ILLINOIS POLLUTION CONTROL BOARD
September 28, 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 CHEMICA~~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. Marlin):
On August 11, Lefton Iron and Metal Company,
Inc. and Lefton
Land and Development Company,
Inc.
(hereafter referred to
collectively as Lefton)
filed,
for the second time
in this
proceeding,
a Motion
for Summary Judgment.
On August
16,
1989,
Moss—American Corporation and Kerr—McGee Chemical Corporation
(hereafter
referred to collectively as the respondents)
filed a
response to the motion.
On August
29,
1989,
the respondents filed
a Cross—Motion for
Summary Judgment.
Also on that date,
Kerr-McGee Chemical
Corporation
(Kerr—McGee)
filed
a Counterclaimant’s Motion for
Summary Judgment.
On September
13,
1989 the Board granted
a
motion filed by Lefton which sought an extension of
time to
respond
to the August 29,
1989 motions.
Lefton filed its
response to the Cross-Motion
for Summary Judgment on September
14,
1989.
11)3-519
2
Lefton filed another motion to extend time for a response on
September
19, 1989.
The September 19th motion requests an
extension to respond to Couterclaimant’s Motion for Summary
Judgment.
Lefton filed its response to that motion on September
22,
1989.
The September 19th motion by Lefton is hereby
granted.
On September
27, 1989,
Kerr—McGee filed a Motion for Leave
to File Reply in relation to the Counterclairnant’s Motion for
Summary Judgment.
The Board did not allow
the filing of a reply
earlier in this proceeding.
(See Order of July
13, 1989).
Similarly, Kerr—McGee’s September 27,
1989 motion
is denied.
Illinois courts have defined the proper scope of summary
judgment rulings as follows:
The
rules
governing
summary
judgment
procedures
are
well
established.
Although
recognized
as
a
salutary
procedure
in
the
administration
of
justice,
it
is
a
remedy
which should
be granted with caution so that
the
respondent’s
right
to
a
trial,
wherein
the
evidentiary
portion
of
his
case may
be
presented,
is
not usurped
in the presence of
material
conflicting
facts
and
inferences.
The
function
of
this
procedure
is
to
determine
whether
triable
issues
of
fact
exist
in
the
record,
not
to
try
such
issues.
The
right
of
the moving
party
to
summary
judgment
must
be
clear,
free
from
doubt
and determinable
solely
as
a
question
of
law.
If
there
is
present
any
fact
or
facts
on
which
reasonable
persons
may
disagree,
or
inferences
which
may
be
fairly
drawn
from
those
facts
and
may
lead
to
different
conclusions,
the motion court
must
stay
its
hand
and
permit
the
resolution
of
those
facts
and
inferences
to
be
made
at
trial.
Nolan
v.
Johns-Manville
Asbestos
and
Magnesium
Materials
Company,
74
Ill. App.
3d 778,
39 N.E.
2d
1352,
1363—64
(1st
Dist.
1979).
Summary
judgment
is
appropriate
where
the
pleadings,
depositions
and
admissions
on
file,
together with affidavits,
if any,
show
that
there
is
no
genuine
issue
as
to
any
material
fact
and
that
the moving
party
is
entitled
to
judgment
as
a
matter
of
law.
103—521)
3
(Ill.
Rev.
Stat.
1977,
ch.
110,
par.
57(3)).
In
ruling
on
a
motion
for
summary
judgment,
the
trial
court
must construe
the
pleadings,
depositions
and
affidavits
most
strictly
against
the
moving
party
and-most
liberally
in
favor
of
the
opponent.
(Lumbermens
Mutual
Casualty
Co.
v.
Poths,
(1968),
104
Ill.
App.
2d
80,
243
N.E.2d
40).
Inferences may
be drawn from the facts
which are
not
in dispute,
and
if fair—minded
persons
could draw different
inferences
from
these
facts
then
a
triable
issue
exists.
(McHenry
Sand
&
Gravel,
Inc.
v.
Rueck,
(1975),
28
Ill.
App.
3d
460,
328
N.E.2d
679).
The
right
of
a
party
to
summary
judgment
must
be
clear
and
free from doubt.
(Dakovitz
v.
Arrow
Road
Construction
Co.,
(1975),
26
Ill.
App.
3d
56,
324 N.E.2d 444).
Killeen
v.
R.W.
Dunteman
Company,
78
Ill.
App.
3d
473,
397 N.E. 2d
436, 438
(1st Dist.
1979).
Lefton’s August 11th motion is quite similar
to its June 14,
1989 Motion for Summary Judgment which the Board denied by its
Order of July 13,
1989.
As
in the previous motion, Lefton argues
that the respondents’ August
1, 1988 Response to Lefton’s Request
for Admissions,
the respondents’ answers
to Lefton’s First Set of
Interrogatories, and the respondents’ Counterclaim indicate that
there
is no genuine issue as to material facts of the case and
that Lefton is entitled to summary judgment
in its favor.
Additionally, Lefton argues
in its August 11th motion that
certain statements of
the Couterclaim constitute
“a
judicial
admission of every material fact asserted
in the Complaint
against Kerr—McGee”.
(Motion,
p.6).
Lefton also argues that the
depositions
of Louis Meier and C. George Lynn also support
Lefton’s request for summary judgment.
The respondents’ Response disputes Lefton’s contentions that
the respondents’
Counterclaim amounts
to a binding judicial
admission.
Also,
the repondents assert that the depositions do
not show that Lefton
is entitled
to summary
judgment.
Specifically,
the respondents state
that Lefton has failed
“to
establish the necessary causal connection between
the alleged
activities conducted at the site
...
and the alleged conditions
existing at the site”.
(Respondent’s Response, p.5—6).
Applying the above—quoted criteria for
rulings on summary
judgment motions
the Board must deny Lefton’s motion.
As found
in its July 13, 1989 Order,
the Board
is
not convinced, beyond
doubt,
that Lefton is entitled to summary judgment
in this
matter.
The portions of
the pleadings cited
in Lefton’s instant
motion are the same as those cited in Lefton’s previous motion.
103 521
4
Those provisions still do not convince the Board that there
is no
genuine issue as to any material fact.
The use of the
depositions by Lefton also do not require a different outcome.
A
fair minded person could certainly draw more than one inference
from the facts presented by the depositions.
Therefore,
the Board hereby denies Lefton’s motion.
In the August 29,
1989 Cross—Motion for Summary Judgment,
the respondents seek summary judgment
in their
favor “on the
issues raised by Lefton’s complaint”.
The respondents contend
“that there
is no genuine issue as to any material
fact existing
between the Complainants and Respondents, and
...
that
Respondents are entitled to
judgment
in their favor as a matter
of
law”.
However,
as stated above
in ruling on Lefton’s August 11th
motion, the Board is not convinced,
beyond doubt,
that there
is
no genuine issue of material
fact concerning the issues raised by
Lefton’s complaint.
Therefore,
the respondent’s cross—motion for
summary judgment
is denied.
The respondents assert that they could not be held liable
for violations of
21(a) and 21(e)
if the wastes which were
deposited on the site were also generated there.
The Board is
not convinced that such
a legal outcome
is necessitated even
assuming such facts.
The “on—site exemption” applies
to Section
21(d),
not 21(e).
Moreover,
the on—site exemption to the 21(d)
permitting requirement concerns a mixed question of law and
fact.
In
fact,
a body of case law has emerged concerning
the
issue of on—site exemptions.
Pielet
Bros. Trading
v. Pollution
Control Board,
110 Ill. App.
3d 752,
755,
442 N.E.
2d
1374,
1373,
(5th Dist.
1982).
Additionally, although one might be exempt
from
a permitting requirement with regard
to
a waste disposal
operation,
it does not necessarily follow that that person can
never be found
in violation of Section
21(a)
of
the Act for
causing or
allowing the open dumping of any waste.
Nonetheless,
in their motion,
the respondents assert that
Moss—American Corporation has no connection with the subject
site.
Further,
the respondents
state that Moss—American,
Inc.
(as opposed to Moss—American Corporation) was the entity which
transferred
title of the subject site to Lefton Iron and Metal
Company,
Inc.
in 1973.
According to the respondents, Kerr—McGee
is the successor—in—interest
to Moss—American Inc.,
not Moss—
American Corporation.
The motion states
that Moss—American,
Inc.
merged with Kerr—McGee
in 1974.
In its Response, Lefton states that
it believed Kerr—McGee
had utilized the terms “Moss—American Corporation” and
“Moss—
American,
Inc.” interchangeably and that the names
referred to
the same entity.
Lefton asserts
that its course of action is
directed against the predecessor corporation of Kerr—McGee.
On
this issue
the Lefton Response concludes:
103--522
5
If
KERR-McGEE’s
current
motion
can be
taken
as
an
admission
that
the
predecessor
corporation’s
proper
name
is
MOSS-AMERICAN,
INC.
rather
than MOSS-AMERICAN
CORPORATION,
then LEFTON accordingly requests leave of the
Board,
instanter,
to
amend
all
of
its
pleadings
to
conform
to
KERR-McGEE’s
nomenclature which
has
been
articulated
for
the
first
time
in
their
Motion
for
Summary
Judgment.
(Lefton Response,
p.2).
It appears to the Board
that the respondents allow that
Moss—American, Inc.
is the predecessor—in—interest to Kerr—
McGee.
Lefton’s complaint against Moss—American Corporation
is
based upon the allegation that Kerr—McGee acquired all the assets
of Moss-American Corporation.
However,
it now appears
that Kerr—
McGee merged with Moss—American,
Inc.,
not Moss—American
Corporation.
As Lefton suggests
in its Response,
it appears that the
filings
in this case are the subject of
a misnomer.
Section
103.121(b) states:
A misnomer
of
a
party
is not
a
ground for
a
dismissal,
the
name
of
any
party
may
be
corrected at any time.
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.
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.
Kerr—McGee’s Counterclaimant’s Motion for Summary Judgment
requests that the Board find that Lefton violated Sections 12(a),
12(d) and 21(a)
of the Act.
In its response, Lefton asserts that
“material issues of fact exist so as
to preclude rendition of
a
summary judgment in favor of Kerr—McGee”.
Specifically, Lefton
states that Kerr—McGee has not shown that Lefton activities have
103-523
6
contributed to water or groundwater pollution.
Lefton states
that in 1985 it learned for the first time of environmental
problems with the site.
Lefton further asserts that since that
time Kerr—McGee has “been virtually in continuous possession of
the property...so that (Kerr—McGee
could conductan
investigation and prepare a work plan to remediate the site”.
Again, given the criterion set forth by the courts,
the
Board must deny Kerr—McGee’s motion.
The Board is not convinced,
beyond doubt, that there is no genuine issue of fact and that
Kerr—McGee
is entitled to a judgment as
a matter of law.
Kerr—McGee’s Counterclaimant’s Motion for Summary Judgment
is hereby denied.
Finally, the Board notes that the parties have presented
various legal arguments
to support their respective positions.
Arguments concerning liability under contract or tort law
theories are not necessarily relevant
in the Board’s
determination as
to whether an individual has violated the Act or
regulations promulgated thereunder.
The parties are encouraged
to confine their legal arguments to areas
of the law which are
relevant to enforcement proceedings
as set forth by the Act.
IT
IS SO ORDERED.
I,
Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify th~tthe above Order was adopted on
the
~
day of
~4,_~2-&~,
1989, by a vote
of
/.
V
Illino
ilution Control Board
103—524