dissenting:
For the reasons set forth in my dissent in People v. Fiorini (1989), 192 Ill. App. 3d 396, as applicable to the instant case, and for the additional reasons stated below, I respectfully dissent from the majority opinion.
The majority holds that the trial court erred in dismissing that portion of Brockman’s complaint which alleged a claim under section 22.2 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1022.2). Initially, I note, the amended complaint filed by the State in the original action did not allege a cause of action under section 22.2. Brockman’s claim is therefore separate and independent from the claim brought by the State. 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 cannot 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. Ketcham v. Consolidated Rail Corp. (1986), 146 Ill. App. 3d 196, 496 N.E.2d 1104.
Even though the State did not bring an action under section 22.2, the majority finds that because the State sought an injunction to clean up the site, this makes Brockman’s claim under section 22.2 derivative of the State’s action. I find this analysis unpersuasive. Count V of the State’s amended complaint alleged that contamination of the groundwater and surface water as a result of waste material deposited on the site constituted a public nuisance under the common law. In count V, the State requested an injunction to prevent further dumping at the site and to require the defendants to take corrective action to remove potentially toxic or hazardous waste. Section 22.2(f), on the other hand, concerns the liability of certain persons “for all costs of removal or remedial action incurred by the State of Illinois as a result of a release or substantial threat of a release of a hazardous substance.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. HV-k, par. 1022.2(f).) All monies received by the State pursuant to section 22.2(f) are credited to the State’s “Hazardous Waste Fund.” The request for an injunction to abate a public nuisance has nothing to do with recovering the cost incurred by the State in cleaning up or removing a hazardous substance.
In addition, the majority does not point to any authority for a third-party action under section 22.2. Nor does it cite any authority for the use of third-party actions in causes seeking injunctive relief.
The majority also holds that since the State is seeking clean up costs in order to abate a public nuisance, a third-party action for contribution can be brought pursuant to the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). I would note that the majority cites no authority for third-party actions involving the abatement of a public nuisance. However, the majority finds that the reasoning of Cook v. City of Du Quoin (1930), 256 Ill. App. 452, supports application of the Contribution Act in the instant case. In City of Du Quoin, the court stated that parties are jointly and severally liable if they contribute to the creation of a public nuisance. However, the case is silent regarding the issue of contribution between the jointly liable parties. The City of Du Quoin involved an action brought by an injured party. The case did not involve an action by one party against other parties who share responsibility for the creation of a public nuisance.
I would also note that the Illinois Supreme Court has recently held that the Contribution Among Joint Tortfeasors Act was meant to create a right of contribution for negligent tortfeasors and that intentional tortfeasors are not entitled to contribution under the Act. (Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 538 N.E.2d 530.) There is no claim that Brockman or the third-party defendants were negligent in violating the IEPA. I do not believe that a violation of the IEPA involves a species of tort subject to contribution under the Contribution Act.
In sum, the majority is attempting to find a way to spread the cost of clean up among co-polluters. It is the province of the legislature, not this court, to provide such a remedy. I would affirm the trial court’s dismissal of the third-party complaints brought by Brockman and Pioneer.