No. 2--01--1201	 	

______________________________________________________________________________

	IN THE

APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

______________________________________________________________________________

ILLINOIS STATE TOLL HIGHWAY			)	Appeal from the Circuit Court

AUTHORITY,						)  of Du Page County.

                                		)    

     Plaintiff-Appellant,       		) 

                                		)			

v.                              		)  No. 94--MR--266

                                		)

AMOCO OIL COMPANY and           		)

MOBIL OIL CORPORATION,          		)  Honorable

                                		) 	Bonnie M. Wheaton,

    Defendants-Appellees.			)  Judge, Presiding.

______________________________________________________________________________                                  

	JUSTICE O'MALLEY delivered the opinion of the court:

	Plaintiff, the Illinois State Toll Highway Authority (ISTHA), appeals from

the dismissal of its complaint against Amoco Oil Co. (Amoco) and Mobil Oil Corp.

(Mobil).  ISTHA sought a declaration that Mobil and Amoco, while operating

gasoline stations on ISTHA's property under written agreements with ISTHA,

violated the terms of those agreements by spilling petroleum products onto the

property.  ISTHA also asked that Mobil and Amoco be ordered to contribute to the

costs of remedying the petroleum contamination.  We reverse the trial court's

dismissal of ISTHA's complaint. 

	The complaint dismissed by the trial court was ISTHA's fourth amended

complaint against Amoco and Mobil.  ISTHA alleged therein that it owns various

rest stops or "Oases" along the Illinois toll highways.  Under leases and

operating agreements with ISTHA, Amoco and Mobil have operated gasoline stations

at the Oases.  Amoco operated the stations from 1957 to November 1985.  Mobil has

operated the stations from November 1985 to the present.  The gasoline storage and

dispensing equipment that was the subject of the agreements included underground

petroleum storage tanks (USTs) and  underground pipe systems and fuel dispensers (collectively, UST systems).  ISTHA attached to its complaint copies of the various leases and operating agreements it entered into with Amoco and Mobil

during their respective tenures.     	

	[The following material is nonpublishable under Supreme Court Rule 23.] 

	The 1957 lease between Amoco and ISTHA was somewhat vague as to what

equipment the parties were each responsible for maintaining at the Oases.  The

lease provided that ISTHA was responsible for maintaining buildings, driveways and

roads, water pipes, drains, sewers, utilities, and "all basic equipment."  The

lease did not define "basic equipment."  The lease further provided that ISTHA was

not responsible for repairing damage caused by Amoco's negligence.  The lease

required Amoco to indemnify ISTHA and hold it harmless for claims of "any loss,

damage, injuries or other casualty to person or property of any one [sic] on or off the [Oases] arising out of the wrongful acts, wrongful failure to act, or

negligence of [Amoco] *** in connection with the conduct of the businesses on the

[Oases]."  

	In 1966, the ISTHA and Amoco signed a supplementary lease, which obligated

Amoco to maintain and repair all "basic equipment" while ISTHA would maintain and

repair the USTs and "related piping."  The amendment did not define "related

piping" or "basic equipment".  The amendment retained the provision in the 1957

lease requiring indemnification from Amoco for damage due to its misconduct.    

	In 1984, ISTHA and Amoco signed an operating agreement superseding the

leases.  Under the agreement, ISTHA was responsible for maintaining the USTs and

"fuel distribution system" at each Oasis.  The agreement required Amoco to give

ISTHA immediate written notice of required repairs and provided that ISTHA was not

required to make such repairs until a reasonable time after delivery of such

written notice.  The agreement provided that ISTHA was not responsible for any repairs caused by "the act or negligence" of Amoco.  The agreement contained  an

indemnification provision similar to those in the 1957 and 1966 leases.  Further,

the agreement bound Amoco to comply with all applicable federal, state, and local

laws.  

	In 1985, Mobil and ISTHA signed a lease requiring Mobil to "repair, maintain

and replace" each underground petroleum storage system "from the point at which

it leaves the [USTs] onward."  ISTHA was responsible for maintaining the USTs

themselves.  The lease provided that ISTHA was not responsible for repairs

occasioned by Mobil's negligence or "wilful destructiveness."  The  lease required

Mobil to indemnify ISTHA and hold it harmless for claims of "injuries to persons

and damages to property due to the activities of [Mobil] *** relating to the

performance of any services under this Agreement or in connection therewith." 

	In 1988, Mobil and ISTHA signed an operating agreement superseding the 1985

lease.  The agreement required Mobil to maintain the "fuel dispensers, underground

storage tanks and fuel distribution systems."  Mobil also agreed to comply with

all applicable federal, state, and local laws.  The 1988 agreement contained an

indemnification provision similar to that in the 1985 agreement.  All of ISTHA's

leases and operating agreements with Mobil and Amoco required the companies not

to "commit or suffer waste to be committed" upon the Oases. 

	[The preceding material is nonpublishable under Supreme Court Rule 23.] 

	ISTHA alleged that Amoco and Mobil caused spillage and leakage of petroleum

products while they operated the Oases.  

	[The following material is nonpublishable under Supreme Court Rule 23.]   	Specifically, ISTHA alleged:   

		"Upon information and belief, from time to time from 1957 to the

present, releases of petroleum product have occurred on or about the Oases

from overfilling of the USTs and UST systems, failure of the UST systems

and/or spillage of product during fueling activities in the course of

Amoco's and Mobil's operations."  

	ISTHA alleged that tests in 1985 revealed the presence of petroleum products

in the soil and water near the USTs and UST systems at the Oases.  ISTHA alleged

that the petroleum detected "matched Amoco gasoline."  ISTHA stated that it

received the results of the tests in 1986.  ISTHA averred that, subsequent to

receiving these results, it learned of several "releases, leaks, spills and

overfills of petroleum products arising from the premises and equipment in

connection with Amoco's operations at the site."  ISTHA referenced several

specific leaks and spills occurring in the 1960s, 1970s, and early 1980s at the

Oases.  Some of the leaks ISTHA identified only by year, others by year and month,

and still others by year, month, and day. 

	ISTHA alleged that, after Mobil began operating the gas stations at the

Oases, "additional" petroleum product was found in the soil and water near the

USTs and underground storage systems operated by Mobil.  ISTHA attributed this

contamination to "releases, leaks spills, and and/or overfills of petroleum

products arising from Mobil's use of the premises or equipment in connection with

Mobil's operations."  As with the allegations against Amoco, ISTHA referenced

several particular leaks and spills with varying degrees of specificity.  The

leaks occurred during the late 1980s and throughout the 1990s.

	[The preceding material is nonpublishable under Supreme Court Rule 23.] 	ISTHA alleged that Illinois health and environmental authorities

investigated the contamination at the Oases and ordered a cleanup.  ISTHA averred

that it has "expended significant sums of money to assess, monitor and remediate"

the contamination.  Specifically, ISTHA alleged that it has incurred "site

assessment costs" as low as $200,000 and as high as $500,000 at each Oasis where

contamination was found.  ISTHA alleged that the Illinois Environmental Protection

Agency, pursuant to its authority under the Illinois Environmental Protection Act

(Environmental Act) (415 ILCS 5/1 et seq. (West 2000)), has demanded that ISTHA propose a remediation plan for the contamination at each Oasis.  Each plan, ISTHA

asserted, will involve "substantial" additional sums.  ISTHA alleged that it,

Amoco, and Mobil are jointly liable under the Environmental Act for the

contamination of the Oases.  ISTHA averred that, despite its demands, Amoco and

Mobil have neither acknowledged their duty to assist in the remediation nor

compensated ISTHA for the sums it has expended so far. 

	ISTHA brought claims for declaratory relief and contribution.  In its claims

for declaratory relief, ISTHA requested a declaration of "the rights and

obligations of the parties with respect to the remediation and cleanup" of the

Oases.  Specifically, ISTHA sought a declaration that Mobil and Amoco are required

under the lease and operating agreements to indemnify ISTHA for past and future

costs associated with remediation and to cooperate with state authorities until

the remediation is complete.  ISTHA also sought contribution from Mobil and Amoco

under the Illinois Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS

100/1 et seq. (West 2000)) for the amount it paid in excess of its pro rata share of the parties' common liability under the Environmental Act.  Finally, ISTHA

sought a finding that Mobil and Amoco are "liable for their pro rata share of any future liability or expense incurred by [ISTHA]  stemming from" the violations of

the Environmental Act.         

	Mobil and Amoco each filed a motion to dismiss ISTHA's complaint under

sections 2--615 and 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2–615, 2–619 (West 2000)).  The following arguments for dismissal of the claims for declaratory relief were presented in one or both of the motions: (1)

declaratory relief was inappropriate because ISTHA sought a declaration of rights

stemming entirely from past conduct; (2) the claims for declaratory relief lacked

adequate specificity, and the leases and operating agreements cited in the claims

did not support the relief requested; (3) declaratory relief was inappropriate

because ISTHA had recourse to an alternative remedy, namely, a cause of action for

breach of contract; and (4) the claims for declaratory relief were barred by the

applicable statute of limitations and by the doctrine of laches.  	

	The following arguments for dismissal of the contribution claims were

presented in one or both of the motions: (1) ISTHA's claims against Amoco concerned events that occurred before the effective date of the Contribution Act;

(2) ISTHA's claims for contribution against Amoco and Mobil were premature because

the liability for which ISTHA sought contribution had not been asserted against

it in a lawsuit by a third party; and (3) ISTHA's claims for contribution for sums

it has not yet paid or even calculated were premature and nonjusticiable.  Without

providing a rationale, the trial court dismissed ISTHA's complaint with prejudice. 

ISTHA appeals, and Mobil and Amoco reassert the arguments they pressed in their

motions to dismiss.  We address first the propriety of the court's dismissal of

ISTHA's claims for declaratory relief.

A.  The Dismissal of ISTHA's Claims For Declaratory Relief

   	Section 2--701 of the Code, also known as the Declaratory Judgment Act (Act) (735 ILCS 5/2--701(a) (West 2000)), provides in pertinent part:

		"(a) No action or proceeding is open to objection on the ground that

a merely declaratory judgment or order is sought thereby.  The court may,

in cases of actual controversy, make binding declarations of rights, having

the force of final judgments, whether or not any consequential relief is or

could be claimed, including the determination, at the instance of anyone

interested in the controversy, of the construction of any *** contract *** and a declaration of the rights of the parties interested." 

	Courts have construed the Act as permitting declaratory judgment only where

an actual controversy exists and the party seeking relief has a tangible, legal

interest in the controversy.  In re Application of the County Treasurer & ex officio County Collector, 309 Ill. App. 3d 181, 187 (1999).  An "actual controversy" is "a concrete dispute that admits of an immediate and definitive

determination of the party's rights."  Owner-Operator Independent Drivers Ass'n v. Bower, 325 Ill. App. 3d 1045, 1051 (2001).  The central purpose of declaratory relief is to allow the court to address a controversy one step sooner than normal

after a dispute has arisen, but before the plaintiff takes steps that would give

rise to a claim for damages or other relief.  Eyman v. McDonough District Hospital, 245 Ill. App. 3d 394, 396 (1993).  The declaratory judgment procedure allows parties to a dispute to learn the consequences of their action before

acting.  Eyman, 245 Ill. App. 3d at 396.  The remedy of declaratory judgment is to be liberally applied to provide a method by which a binding declaration of

rights may be rendered before the parties make an irrevocable change in position

that might jeopardize those rights.  Midwest Petroleum Marketers Ass'n v. City of Chicago, 82 Ill. App. 3d 494, 499 (1980).  The remedy is meant to afford security and relief against uncertainty with a view toward avoiding litigation, not toward

aiding it. Lihosit v. State Farm Mutual Automobile Insurance Co., 264 Ill. App. 3d 576, 580 (1993).

	The court provided no rationale for its dismissal of plaintiff's complaint. 

An order granting a motion to dismiss without specifying the ground on which it

is based places before the appellate court every issue raised in the motion; if

any ground raised in the motion is a sufficient basis for the dismissal, the

appellate court must affirm.  Williams v. Board of Education of the City of Chicago, 222 Ill. App. 3d 559, 565 (1991).  In the trial court, Mobil and Amoco proffered various reasons why ISTHA's claims for declaratory relief should be

dismissed.  They reassert them on appeal, and we address them successively.  In

an unpublished part of this opinion, we address and reject the defendants'

arguments that ISTHA's claims for declaratory relief do not present an "actual

controversy" as defined by the Act and, alternatively, that the claims are barred

under the applicable limitations period and under the doctrine of laches.  

	[The following material is nonpublishable under Supreme Court Rule 23.]  

	The first issue we address is whether ISTHA's claims for declaratory relief

present an "actual controversy" as defined by the Act.  This is a question of law

that we review de novo.  Flex-O-Glass, Inc. v. City of Dixon, 307 Ill. App. 3d 945, 949 (1999); AG Farms, Inc. v. American Premier Underwriters, Inc., 296 Ill. App. 3d 684, 689 (1998).  

	ISTHA alleges in its complaint that Mobil and Amoco spilled petroleum

products onto the grounds of the Oases where they were operating gasoline stations

under written agreements with ISTHA.  ISTHA avers that the spillage violated

specific provisions in the agreements prohibiting "waste" on the premises and that

certain other provisions entitle ISTHA to indemnification for the costs of

cleanup.  ISTHA alleges that it has already incurred some cleanup costs while

others have yet to be calculated.  ISTHA supports its assertions with specific

references to the leases and operating agreements, copies of which it attached to

its complaint.  Mobil and Amoco deny that the written contracts provide ISTHA any

remedy.  In our view, ISTHA has presented a concrete dispute in which it has a

tangible interest.  Further, ISTHA's claims are not premature.  ISTHA asserted

that it has paid and will pay costs for which Mobil and Amoco are responsible

under the contracts. The fact that some of the costs of cleanup have yet to be

calculated does not make ISTHA's claims inappropriate for declaratory relief.  In

keeping with the purposes of the Act, a declaration that ISTHA is or is not

responsible for those future costs will relieve uncertainty as to its rights under

the contracts and likely avoid future litigation over those future costs. 

	Mobil argues that ISTHA's claims are not appropriate for declaratory relief

because they are based entirely on past conduct.  Citing the rule that a claim for

declaratory relief "may be dismissed where a party seeks to enforce his rights

after the fact" (Senese v. Climatemp, Inc., 222 Ill. App. 3d 302, 314 (1991)), Mobil contends that ISTHA has "already spent money and taken other steps" and thus

"missed its chance to have the rights and obligations of the parties declared

beforehand through the means of a declaratory judgment action."  What is critical,

however, is that ISTHA has alleged that it anticipates spending much more money

and taking many more steps before the contamination is remedied to the State's

satisfaction.  "The requirement of an actual controversy does not mean that a

wrong must be committed and an injury inflicted; it requires only a showing that

the issues are not moot or premature."  Rockford Title Co. v. Staaf, 275 Ill. App. 3d 476, 480 (1995).  Indeed, the remedy of declaratory judgment exists precisely

so that rights may be determined before damages are incurred.  See Eyman, 245 Ill. App. 3d at 396.  ISTHA alleges that, to this date, it has spent hundreds of

thousands of dollars in cleanup costs for which it is not legally responsible. 

ISTHA is well within its rights in seeking a declaration that it is not

responsible for the cleanup costs it has yet to incur, which it estimates will be

"substantial."   

	Mobil also argues that ISTHA's claims for declaratory relief do not contain

"the necessary specificity."  Mobil argues, specifically, that ISTHA did not

"allege a link between a single alleged incident and a single drop of petroleum

in the ground" and did not allocate responsibility for the leaked petroleum

between Mobil and Amoco.  Thus, Mobil claims, ISTHA's complaint "did not provide

the [trial court] a framework in which to determine the relative rights and

obligations of the parties."

	We reject this argument.  A complaint is sufficient under Illinois pleading

requirements if it alleges "ultimate facts sufficient to set forth the essential

elements of the cause of action being asserted."  Nolan v. Hillard, 309 Ill. App. 3d 129, 142 (1999).  ISTHA alleged that petroleum products were detected in the water and soil in the vicinity of the petroleum storage and dispensing equipment

that Amoco and Mobil operated at the Oases.  ISTHA alleged that some of the

petroleum product matched Amoco's gasoline, and that, subsequent to Mobil's

assuming operation of the  gasoline stations, "additional" petroleum product was

detected.  ISTHA alleged that this contamination was "directly attributable" to

Mobil or Amoco.  As support, ISTHA alleged specific instances of leaks and spills

from gasoline storage and dispensing equipment occurring during the respective

tenures of Mobil and Amoco.  If established as true, ISTHA's allegations would

establish that Mobil and Amoco are each guilty of separate instances of

contamination.  	ISTHA's failure to attribute each quantum of petroleum product to either Amoco or Mobil does not affect the sufficiency of its complaint.  ISTHA

alleged that some of the petroleum matched Amoco's gasoline.  Further, ISTHA

specified particular instances of leaks and spills by year, some occurring while

Amoco was operating the gasoline stations and others while Mobil was operating

them.  The proof process might reveal finer distinctions but ISTHA was not

required to specify them in its complaint.

	Amoco asserts that the leases and operating agreements do not afford the relief ISTHA requests.  Amoco advances several arguments on this score.  The first

argument concerns ISTHA's allegation that a "gasoline leak in pipeline" occurred

in October 1969 at one of the Oases.  Amoco submits that ISTHA has no claim

against Amoco for this particular leak because, by virtue of the 1966 amendment

to the 1957 lease, ISTHA was responsible for maintaining the USTs and "related

pipeline" in 1969.  

	We disagree.  ISTHA alleged that this leak "[arose] from Amoco's use of the

premises and equipment in connection with Amoco's operations" at the Oases.  The

1966 amendment left intact certain provisions in the 1957 lease whereby Amoco could be held responsible for this leak despite ISTHA's responsibility to maintain

the pipe.  Specifically, the 1966 amendment incorporated the indemnification

provision under which Amoco was responsible for any damage it caused to the Oases

due to its wrongful conduct.  The amendment also incorporated the requirement that

Amoco permit no waste upon the Oases.  Thus, in 1969 there were provisions in the

written agreements whereby Amoco might be responsible for a leak it caused in the

course of its operations, even if the leak was in a pipe that ISTHA was

responsible for maintaining. 

	Amoco next argues that the provision in the leases requiring Amoco to

indemnify ISTHA for damage "to the persons or property of any one [sic] on or off the premises" cannot apply to the premises themselves, i.e., the Oases.  Amoco does not fully state its reasons for this conclusion; presumably, Amoco is

interpreting the provision as contemplating property distinct from the premises. 

Even if this is a reasonable interpretation of the provision, the alleged

petroleum contamination may well fall under the provision in the leases and

operating agreements that Mobil and Amoco not "commit or suffer waste to be

committed" upon the Oases.  Therefore, there is a basis independent of the

indemnification provision for holding Mobil and Amoco responsible for the

petroleum contamination.      

	Amoco's last argument concerning the sufficiency of ISTHA's complaint is

that the term "waste" as used in the leases and operating agreements does not

include the discharge of petroleum products.  Amoco submits that "[e]nvironmental

contamination is a burden neither party contemplated as they bargained with one

another" and that "neither party would have envisioned the impact caused by

hydrocarbon contamination nor the cost of its remediation" when they drafted the

"waste" provision.  

	Amoco cites to nothing in the record to support this claim, and we find no

such support.  Where there is no evidence that the parties intended a particular

definition for a contractual term, it will be given its plain and ordinary meaning

(Hentosh v. Herman M. Finch University of Health Sciences/The Chicago Medical School, 314 Ill. App. 3d 1009, 1013 (2000)), or its well-settled legal meaning, if such exists  (Mason v. Home Insurance Co. of Illinois, 177 Ill. App. 3d 454, 458 (1988)).  Illinois courts have long employed the same definition of "waste." 

In Hausemann v. Hausemann, 231 Ill. App. 3d 361, 367 (1992), the court said: 

	"Waste occurs when someone who lawfully has possession of real estate

destroys it, misuses it, alters it or neglects it so that the interest of

persons having a subsequent right to possession is prejudiced in some way,

or there is a diminution in the value of the land being wasted."  Hausmann v. Hausmann, 231 Ill. App. 3d 361, 367 (1992), quoting Pasulka v. Koob, 170 Ill. App. 3d 191, 209 (1988).  

See also Bond v. Lockwood, 33 Ill. 212, 221 (1864) (defining "waste" as "[a]ny act or omission which diminished the value of the estate or its income, or increased

the burdens upon it or impaired the evidence of title thereto").  We accord

"waste," as used in ISTHA's written agreements with Mobil and Amoco, its well-

established definition under Illinois law. 

	We do so notwithstanding Newell v. Weston, 150 Or. Ct. App. 562, 946 P.2d 691 (1997), which Amoco cites in support of its proposed definition of "waste." 

The defendant in Newell operated an automobile dealership on property leased from the plaintiff.  The defendant installed an underground gasoline storage tank on

the property.  Subsequently, gasoline contamination was discovered near the tank. 

When the defendant refused to remedy the spill, the plaintiff himself remedied it,

leaving some residual contamination that the State of Oregon considered nonthreatening.  Newell, 150 Or. App. Ct. at 565, 946 P. 2d at 694-95.  The plaintiff sued, seeking contribution for its expenditures on cleanup.  The

plaintiff also sought a declaration that the contamination violated provisions in

the lease requiring that the defendant comply with applicable laws and "not ***

commit or suffer any strip or waste" of the premises.  Newell, 150 Or. Ct. App. at 566, 946 P. 2d at 695.  The plaintiff claimed that, based on these breaches,

the defendant was liable "for future remediation costs or for additional damages

for the diminution in value that resulted from the contamination of [the

plaintiff's] property."  Newell, 150 Or. Ct. App. at 566, 946 P. 2d at 695.  Following a bench trial, the trial court, applying Oregon's equitable contribution

statute, ordered the defendant to reimburse plaintiff for what it had already

spent on cleanup.  However, the court found that the contamination was not a

breach of any lease terms and that the defendant was not responsible for the

future costs of remediation, which the court considered "speculative."  Newell, 150 Or. Ct. App. at 567, 946 P. 2d at 695-96.        

	The appellate court affirmed.  The court rejected the argument that the

defendant violated the lease provision requiring the defendant to comply with

applicable laws.  Citing the general rule in Oregon that lease provisions

requiring compliance with applicable laws generally are construed as not applying

to laws enacted after the execution of the lease, the court noted that the laws

that the defendant allegedly violated were enacted after the lease expired.  The

court also noted a disclaimer in the lease that the compliance provision only

extended to laws enacted during the term of the lease "or any extension thereof." 

Newell, 150 Or. Ct. App. at 579-80, 946 P. 2d at 702.    

	As for the plaintiff's claim that the contamination violated the "waste"

provision in the lease, the court cited the case of Lytle v. Payette-Oregon Irrigation District, 175 Or. 276, 152 P.2d 934 (1944), for the rule that, in Oregon, waste is compensable only if the result of intentional wrongdoing or

negligence.  Noting that the plaintiff did not challenge the trial court's finding

that the spillage was the product of neither intentional wrongdoing nor

negligence, the appellate court upheld the trial court's finding that the spillage

did not violate the "waste" clause in the lease.  Newell, 150 Or. Ct. App. at 580, 946 P. 2d at 702-03.

	Newell does not support Amoco's contention that "waste" as used in ISTHA's written agreements with Amoco and Mobil does not include environmental

contamination.  Newell was concerned with whether conduct otherwise constituting "waste" must be either intentionally wrongful or negligent to be compensable;

Newell did not decide whether environmental contamination or any particular other type of conduct constitutes "waste."  The defendant in Newell did not argue that a discharge of petroleum products could not constitute "waste" regardless of

culpability.  By all indications, the trial court assumed that a discharge of

petroleum products would constitute waste if the requisite level of culpability

were proven.  See Newell, 150 Or. Ct. App. at 580, 946 P. 2d at 702-03.  Amoco does not argue that we should adopt the definition of "waste" recognized  in

Newell; therefore, we consider Newell's discussion of the definition of "waste" to be entirely irrelevant to Amoco's arguments.  

	We recognize that Newell did hold that the compliance provision in the lease before it did not encompass laws enacted after the expiration of the lease. 

Amoco, however, does not argue for a similar restriction on the compliance clauses

in ISTHA's contracts with Mobil and Amoco, but cites Newell only for what bearing it may have on the "waste" provisions in ISTHA's contracts.  As noted, Newell's pronouncements on "waste" are far afield from Amoco's purposes here.  

	We apply, then, the definition of waste set forth in Hausemann and Bond.  ISTHA has alleged that its tenants, Amoco and Mobil, released petroleum

contaminants onto ISTHA's property.  Although ISTHA has not alleged what specific

damage or depreciation the discharge caused, the contamination was serious enough

to prompt the State of Illinois to demand cleanup.  We conclude that the alleged

petroleum contamination meets the definition of "waste" in the parties' written

agreements.  For the reasons stated above, we hold that ISTHA's claims for

declaratory relief present an actual controversy as defined by the Act.

	We next address the issue of whether ISTHA's claims for declaratory relief

are barred by the applicable statute of limitations.  The statute of limitations

is an affirmative defense and the party asserting it has the burden of showing it

applies.  Patsis v. Zion-Benton Township High School, No. 126, 234 Ill. App. 3d 232, 238 (1992).  Because ISTHA's claims for declaratory relief are premised on

the terms of a contract, the statute of limitations for contract actions applies. 

See Employers Insurance of Wausau v. Ehlco Liquidating Trust, 309 Ill. App. 3d 730, 748 (1999).  With certain exceptions not applicable here, a cause of action

for breach of contract must be commenced within 10 years after the cause accrues. 

See 735 ILCS 5/13–206 (West 2000).  A cause of action accrues not when the breach occurs but when the plaintiff knows or reasonably should have known of the breach. 

Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 77-78 (1995).  A dismissal of a complaint on grounds that it was filed beyond the limitations

period is reviewed de novo.  Alicea v. Snyder, 321 Ill. App. 3d 248, 252 (2001).

	ISTHA alleged that it first discovered the contamination in 1986, within ten

years before it filed its complaint in 1994.  Amoco claims ISTHA reasonably should

have known of the contamination earlier.  First, Amoco claims that, beginning with

the enactment of the Environmental Act in 1970, ISTHA "was under a nondelegable duty to prevent or stem the tide of environmental contamination." The only

authority Amoco cites for this statement is ISTHA's remark in its brief that it

is "specifically required to make an annual environmental assessment of its

facilities and comply with the [Environmental Act]."  ISTHA's support for this

statement is section 47(b) of the Environmental Act (415 ILCS 5/47(b) (West

2000)), which provides:

	"Each state agency or institution shall annually assess the environmental

problems created by its operations and the extent to which its operations

are in violation of this Act or of regulations adopted thereunder; and shall

report to the Environmental Protection Agency on or before December 1 of

each year as to the findings of such assessment, the progress made in

eliminating such violations, and the steps to be taken in the future to

assure compliance."  415 ILCS 5/47(b) (West 2000).    

Amoco cites no authority expounding the nature of the required annual assessment,

and our research has not uncovered any.  We are quite certain, however, that

section 47(b) does not require omniscience from the State.  Amoco has not

demonstrated to our satisfaction that ISTHA's compliance with section 47(b)

necessarily would have made it aware of the contamination at the Oases.   

	Amoco also argues that ISTHA, "as the party charged with maintaining the

underground storage tank system, *** knew or should have known of the alleged

system leak or soil contamination."  Although Amoco's argument is somewhat vague,

presumably it is referring here to the 1966 lease, which gave ISTHA the duty of

maintaining "the underground storage tanks and related piping" and gave Amoco the

duty of maintaining the "basic equipment."  Amoco, however, does not specify which

"alleged system leak or soil contamination" it feels ISTHA should have had been

aware of earlier.  ISTHA alleged a host of instances of contamination.  ISTHA attributed some of the contamination to spills occurring during fueling

activities.  We not know, and Amoco has not attempted to demonstrate, what

relation such spills have to the operation of the underground storage tank

systems, which the 1966 lease charged ISTHA with maintaining.  Amoco's failure to

specify what instances of contamination it believes ISTHA should have been aware

of earlier leaves us unable to assess its argument.  

	In any event, even if ISTHA did not comply with the statute of limitations,

strong public policy reasons militate against our enforcing the statute against

ISTHA.  The government has limited immunity from statutes of limitations.  This

immunity is based on the policy judgment that the public should not suffer because

of the negligence of its officers and agents in failing to promptly assert causes

of action belonging to the public.  People ex rel. Department of Public Aid v. Dent, 244 Ill. App. 3d 380, 382 (1993); City of Shelbyville v. Shelbyville Restorium, Inc., 96 Ill. 2d 457, 461 (1983).  The test of whether a right is "public" is whether the right belongs to the general public or only to the

government or to some small and distinct subsection of the public at large. 

Shelbyville, 96 Ill. 2d at 462.  The people of Illinois have a constitutional right to a healthful environment.  Ill. Const. art. XI, §2.  This right is a

public right.  See Tri-County Landfill v. Pollution Control Board, 41 Ill. App. 3d 249, 255-56 (1976).

	ISTHA has alleged that Mobil and Amoco contaminated the soil and water on

public property with petroleum products.  The suit implicates the constitutional,

and public, right to a healthful environment.  Therefore, we will not apply the

statute of limitations to ISTHA's claims for declaratory relief.  

	Amoco also argues that the doctrine of laches bars ISTHA's claims for declaratory relief.  Laches is an affirmative defense; thus, Amoco has the burden of proving it applies.  See O'Brien v. Meyer, 281 Ill. App. 3d 832, 834 (1996).  A trial court's determination regarding the applicability of laches is reviewed de novo.  See Peddinghaus v. Peddinghaus, 314 Ill. App. 3d 900, 907 (2000).

	Laches is an equitable principle that bars an action where, because of delay in bringing suit, a party has been misled or prejudiced or has taken a course of

action different from what the party otherwise would have taken.  Senese v. Climatemp, Inc., 289 Ill. App. 3d 570, 578 (1997).  A defendant asserting laches must show that the delay induced the party to adversely change its position. 

Senese, 289 Ill. App. 3d at 578.  Furthermore, laches applies only if the defendant proves that the opposing party had prior knowledge of the facts giving

rise to the claim.  Senese, 289 Ill. App. 3d at 578-79.    

	Amoco's sole assertion in support of the application of laches here is that ISTHA's "delay in bringing [its] action has necessarily prejudiced Amoco."  Amoco

claims that "[v]irtually any evidence in this case pertaining to Amoco will be

obscured by the passage of time," particularly because Mobil, as Amoco's

successor, operated stations at the Oases for several years before ISTHA filed its

complaint.  

	Laches does not apply to ISTHA's claims because Amoco has not proven it was prejudiced by ISTHA's delay in bringing them.  Amoco's unsubstantiated claim that

any evidence of contamination attributable to it has been lost is contradicted by

ISTHA's allegation that tests of the soil and water at the Oases in 1985 revealed

a substance that "matched Amoco gasoline."  Moreover, there is "considerable

reluctance to impose the doctrine of laches to the actions of public entities unless unusual or extraordinary circumstances are shown."  Gersh v. Dept. of Professional Regulation, 308 Ill. App. 3d 649, 661 (1999).  What little Amoco has advanced for the enforcement of laches here loses even more force in light of the fact that ISTHA, a public entity, is suing for correction of petroleum

contamination of public property. 

	[The preceding material is nonpublishable under Supreme Court Rule 23.]

	Amoco and Mobil also argued in their motions to dismiss that ISTHA's claims

for declaratory relief were inappropriate because ISTHA had recourse to an

alternative remedy (namely, a suit in contract based on the leases and operating

agreements), and the "existence of another remedy is sufficient grounds for

dismissal of a declaratory judgment action."  Assuming that ISTHA could have

sought the relief it requests in an action for breach of contract, we must decide

whether the availability of such other relief was a sufficient ground for the

dismissal of ISTHA's complaint for declaratory relief.

	To support their position, Mobil and Amoco cite a case from this district, Outboard Marine Corp. v. Chisholm & Sons, Inc., 133 Ill. App. 3d 238 (1985).  In Outboard Marine, the court said: 

	"A complaint for declaratory judgment which recites in sufficient detail an

actual and legal controversy between the parties and prays for a declaration

of rights and, if desired, other legal relief, states facts sufficient to

state a cause of action [citation], and although the court has discretion

to grant declaratory relief, it has no discretion to refuse to entertain the

action as against a motion to dismiss where the complaint states a cause of

action.  [Citation.]  The courts have recognized a clear distinction between

the trial court's discretionary power to refuse to grant declaratory

judgment even though the statute would permit a judgment under the facts,

and its refusal to entertain the action as against a motion to dismiss where

the complaint states a cause of action.  [Citation.]"  Outboard Marine, 133 Ill. App. 3d at 241. 

The court remarked that " '[t]he discretion is not one to entertain the action but

to enter or decline to enter the judgment or decree.' "  Outboard Marine, 133 Ill. App. 3d at 241, quoting Meyer v. County of Madison, 7 Ill. App. 3d 289, 291 (1972).   The court noted--inconsistently, in our view--that "one way the court

can exercise its discretion to decline to enter a declaratory judgment is to

dismiss the complaint it if appears from the face of the complaint that there has

accrued another existing and well-recognized form of action."  Outboard Marine, 133 Ill. App. 3d at 241-42.  Thus, while "it is well established in Illinois that

the existence of another remedy does not preclude declaratory relief," "the

existence of another adequate remedy can constitute sufficient grounds for

dismissal at the trial court's discretion."  Outboard Marine, 133 Ill. App. 3d at 247.  Defendants rely on the latter  proposition in asking us to affirm the trial

court's dismissal of ISTHA's complaint.  

	We decline to follow Outboard Marine.  First, it simply is internally inconsistent.  The only rationale it provides for the rule that the availability

of another remedy is a sufficient ground for the dismissal of a claim for

declaratory relief rests on an unfounded distinction between a "refusal to

entertain" a complaint for declaratory relief and a "dismissal" of that complaint. 

Second, the rule is contrary to the plain text of the Act and decisions

interpreting it.

	In the quoted portions above, Outboard Marine emphasizes that a trial court faced with a motion to dismiss a complaint for declaratory relief may not dismiss

the complaint if it states a cause of action.  To dismiss the complaint would

amount to a refusal to entertain the action, which, the court explained, is always

impermissible where a complaint for declaratory relief states a cause of action. 

Several lines later in the opinion, the court describes an occasion where the trial court may dismiss a claim for declaratory relief despite there being a cause

of action stated in the complaint. Dismissal is appropriate, explains the court,

where another remedy exists.  The court describes a dismissal under these circumstances not as "refusing to entertain" the claim for declaratory relief but

as "declining to grant" the claim.  We see no basis for the distinction.  Whether

the complaint is dismissed for failure to a state of action or because another

adequate remedy exists, the dismissal in both instances is based on the face of

the complaint.  Neither is more or less a refusal to entertain the action than the

other, nor is one more or less a refusal to grant the requested relief than the

other.  If there is a basis for distinguishing between dismissing a facially

sufficient complaint for declaratory relief because it fails to state a cause of

action and dismissing the complaint because another adequate remedy is available,

the basis does not rest in the "refusal to entertain/refusal to grant"

distinction.   

	Outboard Marine, however, provides no other rationale for the notion that a trial court may dismiss a facially valid complaint for declaratory relief simply

because there is another adequate remedy available.  Outboard Marine does cite three appellate court cases for the proposition:  Schlossberg v. E.L. Trendel & Associates, Inc. 63 Ill. App. 3d 939 (1978), Coles-Moultrie Electric Cooperative v. City of Charleston, 8 Ill. App. 3d 441 (1972), and Meyer v. County of Madison, 7 Ill. App. 3d 289 (1972).  None of these cases cites adequate authority for the rule.  These cases each derive the rule from  Goldberg v. Valve Corp. of America, 89 Ill. App. 2d 383 (1967).  Goldberg in turn derives the rule from Stern v. Material Service Corp., 44 Ill. App. 2d 198 (1963), and from an Illinois treatise, Illinois Law and Practice.  See Goldberg, 89 Ill. App. 2d at 391, citing Stern, 44  Ill. App. 2d 198, and 16 Ill. L. & P. Declaratory Judgments, §2 (1967).  Stern cites Trossman v. Trossman, 24 Ill. App. 2d 521 (1960).  See Stern, 44 Ill. App. 2d at 214, citing Trossman, 24 Ill. App. 2d 521.  Trossman relies exclusively on Illinois Law and Practice in stating the rule.  See Trossman, 24 Ill. App. 2d at 526, citing Ill. L. & P. Declaratory Judgments, §2 (1963).  Treatises are not binding on this court.  Nowhere in the chain of citations connecting Trossman and Outboard Marine is there a reference to a supreme court case supporting the notion that a trial court may dismiss a complaint for declaratory belief simply because

another remedy is available.  Our research has uncovered no such case.    

	What we have found is plentiful authority conflicting with Outboard Marine.  We begin with the Declaratory Judgment Act itself, which states in relevant part:   		"(a)  No action or proceeding is open to objection on the ground that a merely declaratory judgment or order is sought thereby.  The court may,

in cases of actual controversy, make binding declarations of rights, having

the force of final judgments, whether or not any consequential relief is or

could be claimed, including the determination, at the instance of anyone

interested in the controversy, of the construction of any statute, municipal

ordinance, or other governmental regulation, or of any deed, will, contract

or other written instrument, and a declaration of the rights of the parties

interested."  735 ILCS 5/2–701(a) (West 2000).

The first sentence declares that a defendant may not object to a proceeding on the

ground that the plaintiff sought merely declaratory relief.  In other words, a

defendant may not object to a proceeding on the ground that the plaintiff did not

seek a remedy other than declaratory relief.  That, however, is defendants'

objection; their complaint is that ISTHA could have sought relief in contract. 

But the Act clearly disallows the objection that the plaintiff did not seek any

remedy other than declaratory relief.  Notably, the Act explicitly empowers a court to declare a party's rights under a contract "whether or not any

consequential relief is or could be claimed."  735 ILCS 5/2--701(a) (West 2000). 

Although the Act provides that a court "may" make such declarations, this does not

give a trial court discretion to refuse to grant declaratory relief on the sole

ground that the plaintiff could have sought another remedy.  That ground for

refusing to grant declaratory relief is precluded by the first sentence of the

Act.  When the language of a statute is plain and unambiguous, courts may not read

into the statute exceptions, limitations, or other conditions.  In re D.D., 196 Ill. 2d 405, 419 (2001).  The plain text of the Act makes no provision for the

discretion that Outboard Marine accords the trial court, and we refuse to read that discretion into the Act.  We conclude that the plain text of the Act is

irreconcilable with Outboard Marine's affirmation that a trial court may, in its discretion, dismiss a complaint for declaratory relief merely because another

remedy is available.  The holding in Outboard Marine also conflicts with supreme court authority.  In American Civil Liberties Union v. City of Chicago, 3 Ill. 2d 335 (1954) (hereinafter, ACLU), the commissioner of police for the City of Chicago, relying on an anti-obscenity ordinance, refused to issue the plaintiffs'

successors in interest a permit to exhibit a certain film.  The plaintiffs sued

the City of Chicago and certain individuals, seeking both a declaration that the

ordinance was unconstitutional and an injunction to restrain the city from

preventing the exhibition of the film.  ACLU, 3 Ill. 2d at 335-36.  In their answer, defendants challenged the plaintiffs' right to a declaratory judgment on

the ground that there was an adequate remedy at law by way of mandamus.  The trial court rejected the argument and entered a decree enjoining the defendants from

preventing the exhibition of the film.  ACLU, 3 Ill. 2d at 337.    

	The supreme court affirmed the trial court on this point.  The court

observed that the notion that the availability of mandamus precluded declaratory relief was "refuted by the explicit language of [the Declaratory Judgment Act]." 

ACLU, 3 Ill. 2d at 353.  In so holding, the court distinguished  Goodyear Tire & Rubber Co. v. Tierney, 411 Ill. 421 (1952):

	"[Goodyear Tire] is not to the contrary.  We there held only that a plaintiff desiring to challenge the validity of a tax assessment must pursue

the statutory remedies provided by the Revenue Act, and that a declaratory

judgment, like an injunction, could not be had in the absence of

circumstances supplying a basis for interference with the collection of

taxes.  The case in no way suggests that an action for declaratory relief

is defeated by the mere existence of another form of action which could

presently be employed."  ACLU, 3 Ill. 2d at 353.

Significantly, the version of the Act cited by the court in ACLU is, with some exceptions not relevant here, identical to section 2--701(a) of the Code in its

present form.  Compare 735 ILCS 5/2--701(a) (West 2000) with Ill. Rev. Stat. 1953,

ch. 110, par. 181.1. 

	Some years after ACLU, the supreme court explained in Kupsik v. City of Chicago, 25 Ill. 2d 595 (1962): 

	"In the early days of the declaratory judgment in this county, some courts

held that a declaration of rights could not be had if any of the ordinary

forms of relief were available.  [Citation.]  To avoid such a result, our

statute, like the Uniform Declaratory Judgment Act, makes it clear that a

declaratory judgment is not precluded by the availability of other relief. 

[Citations.] The declaratory judgment has thus become an optional

alternative remedy."  Kupsik, 25 Ill. 2d at 598.  

See also Kaske v. City of Rockford, 96 Ill. 2d 298, 305-06 (1983) ("A declaratory judgment is not barred because other relief can be obtained.  It is rather an

optional, alternative remedy").  The version of the Act that Kupsik cited is, with exceptions not relevant here, identical to section 2--701(a).  Compare 735 ILCS

5/2–701(a) (West 2000) with Ill. Rev. Stat. 1961, chap. 110, par. 57.1.  

	In the wake of ACLU and Kupsik, this district recognized that " '[t]he tendency seems to be to liberalize the use of the declaratory judgment action and

for the court to take jurisdiction, notwithstanding there is an adequate  remedy

by some other means.' "  Elm Lawn Cemetery Co. v. City of Northlake, 94 Ill. App. 2d 387, 391 (1968), quoting Koziol v. Village of Rosemont, 32 Ill. App. 2d 320, 327-28 (1961).  This district further explained:

	" 'The scope of the declaratory judgment remedy should be kept wide and

liberal and not restricted by technicalities.  The important point is the

right and the duty of the courts to grant declaratory relief where, in the

interest of the proper administration of justice, it ought to be granted

regardless of how the particular action in which the declaratory relief is

sought, may be classified. ***

		*** The Declaratory Judgment Act was not designed to supplant 

	existing remedies but is an alternative or additional remedy to facilitate

the administration of justice.' "  Elm Lawn Cemetery, 94 Ill. App. 2d at 391-92, quoting Koziol, 32 Ill. App. 2d at 327-28.  

	Subsequently, in Young v. Hansen, 118 Ill. App. 2d 1 (1969), another case from this district, the defendants argued that the trial court erred in granting

the plaintiff's request for declaratory relief on the ground that another remedy

was available to plaintiff.  The court disagreed, rejecting the defendants'

suggestion that "a declaratory judgment action was not intended to provide a remedy where there are other existing, adequate, recognized remedies."  Young, 118 Ill. App. 2d at 5.  This court affirmed that "the declaratory judgment remedy

provides a new, additional, cumulative and alternative procedural method for the

judicial determination of substantive rights and duties."  Young, 118 Ill. App. 2d at 5.  Citing ACLU, the court stated that the existence of another remedy "is not sufficient to bar [the] right to seek a declaratory judgment."  Young, 118 Ill. App. 2d at 5, citing ACLU, 3 Ill. 2d at 353.  The court also stated: "If there is no particular reason for denying the use of this procedure when another

remedy is available, the declaratory judgment action should also be available." 

Young, 118 Ill. App. 2d at 6.  

	We read the latter statement as affirming that a trial court's refusal to

grant declaratory relief is permissible only where there is a "particular reason"

for the refusal other than the fact that an alternative remedy is available.  This

district subsequently reaffirmed this position.  See Board of Trustees of the Addison Fire Protection District No. 1. Pension Fund v. Stamp, 241 Ill. App. 3d 873, 881 (1993) ("A declaratory judgment is an optional remedy which is proper for

the resolution of an actual controversy even though other relief *** could be

obtained").  This position subsequently was adopted by the First District in

Alderman Drugs, Inc. v. Metropolitan Life Insurance Co., 79 Ill. App. 3d 799 (1979).  In Alderman, the plaintiffs filed a class action seeking a declaratory judgment that the defendant's proposed amendment to a contract between them was

void.  The trial court dismissed the complaint, observing that the contract was

terminable at will and that the plaintiffs could remedy their problem simply by

terminating the contract.  Alderman, 79 Ill. App. 3d at 802.  The appellate court,  remarking  that "it seems well established in this state that the existence of

another remedy does not preclude declaratory relief," reversed the dismissal.  Alderman, 79 Ill. App. 3d at 804.  "This is true," the court affirmed, "even though the plaintiff could sue for breach contract."  Alderman, 79 Ill. App. 3d at 805. 

	Recently, the Fourth District took the same position.  In AG Farms, Inc. v. American Premier Underwriters, Inc., 296 Ill. App. 3d 684 (1998), plaintiffs sought a declaration that defendants had no rights-of-way through plaintiffs' 

lands.  The trial court dismissed the complaint.  On appeal, defendants argued

that the dismissal was justified because the plaintiffs had another remedy: a suit

to quiet title.  The court rejected the argument: 

		"The cases cited by defendants support the proposition that where the

trial court does have the discretion to dismiss, the availability of another

remedy justifies the exercise of that discretion.  The case law is clear,

however, that the existence of another remedy does not preclude a

declaratory judgment action. [Citation.]  In this case, the availability of

a quiet title action alone does not justify dismissal of the action on the

pleadings."  AG Farms, 296 Ill. App. 3d at 692.

	Based on the text of the Act and appellate and supreme court precedents, we

hold that a trial court may not dismiss a claim for declaratory relief on the sole

ground that another remedy is available.  Accordingly, we decline to follow

Outboard Marine and instead hold that the trial court's dismissal of ISTHA's claims for declaratory relief was not justified by the fact that ISTHA had an

alternative remedy in contract.  

	Our holding advances the policies behind the Declaratory Judgment Act.  The

Act is designed to afford a resolution of disputed rights before action is taken

in potential prejudice of those rights.  Phillips v. Hall, 113 Ill. App. 3d 409, 417 (1983).  That purpose can be served just as much when another cause of action is available as when no such action is available.  The case at hand illustrates

this point well.  ISTHA likely could sue in contract for what it has already paid

in cleanup costs.  ISTHA has alleged, however, that it will incur substantial

future costs that it cannot now determine.  A binding declaration of ISTHA's

rights under its contracts with Mobil and Amoco will help dispel the parties'

uncertainty by ensuring that whoever ultimately pays these costs will do so

knowing whether or not it is legally responsible for them.

	In a related argument, Mobil maintains that ISTHA's claims for declaratory

relief are improper because they essentially are contract claims.  Mobil cites

Eyman, 245 Ill. App. 3d at 397, where the First District remarked that "a breach of contract claim is an action at law and is not a proper subject for a

declaratory judgment."  Mobil also cites another First District case, Flashner Medical Partnership v. Marketing Management, Inc., 189 Ill. App. 3d 45, 54 (1989), where the court held that the plaintiff's claims for breach of contract, fraud,

negligence, and violation of an Illinois insurance statute were actions "at law"

and hence "not properly before the court in a declaratory judgment action." 

	Insofar as Eyman and Flashner are read as holding that a trial court may not adjudicate a claim for a declaration of rights under a contract, they are contrary

to law.  The Act specifically permits a court to declare the rights of the parties

under a contract.  See 735 ILCS 5/2--701(a) (West 2000) ("The court may *** make

binding declarations of rights *** including the determination *** of the

construction of any *** contract *** and a declaration of the rights of the

parties interested").  The First District has held in numerous cases that the interpretation of a contract is a proper subject of a declaratory judgment action. 

See, e.g., Alderman, 79 Ill. App. 3d at 803-04 (1st Dist. 1979); Albright v. Phelan, 2 Ill. App. 3d 142, 145-46 (1st Dist. 1971).  We decline to follow Eyman and Flashner on this issue and reject Mobil's suggestion that ISTHA's claims under the leases and operating agreements are not proper subjects for declaratory

relief.   

	Having reviewed all possible bases for the trial court's dismissal of

ISTHA's claims for declaratory relief and found them insufficient,  we hold that

the trial court erred in dismissing those claims.  

	B.	  Dismissal of ISTHA's Claims for Contribution

 	ISTHA sought contribution from Mobil and Amoco for the costs of the remediation ordered by the Illinois Environmental Protection Agency pursuant to

the Environmental Act.  ISTHA alleged in its complaint that it, Mobil, and Amoco

are liable under the following provisions in section 12 of the Environmental Act:

		"No person shall:

		(a)  Cause or threaten or allow the discharge of any contaminants into

the environment in any State so as to cause or tend to cause water pollution

in Illinois ***.

		 * * *

		(d)	Deposit any contaminants upon the land in such place and

	manner so as to create a water pollution hazard."  415 ILCS 5/12(a), (d)

(West 2000).

ISTHA alleged that it, Mobil, and Amoco are also liable under the following

provisions in section 21 of the Environmental Act:

		"No person shall:

		(a) Cause or allow the open dumping of any waste.

  * * * 

		(e) Dispose, treat, store or abandon any waste *** except at a site

or facility which meets the requirements of this Act and of regulations and

standards thereunder."  415 ILCS 5/21(a), (e) (West 2000).  

State agencies and corporations are included in the Environmental Act's definition

of "person."  See 415 ILCS 5/3.26 (West 2000).  Liability for pollution of land

or water extends under the Environmental Act to any person who has control of the

source of pollution or who owns or controls the premises where the pollution

occurs.  People v. A.J. Davinroy Contractors, 249 Ill. App. 3d 788, 793 (1993).   ISTHA alleges that liability for the leaks and spills of the petroleum products

on the Oases extends to it, as owner of the Oases, and to Amoco and Mobil, as

operators of the Oases when the contamination occurred. 

	The Environmental Act requires the owner or operator of a leaking

underground petroleum storage tank to repair the leak and "mitigate any threat to

human health, human safety or the environment" resulting from the leak.  415 ILCS

5/57.7(c)(1)(A) (West 2000).  The Environmental Act prescribes an initial penalty

for each violation of its provisions as well a penalty for each day a violation

continues.  415 ILCS 5/42(a) (West 2000)).  Factors relevant to the calculation

of a penalty include "the duration and gravity of the violation" and "the presence

or absence of due diligence on the part of the violator in attempting to comply

with requirements of [the Environmental Act]."  415 ILCS 5/42(h)(1), (2) (West

2000).    

	ISTHA alleged that it is entitled to contribution from Mobil and Amoco by

force of the Illinois Joint Tortfeasor Contribution Act (Contribution Act) (740

ILCS 100/1 et seq. (West 2000)).  Section 2(a) of the Contribution Act provides: "[W]here 2 or more persons are subject to liability in tort arising out of the

same injury to person or property, *** there is a right of contribution among

them, even though judgment has not been entered against them ***."  740 ILCS 100/2(a) (West 2000).  The Contribution Act permits a tortfeasor to recover

amounts he has paid in excess of his pro rata share of the common liability.  740 ILCS 100/2(b) (West 2000).  Liability under the Environmental Act creates the

requisite "liability in tort" for purposes of the Contribution Act.  People v. Brockman, 143 Ill. 2d 351, 373 (1991).  The Contribution Act applies only to causes of action arising on or after March 1, 1978.  740 ILCS 100/2 (West 2000). 

	The trial court granted Amoco's and Mobil's motions to dismiss the

contribution claims but provided no rationale for its decision.  We review the

dismissal de novo.  See Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997).  An order granting a motion to dismiss without specifying the ground on which it is based

places before the appellate court every issue raised in the motion; if any ground

raised in the motion is a sufficient basis for the dismissal, the appellate court

must affirm.  Williams, 222 Ill. App. 3d at 565.  Mobil and Amoco advanced several arguments in the trial court for dismissal of the contribution claims.  We address

them in succession.    

	Neither Mobil nor Amoco argues that ISTHA's complaint fails to state

allegations that, if proven, would establish that Mobil and Amoco are jointly

liable under the Environmental Act for the contamination of the Oases.  Rather,

their arguments all concern whether ISTHA's complaint is sufficient to state a

claim for contribution for ISTHA's costs in remedying the Environmental Act

violations.    

	Amoco argues that ISTHA is not entitled to contribution from Amoco because

ISTHA has not alleged any specific leak or spill occurring between March 1, 1978,

the effective date of the Contribution Act, and the end of Amoco's lease term in

1984.  Amoco points to Brockman, where the supreme court upheld the dismissal of a landfill operator’s claim for contribution against certain clients who allegedly

deposited waste at the landfill in violation of the Environmental Act.  The court reasoned that the plaintiff had not alleged "specific dates and occurrences" when

it received illegal waste from the defendants after March 1, 1978, but merely had

alleged that the deliveries occurred "at various times" between February 4, 1971,

and September 29, 1979.  See Brockman, 143 Ill. 2d at 370.  The supreme court held that the complaint was defective for failing to state "any allegations that the

misconduct complained of occurred at specific times after March 1, 1978." 

Brockman, 143 Ill. 2d at 370.

	Brockman is readily distinguishable.  There, the plaintiff failed to specify by day, month, or even year any particular instance of the defendants dumping

illegal waste at the plaintiff's landfill before, on, or after March 1, 1978.  

The plaintiff merely alleged that the dumping occurred sometime between two dates

eight years apart.  Having found a fatal lack of specificity in the plaintiff's

allegations, the court in Brockman had no occasion to decide whether the plaintiff could seek contribution for waste that the defendants dumped before March 1, 1978,

but did not remove from the landfill by March 1, 1978.  The Environmental Act

imposes liability for continuing violations (415 ILCS 5/42(a) (West 2000)), but

the contribution claims of the plaintiff in Brockman did not adequately plead any violation of the Environmental Act, much less a violation that continued after

March 1, 1978.  Here, however, continuing violations were pleaded.  The plaintiff

in Brockman alleged that the illegal dumping occurred sometime between two dates eight years apart.  ISTHA, by contrast, has alleged specific instances of leaks and spills occurring before March 1, 1978.   Each instance is identified at least

by year; some are identified by year and month, others by year, month, and day. 

ISTHA further alleges that this contamination "continued, migrated, and

exacerbated [sic] since March 1, 1978."  Thus, while the Contribution Act would not apply to liability under the Environmental Act for contamination occurring

before March 1, 1978, ISTHA could receive contribution for a violation that continued on or after March 1, 1978.  ISTHA has alleged violations of the

Environmental Act that first occurred before, but continued on and after, March

1, 1978.  Thus, ISTHA has sufficiently pleaded its entitlement to contribution

from Amoco for a violation of the Environmental Act. 

	Mobil argues that ISTHA's claims for contribution for the costs of remedying

the violations are premature because "[n]o claim has been filed or otherwise

asserted by anyone seeking to compel [ISTHA] to pay for cleaning and remediating

any of the Oases."  The Contribution Act, Mobil suggests, "is not a mechanism by

which a party that voluntarily chooses to pay money for something is allowed to

cause another party to pay too."  Mobil asserts that contribution is inappropriate

because "[n]o claim has ever been filed or threatened against [ISTHA]" and "[n]o

one is 'forcing' [ISTHA] to pay money to remediate the Oases."  Amoco makes

essentially the same argument.     

	ISTHA responds that state authorities indeed have asserted a "claim" against

it, "forced" it to pay money for remediation, and "threatened" it with

consequences should it not complete the remediation.  Our purpose here is not

resolve the semantic dispute that underlies much of the argument on this issue. 

In our view, Mobil's core contention is that a party cannot seek contribution

under the Contribution Act for liability that has not been asserted against that

party in a lawsuit.    

	This assertion conflicts starkly with Illinois law.  Section 5 of the

Contribution Act provides: "[A] cause of action for contribution among joint

tortfeasors *** may be asserted by a separate action before or after payment ***

by counterclaim or by third-party complaint in a pending action."  740 ILCS 100/5

(West 2000).  Contrary to Mobil's assertion that contribution is appropriate only

where the party seeking contribution for a sum has been sued for that sum by

another party, the plain thrust of the disjunctive in this section is that contribution is entirely proper in the absence of any action other than the

contribution action itself.  In Tisoncik v. Szczepankiewicz, 113 Ill. App. 3d 240, 245 (1983), the appellate court construed the phrase "by a separate action before

or after payment" in section 5 as "covering situations where no suit is pending

which was initiated by the injured party."  Tisoncik, 113 Ill. App. 3d at 245.  Our supreme court adopted this interpretation of the Contribution Act in Laue v. Leifheit, 105 Ill. 2d 191, 196 (1984).  

	Subsequently, in Brockman, the supreme court held that the phrase "subject to liability in tort" in section 2 of the Contribution Act means "that the persons

from whom contribution is sought are potentially capable of being held liable in

a court of law or equity."  Brockman, 143 Ill. 2d at 371.  The court explained that the potential for liability of the persons from whom contribution is sought

depends merely upon the relative culpability of the persons in causing the injury. 

Brockman, 143 Ill. 2d at 371.  The court further explained: 

		"If the underlying claim does not create liability in tort, a third-

party plaintiff may not recover on a contribution claim. [Citation.] 

Liability is determined at the time of the injury out of which the right to

contribution arises, and not at the time the action for contribution is

brought. [Citation.]  At the time of an injury for which a third-party

defendant may be liable in tort, the third-party defendant is in fact

'subject to liability in tort.'  However, that liability can be defeated

once a defense is established. [Citation.]"  Brockman, 143 Ill. 2d at 372. 

Prior to Brockman, the appellate court in Highland v. Bracken, 202 Ill. App. 3d 625, 628-29 (1990), expanded on the principle set forth in Tisoncik and Laue: 

		"A contribution action lies *** when (1) a payment is incurred or made

in whole or in part on a common obligation, or something is done in the

equivalent, so that this payment made by the joint obligor is in excess of his share of the common obligation [citation]; or (2) the party bringing the

contribution action is sued by a complaining party, giving him notice of the

nature and the potential amount of the obligation necessitating the

contribution action [citation]."   Highland, 202 Ill. App. 3d at 628. 

	The preceding authorities leave no doubt as to when a claim for contribution

is appropriate.  Tisoncik and Laue expressly hold that a party seeking contribution for a particular sum need not have been sued for that sum by a third

party.  By its plain terms, the Contribution Act permits a party to receive

contribution for a sum even before he pays it.  See 740 ILCS 100/5 (West 2000)

(action for contribution permissible "before or after payment").  Further, Brockman and Highland unambiguously hold that contribution for a sum is appropriate even where no third party has demanded payment of that sum.  As

Highland puts it, the party need only have "incurred" liability for the sum.  See Highland, 202 Ill. App. 3d at 628.  According to Brockman, a party becomes "subject to liability in tort" for purposes of section 2 of the Contribution Act,

and is liable for contribution associated with that liability, when the injury

occurs that creates the liability.  See Brockman, 143 Ill. 2d at 372.  Plainly, Illinois law does not require that the party seeking contribution have been sued

by the injured party.  	Mobil makes no credible attempt to demonstrate that the law in Illinois is different than as clearly stated in these cases.  Instead,

Mobil relies on a federal court’s interpretation of the Contribution Act.  Federal

cases are not binding authority in our state courts.  People v. Kidd, 129 Ill. 2d 432, 457 (1989).  The interpretation of the Contribution Act that Mobil urges us

to accept was announced in an unpublished case, Premium Plastics, Inc. v. LaSalle National Bank,  No. 92--C--413 (N.D. Ill. December 29, 1992) (mem. op.).  There, the court stated: 

	"[T]he Contribution Act applies where joint tortfeasors have been found

liable or are awaiting judgment in a case, but not *** before a suit is

filed against them.  It is the 'potential judgment' resulting from the

filing of a lawsuit, and not the fear that a lawsuit may be filed, which

determines when a joint tortfeasor has a right of contribution."  Premium Plastics, No. 92--C--413, mem. op. at ___.   

	This construction of the Contribution Act squarely conflicts with the

holdings in Tisonik, Laue, Brockman, and Highland, and we therefore reject it.  Incidentally, we note that the Premium Plastics court embraced the very opposite interpretation in a subsequent published case, Soo Line R.R. Co. v. Tang Industries, Inc., 998 F. Supp. 889, 898 (N.D.  Ill. 1998), which, unlike its unpublished predecessor, is precedential (at least for federal courts).  Mobil

suggests that Soo Line misinterpreted Brockman, but our view is that Premium Plastics did.

	Based on clearly established Illinois law, we hold that ISTHA's claims for

contribution for the costs of remedying the petroleum contamination at the Oases

are not barred by the fact that ISTHA has not been sued for violations of the

Environmental Act.  ISTHA need only have alleged that it, Mobil, and Amoco are

jointly liable under the Environmental Act, which it did.        

	Mobil's second argument is that, even if ISTHA can seek contribution for

liability that has not been asserted against it in litigation by the injured

party, it cannot be awarded contribution for the remediation costs it has not yet

paid or even estimated.  Awarding contribution with respect to these undetermined

future sums would, Mobil claims, be an impermissible advisory opinion.

	The only authority Mobil cites for this conclusion is a declaration in a

factually inapposite case that a court may not "render an advisory opinion, or

give legal advice as to future events" (Underground Contractors Ass'n v. City of Chicago, 66 Ill. 2d 371, 375 (1977)).  We reject the argument.  ISTHA’s contribution claims do not call for an advisory opinion.  ISTHA seeks contribution

for liability that is based entirely on past events, that is, the releases of

petroleum products onto the Oases.  ISTHA asks that Mobil and Amoco be required

to pay their pro rata share of the costs of remedying these past leaks and spills.  A court deciding a claim for contribution determines each party's pro rata share of the common liability by assigning percentages of fault.  Levin v. Seigel & Capitel, Ltd., 314 Ill. App. 3d 1050, 1052 (2000).  In deciding ISTHA’s claim for contribution, the trial court would assign ISTHA, Mobil, and Amoco each a

percentage of fault relative to the acts of contamination.  Through that

allocation of fault, Mobil and Amoco would be apprised of the precise dollar

amounts they owe ISTHA for the costs it has already paid as well as their

percentage shares of liability for ISTHA’s future costs.  What Mobil and Amoco owe

in respect of those costs will be determined as the costs arise.  The trial court

need have no share in that purely arithmetical exercise.  The court’s inability

to determine what precise dollar amounts Mobil and Amoco ultimately will owe ISTHA

under the Contribution Act would not makes its allocation of fault an advisory

opinion.   

	For the reasons stated above, we hold that the trial court erred in

dismissing ISTHA's claims for contribution, and we reverse the judgment of the circuit court of Du Page County dismissing IASTHA's complaint.

	Reversed.  	

	BYRNE and GROMETER, JJ., concur.