APPEAL from the Circuit Court of Peoria County; the Hon.
ALBERT PUCCI, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT;
Rehearing denied April 25, 1973.
This is an appeal from the circuit court of Peoria County. The original proceedings were instituted on October 16, 1970, when the plaintiffs, the Attorney General of the State of Illinois and the State's Attorney of Peoria County, filed a complaint against the defendant, Charles M. Janson, and others which averred that the defendant was in possession of and operator of certain property being used commercially for the purpose of dumping garbage and other refuse. The complaint prayed that a temporary injunction issue without notice and that the defendant be required to pay the sum of $10,000 and the further sum of $1,000 per day for each day he operated the dumping area in violation of the temporary injunction sought. The complaint then asked that a hearing be held and that the temporary injunction issued be made permanent.
All parties to the appeal agree that the complaint was couched in terms of the Environmental Protection Act of 1970 (ch. 111 1/2, sec. 1001-1051, Ill. Rev. Stat.), hereinafter referred to as the Act. The complaint states that the complainants are acting under its provision and specifically states that it seeks relief under the Act's penalty provisions, being Sections 42 and 43 of Chapter 111 1/2, Illinois Revised Statutes. The complaint further recited the defendant's alleged misconduct as being in violation of Section 21 of the Act and relies upon the Act's definition of the terms "garbage", "open dumping", "refuse" and "sanitary landfill" as they are defined in Section 3, subparagraphs (e), (h), (k) and (l). An affidavit in support of the complaint was filed by a W. Keith Weeber, who was the regional engineer of the Illinois Environmental Protection Agency, hereinafter referred to as the Agency, which had been created under the Environmental Protection Act of 1970. The complaint in seeking a temporary injunction in all respects relied upon the procedure as delineated in the Act.
Pursuant to the prayer of the complaint a temporary injunction was issued without notice on the day of its filing. The defendant was ordered to cease and desist from dumping except under supervision of the Environmental Protection Agency.
On October 22, 1970, a hearing was held on a petition to dismiss the temporary injunction after which the trial court found there was no circumstance of extreme emergency creating danger to public health on the defendant's property and the temporary injunction was dismissed. A subsequent motion by the defendant to dismiss the complaint was denied. A hearing on the complaint and an answer filed was set for a non-jury trial for February 16, 1971; however, on that date the parties entered into a stipulation that the trial be indefinitely continued and that the operation of the dump be suspended until an earthen wall be designed and constructed under the supervision of W. Keith Weeber of the Agency. The stipulation provided for certain specifications and other procedures to be followed by the defendant and that operations would be permitted upon written authority from Weeber. The stipulation stated that it was the intention of the parties that upon completion of the plan of restoration as provided in the regulations of the Agency, the premises would be returned to the defendant. It is to be noted that the stipulation further provided that should the defendant fail to operate a new site in accordance with the landfill requirements of the agency, immediate monetary penalties could be imposed upon the defendant by the court and that a written certification of noncompliance of the payment of a monetary sum sufficient to restore the premises to a sanitary condition by Weeber, would serve as a final finding of fact binding upon the parties and the defendant could thereafter be punished for contempt, without a hearing and without notice.
Subsequently a petition for penalties was filed by the plaintiffs. The defendant answered the petition and filed a motion to dismiss it. This motion was denied and after an evidentiary hearing the court imposed a $5,000 fine on the defendant and ordered the issuance of a temporary injunction prohibiting all dumping until Weeber certified to the court that the plan for restoration had been completed or that the defendant show the court proof of compliance whereupon the injunction would be dissolved. During the evidentiary hearing which preceded the imposition of the fine and the issuance of the injunction the plaintiffs called eight witnesses and the defendant as an adverse witness. Of the nine testifying at the behest of the plaintiffs, five of the witnesses were either employees of the Environmental Protection Agency or the Bureau of Pollution Control. The testimony of witnesses for the plaintiff and the defendant during the hearing was quite conflicting and it is evident that considerable misunderstanding existed as to what type of material could be dumped at the site during the restoration period and that further Weeber was dilatory in filing the restoration plan with the court as required by the stipulation. This dilatoriness on the part of Weeber is evident from the following colloquy which ensued during the hearing:
"The Court: Mr. Weeber why did you not submit a plan to the court as you were ordered to * * *. Is there another plan on file other than this one?
The Witness: No Sir, your honor.
The Court: Then I can ask him. Why did you not file a plan, with this court as you were ordered to do.
The Witness: I could not get clearance from my control office to do so.
The Court: Did you understand anyone but you were to prepare and submit your plan to the court.
The Witness: Not at the time of our agreement in your chambers.
The Court: And you did not do what you understood it was your duty to do.
The Court: I'm not trying to put you on the spot. Is that a fair question?