APPEAL from the Circuit Court of Christian County; the Hon.
BILL J. SLATER, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Harold Broverman and Theodora Baker, owners of Taylorville Landfill, appeal from a judgment of the circuit court of Christian County finding their small claim action in contract brought to recover $106.66 allegedly owed by defendant, City of Taylorville, was not enforceable because plaintiffs did not have an operating permit as required by the statutes of the Environmental Protection Act, and the Solid Waste Rules and Regulations created thereunder. Ill. Rev. Stat. 1975, ch. 111 1/2, pars. 1021(e), 1022; Solid Waste Rules and Regulations, ch. 7, pt. 2, rule 202(b)(1).
The relevant facts of this case are as follows: On August 18, 1975, the parties to this suit entered into a contract which provided in pertinent part:
"THIS AGREEMENT, made this 18th day of August, 1975, by and between the City of Taylorville, a municipal corporation of the State of Illinois, hereafter called City, and Harold Broverman and Theodora Baker, d/b/a Taylorville Landfill, hereafter called Operator, WITNESSETH:
WHEREAS, the Operator is the contract purchaser and is currently in possession of certain real estate described as follows:
AND WHEREAS, City has used said property as a dumping ground for the City of Taylorville and desires to continue to use said property as a dumping ground;
NOW, THEREFORE, it is agreed:
1. Operator hereby grants City the right and privilege to dispose onto Operator's property described herein, all trash, garbage and all other forms of refuse that are in compliance with the provisions and restrictions of the permit to be issued to Operator herein by the State of Illinois Environmental Protection Agency (EPA). * * *
2. City agrees to pay operator the sum of $1600 per month for the privilege of disposing of its refuse as aforesaid. First payment shall commence on the 15th day of September, 1975, which payment shall be for the previous month's service.
4. Operator agrees that he will operate the within described property as a refuse disposal site in accordance with all applicable laws of the United States, the State of Illinois, and any other governmental body having jurisdiction over said site and in particular will comply with the following sections of the Illinois Revised Statutes, 1973: Chapter 111-1/2, Sections 1008-1010, and Chapter 100-1/2, Section 27.
5. City shall be under no obligation to supervise or maintain the dumping ground and its only duty under this contract shall be to pay Operator the sum set forth in Paragraph 2 herein.
6. This agreement shall commence on the 15th day of August, 1975, and shall expire on the 14th day of August, 1978.
In accordance with this agreement, plaintiffs disposed of the defendant's trash and defendant made its monthly payment until defendant received a letter from a division of the Illinois Environmental Protection Agency (hereinafter referred to as the "Agency") on August 9, 1977. The letter notified defendant that following an Agency investigation, it was determined that the plaintiffs did not have an Agency operating permit as required by section 21(e) of the Environmental Protection Act and rule 202(b)(1) of chapter 7, Solid Waste Rules and Regulations of the Illinois Pollution Control Board. (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1021(e); Solid Waste Rules and Regulations, ch. 7, pt. 2, rule 202(b)(1).) Defendant was warned that continued disposal of trash at plaintiffs' location would be in violation of section 21(f), which requires persons disposing of refuse to comply with the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1021(f)). The letter also notified the defendant that in accordance with section 42(a) of the Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1042(a)) it could be found liable for a fine up to $10,000 and an additional penalty not to exceed $1000 for each day during which the violation continued.
Although the record is not clear as to the exact date, or contents of the communication, sometime shortly after defendant's receipt of the Agency's letter defendant notified plaintiff by mail of the warning received from the Agency, and on August 15, 1977, sent plaintiffs a check for $1493.34. This sum was payment figured on a pro rata basis for daily service provided until defendant notified plaintiffs of the Agency warning two days before monthly payment was due. Since the monthly payment as listed in the contract was to be $1600 from ...