MICHEL GRAIN COMPANY, INC~,
alkla
MICHEL FERTILIZER, an Illinois
corporation, CARYLE MICHEL, and
RONNIE TODD,
Respondents.
PCB
96-1
43
(Enforcement-Water)
RECEIVEJD
CLERK’S
OFFICE
IWG 182003
STATE OF ILLINOIS
Pollution Control Board
NOTICE OF FILING
To:
Doug Antonik
Antonik Law Offices
1921 Broadway
P.O. Box 594
Mt. Vernon, IL 62864
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: August 13, 2003
F. William Bonan
Bonan and Bonan and Rowland
P.O. Box 309
McLeansboro, IL 62859
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos /
Litigatio Division
/
BY:
AN~ELAEATON HAMILTON
Assistant Attorney General
Environmental Bureau
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
vs.
)
)
)
)
)
)
PLEASE TAKE NOTICE that on this date, I mailed for filing with the Clerk of the Pollution
Control Board of the State of Illinois COMPLAINANT’S RESPONSE TO RESPONDENTS’ RONNIE
TODD AND RONNIE TODD LAND TRUST, MOTION TO DISMISS, copies of which are attached
hereto and herewith served upon you.
CERTIFICATE OF SERVICE
I hereby certify that I did on August 13, 2003, send by First Class Mail, with postage thereon
fully prepaid, by depositing in a United States Post Office Box true and correct copies of the
following instruments entitled COMPLAINANT’S RESPONSE TO RESPONDENTS’, RONNIE
TODD AND RONNIE TODD LAND TRUST, MOTION TO DISMISS
To:
Doug Antonik
F. William Bonan
Antonik Law Offices
Bonan and Bonan and Rowland
1921 Broadway
P.O. Box 309
P.O. Box 594
McLeansboro, IL 62859
Mt. Vernon, IL 62864
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the same
foregoing instrument(s):
To:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
A copy was also sent by First Class Mail with postage thereon fully prepaid
To:
Carol Sud man
Hearing Officer
Pollution Control Board
1021 North Grand Avenue East
Springfield, Illinois 62702
A~a~n~ilt~/
Assistant Attorney General
This filing is submitted on recycled paper
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
/~\Ut~
CLERK’S
18
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
003
STATE
OFILLINO
Complainant,
)
POllUtiofl Controj Board
vs.
)
PCB No. 96-143
)
(Enforcement-Water)
MICHEL GRAIN COMPANY, INC., a/k/a
)
MICHEL FERTILIZER, an Illinois
)
corporation, CARYLE MICHEL,
RONNIE TODD, and RONNIE TODD
)
LAND TRUST,
)
)
Respondents,
)
COMPLAINANT’S RESPONSE TO RESPONDENTS’. RONNIE TODD AND RONNIE TODD
LAND TRUST. MOTION TO DISMISS
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by Lisa Madigan, Attorney
General of the State of Illinois, responds to the Motion to Dismiss filed by the Respondents,
RONNIE TODD and RONNIE.TODD LAND TRUST, and served upon the Complainant on July
17, 2003, as follows:
GENERAL COMMENTS
1.
The Board will determine this Motion to Dismiss according to the principles
applied by the circuit courts pursuant to Sections 2-615 and 2-619 of the Illinois Code of Civil
Procedure, 735 ILCS 5/2-615, 2-619 (2002). It is instructive to note that in
County of DuPage v.
Waste Management of Illinois,
PCB 94-92 (December 1, 1994), in denying the motion to
dismiss, the Board relied upon both “these principles and normal practice standards before the
Board.” (Order at p. 5)
2.
The Courts have taken all well-pleaded facts as true and construe all reasonable
inferences in favor of the Plaintiff.
Johnnie C. Gouge v. Central Illinois Public Seniice Co.,
I
(1991) 144 Ill. 2d 535, 542. A cause of action shall not be dismissed unless it clearly appears
from the pleadings that no set of facts can be proved that would entitle the Plaintiff to relief.
People
of the State of Illinois v. Datacom Systems Corp.,
(1991) 146 III. 2d 1, 11.
3.
The Attorney General filed the Third Amended Complaint in this action on
September 20, 2002 alleging violations of Section 12 and 2Iof the Illinois Environmental
Protection Act (“Act”), 415 ILCS 5/12 and 21
etseq.
(2002), against MICHEL GRAIN
COMPANY, INC. a/k/a MICHEL FERTILIZER, CARYLE MICHEL, RONNIE TODD, and
RONNIE TODD LAND TRUST. Counts I and II of this action were brought only against the
Respondents, CARYLE MICHEL, and MICHEL GRAIN COMPANY, INC., a/k/a MICHEL
FERTILIZER, regarding an agri-chemical facility located in ma, Jefferson County, Illinois.
Counts III and IV of this action were brought against the Respondents, RONNIE TODD,
RONNIE TODD LAND TRUST, CARYLE MICHEL and MICHEL GRAIN COMPANY, INC., a/k/a
MICHEL FERTILIZER, regarding a liquid and dry fertilizer and agri-chemical facility located in
Broughton, Hamilton County, Illinois.
4.
Counts Ill and IV of the Complaint allege water pollution violations and waste
disposal violations. As the Complaint alleges (and as admitted for purposes of this motion), the
Illinois EPA began inspecting the Broughton facility in January of 1992. The Illinois EPA has
observed two underground drains that discharge to a drainage way which is a tributary to an
unnamed tributary of the North Fork Saline River.
5.
In 1992, the Illinois EPA was told that the facility had been abandoned for
approximately three years but found many above-ground tanks that still contained liquids,
several discarded containers of pesticides and insecticides and approximately two tons of damp
fertilizer. The Illinois EPA also observed, in another 1992 inspection, discolored soils and
gravel. The soils appeared yellow in color and exhibited an agri-chemical odor while other soils
manifested a petroleum odor. The soils and water were sampled and the lab results found
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alachlor, atrazine, and trifluralin in the water and atrazine and trifluralin in the soils. These soil
samples indicated potential exceedances of Class I and Class II groundwater standards for
Atrazine and Alachlor and an exceedance of the health advisory level for Trifluralin.
6.
The Illinois EPA has observed the demolition of most of the buildings and the
removal of the above-ground tanks over the subsequent years. However, no action has been
taken by any of the Respondents to cleanup the contamination contained within the soils and
address the potential impact to the groundwater.
7.
In their most recent motion to dismiss, Respondents, RONNIE TODD and
RONNIE TODD LAND TRUST, seek a dismissal from this lawsuit on the ground that
Complainant has no knowledge of Ronnie Todd and Ronnie Todd Land Trust releasing
“substances” onto the property. Therefore, Ronnie Todd and Ronnie Todd Land Trust are only
parties because they had or have title to the premises in question. Alternatively, Ronnie Todd
and Ronnie Todd Land Trust request that the previous owners be added to the Complaint as
party respondents if dismissal is not granted by the Board.
8.
The Respondents, RONNIE TODD and RONNIE TODD LAND TRUST,
however, are mistaken and, for the reasons set forth below, their Motion to Dismiss should be
denied.
ARGUMENT
RELEASES AT THE FACILITY
9.
The issue to be resolved by the Board regarding Ronnie Todd and Ronnie Todd
Land Trust is whether they exercise sufficient control over the source of the pollution at the
facility and whether they have taken any precautions to prevent the release of contamination.
10.
On June 24, 1997, Mr. Todd acquired Block 35 in Broughton, Hamilton County,
Illinois from Caryle and Catherine Michel by a quit claim deed. (See Attachment A of
3
Complainant’s Response to Motion to Dismiss.) Block 35 is the facility that is the subject of the
case at bar. Prior to the transfer from the Michels, Ronnie Todd had leased the facility from the
Michels. (See Attachment B of Complainant’s Response to Motion to Dismiss.) On July 21,
2000, Mr. Todd conveyed Block 35 to the Ronnie Todd Land Trust. (See Attachment C of
Complainant’s Response to Motion to Dismiss.)
II.
Mr. Todd admits in his prior motions to dismiss and affidavit that he continues to
use the property “as a truck lot and truck repair facility” even after he conveyed the property to
the Ronnie Todd Land Trust. Since Mr. Todd still uses the facility after it was conveyed to the
Trust, he has benefitted from this use and still has control over the facility. Mr. Todd has not
alleged that anyone else receives any benefits from the facility. Moreover, Mr. Todd has not
alleged that any other entity uses the facility other than himself for his trucking business.
12.
As the operator and lessee of the facility prior to 1997, the owner of the facility
from 1997 to 2000, and as a beneficial user of the facility since 2000, Mr. Todd and Ronnie
Todd Land Trust have had the capability of control over the source of the pollution at the facility
and they have not taken any necessary precautions to prevent the pollution from continuing.
Therefore, Mr. Todd and Ronnie Todd Land Trust have caused, threatened and/or allowed
water pollution in violation of Section 12 of the Act, 415 ILCS 5/12 (2002), and has conducted a
waste disposal operation in violation of Section 21 of the Act, 415 ILCS 5/21 (2002).
13.
In Meadowlark Farms, Inc. v. Pollution Control Board, 308 N.E.2d 829
(5th
Dist.
1974), the Court held that the Environmental Protection Act is
“malum prohibitum,
no proof of
guilty knowledge or
mens rea
is necessary to a finding of guilt” 308 N.E.2d 829, 837 (5th Dist.
1974). Specifically, the Meadowlark case involved water pollution that was caused by seepage
from abandoned mine refuse piles. The prior owner of the mineral rights left a coal refuse pile
on the surface of the property acquired by Meadowlark Farms. Meadowlark Farms contended
that it did not cause, threaten or allow the discharge of contaminants because Meadowlark
4
Farms merely owned the surface rights to the property, not the mineral rights, 308 N.E.2d 829,
836 (5th Dist. 1974). The Court held that Meadowlark Farms, as the owner of the surface rights
to the property, also owned the abandoned mine refuse piles. Therefore, Meadowlark Farms
owned the source of the pollution and had control over the source of the pollutional discharge
and violated Section 12 of the Act,
id.
14.
The Meadowlark case was the beginning of a long line of precedent in Illinois
which holds that “the owner of the source of pollution causes or allows the pollution within the
meaning of the statute and is responsible for that pollution. . .“ Russell Parkinson d/b/a
Parksville v. The Pollution Control Board, 543 N.E.2d 901, 904 (3d Dist. 1989). In People v. A.
J. Davinroy Contractors, the Court stated that the test to apply by the Illinois courts is “whether
an alleged polluter has violated the Act is whether the alleged polluter exercised sufficient
control over the source of the pollution,” People v.A. J. Davinroy Contractors, 618 N.E.2d 1282,
1286 (sth Dist. 1993) citing People v. Fiorini, 574 N.E.2d 612, 623 (1991). In that case, a sewer
contractor was held to be liable for discharge from a sewer line where he had agreed to be
“responsible for the operation and maintenance of the existing pumping system at the particular
location” and “neither lacked the capability to control the source of the pollution nor undertook
any precautions to prevent the pollution,” 618 N.E.2d at 1282, 1287 (5t~~
Dist. 1993).
15.
In the instant case, Mr. Todd and Ronnie Todd Land Trust have owned and still
have beneficiary use of the property. As the owner and main beneficial user of the property,
they have the capability to control the source of the pollution. As discussed infra, Illinois EPA
discovered contaminated soils (the source of the pollution) among other contaminated media in
1992. However, the Respondents, including Mr. Todd and Ronnie Todd Land Trust, have
committed no action to abate the soil contamination. Therefore, the contaminated soils remain
at the property and the contamination is on-going. Mr. Todd and Ronnie Todd Land Trust have
not alleged that they have taken any precautions to the prevent the pollution.
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16.
By applying the Davinroy test to the instant case, Mr. Todd and Ronnie Todd
Land Trust have the capability to control the source of pollution and have not taken any
precautions to prevent the release. Therefore, they have violated Sections 12 and 21 of the
Act, 415 ILCS 5/12 and 21(2002).
17.
By allowing the contamination to remain in the soil and the threat of release of
this contamination to groundwater, the Respondents, Ronnie Todd and Ronnie Todd Land
Trust, have released and continue to release contamination since 1997.
PREVIOUS OWNERS AS PARTY RESPONDENTS
18.
In this most recent motion, the Respondents, Ronnie Todd and Ronnie Todd
Land Trust, state, albeit erroneously, that Complainant is holding Respondents, Ronnie Todd
and Ronnie Todd Land Trust, liable for contamination at the facility merely because they had or
have title to the property, therefore, all previous property owners are then liable for the current
contamination and must be added as necessary parties.
19.
The Illinois Courts define a necessary party as “one with a present, substantial
interest in the subject matter of the litigation without whose participation a complete resolution
cannot be had.” Import Sales, Inc. v. Continental Bearings Corporation, 217 III. App. 3d 893,
902, 577 N.E. 2d 1205, 1211(1st Dist. 1991); Chariot Holdings, Ltd. v. Eastmet Corp., 153 III.
App. 3d 50, 61, 505 N.E. 2d 1076 (1987); and Brumleyv. Touche, Ross & Co., 123 III App. 3d
636, 643-44, 463 N.E. 2d 195, 201 (1984).
20.
In Brumley v. Touche, Ross & Co., the court further defines a necessary party as
one whose presence in a lawsuit is required for any of three reasons: (1) to protect an interest
which the absentee has in the subject matter which would be materially affected by a judgment
entered in his absence; (2) to reach a decision which will protect the interests of those who are
before the court; or (3) to enable the court to make a complete determination of the
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/
controversy. Brumleyv. Touche, Ross & Co., 123 III App. 3d 636, 643-44, 463 N.E. 2d 195,
201 (1984) citing Lain v. John Hancock Mutual Life Insurance Co., 79 III. App. 3d 264, 398 N.E.
2d 278 (1979).
21.
The Respondents are not entitled to seek contribution; cross-claim or counter-
claim relief against any party who had title to the property previously, because Respondents
have not shown how these previous property owners are necessary parties in their most recent
motion to dismiss.
22.
As stated above, Ronnie Todd and Ronnie Todd Land Trust are liable for the on-
going contamination on the property because Ronnie Todd and Ronnie Todd Land Trust have
the ability to control the source of pollution and have not taken any precautions to prevent the
release, and not, because they merely have or had title to the property.
23.
Complainant filed the original complaint in 1997 against MICHEL GRAIN
COMPANY, INC. a/k/a MICHEL FERTILIZER, and CARYLE MICHEL since they were the
owners and operators of the facility when the Illinois EPA first inspected the site and found the
contamination in 1992.
24.
It is not clear how the previous property owners are necessary parties. The
previous property owners do not have a present or a substantial interest in the subject matter of
this litigation and their participation is not needed to resolve the matter against the
Respondents.
25.
Moreover, Ronnie Todd and Ronnie Todd Land Trust can always request the
Board to add these property owners by filing a proper third party complaint.
CONCLUSION
In closing, neither of these contentions proffered by the Respondents, Ronnie Todd and
Ronnie Todd Land Trust, are sufficient to dismiss this matter against them.
7
WHEREFORE, the People of the State of Illinois respectfully request that the Board
deny Ronnie Todd and Ronnie Todd Land Trust’s Motion to Dismiss Complaint.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement Division
BY:____________
AN~ELAEATON HAMILTON
Environmental Bureau
Assistant Attorney General
Of counsel:
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: j
13/k3
8