Apex Oil stopped refining petroleum in Hartford in 1988 and Sinclair Oil left the village in 1990, but Madison County Circuit Judge Daniel Stack has ruled that the statute of limitations does not relieve them of responsibility for pollution under the village.
At an Aug. 28 hearing Stack denied motions to dismiss Apex and Sinclair from a class action suit that Mark Goldenberg filed for village residents in 2003.
Residents claim damages from an underground lake of petroleum that releases harmful vapors with each rainfall.
Earlier this year, Apex and Sinclair chose to stay out of a settlement that Goldenberg reached with Shell Oil subsidiary Equilon Enterprises and Clark Oil successor Premcor Refining.
Equilon and Premcor agreed to pay village residents $16 million, but they retained an option to recover some of the cost from Apex and Sinclair.
Apex and Sinclair responded with a motion to dismiss.
Stack had granted a similar motion in 2005, but in 2006 he gave Goldenberg a chance to defeat the motion by amending his complaint.
At Stack's hearing, Apex attorney William Knapp said Apex sold the Clark refinery to Premcor in 1988.
"This case was filed in 2003, fifteen years after Apex was off the site for good, and so this claim falls far outside the statute of limitations," Knapp said.
"What this case comes down to is the distinction in Illinois law between a continuing tort versus continuing injury," he said.
"The plaintiffs can try to change their complaint but they can't change the calendar," he said.
Sinclair attorney Bernard Ysursa said, "I think Sinclair's last acts could have been 1990, but in any event it is more than five years. I don't think that has ever been disputed."
"The defendants could not perform wrongful conduct if they didn't exist or weren't there," Ysursa said.
He joked, "We always have that abbreviation for statute of limitations – S. O. L. Well, that's what it means. They cannot bring this case."
Stack said, "I don't think I ever heard that argument before. I like it."
Ysursa asked, "What did they change in their pleading that is different than what they had pled back in May of 2006?"
He said they added a count for negligent remediation, saying Sinclair did remediation and did it negligently in the last five years.
Stack said, "Did Sinclair or Apex do anything with regards to remediation that was in the five years before the suit was filed?"
Knapp said, "Apex did not."
Sinclair attorney Joseph Nassif said, "We paid money for work that was done by the Hartford working group. We didn't actually perform any remediation."
Ysursa said, "That's a new action. That's a different case."
"It's an apple," Ysursa said. "It doesn't save their oranges."
Goldenberg said, "The case is not barred by the statute of limitations because the discovery rule doesn't run until a party reasonably should know both that an injury has occurred and that it was wrongfully caused."
"Apex violated the law when the spill occurred but the injury doesn't occur until it migrates to the plaintiff's property and causes harm," Goldenberg said.
"You can walk out in a yard and you can smell a vapor and you can't immediately say, well, that's Apex's vapor or that's a Sinclair vapor."
He said the working group was negligent and Sinclair has to be liable for that.
Goldenberg associate Teresa Woody said defendants told Hartford residents and regulators they fixed the problem.
"They were misled as to whether those problems were cured. They were misled by the defendants," Woody said.
"That is a new allegation but one we are going to be able to prove."
Knapp said, "The allegations of negligent remediation are not directed against Apex."
Woody said, "I stand corrected."
Knapp said that if different individuals suffered injury at different times, the case can't be a class action.
He said a class action was proposed in 1978.
Stack asked Goldenberg when people were put on notice that they had an injury.
Goldenberg said, "When it migrates to their property."
Stack said, "What about the people that hasn't migrated to their property? They are just claiming as part of that class that they are simply injured because the rest of the town is now somehow
Goldenberg said they were on notice in 2002 when the misleading information blew up.
Knapp said, "This idea that all of a sudden this thing fell out of the sky in 2002 is very convenient to the plaintiffs because it puts them within the statute of limitations."
He said some plaintiffs in this case were plaintiffs in suits from the 1980s and 1990s.
Woody said, "We do have very specific factual allegations about them misleading."
Stack said, "I agree you have sufficient allegations. Motions to dismiss are denied."
Stack said he had a problem with the part of the class that doesn't have a plume under their property.
"I think their case has to be dismissed," he said.