intention
was
to
bring
an
action
against
Kerr—McGee
and
its
predecessor—in—
interest.
Delay
in correcting
this misnomer
has
served
to
create
numerous
less
than
precise pleadings and Board orders.
(September
28,
1989 order,
slip op.
at
5).
Apparently,
it is the above—quoted passage which serves
as
the basis
for the respondents’
accusation
that the Board has
unfairly criticized the respondents in a manner that
is highly
prejudicial
to the respondents.
In support of their accusation the respondents state that
several filings made
in 1988 indicate that Moss—American,
Inc.,
not Moss—American Corporation, was the predecessor
in interest
to
Kerr—McGee Chemical Corporation.
Such a representation is
true.
However, prior to the August
29,
1989 cross—motion for
summary judgment,
the respondents never
requested that the Board
dismiss the complaint against Moss-American Corporation or enter
a judgment
in favor of Moss—American Corporation on the basis
that the complainants had named a wrong party as a respondent.
It
is also true that the November
30,
1987 complaint was
brought against Moss—American Corporation on the allegation that
Kerr—McGee Chemical Corporation had acquired all the assets of
Moss—American Corporation.
Certainly, the respondents were in
105-02
—3—
the best position
to ascertain that
a misnomer had been committed
by the complainants.
Additionally,
it
is true that delay in correcting this
misnomer has created many less than precise pleadings and Board
orders.
That is the primary concern of the Board.
Accurate and
precise pleadings will foster an efficient adjudicative
process.
The Board encourages and expects parties to cooperate
to the extent that an action may be honed down
to the issues
which are truly contested.
That
is why discovery procedures are
available.
The Board does not believe that the above—quoted passage
from the September
28,
1989 order can be interpreted as unfair
criticism solely directed at the respondents.
Certainly,
the
complainants carry a responsibility to perfect their pleadings as
new information
is made known through the discovery process.
The
Board was merely expressing
its frustration with respect
to the
manner
in which this action
is progressing.
After almost two
years,
the first hearing
in this proceeding
is scheduled for
today, November
2,
1989.
Finally,
the Board does not believe that its order
is
prejudicial,
in any way,
to either party.
The respondents also request that the Board clarify the
following passage of the Board’s September
28,
1989 order:
Consequently,
Lefton’s
request
to
amend
its
pleadings
is
granted
insofar
as
the
Board
will construe the
filings of
Lefton’s,
which
were
filed
prior
to
today’s
date,
as
referring
to
“Moss—American,
Inc.”
wherever
“Moss-American
Corporation”
is
mentioned.
The
Board
expects
all
future
pleadings
to
reference
the
correct
parties
of
this
action.
The
caption
of
today’s
Order
reflects the correction.
(September
28,
1989 order,
slip op.
at
5).
Specifically,
the respondents want the Board
to
“clarify”
the above—quoted passage by holding that Kerr—McGee Chemical
Corporation is the only proper respondent
to this case.
The
respondents assert that Moss—American,
Inc. ceased
to exist when
it was merged into Kerr-McGee Chemical corporation
in
1974.
As
a
result,
the respondents conclude that it would be an error to
have Moss—American,
Inc.
as
a party to this case.
The Board believes that the meaning of the above—quoted
passage
is self explanatory.
The Board simply meant that all
future pleadings should refer
to the respondents as being Moss—
American,
Inc. and Kerr—McGee Chemical Corporation.
This would
reflect the corrected misnomer.
105 03
—4—
However,
the respondents,
in their motion for clarification,
request that the Board expand on that plain meaning and hold that
Moss—American,
Inc.
should not be a party to this action.
In
other words, the respondents request that the Board “clarify”
the
September 28th order by addressing an issue which was not
intended to be addressed by the September 28th order.
The
respondents’
request may be more appropriately made in the
context of a motion
to dismiss which contains supporting
legal
arguments.
IT IS SO ORDERED.
R. Flemal was not present.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify thp~tthe above Order was adopted on
the
~‘‘~‘
day of
__________________,
1989, by a vote
of
___________________
Dorothy M. ,~unn, Cle’rk
Illinois P~21utionControl Board
105—04