ILLINOIS POLLUTION CONTROL BOARD
    February 18, 1999
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    CRAIG LINTON, an individual, and
    RANDY ROWE, an individual,
    Respondents.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB 98-80
    (Enforcement - Land)
    CONCURRING OPINION (by M. McFawn and K. M. Hennessey):
    We respectfully concur with the Board’s decision today because we agree that the
    Board must deny complainant’s motion for summary judgment, as the Board did in its order of
    December 3, 1998. We do not, however, agree with the approach taken by the Board in
    resolving complainant’s motion to reconsider. The motion to reconsider raised two significant
    new legal issues, one of which is potentially dispositive. We believe these issues warrant
    discussion, and therefore write separately to explain the basis for our votes to affirm the
    Board’s earlier ruling.
    Complainant seeks reconsideration based on two asserted errors by the Board in
    application of the law in its analysis in the December 3 order. First, complainant asserts that
    the Board erred by focusing on ownership of the site, rather than ownership of the tires.
    Second, complainant asserts that there is no requirement in Section 55.3 that the respondents
    own the tires at the time of removal in order to be held liable.
    OWNERSHIP OF TIRES VERSUS OWNERSHIP OF SITE
    Section 55.3(g) of the Act provides in pertinent part that
    the owner or operator of any accumulation of used or waste tires
    at which the [Illinois Environmental Protection] Agency has
    undertaken corrective or preventive action under this Section
    shall be liable for all costs thereof incurred by the State of
    Illinois[.] 415 ILCS 5/55.3(g) (1996)
    We believe complainant is correct that ownership or operation of the accumulation of tires,
    and not ownership of the site, makes a person liable for removal costs under Section 55.3(g).
    1
    1
    Even if not dispositive, however, ownership of the site could still be probative of ownership
    or operation of an accumulation of tires at the site.
    2
    Even under this view, however, there would still be an issue of material fact precluding
    summary judgment.
    In its order of December 3 the Board concluded that the record, construed liberally in
    favor of the respondents, established that respondents owned and operated the site and the tires
    in 1991, but did not establish that they owned the site in March of 1996, when the Agency
    removed the tires. The Board concluded that an issue of fact existed as to whether they owned
    or operated the site (and, by extension, the tires) at the time liability for the cost of removal
    arose. Accordingly, the motion for summary judgment was denied.
     
    Even if the Board were to focus on whether the respondents owned or operated the
    accumulation of the tires at the site (as opposed to the site itself), complainant is not entitled to
    summary judgment. Respondents’ admissions of possession, dominion, enjoyment, authority
    and control of the tires all refer to a time in the indefinite past, and it is possible that
    respondents could have transferred the site and the tires with it before March 1996. In ruling
    on a motion for summary judgment, the Board must draw the inference favoring the non-
    movant respondents,
    i.e
    ., that any transfer of the property included the tires. Pyne v. Witmer,
    129 Ill. 2d 351, 358, 543 N.E.2d 1304, 1308 (1989). Therefore, even under complainant’s
    interpretation of Section 55.3(g) there remains an issue of material fact as to whether
    respondents owned or operated the accumulation of tires at the time the removal took place.
    OWNERSHIP OR OPERATION OF ACCUMULATION
    OF TIRES AT TIME OF REMOVAL
    Complainant also argues that the Act does not require complainant to show that
    respondents owned or operated the tires at the time that the Agency removed the tires. Under
    complainant’s view, the Board could impose liability on any person who ever owned or
    operated an accumulation of used or waste tires, even if that person transferred ownership or
    ceased operation before the State acted to prevent or correct a hazard. We find no support for
    this interpretation in the Act.
    Section 55.3 imposes liability on the “owner or operator of any accumulation of used
    or waste tires at which the Agency has undertaken corrective or preventive action.” The
    phrase “at which the Agency has undertaken corrective or preventive action” modifies “owner
    or operator or any accumulation of tires.” Therefore, Section 55.3(g) imposes liability only
    on those who are owners or operators when the Agency takes corrective action. A prior owner
    or operator who legally and completely divests himself of ownership and control of the tires
    before the Agency acts is not liable for the Agency’s costs under Section 55.3(g), because he
    does not own or operate the tires that are the subject of the Agency’s action.
    3
    CONCLUSION
    Because we believe this analysis should have been included in the Board’s order, we do
    not join in the order adopted by the Board today, although we concur in the result.
    Marili McFawn
    Board Member
    Kathleen M. Hennessey
    Board Member
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the
    above concurring opinion was submitted on the 22nd day of February 1999.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

    Back to top