People v. NL Industries
| Decision Date | 01 October 1992 |
| Docket Number | 72505,Nos. 72461,s. 72461 |
| Citation | 152 Ill.2d 82,178 Ill.Dec. 93,604 N.E.2d 349 |
| Parties | , 178 Ill.Dec. 93 The PEOPLE of the State of Illinois, Appellant, v. NL INDUSTRIES et al., Appellees. |
| Court | Illinois Supreme Court |
Roland W. Burris, Atty. Gen., Springfield, and Jack O'Malley, State's Atty., Chicago for the People.
Robert J. Zaideman, Epstein, Zaideman & Esrig, Chicago, Daniel Riesel, James Tierney and Robert M. Klingon, Sive, Paget & Riesel, P.C., New York City, for appellees.
On December 27, 1988, the State's Attorney of Cook County, at the request of the Illinois Environmental Protection Agency (the Agency), filed a complaint in the name of the People of the State of Illinois seeking cost recovery, punitive damages, civil penalties, and attorney fees pursuant to the Illinois Environmental Protection Act (the Act) (). The complaint was filed against defendants, NL Industries, formerly National Lead Company; ARTRA Group, formerly known as Dutch Boy and E.L.T., Inc.; John Harvey and Peter Harvey, who served as directors, shareholders, officers and managers of ARTRA Group; American National Bank and Trust Company as trustee under Trust Nos. 48495 and 55976; John Heckens; Goodwill Industries of Chicago and Cook County; La Salle National Bank as trustee under Trust No. 105679; M & T Enterprises, Inc.; LaVon Tarr; Martin S. Bieber; Randall Polk, individually and d/b/a Wrip Wrecking Company; and Cole-Taylor Bank as trustee under Trust No. 84141 (defendants). All of these parties were alleged to have owned and/or operated the "Dutch Boy" paint-producing facility located at 12000-12054 South Peoria, and 901-935 West 120th Street, Chicago (the site).
The circuit court dismissed this complaint on the basis that the exhaustion of remedies doctrine requires that this action begin before the Pollution Control Board (the Board). The appellate court affirmed. (218 Ill.App.3d 300, 161 Ill.Dec. 110, 578 N.E.2d 237.) Pursuant to Supreme Court Rule 315 (134 Ill.2d R. 315), the State's Attorney sought leave to appeal to this court. The Attorney General also filed a petition for leave to intervene. We granted these petitions. We also granted leave to the following defendants to adopt the brief of NL Industries: ARTRA Group; John J. Harvey and Peter Harvey; American National Bank; Goodwill Industries; M & T Enterprises; LaVon Tarr; Martin Bieber; Cole-Taylor Bank; John Heckens; Randall Polk, individually and d/b/a Wrip Wrecking; and La Salle National Bank.
Specifically, the complaint alleged that defendant NL Industries owned and operated a factory at the site which manufactured paint and lead products from some time prior to 1930 until 1976. According to the complaint, during NL Industries' ownership, quantities of hazardous substances were caused to be "manufactured, stored, transported, used, released, discarded, and disposed of in the air, beneath and upon the ground" at the site. The other defendants named in the complaint were all subsequent title holders of the site who, according to the complaint, failed to adequately store and dispose of the hazardous substances.
During 1985 or 1986, upon discovering elevated blood-lead levels in certain persons who lived or worked near the facility, health officials investigated and traced the source of this contamination to the site. On June 6, 1986, the Agency issued a record of decision, determining that an immediate removal of the hazardous wastes must be undertaken in order to "mitigate the immediate and significant risk of harm to human health and the environment." Thereupon, the Agency began to remove hazardous substances and eventually sealed the facility because of emergency conditions at the site.
As further alleged in the complaint, on July 11, 1986, the Agency issued cost-recovery notices to each of the defendants, pursuant to section 4(q) of the Act (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1004(q)). The intent of these notices was to recover the costs of the removal and remedial action incurred by the Agency.
On August 25, 1986, an addendum to the record of decision was issued, which stated that it was necessary to undertake further removal action at the site to mitigate any risk of harm to both human health and the environment. The second phase of the cleanup occurred from October 1986 to January 1987.
The complaint also stated that the costs to the taxpayers of the State of Illinois for this removal amounted to more than $2 million. Pursuant to the Act, the State, in count I, asked the court to assess cleanup costs, treble punitive damages and attorney fees against defendants. Counts II, III, IV and V asked the court to also impose civil penalties against certain defendants.
On January 10, 1989, ARTRA Group filed with the circuit court a motion to dismiss in lieu of an answer and a motion for sanctions. The basis of this defendant's motion to dismiss was that the circuit court did not have subject matter jurisdiction, as the State had failed to exhaust its administrative remedies because it had not filed first before the Board. The remaining defendants thereafter filed motions to dismiss or answers to the complaint, asserting various legal theories to support their motions. None of these responses asserted the exhaustion of remedies defense. Additionally, in the answer filed by NL Industries, it asserted 17 affirmative defenses and counterclaims for indemnification and contribution against its codefendants.
On April 7, 1989, ARTRA Group's motion to dismiss was granted with prejudice. The court, after listening to vigorous debate, concluded that the circuit court did not have original subject matter jurisdiction over the claims set forth in the State's complaint and that the claims should have been brought before the Board, pursuant to City of Waukegan v. Pollution Control Board (1974), 57 Ill.2d 170, 311 N.E.2d 146. The court indicated that the other defendants' motions would be considered consistent with the basis of ARTRA Group's motion to dismiss. ARTRA Group's motion for sanctions was withdrawn.
On April 11, 1989, NL Industries filed a motion to voluntarily dismiss its counterclaims against codefendants American National Bank, Goodwill, La Salle National Bank, M & T Enterprises, LaVon Tarr, Martin S. Bieber and Cole-Taylor Bank. On the same day, the defendants all filed a motion to dismiss, based upon the circuit court's ruling.
On April 21, 1989, the court entered an order dismissing the complaint with prejudice as to all of the remaining defendants. The court relied upon the same reasoning as was adopted for granting ARTRA Group's motion to dismiss. On the same day, the court entered an order granting NL Industries' motion to dismiss its counterclaim against its codefendants.
The appellate court affirmed the decision of the circuit court. While recognizing that the Act allows for actions for injunctions to be filed before either the Board or a court, the appellate court found "[t]here is no language in the Act, however, that permits the State's Attorney or the Attorney General to initiate civil actions in the circuit courts for any other type of relief against alleged violators of the Act." (218 Ill.App.3d at 303, 161 Ill.Dec. 110, 578 N.E.2d 237.) For that reason, the court concluded that the circuit court did not have jurisdiction to grant relief to the State and likewise dismissed the complaint.
We granted the State's Attorney's petition for leave to appeal and allowed the Attorney General to intervene in this appeal.
The following issues are presented for our review in this case: (1) whether the Board and the circuit court have concurrent jurisdiction to hear claims brought by the State pursuant to the Act to recover costs of removal of hazardous wastes and remediation action, punitive damages, and attorney fees; and (2) whether the Act limits the power of the Attorney General to bring such an action.
We now reverse the decisions of the appellate and circuit courts and remand this action to the circuit court for further proceedings. Our review of the statute and legislative history leads us to conclude that the circuit court does have jurisdiction over this cost-recovery action. Moreover, the judgment of the appellate court unduly limited the powers of the Attorney General with respect to addressing environmental issues.
Before we begin our analysis, it is helpful to review the evolution of environmental protections in Illinois.
The Illinois Constitution of 1970 provides that every citizen has a right to a healthful environment. (Ill. Const. 1970, art. XI, § 2.) Section 1 of article XI, in fact, declares it to be the public policy of the State to provide and maintain a healthful environment for the benefit of future generations. (Ill. Const. 1970, art. XI, § 1.) Prior to enactment of the Constitution of 1970, however, common law remedies were available to abate and enjoin public nuisances which caused pollution. For a review of common law nuisance actions, see Metropolitan Sanitary District v. United States Steel Corp. (1975), 30 Ill.App.3d 360, 366, 332 N.E.2d 426.
At the same time, in 1970, the Illinois General Assembly enacted the Illinois Environmental Protection Act (). Repealing several statutes, including the sanitary water board act (Ill.Rev.Stat.1969, ch. 19, § 145.1 et seq.) and the Illinois Air Pollution Control Act (Ill.Rev.Stat.1969, ch. 111 1/2, § 240.1 et seq.), the Act established a unified statewide program to restore, protect and enhance the quality of the environment in the State.
The purpose of this Act was set...
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