ILLINOIS POLLUTION CONTROL BOARD
March
9, 1989
LEFTON IRON AND METkL COMPANY,
INC.,
a Missouri Corporation,
and LEFTON LAND AND DEVELOPMENT
COMPANY,
INC.,
a Missouri
Corporation,
Complainants
—
Counter—respondents,
)
v.
)
PCB 87—191
MOSS—AMERICAN CORPORATION,
)
a Delaware Corporation,
and
KERR-McGEE CHEMICAL CORPORATION,
a Delaware Corporation,
Respondents ~~~Counterclaimants)
)
ORDER OF THE
BO~RD~~i~iin):
On December
29,
1988, Kerr—McGee Chemical Corporation (Kerr—
McGee)
filed
a counterclaim against Lefton Iron and Metal
Company,
Inc.
(Lefton Iron)
and Lefton Land and Development
Company,
Inc.
(Lefton
Land).
By its Order of January 19,
1989,
the Board directed
the parties
to address
the issues of
1)
whether
the counterclaim should
be docketed
as
a separate action
and
2) whether
the counterclaim
is duplicitous
or frivolous
pursuant
to Section
31(b)
of the Environmental Protection Act
(Act).
Kerr—McGee
filed
its response
to the Board’s January 19
Order
or-i
February
3,
1989,
and Lefton
Iron
and Lefton Land
(hereafter referred
to collectively as Lefton)
filed
their
response on February 21.
For clarity of this Order,
the Board will
review relevant
events concerning
and relating to this proceeding
in
chronological order.
On November
30,
1987,
Lefton filed with the
Board
a complaint against Moss—American Corporation
(Moss)
and
Kerr—McGee.
The complaint alleges violations of the Act by Moss
and Kerr—McGee and requests th~Board
to
issue
an Order
which
requires Moss and Kerr—McGee
to cease
and desist violations of
the Act,
to tender
a plan
for site
clean—up, and
to pay
a civil
penalty.
On January
7,
1989
the Illinois Attorney General, on behalf
of the People of
the
State of
Illinois,
filed
in
the Illinois
circuit court,
St.
Clair
County,
a complaint against Lefton,
Moss,
and Kerr—McGee,
alleging violations of the Act.
In
the
circuit court action,
Kerr—tlcGee filed
a “counterclaim”
against
Lefton on February 12,
1988.
Through that claim Kerr—McGee seeks
to recover costs and expenses from Lefton that Kerr—McGee
incurred due
to the circuit court action.
The claim presents
various alternative theories for recovery.
97—109
2
Subsequently, Kerr—McGee
filed
a motion
to dismiss Lefton’s
complaint in this Board proceeding.
Notwithstanding
the consent
order
by the circuit court,
the Board denied Kerr—McGee’s motion
to dismiss Lefton’s complaint by the Board’s Order
of April 21,
1988.
Finally, on December
29,
1988 Kerr—McGee filed with the
Board
a counterclaim against Lefton alleging violations of the
Act and requesting the Board
to issue
an Order
which requires
Lefton
to cease and desist violations,
to tender
a plan for site
clean—up, to finance
the clean—up, and
to pay
a civil penalty.
Since the violations alleged by Kerr—McGee’s counterclaim
concern the same site which is the subject of Lefton’s complaint
and the same parties are
involved,
it would be efficient
to
handle these actions
in the same proceeding.
The Board does not
find that the Act or
Board procedures necessarily preclude a
counterclaim
in this instance.
As
a result, the Board will treat
Kerr—McGee’s claim as
a counterclaim and not as
a
separate action
in another docket.
Even
though Kerr—McGee’s claim
is docketed
as
a
counterclaim,
the Board
finds that
it must
still make
a
determination as
to whether
the claim
is duplicitous
or frivolous
pursuant
to Section
31(b)
of the Act.
Kerr-McGee states that its counterclaim is not duplicitous
because
it
has not previously brought an action against
Leftori
before
the
Board.
The
Board
notes
that
it
considers
similar,
previously—filed
circuit
court
actions
to
be
relevant
for
purposes
of
a duplicitous finding.
Northern Illinois Anglers’
Association v. City of Kankakee,
PCB 88—183.
(January 5,
1989).
Lefton counters that the Kerr—McGee counterclaim filed
with the Board duplicates
the pending circuit court counterclaim
of Kerr—McGee since according
to Lefton, “if Kerr—McGee
anticipates success on its counterclaim
in the circuit court,
it
will necessarily have
to begin by proving most,
if not all, of
the facts
which have been pled
in the counterclaim filed before
this Board.”
(Lefton Response, p.2).
As stated earlier, the circuit court counterclaim filed by
Kerr—McGee seeks
to recover expenses and costs
from Lefton which
Kerr—McGee
incurs as
a result of the circuit court action.
The
legal
basis for
the counterclaim
is alternatively argued
as
contractual indemnity, statutory contribution
(among joint
tortfeasors), private cost recovery under
CERLA,
or private cost
recovery under
SARA.
In the counterclaim before
the Board,
Kerr—
McGee alleges that Lefton violated the Act and
requests remedies
typical
to that of
ah enforcement action.
Moreover,
Lefton
“candidly notes
that it has opposed
the
St. Clair County
Circuit Court Counterclaim on the grounds that this
Board should
have primary jurisdiction of the matter.”
(Lefton Response,
p.3).
Lefton
further asserts that the circuit court has not yet
ruled
on that
issue.
97—110
3
Given
the circumstances the Board
finds that Kerr—McGee’s
counterclaim of December
29, 1988
is not duplicitous of the
counterclaim that Kerr—McGee
filed
in the circuit court.
Lefton does not argue
in its Response that the counterclaim
is “frivolous”.
After reviewing the counterclaim, the Board
finds that it
is not frivolous.
In summary, the December
29,
1989 filing
of Kerr—McGee
is
docketed as
a counterclaim
in this matter;
the caption on this
Order has been altered
to reflect the existence of the
counterclaim.
Additionally, the counterclaim is neither
duplicitous,
or frivolous under Section
31(b)
of the Act.
The
complaint and counterclaim may proceed
to hearing
as appropriate.
IT
IS SO ORDERED.
I,
Dorothy M.
Gurin, Clerk of the Illinois Pollution Control
Board, hereby certify that the above
Order was adopted on
the
t~C~
day of
________________,
1989, by
a vote
of
7-
O
.
Dorothy M.O3unn,
Clerk
Illinois Pollution Control Board
97—ill