FIRST DIVISION

									January __February 2, 2004

No. 1-02-3337

THE PEOPLE ex rel. LISA MADIGAN, Attorney General of the State of

Illinois,

	Plaintiff-Appellant,

		v.

CYRUS TANG, Indiv., and as Chairman and

Chief Executive Officer of Pielet

Brothers Scrap Iron and Metal L.P.,

	Defendant-Appellee.

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Appeal from the

Circuit Court of

Cook County

01 CH 10095

Honorable 

Donald J. O'Brien, 

Judge Presiding

	JUSTICE McBRIDE delivered the opinion of the court:

	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."  

It further alleged: 

	"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 after trial."  

	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, which prevented

the court from ordering him to enter the property for remediation. 

	The trial court agreed with Tang on all three grounds.  First,

it found that the allegations were insufficient to state a claim

against Tang personally.  It found that Tang's "involvement and

participation as alleged [was] not because he was operating the

facility *** but because he was chairman and chief executive

officer and because of his controlling and ownership interest."  At

most, the court found that the complaint 

	"allege[d] that [Tang's] personal involvement and active

participation [was] due to his activities as Chairman and

Chief Executive Officer and controlling interest and his

failure in that capacity to dispose of the residue or to

authorize sufficient funding to dispose of the residue or

to authorize sufficient funding to dispose of the residue

and 'in this fashion' caused or allowed the residue on

the site."  

With regard to the additional issues, the court recognized that

"Illinois law is clear that a mandatory injunction may not issue to

a non-owner or non-controller of the property [citation] which is

the subject matter of the injunction."  It also held that the

portion of the Act relied upon by the State "allows only

Restraining orders and not positive mandatory injunctions."  Thus,

the court dismissed the second amended complaint with prejudice.  

	The State appeals on three grounds.  First, it claims that its

first and second amended complaints adequately state multiple

causes of action against Tang.  Second, it maintains that mandatory

injunctive relief is appropriate.  Third, the State claims that the

trial court erred in finding that it lacked authority to grant the

requested relief because Tang has no legal interest in the property

at issue.  The State urges us to "reverse the dismissal of its

first and second amended complaints and to remand all of the counts

and remedies sought therein for further proceedings in the circuit

court." 

	Tang contends that our review should be restricted to the

State's second amended complaint because the State failed to

"include in its Second Amended Complaint by restatement or

incorporation by reference each theory of recovery argued in the

First Amended Complaint" and, consequently, waived those claims on

appeal.   Regardless, Tang argues, even if the first amended

complaint is considered, the trial court's dismissal was proper for

the same reasons it was proper to dismiss the second amended

complaint.  In reply, the State argues that it did not waive its

right to appeal the dismissal of its first amended complaint by

failing to incorporate the dismissed claims in its second amended

complaint because the State attempted to incorporate those claims,

solely for the purpose of preserving them for appeal, but was

prevented from doing upon Tang's objection.  The State failed to

include the order dismissing its first amended complaint in its appendix in violation of Rule 342(a) (155 Ill. 2d R. 342(a) ("The

appellant's brief shall include as an appendix, *** a copy of the

judgment appealed from ***")), and we need not consider the State's

arguments with regard to that order.  Regardless, the claims

dismissed in the first amended complaint would be subject to

dismissal for the same reasons as the claims in the second amended

complaint as discussed below.1  Thus, even if the claims were not waived, we would hold that they were properly dismissed.

	As to the merits, we first note that our review is de novo.  Safeway Insurance Co. v. Daddono, 334 Ill. App. 3d 215, 218 (2002).  "We take as true all well-pled facts and reasonable inferences

therefrom and consider only those facts in the pleading and

included in attached exhibits."  Safeway, 334 Ill. App. 3d at 218.  Illinois law requires a plaintiff to "allege facts stating the

elements of the cause of action," and unsupported legal conclusions

and factual conclusions are insufficient and will be disregarded in

ruling on a motion to dismiss.  Safeway, 334 Ill. App. 3d at 222.  Dismissal of a complaint should be affirmed only when "it is clear

that a plaintiff cannot prove a set of facts that will entitle him

to the relief sought."  Safeway, 334 Ill. App. 3d at 218.  

	In this case, we are not asked to determine whether, as a

general proposition, a corporate officer may ever be held liable

for corporate wrongs under the Act; both parties concede that,

under certain circumstances, a corporate officer may be

individually liable.  Instead, we must determine whether the

pleadings in this case are sufficient to state a claim for Tang's

individual liability.  Apparently, only one Illinois case has specifically addressed the issue of a corporate officer's potential

individual liability under the Act.  The trial court relied on this

case in rendering its decision, and both parties claim the case

supports their contentions on appeal.  

	In People ex rel. Burris v. C.J.R. Processing, Inc., 269 Ill. App. 3d 1013, 1015 (1995), the appellate court for the Third

District considered "whether a corporate officer may be held

individually liable for a corporation's violations of the Act when

he or she is personally involved or actively participates in those

violations."  The court found that the officer could be held liable

under those limited circumstances, i.e., "active participation or personal involvement."  C.J.R., 269 Ill. App. 3d at 1020.  In C.J.R., the court found that the complaint sufficiently alleged "active participation or personal involvement" to withstand a

motion to dismiss.  Specifically, the complaint alleged that the

defendant was "responsible for CJR and controll[ed] its

activities."  C.J.R., 269 Ill. App. 3d at 1014.  He also served as executive vice president and chief operating officer for C.J.R.'s parent corporation.  C.J.R., 269 Ill. App. 3d at 1014.  The defendant was also alleged, in cooperation with C.J.R. and its

parent corporation to "own and operate a facility" to which they

"transported large quantities of solid and liquid waste materials." 

C.J.R., 269 Ill. App. 3d at 1014.  The appellate court found that "the complaint allege[d] [that the corporate officer] was

personally involved and actively participated in the decisions and

corporate activities which caused the violations of the Act." 

C.J.R., 269 Ill. App. 3d at 1018.  Specifically, the court placed significance on the fact that each count of the complaint alleged

that the defendant personally operated the facility.  C.J.R., 269 Ill. App. 3d at 1018.  The court also considered significant in its

holding that "the operative allegations charge[d] that [the

corporate officer] 'caused or allowed' all of the violations to

occur in conjunction with the other defendants."  C.J.R., 269 Ill. App. 3d at 1018.  

	The State argues that under C.J.R., it has adequately stated claims against Tang individually.  Tang also relies on C.J.R., but claims that the complaint does not state a cause of action.  No

Illinois court has interpreted or applied those portions of C.J.R. dealing with a corporate officer's potential individual liability

under the Act.  Accordingly, both parties have referred us to cases

from other jurisdictions in support of their positions.  

	Before analyzing those cases, we outline some of the

principles underlying corporation law in Illinois.  "One of the purposes of a corporate entity is to immunize the corporate officer

from individual liability on contracts entered into in the

corporation's behalf."  National Acceptance Co. of America v. Pintura Corp., 94 Ill. App. 3d 703, 706 (1981).  Accordingly, in most instances, the law immunizes corporate officers from corporate

liabilities and debts.  Safeway, 334 Ill. App. 3d at 219 ("[C]orporate status generally shields corporate officers and

shareholders from liability from corporate debts and obligations").

However, "corporate officer status does not insulate [a corporate

officer] from individual liability for the torts of the corporation

in which he actively participates."  Pintura, 94 Ill. App. 3d at 706; see also Safeway, 334 Ill. App. 3d at 219 ("[T]his protection does not shield corporate officers from their own wrongdoing"); Simon v. Pelouze, 263 Ill. App. 177 (1931) (recognizing that corporate officers and directors can be held liable for tortious

acts by the corporation only where the officer or director

participated in the tortious act).  Some torts for which corporate

officers may be liable include negligence, fraud, trespass to

realty, willfully inducing breach of contract, and conversion. 

Pintura, 94 Ill. App. 3d at 706.  

	We have reviewed the out-of-jurisdiction cases cited by the

parties in support of their contrary claims regarding the

sufficiency of the allegations in this case.  Most of these cases

deal with liability under the "owned or operated" standard for

liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)(42 U.S.C. §9601 et seq. (2000)) rather than the Act's "caused or allowed" standard, which is at issue here (415 ILCS 5/12(a)(West 2000)).  Regardless,

the cases are useful to our analysis because they are premised on

the same general principles of corporation law that we discussed

above and because the CERCLA provision is in many ways analogous to

the Act's provision.  

	Both CERCLA and the Act impose liability on "persons" who

violate their provisions, and "person" is broadly defined in both

statutes to include individuals, partnerships, firms, associations,

corporations, and governmental subdivisions and agencies.  Compare

42 U.S.C. §9601(21)(2000) and 415 ILCS 5/3.26 (West 2000).  Under

CERCLA, however, liability attaches to those who "owned or operated

any facility at which such hazardous substances were disposed of"

at the time of disposal.  42 U.S.C. §9607(a)(2)(2000). Under the

Act, on the other hand, liability attaches to those who "[c]ause or

allow the open dumping of any waste" (415 ILCS 5/21(a)(West 2000))

and those who "[c]ause or threaten or allow the discharge" of

contaminants that cause or tend to cause water pollution within the

state (415 ILCS 5/12(a)(West 2000)).  In determining a corporate

officer's liability under the Act, this distinction is minimal. 

The difference is that instead of having to have been an owner or

active operator of the facility where the violations occurred to be

liable under CERCLA, the officer must have caused or allowed the violations in order to be liable under the Act.2

	In United States v. Bestfoods, 524 U.S. 51, 141 L.Ed. 2d 43, 118 S.Ct. 1876 (1998), the Supreme Court considered whether a

parent corporation could be held liable for its subsidiary's CERCLA

violations.  The Court made two important and relevant holdings. 

First, it held that "a parent corporation that actively

participated in, and exercised control over, the operations of a

subsidiary may [not], without more, be held liable as an operator

of a polluting facility owned or operated by the subsidiary"

"unless the corporate veil may be pierced."  Bestfoods, 524 U.S. at 55, 141 L.Ed. 2d at 52, 118 S.Ct. at 1881.  Second, the Court held

that "a corporate parent that actively participated in, and

exercised control over, the operations of the facility itself may

be held directly liable in its own right as an operator of the

facility."  Bestfoods, 524 U.S. at 55, 141 L.Ed. 2d at 52, 118 S.Ct. at 1881.  The Court noted that "it is hornbook law that 'the

exercise of the "control" which stock ownership gives to the stockholders . . . will not create liability beyond the assets of

the [corporation].' " Bestfoods, 524 U.S. at 61-62, 141 L.Ed. 2d at 56, 118 S.Ct. at 1884, quoting W. Douglas & C. Shanks, Insulation From Liability Through Subsidiary Corporations, 39 Yale L.J. 193, 196 (1929).  These holdings have guided courts across the country

that have considered corporate officers' potential liability for

corporate environmental wrongs. 

	The facts of the out-of-jurisdiction cases cited by the

parties confirm that more than a corporate title is required in

order for an officer to be held liable for corporate violations of

environmental protection laws.  There is, however, no precise

definition as to what must be alleged to state a claim for personal

liability.  As we review the cases, we note that the federal courts

impose a notice-pleading standard whereas we impose a fact-pleading

standard. Compare Redfield v. Continental Casualty Corp., 818 F.2d 596, 605 (7th Cir. 1987)("Fed. R. Civ. P. 8(a) permits notice

pleading ***"), with Grund v. Donegan, 298 Ill. App. 3d 1034, 1039 (1998)("Illinois is a fact-pleading jurisdiction").  "As a

consequence, a plaintiff in federal court need not set out in

detail the facts upon which his claim is based."  Redfield, 818 F.2d at 605.  Thus, the burden on the State may be heavier in this

case than the burden was on the plaintiffs in the cases from other

jurisdictions that are discussed below.    

	The primary difficulty in cases like this one lies in

identifying the officer's actions and determining whether they were personal acts or acts of the corporation.  As one court has

explained: 

	"The line between a personal act and an act that is

purely an act of the corporation (or of some other

employee) and so not imputed to the president or to other

corporate officers is sometimes a fine one, but often it

is clear on which side of the line a particular act

falls.  If an individual is hit by a negligently operated

train, the railroad is liable in tort to him but the

president of the railroad is not.  Or rather, not

usually; had the president been driving the train when it

hit the plaintiff, or had been sitting beside the driver

and ordered him to exceed the speed limit, he would be

jointly liable with the railroad."  Browning-Ferris Industries of Illinois, Inc. v. Ter Maat, 195 F.3d 953, 956 (7th Cir.  1999).

In these examples the determination of personal liability is

obvious, but the situations are not always so clear-cut, especially

in the environmental protection arena.

	In Sydney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 418 (7th Cir. 1994), the court reversed dismissal of a

complaint brought against corporate officers, asserting liability

under CERCLA.  The court emphasized that direct, personal liability

is different and distinct from liability resulting from piercing

the corporate veil.  Pipefitters, 25 F.3d at 420.  The court found the allegations sufficient to state a claim for personal liability

under CERCLA: "Pipefitters alleged not only that the Arst officers

in question exercised management control over the company's

operations, but also that they knowingly exercised direct and

personal control over the handling of the hazardous substance at

issue in this appeal."  Pipefitters, 25 F.3d at 421.  The court explained:

	"To survive a motion to dismiss a plaintiff must allege

that persons associated with the corporation directly and personally engaged in conduct that led to the specific environmental damage at issue in the case.  Without such

direct, personal involvement, the corporation and not the

associated individuals must be regarded as owning or

operating the hazardous waste site in question.  It would

certainly be unreasonable to infer simply from general

allegations of corporate ownership or operation of a

waste site that individuals acting on the corporation's

behalf are themselves liable.  Thus, a plaintiff does not

state a claim for owner or operator liability if she

merely alleges that certain individuals had general

corporate authority or served generally in a supervisory

capacity.  Active participation in, or exercise of

specific control of, the activities in question must be

shown."  Pipefitters, 25 F.3d at 421-22.

	Courts that have upheld liability have similarly required more than a showing of general corporate authority.  In Carter-Jones Lumber Co. v. Dixie Distributing Co., 166 F.3d 840, 846 (6th Cir. 1999), for example, the court recognized that a corporate officer

could be liable for the corporation's CERCLA violations because the

officer was "actively involved in the arrangements for disposal." 

The evidence showed that the officer and the corporation purchased

10 transformers containing polychlorinated biphenyls (PCBs), that

the officer negotiated the purchase price and signed an affidavit

in which he acknowledged the problem with PCB disposal, that the

transformers were moved to property owned by the officer, that some

of the transformers were sold by the corporation, that those same

transformers were later sold to another buyer by the officer, that

the officer was attempting to hide the transformers from the Ohio

Environmental Protection Agency, and that the officer misstated to

the Ohio Environmental Protection Agency the number of transformers

he had.  Carter-Jones, 166 F.3d at 844.  

	In State ex rel. Webster v. Missouri Resource Recovery, Inc., 825 S.W.2d 916, 926 (Mo. App. 1992), the court reversed the

dismissal of a corporate officer defendant, finding that he could

be liable for the corporation's violation of the Missouri Hazardous

Waste Management Law (Mo. Rev. Stat. §260.350 (1986), because the

officer 

	"was a 'hands-on' operator.  He individually participated

in and directed all the activities of the corporation.

*** [H]e had responsibility for the day-to-day operation of the business. [His] decisions and his actions [were]

the source of plaintiffs' charges against [the

corporation].  He had the ability to control the

activities of [the corporation] which gave rise to this

lawsuit and he did control those activities."

	Likewise, in State v. Shore Realty Corp., 759 F.2d 1032, 1052 (2d Cir. 1985), the defendant officer was held liable where he was

"in charge of the operation of the facility in question."  In

United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 744 (8th Cir. 1986), the court found a corporate officer

liable under CERCLA because "he personally participated in the

wrongful conduct" by arranging for the transportation and disposal

of hazardous substances on behalf of the corporation.  

	In United States v. Carolina Transformer Co., 978 F.2d 832, 837 (4th Cir. 1992), the Court of Appeals for the Fourth Circuit

found that a plaintiff need only show that the officer had the

"authority to control" the facility, not necessarily that he did.  Still, the officers' liability was based on more than the mere fact

that they were corporate officers.  One officer "acknowledged that

he was 'in charge' of the company and that he was 'responsible' for

what went on upon the company's property."  Carolina Transformer, 978 F.2d at 837.  The other officer "operated or otherwise

controlled operations on the property in question," and his basic

responsibilities included "everday operations of the company,

delegation of authority, [and] management of the company."  Carolina Transformer, 978 F.2d at 837.  And these were not "all of the many facts," which supported a finding of liability.  Carolina Transformer, 978 F.2d at 837.  

	One case, perhaps more than any other, exemplifies that it is

not a person's title as a corporate officer that creates liability. 

In United States v. Gurley, 43 F.3d 1188, 1194-95 (8th Cir. 1994), the court held that a defendant who was "not an officer, director,

or shareholder" was appropriately found liable for corporate

hazardous waste disposal activities in violation of CERCLA because

the individual was the " 'director of operations' *** 'in control

of the day to day operations of the plant' " and engaged in written

communications with the Arkansas Department of Pollution Control

and Ecology regarding the violations.    

	Applying rules similar to those applied in the above cases,

some courts have found insufficient evidence to hold corporate

officers liable.  In Riverside Market Development Corp. v. International Building Products, Inc., 931 F.2d 327, 330 (5th Cir. 1991), for example, the court upheld the grant of summary judgment

in favor of an officer defendant because "[t]he plaintiffs ***

failed to come forward with any evidence showing that [the officer]

personally participated in any conduct that violated CERCLA."  In T.V. Spano Building Corp. v. Department of Natural Resources & Environmental Control, 628 A.2d 53, 62 (Del. 1993), the court held that the officer was not personally liable for the corporation's

improper disposal of hazardous wastes because while the officer "had broad, general authority for the Raintree project and direct

knowledge of the disposal trenches," he "did not direct, control,

approve, consent to, or ratify the decision to dispose of the

construction waste." 

	From our analysis of C.J.R., the other cases cited by the parties, and the Act itself, we conclude that in order to state a

claim for personal liability against a corporate officer under the

Act, a plaintiff must do more than allege corporate wrongdoing. 

Similarly, the plaintiff must allege more than that the corporate

officer held a management position, had general corporate

authority, or served in a supervisory capacity in order to

establish individual liability under the Act.  The plaintiff must

allege facts establishing that the corporate officer had personal

involvement or active participation in the acts resulting in

liability, not just that he had personal involvement or active

participation in the management of the corporation.  Application of

these principles in this case shows that the State has not pled a

cause of action against Tang for individual liability.

	The State has made conclusory allegations that Tang "caused or

allowed" certain actions to occur in violation of the Act.  The

State, however, offers no explanation as to how Tang "caused or

allowed" these violations to occur, except that he did so "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."  In other words,

the State is saying that because he was an officer and shareholder

of the corporation, Tang is accountable for the corporation's

actions.  As noted above, this flies in the face of the purpose of

creating corporate entities.  To state a claim, the allegations

must show that Tang was personally, as opposed to only in his

corporate capacity, involved in the alleged violations.  They fail

to do so, despite the State's multiple opportunities to state its

claims.  Significantly, the State does not even allege that Tang

had knowledge of the wastes or the violations.  The allegations

merely state in conclusory fashion that Tang "conducted an

automobile shredding operation at the site through the business

entities" and inexplicably "caused or allowed" the violations to

occur.  These allegations are significantly deficient as compared

to the allegations in C.J.R. and other cases finding individually liability.  As pointed out above in C.J.R. , the corporate officer defendant actually "operated" the facility in question.  In this

case, for wahatever reason, the chief operating officer of Pielet

Brothers LP was not made a party to this action.  The allegations

are conclusory and insufficient to state a claim for personal

liability. 

	The State urges us to ignore the deficiencies in its pleadings

because "the evidence to support [the] allegation[s] is principally

within the defendant's knowledge and can be further developed

through discovery."  The State cites John Burns Construction Co. v. City of Chicago, 234 Ill. App. 3d 1027 (1992), Christoffel v. Country Mutual Insurance Co., 183 Ill. App. 3d 32 (1989), and Holton v. Resurrection Hospital, 88 Ill. App. 3d 655 (1980).  Those cases differ significantly from this case.  In Burns Construction, the plaintiff argued on its motion for reconsideration that it

needed to conduct discovery in order to make more specific

allegations.  Burns Construction, 234 Ill. App. 3d at 1033.  In Christoffel, the missing information was a copy of the insurance policy, which policy the defendant insurer obviously had knowledge

of. Christoffel, 183 Ill. App. 3d at 37.  In Holton, the court found that the "defendant did not have to rely primarily on

plaintiff's complaint to formulate an answer and prepare for

trial."  Holton, 88 Ill. App. 3d at 659.  The defendant was a hospital that retained copies of treatment records, and one of the

primary shortcomings of the complaint was that it failed to

indicate the hospital employees who treated the deceased on June

29, 1974.  Holton, 88 Ill. App. 3d at 657.  

	In this case, the State never petitioned the court to begin

discovery.  Instead, it continued to replead nearly identical

conclusions without indicating to the trial court that its

complaint might have benefitted from discovery.  Further, the State

has not, in its pleadings or in its appellate briefs, described any

of the evidence, which it believes is in Tang's possession.  Nor is

there any indication that Tang has any evidence that would be

useful in answering the complaint.  As they stand, the State's allegations are insufficient to apprise Tang of what acts he is

being asked to defend.  Under these circumstances, we cannot accept

the State's claim.  Dismissal was proper.    

	The State alternatively maintains that Tang is liable as a

corporate officer because "the law imposes responsibility upon

corporate agents who do not proactively work to prevent violations

of statutes that effect the public's heath and safety from

occurring."  In some jurisdictions this is known as the

"responsible corporate officer doctrine."  See, e.g., BEC Corp. v. Department of Environmental Protection, 256 Conn. 602, 775 A.2d 928 (2001); Commissioner, Department of Environmental Management v. RLG, Inc., 755 N.E.2d 556 (Ind. 2001).  Tang argues that the State has waived this argument by not raising it in the trial court.  We

agree.  See Sparapany v. Rexall Corp., 249 Ill. App. 3d 388, 392 (1993)("It is settled law in Illinois that a theory cannot be

presented on review which was not presented in the trial court; any

such theory not presented below is deemed waived").  Regardless,

the responsible corporate officer doctrine requires specific

allegations of corporate responsibility with regard to the wrongful

acts, rather than just general allegations of corporate

responsibility.  See United States v. Park, 421 U.S. 658, 675, 44 L.Ed. 2d 489, 502-03, 95 S.Ct. 1903, 1913 (1975)("[T]he main issue

for determination was not respondent's position in the corporate

hierarchy, but rather his accountability, because of the

responsibility and authority of his position, for the conditions which gave rise to the charges against him"); United States v. Dotterweich, 320 U.S. 277, 284, 88 L.Ed. 48, 53, 64 S.Ct. 134, 138 (1943)("The offense is committed *** by all who do have such a

responsible share in the furtherance of the transaction which the

statute outlaws ***").  Thus, consideration of the argument would

lead us to the same conclusion: the allegations are insufficient to

support the State's claims against Tang.  

	The State also argues that the trial court erred in holding

that the Act does not authorize mandatory injunctive relief and

that the court lacked authority to order Tang to remediate the

property even though he has no legal interest in it.  Because of

our disposition on the liability issues, we need not address these

relief issues.  

	For the foregoing reasons, we affirm the trial court's

dismissal with prejudice of the State's second amended complaint. 

	Affirmed. 

	O'MALLEY, P.J., and McNULTY, J., concur.