ILLINOIS POLLUTION CONTROL BOARD
September 21, 2000
UNION OIL COMPANY OF CALIFORNIA d/b/a
UNOCAL, a California corporation,
Complainant,
v.
BARGE-WAY OIL COMPANY, INC., JOSEPH
KELLOGG, NIELSEN’S BARGE-WAY, and ROBERT
NIELSEN,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
PCB 98-169
(Enforcement – UST, Citizens)
ORDER OF THE BOARD (by E.Z. Kezelis):
This matter is before the Board on a number of various motions and pleadings. However, before addressing
all of those motions, it is important to review the history of this case.
BACKGROUND
On June 18, 1998, UNOCAL filed a six-count complaint (Comp.) in this action. UNOCAL alleges that since
1982, it has owned property located in Glendale Heights, DuPage County, Illinois (site). Comp. at 1. Prior to 1982,
the site was used as a gasoline service station. Comp. at 2. However, since UNOCAL purchased the site in 1982, it
has never been used as a gasoline service station. Comp. at 14. In 1991, UNOCAL reported a release of petroleum
products from two existing underground storage tanks.
Id
. As directed by the Illinois Environmental Protection
Agency (Agency) and the Office of the State Fire Marshal, UNOCAL performed investigative and corrective action at
the site, including removal of approximately 4,300 tons of contaminated soil. Comp. at 4-5. UNOCAL alleges that it
incurred response and remediation costs totaling approximately $600,000. Comp. at 5.
On July 6, 1998, one of the originally named respondents, Mobil Oil Company (Mobil), filed a motion to
dismiss. A number of the other originally named respondents, Barge-Way, Robert Nielsen, Bargeway Systems, Inc.,
and Robert Atkins, moved to join in Mobil’s motion to dismiss.
On January 7, 1999, the Board entered an order dismissing five of the six counts in the complaint. Count
three, in which UNOCAL alleged violations of Section 12(a) and (d) of the Environmental Protection Act (Act) (415
ILCS 5/12(a), (d) (1996)), is the only remaining count currently pending before the Board.
Finally, on April 24, 2000, UNOCAL filed a motion to voluntarily dismiss Robert F. Atkins, Barge Way
Systems, Inc., and Mobil. No responses or objections to this motion were filed. On May 18, 2000, the Board granted
UNOCAL’s motion and dismissed the three aforementioned respondents from this action.
1
MATTERS CURRENTLY BEFORE THE BOARD
1
It should be noted that on August 17, 2000, Dalise Enterprises, Inc. d/b/a Barge-Way Company, filed a complaint
for declaratory judgment, an emergency motion for temporary restraining order and preliminary injunction, and
memorandums of law in support thereof, in the Cook County Circuit Court. With these filings Barge-Way sought to
enjoin the Board from further action in this matter, on the basis that the Board allegedly lacked jurisdiction over
private cost recovery actions. The Board moved to dismiss with prejudice. Following the filing of briefs and an oral
argument on September 12, 2000, the Cook County Circuit Court granted the Board’s motion to dismiss with
prejudice and held that the Board does have jurisdiction over the matters currently pending in PCB 98-169.
2
A motion for summary judgment was filed by Robert Nielsen (Nielsen) on June 9, 2000. Responses to the
motion were filed by Barge-Way Oil Company, Inc. (Barge-Way), on June 19, 2000, and by Union Oil Company of
California d/b/a UNOCAL (UNOCAL), on June 20, 2000. On June 19, 2000, Barge-Way also filed a motion to strike
portions of Nielsen’s affidavit. On July 21, 2000, Nielsen filed two motions to dismiss the complaint, one for lack of
jurisdiction and one for failure to state a claim, and one motion to dismiss Barge-Way’s counterclaim, which was
filed on June 19, 2000. Barge-Way filed its response to the motion to dismiss the counterclaim on August 1, 2000. No
other responses to Nielsen’s motions to dismiss were filed. On August 7, 2000, Nielsen filed three documents,
including a notice of violations of Professional Rule 4.2, a Rule 137 motion for attorney fees, and a motion in support
of “late” filings. Finally, on August 10, 2000, Nielsen also filed a supplement to notice of violations of Professional
Rule 4.2, a motion for sanctions against Barge-Way for filing a baseless claim, and a request for production of
information directed to Barge-Way. On August 30, 2000, UNOCAL filed a response to the notice of violations of
Professional Rule 4.2.
The counterclaim filed by Barge-Way on June 19, 2000, named Robert F. Atkins, Barge Way Systems, Inc.,
Robert Nielsen, and Tom Biggers as counter-respondents. On August 21, 2000, Barge Way Systems, Inc. and Robert
F. Atkins filed a motion to dismiss the counterclaim for lack of jurisdiction. On August 31, 2000, Barge-Way filed its
response to Barge Way Systems, Inc. and Robert F. Atkins’ motion to dismiss.
Finally, on August 30, 2000, UNOCAL filed a second motion to voluntarily dismiss certain respondents.
3
Nielsen Motions
All of Nielsen’s filings were made by A. Berger, an attorney purportedly acting on Nielsen’s behalf. On
August 14, 2000, however, Nielsen personally filed a handwritten letter in which he stated, among other things, that
Berger no longer represented him or Nielsen’s Bargeway, and was no longer authorized to pursue any relief of any
kind on his behalf. Additionally, Nielsen also withdrew all motions and other requests filed on his behalf by Berger.
Accordingly, all of the motions referenced above as having been filed by Berger are hereby withdrawn and the Board
will not address the merits of those motions.
Motion to Dismiss Counterclaim
The pleading filed by Barge-Way on June 19, 2000, was captioned as a “counterclaim.” With the
counterclaim, Barge-Way seeks to obtain relief against the counter-respondents to the extent that Barge-Way is found
liable to UNOCAL under the pending complaint. As to counter-respondent Robert F. Atkins, Barge-Way also seeks
to assert an indemnification agreement that it alleges was entered into by Barge-Way and Atkins, and in which
Atkins allegedly agreed to indemnify Barge-Way from all suits or claims arising out of Atkins’ use, occupancy, or
operation of the site which is the subject of this dispute.
Attorneys for Barge Way Systems, Inc. (BWSI) and Atkins entered special and limited appearances for the
purpose of challenging jurisdiction of the Board over the counterclaim filed by Barge-Way. In their motion to dismiss
the counterclaim (motion), BWSI and Atkins argue that because they were dismissed from this action by the Board
on May 18, 2000, the Board no longer has jurisdiction over them and that the “counterclaim” does not give the
Board jurisdiction. Basically, BWSI and Atkins argue that, pursuant to Section 5/2-608 of the Rules of Civil
Procedure, a “counterclaim,” by definition, may only lie against another party to the action. See 735 ILCS 5/2-608
(1998). BWSI and Atkins suggest that this deficiency could be remedied by the filing of a third-party complaint by
Barge-Way.
In response, although Barge-Way argues that it should be permitted to join non-parties in its counterclaim,
Barge-Way also seeks, in lieu of dismissal, leave of the Board to cure any defects in the filing of its counterclaim.
BWSI and Atkins seem to indicate that they would have no objection to the Board’s jurisdiction if the counterclaim
had been captioned a “third- party complaint. ” The Board does not consider this “misnomer” to be a fatal flaw to
the claims asserted by Barge-Way. Accordingly, the motion to dismiss filed by BWSI and Atkins is denied and Barge-
Way is hereby granted leave to amend its counterclaim pursuant to the directives of this order.
UNOCAL’S Motion for Voluntary Dismissal
On August 30, 2000, UNOCAL filed a motion to voluntarily dismiss the following respondents: Robert R.
Nielsen and Nielsen’s Bargeway. No response to this motion has been received by the Board. The Board grants
UNOCAL’s motion and hereby dismisses Robert Nielsen and Nielsen’s Bargeway from this UNOCAL’s complaint.
The Board notes that Robert Nielsen is a named counter-respondent in Barge-Way’s June 19, 2000 counterclaim.
This dismissal by UNOCAL does not impact the status or merits of the pending counterclaim.
CONCLUSION
For the reasons stated herein, the Board grants Nielsen’s request to withdraw all motions pending on his
behalf. Second, the Board denies BWSI and Atkins’ motion to dismiss and grants Barge-Way leave to file a third-
party complaint. Finally, the Board grants UNOCAL’s motion to voluntarily dismiss Robert Nielsen and Nielsen’s
Bargeway from the complaint. All future Board and hearing officer orders should reflect this dismissal.
In light of the foregoing, those matters and parties currently pending before the Board are as follows: count
three of UNOCAL’s complaint, in which violations of Section 12(a) and (d) of the Act (415 ILCS 5/12(a), (d) (1996))
are alleged, remains pending as to respondents Barge-Way and Joseph Kellogg; and the counterclaim filed by Barge-
4
Way against counter-respondents Robert F. Atkins, Barge Way Systems, Inc., Robert Nielsen, and Tom Biggers,
remains before the Board, pending amendment by Barge-Way consistent with this order.
In accordance with hearing officer orders issued in this case, the remaining parties are directed to proceed
to hearing as expeditiously as possible.
IT IS SO ORDERED.
Board Member R.C. Flemal dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above order was
adopted on the 21st day of September 2000 by a vote of 6-1.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
