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02/14/96 PEOPLE STATE ILLINOIS AND ILLINOIS

February 14, 1996

THE PEOPLE OF THE STATE OF ILLINOIS AND THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, PLAINTIFFS-APPELLANTS,
v.
NL INDUSTRIES, INC., ARTRA GROUP, INC., JOHN HARVEY, PETER R. HARVEY, AMERICAN NATIONAL BANK AS TRUSTEE UNDER TRUST NUMBERS 48495 AND 55976, JOHN HECKENS, GOODWILL INDUSTRIES OF CHICAGO AND COOK COUNTY, ILLINOIS, LASALLE NATIONAL BANK AS TRUSTEE UNDER TRUST NUMBER 105679, M & T ENTERPRISES, INC., LAVON TARR, MARTIN S. BIEBER, RANDALL POLK, INDIVIDUALLY AND D/B/A WRIP WRECKING CO., AND COLE TAYLOR BANK DROVERS NO. 84141, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Richard L. Curry, Judge Presiding.

As Modified on Denial of Rehearing November 13, 1996. Released for Publication December 22, 1996.

The Honorable Justice Tully delivered the opinion of the court: Cerda and Greiman, JJ., concur.

The opinion of the court was delivered by: Tully

MODIFIED ON REHEARING

The Honorable Justice TULLY delivered the opinion of the court:

Plaintiffs, the People of the State of Illinois and the Illinois Environmental Protection Agency (collectively hereinafter the State), appeal from an order of the circuit court of Cook County denying the State's motion to reconsider the circuit court's earlier denial of a motion to reinstate this civil action against 13 defendants for alleged violations of the Environment Protection Act (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1001 et seq. (now 415 ILCS 5/1 (West 1994))). Two of the 13 defendants, NL Industries, Inc. (hereinafter NL) and Goodwill Industries of Chicago and Cook County, Illinois (hereinafter Goodwill), have filed responsive briefs to the State's appeal. Jurisdiction is vested in this court pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).

In early 1986, the Illinois Environmental Protection Agency (hereinafter IEPA), undertook an extensive investigation of releases and threatened releases of hazardous substances at the former Dutch Boy Paints facility on the southwest side of Chicago. The property had been owned by NL from the 1930's until 1976. Thereafter, until December 1980, the site was owned by ARTRA, Inc. (hereinafter ARTRA), formerly known as Dutch Boy, Inc. It is alleged in the State's complaint that during the four decades that the property was owned by these defendants, quantities of hazardous substances were leaked, spilled and released into the environment.

In December 1980, ownership of the property was gratuitously transferred to Goodwill by ARTRA. Goodwill subsequently transferred title in trust to the property to the American National Bank and sold it to defendant John Heckens. Several subsequent transfers of the property were made and the current owner is defendant LaVon Tarr.

As a result of its investigation, IEPA initiated an immediate removal and cleanup action in 1986. On December 27, 1988, the Cook County State's Attorney, at the behest of IEPA, filed this civil action against defendants to recover the costs of the clean-up, civil penalties, punitive damages and attorney fees.

On April 7, 1989, the trial court granted ARTRA's motion to dismiss the case based on the State's failure to exhaust its administrative remedies before the Pollution Control Board. The State appealed from the circuit court's decision and this court affirmed the circuit court in People v. NL Industries, Inc., 218 Ill. App. 3d 300, 161 Ill. Dec. 110, 578 N.E.2d 237 (1991).

The State successfully sought leave to appeal to the supreme court of Illinois. On October 1, 1992, the supreme court in People v. NL Industries, Inc., 152 Ill. 2d 82, 178 Ill. Dec. 93, 604 N.E.2d 349 (1992), held that the Pollution Control Board and the circuit court hold concurrent jurisdiction to hear cost-recovery actions. Consistent with this holding, the supreme court reversed the appellate and circuit courts and remanded the action to the circuit court for further proceedings. The mandate of the supreme court was filed with the clerk of the circuit court of Cook County on December 16, 1992.

The State did nothing to reinstate or otherwise prosecute the case until September 9, 1993, when it filed a jurisdictionally premature motion to lift an old stay of discovery. At the October 13, 1993 hearing on this motion, the trial judge expressly stated that he did not acquiesce in the redocketing of the case and that defendants were not precluded from challenging the appropriateness of redocketing a case so long after the mandate had been handed down.

On October 20, 1993, the State filed a motion to reinstate the case pursuant to Supreme Court Rule 369(c) (155 Ill. 2d R. 369(c)). On December 20, 1993, the circuit court denied the motion to reinstate and dismissed the action with prejudice.

Remarkably, the State has asserted before the circuit court and this court at oral argument that it need not offer any reason or explanation for this delay ...


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