APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
(Pioneer Equities, Inc., et al., Appellants; John Mathes
and Associates, Inc., et al., Appellees)
Nos. 3-87-0641, 3-87-0643 cons.
550 N.E.2d 222, 192 Ill. App. 3d 680, 140 Ill. Dec. 586 1989.IL.1950
Appeal from the Circuit Court of La Salle County; the Hon. Thomas R. Flood, Judge, presiding.
JUSTICE HEIPLE delivered the opinion of the court. BARRY, J., concurs. JUSTICE STOUDER, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE
The plaintiff, the State of Illinois, filed a complaint on September 22, 1981, against the defendant and third-party plaintiff Wilmer Brockman, Jr., a landfill operator of a 25-acre tract of land in La Salle County, Illinois, commonly referred to as the Brockman I landfill. The State's complaint alleged that from August 1970 through September 1979, Brockman improperly operated the Brockman I landfill in violation of various provisions of the Illinois Environmental Protection Act (IEP Act) (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1001 et seq.). Specifically, the State alleged that Brockman permitted the open burning of refuse, that the landfill accepted and disposed of unpermitted special wastes, and that the site created a water pollution hazard. The State's prayer for relief requested the following: injunctive relief; installation of monitoring wells; an order directing Brockman to bring the site into compliance with the IEP Act; the imposition of civil penalties in the amount of $10,000 for each violation of the IEP Act and $1,000 for each day that a violation is established; the assessment of costs and fees; and any other additional relief that is appropriate.
On April 15, 1987, Brockman filed a third-party complaint seeking to join numerous generators and transporters who had allegedly contributed to the disposal of unpermitted wastes at the Brockman I landfill. On July 15, 1987, the trial court ruled in favor of motions to dismiss by various third-party defendants, dismissing Brockman's third-party actions against generators and transporters with prejudice. On August 12, 1987, Brockman then filed a motion to vacate the trial court's dismissal order. In his motion to vacate, Brockman also sought leave of court to file a second amended third-party complaint joining 23 additional generators and transporters of the Brockman I landfill. After a hearing on the motion, the trial court denied Brockman's motion to vacate and for leave to file a second amended third-party complaint. Brockman appeals both the dismissal of his original third-party complaint and the denial of his motion to vacate which requested leave to file a second amended third-party complaint.
The State, in its September 22, 1981, complaint, also brought suit against defendant and third-party plaintiff Pioneer Equities, Inc. (Pioneer), alleging that since October 1, 1979, Pioneer caused or allowed the Brockman I landfill to be operated in such a manner as to permit "leachate" from the refuse disposed of at the site to be discharged, causing a water pollution hazard in violation of the IEP Act and resulting in a common law public nuisance. The State's complaint sought the following relief from Pioneer: an injunction ordering the abatement of the public nuisance and cessation of various statutory violations; an order directing Pioneer to bring the landfill into compliance with the IEP Act; the imposition of civil penalties in the amount of $10,000 for each violation of the IEP Act and $1,000 for each day that said violation is established; the assessment of costs and fees; and any additional appropriate relief.
On April 15, 1987, Pioneer filed a third-party complaint against John Mathes, a contractor hired by the Illinois Environmental Protection Agency, alleging that Mathes drilled various monitoring wells through garbage cells located at the Brockman I landfill, causing the discharge of "leachate" and resulting in a water pollution hazard. On July 31, 1987, the trial court granted Mathes' motion to dismiss Pioneer's third-party complaint. Pioneer appeals the trial court's dismissal of its third-party complaint.
In its simplest form, this appeal involves the question of whether third-party actions are allowed when the State brings an action in civil court seeking injunctive relief, civil penalties, and clean up costs for violations of the Illinois Environmental Protection Act. A similar issue was presented to this court in the case of People v. Fiorini (1989), 192 Ill. App. 3d 396, which was consolidated with the instant case for purposes of oral arguments. Both the case at bar and Fiorini were heard before La Salle County Circuit Judge Thomas Flood. In Fiorini, the third appellate district court found that the IEP Act and the Illinois Code of Civil Procedure promoted allowing third-party actions, and therefore reversed Circuit Judge Flood's dismissal of the Fiorinis' third-party action. Likewise, this court finds that Circuit Judge Flood erred in dismissing Brockman's and Pioneer's third-party actions. In order to thoroughly explain the holding reached by this court and to resolve all issues raised by the parties, this court will take the following steps. First, the court will dispel all of those claims asserted by Brockman that are without merit. Second, the court will address Brockman's claim based on section 22.2 of the Illinois Environmental Protection Act. Finally, this court will address whether the trial court erred in dismissing both Brockman's and Pioneer's third-party claims based on the Illinois Contribution Act.
Initially, this court notes that Brockman did not attempt to amend his third-party complaint until July 15, 1987, a full three months after the trial court's deadline for adding new legal theories. Permission to allow an amendment to a third-party complaint rests within the sound discretion of the trial court, and its decision will not be disturbed absent an abuse of that discretion. (Oldenburg v. Hagemann (1987), 159 Ill. App. 3d 631.) We find that the trial court did not abuse its discretion in denying Brockman's motion for leave to amend his third-party complaint based on the fact that Brockman attempted to plead numerous new legal theories at such a late date. However, as is noted later in this opinion, this court is directing the trial court to permit Brockman to amend his pleadings with regard to two of his third-party claims which were brought in his original third-party complaint; the nature of those claims being a private cause of action under section 22.2 of the IEP Act and a claim under the Illinois Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). Thus, this ruling shall not prejudice Brockman's right to bring in additional parties, which Brockman also requested in his amended third-party complaint, if he chooses to replead under those two theories. Notwithstanding, on appeal, this court will focus primarily on the trial court's dismissal of Brockman's original third-party complaint.
Brockman's original third-party complaint contained the following six counts: private cause of action under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq. (1982)); private cause of action under the hazardous waste section of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1022.2); private cause of action under section 113(b)(i) of the Superfund Amendments and Reauthorization Act of 1986 (CERCLA amendments); alleged liability pursuant to Federal common law apportionment; alleged liability under the theory of quantum meruit ; and a claim for contribution under the Illinois Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). Brockman's original third-party complaint named 43 third-party defendants as well as unknown generators joined as "John Doe, et al. Brockman."
Counts I and III of the original third-party complaint were properly dismissed since State courts do not have jurisdiction over Federal CERCLA cases. (42 U.S.C. § 9613(b) (1982).) Count IV, which purported to state a cause of action for equitable apportionment under the Federal common law, was properly dismissed because Federal environmental common law only applies to interstate pollution settings. (United States v. Price (N.J. 1981), 523 F. Supp. 1055.) Count V, which stated a cause of action for quantum meruit based on Brockman's claim that he may be forced to expend large sums of money in cleaning up the landfill, was properly dismissed since Brockman failed to allege that the third-party defendants received a benefit from Brockman and were therefore unjustly enriched. Therefore, this leaves counts II and VI remaining.
Count II of Brockman's third-party complaint attempted to state a private cause of action under the hazardous waste fund section of the IEP Act. Initially, we respond to the third-party defendants' claim that
since the State did not specifically allege a violation of section 22.2 in its complaint against Brockman, count II of Brockman's third-party complaint should be dismissed since this claim is separate and distinct from the underlying action. As was established in Filipponio v. Bailitz (1978), 73 Ill. App. 3d 389, and reiterated in Ketcham v. Consolidated Rail Corp. (1986), 146 Ill. App. 3d 196, 201:
"Although third-party practice is properly used to reduce litigation where the third-party claim arises out of the same basic facts which determine the plaintiff's claim against the defendant, it can not be used to maintain an entirely separate and independent claim against a third-party, even if it arises out of the same general set of facts as the main claim."
Count V of the State's amended complaint sought the abatement of a public nuisance and prayed for an injunction, a prohibition of depositing further wastes, corrective action to remove toxic wastes, and any other appropriate relief. Thus, a portion of the State's action against Brockman sought to have the toxic wastes removed in order to clean up the landfill. Section 22.2 concerns the liability of persons for costs incurred by the State in removing hazardous substances deposited at facilities. Consequently, we find that Brockman's count II is derivative of the State's action and is not an entirely separate or independent claim. The third-party defendants may be partially liable to Brockman for the costs of cleaning up the landfill, ...