APPEAL from the Circuit Court of Macoupin County; the Hon.
JOHN W. RUSSELL, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 3, 1979.
Defendant SCA Services, Inc., successor in interest to Earthline Corporation, appeals a judgment of the circuit court of Macoupin County entered in two consolidated cases enjoining it from continuing operation of a chemical hazardous waste landfill near Wilsonville in that county and ordering it (1) to remove all toxic waste buried there together with any contaminated dirt and (2) to restore and reclaim the site area. We have found the questions presented to be very difficult but conclude that the decision of the trial court was not erroneous. We affirm.
On April 18, 1977, plaintiff Village of Wilsonville (the Village) filed suit against defendant seeking injunctive relief. On April 29, 1977, and May 9, 1977, respectively, plaintiffs Macoupin County and Macoupin County Farm Bureau were granted leave to intervene and filed separate complaints making allegations and seeking relief similar to that of the Village. This case is our No. 15080. Our case No. 15081 arises from a somewhat similar complaint filed by the Attorney General on May 26, 1977. After various preliminary proceedings, the cases were consolidated for a bench trial which began on June 7, 1977, and culminated in the appealed judgment entered on August 28, 1978.
The general theme of the complaints was that the operation of the landfill and the transportation of hazardous substances to it constituted a common-law nuisance and also brought about pollution as prohibited by the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1001 et seq.).
The difficult decisions involved in this case are of considerable public importance. The need for a proper method of disposal of hazardous chemicals is not disputed. The Illinois Environmental Protection Agency (IEPA) has licensed defendant to operate the landfill and to receive the substances which are being buried there. The United States Environmental Protection Agency (USEPA) has been permitted to file an amicus curiae brief which sets forth its need for the use of the landfill be requests that this need and that of the public for the use of the landfill be taken into consideration in our determination of "the remedy appropriate to abate any actionable harm that may exist." On the other hand, the great need for a proper place to bury these substances indicates that they are capable of causing substantial harm to people if not sufficiently contained. Plaintiffs and many persons living in the area are greatly concerned with the dangers involved and question the adequacy of the site for such a landfill and also the manner of its operation.
The conflicting considerations involved are reflected in the issues raised by defendant on appeal. It contends that (1) the trial court either lacked subject matter jurisdiction to proceed with the case or should have deferred to the jurisdiction of administrative agencies under the doctrine of primary jurisdiction; (2) that court's decisions that the site constituted an active nuisance and a prospective one were contrary to the manifest weight of the evidence; (3) the trial court committed reversible error in (a) basing its decision primarily on the theory that defendant's use of the site constituted a nuisance per se, (b) failing to consider equitable factors favoring continuance of the operation of the landfill, (c) refusing defendant's motions for change of venue, and (d) ruling on various motions and evidentiary matters; and (4) the judgment amounted to a taking of its property without just compensation.
The landfill is located on 130 acres of land in and adjacent to the southern border of the Village. The site is surrounded on the west, south and east by farmland. The Village itself is also surrounded to the west, north and east by farmland. The entire site, the Village and much of the surrounding area is located above the now-abandoned Superior Coal Mine No. 4, which operated from 1917 to 1954. The mine exploited the No. 6 seam, found in this area at a depth of 312 feet, using the room and panel method whereby about 50% of the coal is left in pillars. The byproducts from the coal extraction and cleaning were dumped behind the mine buildings. That "gob pile" was more than 30 feet high and covered more than 30 acres. Its depth was unknown. About a foot of that same mine spoil covered the surface of the ground in random areas throughout the site.
The Village has no sewage treatment plant and no municipally owned sewage system. Most homes are served by septic tanks and some homes and businesses are connected to private sewers. The water distribution system is centralized and water is purchased from Gillespie. The system was built in 1952 after the Village tried unsuccessfully to find sufficient water by drilling municipal wells in the area. There are still 73 water wells in the Village, some of which are used to water gardens or wash cars. At least one well is used to water pets, and another is used for drinking water. South of defendant's site, approximately one-half mile from the gob pile, is the Vassi Spring, the owner of which intends to use it as his water supply when he builds his home. Further south are four more springs used to water livestock.
On February 11, 1976, defendant Earthline Corporation applied to IEPA for a permit to develop and operate a solid waste management site on the 130 acres. The original application included information on ground water, soil permeabilities, subsidence, and subsurface and hydrogeologic conditions. Additional information and revisions were also submitted. A developmental permit was issued May 19, 1976. On September 8, 1976, defendant applied to the IEPA for an operational permit, which was issued on September 28, 1976. Defendant was required to obtain separate supplemental permits from the IEPA for each waste sought to be buried at the site. Defendant had obtained 185 such permits prior to the first day of trial.
The existence under the mine spoil of stratas of tight clay was a principal reason for defendant's selection of the site for a landfill. The top strata extended to a depth of 10 to 12 feet. This was followed by a very thin layer of more permeable saturated clay called the Sangamon Paleosal. This layer was not continuous but existed in various places throughout the area. A strata of tight clay for an additional depth of more than 10 feet existed underneath the Paleosal.
Defendant dug trenches in the clay to a depth of 10 to 12 feet, a width of 50 feet and a length of 75 to 350 feet with a space of 10 feet between the trenches. The hazardous substances delivered to the site were placed in the trenches and covered with the clay dug from the trenches or, on at least one occasion, with soil from the "gob pile." By the time of trial, seven trenches had been dug. Three had been completely filled while two were two-thirds full and the other two had not yet been used. Defendant operated in this manner, receiving and burying hazardous materials for which it had permits, from November 1, 1976, until closed by the order on appeal.
Before we consider the evidence of the geology of the site and defendant's method of operation we must pass upon defendant's assertion that the trial court either lacked jurisdiction to hear the case or, in the alternative, should have deferred to the concurrent jurisdiction of the administrative agencies, IEPA and the Illinois Pollution Control Board (IPCB).
Defendant's theory that the trial court lacked jurisdiction is based upon analogy to the decisions in O'Connor v. City of Rockford (1972), 52 Ill.2d 360, 288 N.E.2d 432, and Carlson v. Village of Worth (1975), 62 Ill.2d 406, 343 N.E.2d 493. There the court held that non-home-rule units of local government could not, by zoning or requiring permits, prohibit the operation of a landfill licensed by IEPA. The court's theory in those cases was that to permit a local unit to prevent the operation of a landfill by "locally empowered conditions" would negate the legislative intent of the Environmental Protection Act "to establish a unified, state-wide program supplemented by private remedies * * *." Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1002(b); Carlson, 62 Ill.2d 406, 416, 343 N.E.2d 493, 498-99.
The issue in the foregoing cases was the power to license and to zone as between the State agency and local units of government. Even as to that issue, the supreme court has held that there is a concurrent power in local units that have home rule power. (County of Cook v. John Sexton Contractors Co. (1979), 75 Ill.2d 494, 389 N.E.2d 553; City of Chicago v. Pollution Control Board (1974), 59 Ill.2d 484, 322 N.E.2d 11.) Here, the issue is between the State agency and the judicial branch of the government.
All plaintiffs sought an injunction on the common law theory of nuisance and the County of Macoupin and the Attorney General also sought to abate violations of the Environmental Protection Act.
Article VI, section 9, of the Illinois Constitution of 1970 grants circuit courts> original jurisdiction over "all justiciable matters" with exceptions not applicable here. Section 1 of "An Act to revise the law in relation to injunction" (Ill. Rev. Stat. 1977, ch. 69, par. 1) makes injunctions justiciable remedies and an injunction has been recognized as a remedy for a nuisance. (Ruth v. Aurora Sanitary District (1959), 17 Ill.2d 11, 158 N.E.2d 601.) Section 45(a) of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1045(a)) states that civil or criminal remedies are not impaired by the Act. Sections 42(d) and 43(a) of the Act (Ill. Rev. Stat. 1977, ch. 111 1/2, pars. 1042(d) and 1043(a)) authorize the Attorney General or State's Attorneys, on their own motion or at the request of IEPA, to seek injunction (1) to restrain violations of the Act, or (2) "[i]n circumstances of substantial danger * * *" to halt activity causing the danger, respectively. Of even greater significance is section 2 of "An Act in relation to the prevention and abatement of air, land and water pollution" (Ill. Rev. Stat. 1977, ch. 14, par. 12), which states in part:
"The Attorney General has the power and authority, notwithstanding and regardless of any proceeding instituted or to be instituted by or before the Environmental Protection Agency, Pollution Control Board or any other administrative agency, to prevent air, land or water pollution within this State by commencing an action or proceeding in the circuit court of any county in which such pollution has been, or is about to be, caused or has occurred, in order to have such pollution stopped or prevented either by mandamus or injunction."
In People ex rel. Scott v. Janson (1974), 57 Ill.2d 451, 312 N.E.2d 620, the Attorney General sued to enjoin pollution alleged to arise out of the operation of a dump. An ex parte injunction was issued pursuant to section 43(a) of the Act. Later, the trial court concluded that substantial danger, which was a condition precedent to action under section 43(a), did not exist and dissolved the injunction. Subsequently, an agreement was reached in which the defendant dump operator stipulated to discontinuing certain practices. Still later, the operator was held to be in contempt for breaching his agreement to discontinue the improper practices. On appeal, the operator maintained that the trial court's jurisdiction was dependent on the existence of substantial danger and that as the trial court had lost jurisdiction prior to the agreement when it determined that no substantial danger existed, the agreement was void. The supreme court disagreed, stating that the power of the courts> and the administrative agencies to abate pollution was concurrent.
1 We are painfully aware of the lack of expertise in courts> to fully understand the complicated technical matters involved in a case of this nature. However, the decision in Janson and the various statutes we have cited clearly indicate a policy in this State not to leave the enforcement of environmental matters exclusively in the hands of administrative agencies but to have a dual system of enforcement and civil relief. The causes of action set forth here involve "justiciable matters."
2 Defendant points to Village of South Elgin v. Waste Management of Illinois, Inc. (1978), 62 Ill. App.3d 815, 379 N.E.2d 349, where the village had brought suit in court to have landfill permits declared void. The appellate court held that no cause of action lay because the village had an adequate administrative remedy which had been established by rules enacted by the Pollution Control Board. Defendant asserts that because the issue here concerns the same questions of the adequacy of the site as a landfill as were before IEPA at the time it decided to issue the permits, this suit is also an attempt to review the issuance of the permits. However, here no request was made to revoke the permits. Rather, the requested relief was the enjoining of conduct alleged to create a nuisance and to cause pollution. Moreover, in Landfill, Inc. v. Pollution Control Board (1978), 74 Ill.2d 541, 387 N.E.2d 258, the supreme court has held that Pollution Control Board regulations purporting to permit an administrative appeal from the issuance of landfill permits were invalid. Furthermore, the existence of landfill permits is not even an affirmative defense to an administrative action brought under section 31(b) of the Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1031(b); Landfill, Inc.). If the existence of such permits is not res judicata in that type of administrative proceeding, it clearly would not deprive the court of jurisdiction here.
The circuit court correctly determined that it had subject matter jurisdiction.
3 Defendant's argument that the circuit court should have deferred to the administrative agencies (IEPA and IPCB) is based on the doctrine of "primary jurisdiction" which has been described as follows:
"Under the primary jurisdiction doctrine the courts> cannot or will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal prior to the decision of that question by the administrative tribunal (1) where the question demands the exercise of administrative discretion requiring the special knowledge, experience, and services of the administrative tribunal; (2) to determine technical and intricate matters of fact; and (3) where a uniformity of ruling is essential to comply with the purposes of the regulatory statute administered." 2 Am.Jur.2d Administrative Law § 788, at 689 (1962).
Although many Illinois cases have alluded to the need of Illinois courts> to defer to the expertise of administrative agencies, none have held error to have occurred because a court failed to apply the "primary jurisdiction" doctrine. In Metropolitan Sanitary District v. United States Steel Corp. (1975), 30 Ill. App.3d 360, 332 N.E.2d 426, and People ex rel. Scott v. United States Steel Corp. (1976), 40 Ill. App.3d 607, 352 N.E.2d 225, the appellate court held that trial courts> did not err in refusing to stay proceedings in cases brought to enjoin allegedly polluting conduct until a similar matter had been decided by a Federal environmental agency. Those cases differ from this one in that there the Illinois standards which were the subject matter of the law suits were more strict than the Federal standards being considered by the agency. However, the opinions recognize the importance placed by the Environmental Protection Act upon the availability of judicial remedies.
For different reasons, both sides call our attention to a comprehensive opinion written by the late Associate Justice Tom C. Clark sitting by designation in Harrison v. Indiana Auto Shredders Co. (7th Cir. 1976), 528 F.2d 1107, where, in ruling that a district court had improperly enjoined the operation of an automobile shredding plant, the court stated that despite the problems of judicial intervention in solving environmental problems, "the right of environmentally-aggrieved parties to obtain redress in the courts> serves as a necessary and valuable supplement to legislative efforts to restore the natural ecology of our cities and countryside." 528 F.2d 1107, 1120.
4 The same legislation and judicial precedent which convince us that the trial court had jurisdiction in this case also persuade us that there is no policy of this State that requires trial courts> to defer to administrative agencies in cases of this nature. Indeed, the legislature has expressly stated that the Attorney General may proceed in court even in cases where an administrative proceeding is in progress. ...