dissenting:
The majority holds that in proceedings brought by the State to enforce the provisions of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1987, ch. IIIV2, par. 1001 et seq.), the Act allows the defendants in such proceedings to institute third-party actions. I do not find that the circumstances in this case warrant such a holding and therefore respectfully dissent.
The issue in the instant case is whether a defendant alleged to have violated section 21 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1021) can avoid liability in whole or part by bringing a third-party action, which requests the same relief sought by the State, against those parties the defendant claims contributed to the violation. In essence, we are being asked whether an alleged polluter has the right to limit or shift his liability through third-party actions which request the same relief sought by the original plaintiff.
In the instant case, the State filed suit against the defendants and third-party plaintiffs, Geno and Bernardine Fiorini, for violations of section 21 of the Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1021). The State requested injunctive relief and the imposition of civil penalties under sections 42 and 45 of the Act. (Ill. Rev. Stat. 1987, ch. 1111/2, pars. 1042, 1045.) No compensatory damages were sought. The Fiorinis filed an answer and a third-party complaint against numerous third-party defendants. In their third-party complaint, the Fiorinis requested injunctive relief directing the third-party defendants to remove all waste deposited on the Fiorinis’ property. They also asked for the assessment of civil penalties against the third-party defendants.
Section 2 — 406(b) of the Code of Civil Procedure provides in pertinent part: “Within the time for filing his or her answer or thereafter by leave of court, a defendant may by third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him or her for all or part of the plaintiff’s claim against him or her.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—406(b).) 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.) The form and substance of the Fiorinis’ third-party complaint seek relief under section 2 — 406(b) as an action against parties who are or may be liable to them for all or part of the State’s claim. The Fiorinis’ third-party complaint does not specifically allege that it is brought under the aforementioned section of the Code, and no claim is made other than it is a proper third-party action.
The majority opinion is ambiguous in explaining the type of third-party action the Fiorinis can maintain under the Act. The majority simply holds that the Fiorinis have a right to bring third-party actions under the Act. However, the issue in the instant case is not whether in general a third-party action can be maintained under the Act, but whether a defendant can pursue a third-party action in order to obtain the relief and penalties provided by sections 42 and 45, and thereby avoid the liability imposed under those sections.
The majority points to the references to private remedies in section 2 of the Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1002) as support for the availability of third-party actions. It is conceded that the Illinois Environmental Protection Act envisions the use of private remedies to assist in the implementation of the purposes of the Act. However, in the instant case, the Fiorinis are attempting to offset or shift their liability under the Act onto the third-party defendants. I do not view the general statements regarding the supplemental use of private remedies as providing a vehicle for the Fiorinis to avoid their liability under the Act.
Initially, it is noted that no theory or citation to authority has been presented which holds that when injunctive relief or civil penalties are initially sought, they can be the subject of third-party actions. With respect to actions under section 42, the section states: “The State’s Attorney of the county in which the violation occurred, or the Attorney General, shall bring such actions [to recover civil penalties and injunctive relief] in the name of the people of the State of Illinois.” (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1042(f).) The third-party action in the instant case is not brought by the Attorney General or a State’s Attorney. To hold as at least implied by the majority that a private citizen may bring actions to enforce the section is obviously contrary to the language of the section itself.
The majority concedes that when civil penalties are sought under section 42, a party cannot offset its liability for the penalties imposed. However, given the silence of both the Act and section 42 with respect to third-party actions, the majority appears to find that private actions under section 42 may be brought to offset clean up costs incurred by private individuals. At this juncture, I believe it is crucial to note the third-party complaint does not seek money damages. Having conceded the third-party complaint could not lawfully request the court to require the third-party defendants contribute to the civil penalties imposed on the Fiorinis, the only relief requested is injunctive relief. The third-party complaint requests the court order the third-party defendants to remove the unlawfully deposited debris.
The majority bases its finding of a right to bring third-party actions on the legislative policy declarations of the Act and the judicial goal of avoiding piecemeal litigation. The majority fails to recognize, however, the statutory nature of the remedies in the instant case. If the legislature intended to enforce its policy declarations through the use of private third-party action it could have specifically provided for such a remedy. There is no indication that the legislature contemplated such a remedy, and none should be read sua sponte into the Act.
As noted above, the majority rejects the Fiorinis’ claim that they can offset their liability for civil penalties imposed under section 42. However, the majority appears to find that the Fiorinis may have a contribution claim to offset the cost of cleaning up the disposal site. It should again be emphasized that the only remaining relief sought by the Fiorinis is injunctive relief, not damages. How injunctive relief may be the subject of a third-party action remains unexplained by the majority.
In their reply brief, the Fiorinis argue that given the remedial nature of section 42, which in their view effectively provides a cause of action sounding in tort, those persons found to be joint “wrongdoers” should have to pay their pro rata share of any civil penalties imposed. They argue that they would have a right to contribution under the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). Even the majority rejects the notion that civil penalties which may be assessed against the defendant may be recovered against other parties. Notwithstanding, I note that the Contribution Among Joint Tortfeasors Act was meant to create a right of contribution for negligent tortfeasors; intentional tortfeasors are not entitled to contribution. (Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 538 N.E.2d 530.) There can be no claim in this case that the third-party defendants negligently violated the Illinois Environmental Protection Act. Therefore, the Fiorinis’ third-party actions cannot be brought pursuant to the Contribution Among Joint Tortfeasors Act.
Nor by definition can the Fiorinis premise their cause of action on the right to indemnification. Indemnity is a common law doctrine which provides for the complete shifting of liability. (Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 459 N.E.2d 935.) The right to indemnification may arise from contract or from situations in which a promise to indemnify can be implied from the relationship among tortfeasors. (Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 527 N.E.2d 1248.) There is no allegation of a contractual right to indemnification in the instant case. Section 21 of the Illinois Environmental Protection Act prohibits persons from causing or allowing the open dumping of any waste. (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1021.) A party charged with allowing the open dumping of waste on its property cannot by way of indemnity shift liability to a third party that it claims actually caused the illegal dumping. A party which allows and authorizes the dumping of waste on its own property would not be free from fault. Under the Act, the party is not liable simply because of the actions of the third parties; rather, its liability rests on the fact that it allowed the open dumping of waste on its property.
In sum, I do not find that section 42 of the Act can be utilized to justify the relief requested in the third-party action. Under a similar analysis, I do not find that section 45 of the Act can be used to avoid a party’s liability. Section 45 does not contemplate that one co-polluter can bring an action under section 45 against another co-polluter. The remedies of contribution and indemnity cannot be used in this instance to avoid the injunctive relief sought by the State. The injunctive relief available to an injured party in section 45 should not in turn provide a means for a polluter to avoid liability. In the instant case, the Fiorinis are charged with allowing open dumping on their property. The responsibility for this violation of the Illinois Environmental Protection Act cannot be avoided by using the very sections of the Act which were enacted to provide a remedy to those damaged by such violations. Third-party actions cannot be utilized to lessen a party’s liability under the Act. It is within the province of the legislature to provide by statute for the type remedy which the majority reads into the Act. The legislature has not provided such a remedy. Therefore, the trial court acted properly in dismissing the Fiorinis third-party actions, and I would affirm the trial court’s dismissal of the third-party complaint.