Appeal from the Circuit Court of Cook County 01 CH 10095 Honorable Donald J. O'Brien, Judge Presiding
The opinion of the court was delivered by: Justice McBRIDE
The State appeals the dismissal of its second amended complaint in which it charged Cyrus Tang, individually and as chairman and chief executive officer of Pielet Brothers Scrap Iron and Metal L.P. (P Brothers LP), with violations of the Illinois Environmental Protection Act (415 ILCS 5/1 et seq. (West 2000)) (the Act). We affirm dismissal of the complaint.
The State filed its original complaint against Tang on June 19, 2001. It charged him, under the Act, with open dumping, improper waste disposal, developing a waste disposal site without a permit, operation of a waste disposal site without an operating permit, water pollution, water pollution hazard, and failure to post a landfill bond. It also charged common law public nuisance. The complaint alleged that Tang was chairman and chief executive officer of and had a controlling ownership in P Brothers LP. A nonparty was the chief operating officer. The complaint alleged that "Defendant Tang conducted an automobile shredding operation at the site through the business entities." It accused him of causing and allowing auto shredder residue and auto fluff to be piled outside for more than one year, both from on-site operations and other off-site automobile shredding operations. It further alleged that the decision to spend money to clean up the wastes could not have been made without Tang's approval. It claimed that "[d]efendant Tang had taken no action, nor had caused any action to be taken, to institute measure(s) to prevent this material including auto fluff waste from entering the environment via different pathways, including but not limited to, storm water run-off from the site." The complaint sought declaratory and mandatory injunctive relief and assessment of fines.
Tang moved to dismiss the complaint under section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2000)), claiming that the State failed to "allege any personal involvement in any wrongful act by Mr. Tang, and thus fail[ed] to state a claim under Illinois law." Tang further claimed that the court could not grant the requested mandatory injunctive relief because Tang did not own or have control over the site. Although the order is not included in the record on appeal, the parties inform us that the State's original complaint was dismissed on December 7, 2001, without prejudice.
The State subsequently filed its first amended complaint. The complaint was nearly identical to the original complaint, except that it added counts for failure to file an initial report on location and disposal practices, violation of the annual reporting requirement, violation of the groundwater reporting requirement, violation of the record-keeping requirements, and accumulation of waste on site for over one year. It also contained an allegation that Tang "caused or allowed" the violations
"as a part of his performance of, and as a direct result of,
his duties as Chairman and Chief Executive Officer of P
Brothers LP, and because of his controlling ownership interest
in both a limited partner and the general partner of P
Brothers LP. These duties included, and his controlling
ownership interest meant, that Defendant Tang was a person, if
not the only one, who could decide to make the expenditure in
such an amount to be sufficient to dispose of the auto
shredder residue and/or auto fluff waste at the site."
"Defendant Tang failed to make the decision to properly
dispose of, or direct or authorize sufficient funding
reasonably necessary for the disposal of, the auto shredder
residue and/or auto fluff waste at the site. In this fashion,
Defendant Tang caused or allowed the consolidation of the auto
shredder residue and/or auto fluff waste at the site."
Tang moved to dismiss the first amended complaint under section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2000)). The court granted the motion and dismissed the first amended complaint in part with prejudice and in part without prejudice on April 12, 2002. The portions dismissed with prejudice were the requests for mandatory injunctive relief, which the court dismissed because it found that the portion of the Act under which the State sought a mandatory injunction did not permit mandatory injunctive relief, and the counts charging Tang with failing to comply with the reporting requirements because the court found that those sections of the Act impose duties on facilities, not on individuals. After its first amended complaint was dismissed, the State filed motions to reconsider or alternatively to enter a Rule 304(a) (155 Ill. 2d R. 304(a)) finding, allowing immediate appeal. The court denied the motions.
The State sought leave to file its second amended complaint. The State included those claims that were dismissed with prejudice from the first amended complaint. According to the State, the claims were included only "to preserve the issue for appeal." Tang objected to inclusion of the previously dismissed claims, and the court disallowed them.
As filed, the second amended complaint charged open dumping, improper waste disposal, developing a waste disposal site without a permit, operation of a waste disposal site without an operating permit, water pollution, water pollution hazard, common law public nuisance, failure to post landfill bond, and accumulation of waste on site for over one year. Its allegations were very similar to the allegations made in the original and first amended complaints. With regard to the first six counts, it alleged that Tang "conduct[ed] an automobile shredding operation at the site" and "caused and allowed" (1) the resultant "auto shredder residue and auto fluff to be piled outside, uncontainerized and uncovered"; (2) "auto shredder residue and/or auto fluff waste from off-site automobile shredding operations to be accepted at the site in addition to that generated on-site"; and (3) "auto shredder residue and/or auto fluff waste to be consolidated." Further, it alleged that Tang "fail[e]d to take any action to remove the wastes *** to a licensed disposal facility" and "fail[ed] to authorize the expenditure necessary for proper removal of the [wastes]." The complaint again sought mandatory injunctive relief and, this time, alleged:
"On information and belief, Midwest Metallics LP [the now
bankrupt entity that was formerly P Brothers LP] will raise no
objection to Defendant Cyrus Tang entering the site and taking
such actions necessary to cease the violations of the Act he
is committing at the site if ordered to do so by this Court
Tang moved under section 2-619.1 (735 ILCS 5/2-619.1 (West 2000)) to dismiss the second amended complaint, claiming that the allegations were insufficient to state a claim against him personally, that mandatory relief was not allowed under the Act, and that he had no legal interest in the property, ...