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Village of Wilsonville v. Sca Services

OPINION FILED MAY 22, 1981.

THE VILLAGE OF WILSONVILLE ET AL., APPELLEES,

v.

SCA SERVICES, INC, APPELLANT.



Appeal from the Appellate Court for the Fourth District; MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 19, 1981.

On April 18, 1977, the plaintiff village of Wilsonville (the village) filed a complaint seeking injunctive relief in the circuit court of Macoupin County. Plaintiffs Macoupin County and the Macoupin County Farm Bureau were granted leave to intervene on April 29, 1977, and May 9, 1977, respectively. They filed complaints substantially similar to the village's complaint. The gravamen of the complaints was that the operation of the defendant's chemical-waste-disposal site presents a public nuisance and a hazard to the health of the citizens of the village, the county, and the State. The Attorney General of Illinois filed a complaint on May 26, 1977, seeking an injunction pursuant to the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, pars. 1003(d), 1003(n), 1012(d), 1043). After several amendments to the complaints and several motions were made and decided, the Attorney General's action and the other action were consolidated and set for trial. Trial began on June 7, 1977, consumed 104 days, and resulted in judgment for the plaintiffs on August 28, 1978. The trial court's judgment order concluded that the site constitutes a nuisance and enjoined the defendant from operating its hazardous-chemical-waste landfill in Wilsonville. It ordered the defendant to remove all toxic waste buried there, along with all contaminated soil found at the disposal site as a result of the operation of the landfill. Further, the court ordered the defendant to restore and reclaim the site.

The defendant appealed. The Appellate Court for the Fourth District unanimously affirmed the trial court's judgment. (77 Ill. App.3d 618.) We allowed the defendant's petition for leave to appeal. (73 Ill.2d R. 315.) We affirm.

The record in this matter is over 13,000 pages long. The appellate court opinion sets out many pertinent facts. It is only necessary to summarize them here.

The defendant has operated a chemical-waste landfill since 1977. The site comprises approximately 130 acres, 90 of which are within the village limits of the plaintiff village. The remaining 40 acres are adjacent to the village. The defendant enters into agreements with generators of toxic chemical waste to haul the waste away from the generators' locations. The defendant then delivers it to the Wilsonville site, tests random samples of chemical waste, and then deposits the waste in trenches. There are seven trenches at the site. Each one is approximately 15 feet deep, 50 feet wide, and 250 to 350 feet long. Approximately 95% of the waste materials were buried in 55-gallon steel drums, and the remainder is contained in double-wall paper bags. After the materials are deposited in the trenches, uncompacted clay is placed between groups of containers and a minimum of one foot of clay is placed between the top drum and the top clay level of the trench.

The site is bordered on the east, west, and south by farmland and on the north by the village. The entire site, the village, and much of the surrounding area is located above the abandoned Superior Coal Mine No. 4, which operated from 1917 to 1954. The No. 6 seam of the mine was exploited in this area at a depth of 312 feet. The mining method used to extract coal was the room-and-panel method, whereby about 50% of the coal is left in pillars which provide some support for the earth above the mine. There was testimony at trial by Dr. Nolan Augenbaugh, chairman of the Department of Mining, Petroleum and Geological Engineering at the University of Missouri at Rolla, that pillar failure can occur in any mine where there is a readjustment of stress. Also on the defendant's site is a 30- to 40-feet-high pile of "gob," or mine spoil of coal, shale, and clay, which was accumulated over the time the mine was operated. Acid drainage from the mine has seeped into the ground and contaminated three surface drainage channels at the site. The defendant has attempted to remedy this situation by covering the surface of the "gob pile" with excess soil from the trenches.

There are 14 monitoring wells along the perimeter of the site. They are designed to detect liquids which seep through the soil and into the wells. They are not designed to contain liquids, however. In fact, monitoring wells Nos. 5 and 6 are 650 feet apart, which would allow many materials to pass between those two wells and not be discovered. The wells are sampled quarterly by a private laboratory, and test results are submitted to the Illinois Environmental Protection Agency (IEPA). Additional water samples are taken from three surface channels and are tested and reported in the same manner as samples taken from the wells. The surface drainage and the groundwater drainage from the site are to the south, away from the village and toward farmland.

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, Illinois. 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, the defendant applied to the IEPA for a permit to develop and operate the hazardous-waste landfill. A developmental permit was issued by the IEPA on May 19, 1976. After a preoperation inspection was conducted by the IEPA, an operational permit was issued to the defendant on September 28, 1976. Each delivery of waste material to the site must be accompanied by a supplemental permit issued by the IEPA. A supplemental permit specifies the chemical nature and quantity of the waste to be deposited at the sites. Between November 12, 1976, and June 7, 1977, the first day of trial, the defendant had obtained 185 such permits.

The materials deposited at the site include polychlorinated biphenyls (PCBs), a neurotoxic, possibly carcinogenic chemical which it has been illegal to produce in this country since 1979. Due to the extensive use of PCBs in electrical equipment such as transformers, capacitors, and heat-transfer systems, and in hydraulic systems, any PCBs that were produced legally now have to be disposed of when they are no longer in use. PCBs have been stored at the site in liquid, solid and semi-solid form. Additionally, there are a number of now-empty drums which had once contained PCBs, which are also buried at the site. Other materials buried at the site in large quantities are solid cyanide, a substance known as [C5, 6,] paint sludge, asbestos, pesticides, mercury, and arsenic. Considerable evidence was adduced to show that these and other substances deposited at the site are extremely toxic to human beings. Some of the adverse reactions which could result from exposure to these materials are pulmonary diseases, cancer, brain damage, and birth defects.

The general geologic profile of the site shows a surface layer of about 10 feet of loess (wind-blown silt and clay material), under which lies 40 to 65 feet of glacial till. In the till material there is a thin sand layer of a few inches to approximately two feet. Some ground water has been found in the sand layer. All trenches dug at the site have between 10 to 15 feet of glacial till below them. The glacial till is reported to be very dense and is not very permeable. Thus liquids do not travel through it quickly.

Permeability studies conducted before the site opened by John Mathes, a professional engineer hired by the defendant, indicate permeability results ranging from 7.4 x 10[-8] centimeters per second to 1.2 x 10[-8] centimeters per second (cm/sec.). (The larger the negative exponent is, the less permeable the soil. E.g., a finding of 10[-8] cm/sec. indicates that the soil is less permeable than would a reading of 10[-4] cm/sec.) After the site opened, Mathes took permeability samples from or near the bottoms of the trenches that had been dug. His second set of results ranged from 1.4 x 10[-7] cm/sec. to .9 x 10[-7] cm/sec.

Dr. James Williams, an engineering geologist with the Missouri Geology and Land Survey, also made permeability findings on behalf of the defendant from samples taken from the site after it opened. Dr. Williams' results ranged from 7 x 10[-6] cm/sec. to 1 x 10[-7] cm/sec. Dr. Williams testified on cross-examination that the general permeability of the site is considered to be greater than 1 x 10[-8] cm./sec. and that he would not expect the average permeability of the soil to be as low as that used for samples.

In the interim between the opening of the site and the time of trial, the IEPA adopted a suggested permeability standard of 1 x 10[-8] cm/sec. for hazardous-waste landfills.

Subsidence of the earth underneath the site is another contention raised by the plaintiffs to support their thesis that the site is unsafe and is therefore an enjoinable nuisance. Dr. Nolan Augenbaugh testified extensively at trial. Dr. Augenbaugh took pictures of the area from an airplane as well as at ground level. During his testimony, he pointed out where subsidence occurred in the pictures he had taken. Dr. Augenbaugh stated that he had observed subsidence in a wheat field on the Wilbur Sawyer farm on June 17, 1977. Dr. Augenbaugh also testified that a subsidence basin lies to the northeast of the disposal site. The pictures also indicate, according to Dr. Augenbaugh, fractures in the ground. One picture depicts a fault, which, Dr. Augenbaugh explained, is a "fracture where there's been differential movement of the two blocks. One block has been moved more than the other block." Sawyer, the farmer, told Dr. Augenbaugh the cracks had begun to appear approximately two months before, which would have been spring 1977. Several of these subsidences and fractures are located approximately one-half mile from the western boundary of the lower part of the disposal site. Dr. Augenbaugh testified that, in his opinion, subsidence can and will occur at the disposal site. Further, that ruptures in the earth would occur which, like an open pipe, would act as conduits for artesian water to reach the trenches, thereby contaminating the water.

Dr. Augenbaugh was recalled to testify on rebuttal. He testified that on March 22, 1978, he returned to the Sawyer farm. With the use of a backhoe, Dr. Augenbaugh had a trench dug across the subsidence cracks which he had observed earlier. When the digging was completed, there was a trench nine feet long and approximately three feet wide, with a maximum depth of a little over eight feet. Photographs were taken and slides prepared of the operation at the site. As the trench was being dug, water began to seep into the trench at a depth of approximately 4 to 4 1/2 feet. Dr. Augenbaugh testified that the water flowed from subsidence fractures which were below the surface of the ground. Dr. Augenbaugh then poured some green dye into a surface fracture which was located approximately 10 feet away from the trench. The green dye entered the trench through two openings within 25 minutes.

Thomas O. Glover, a mining engineer and liason officer with the United States Bureau of Mining, Department of the Interior, also testified regarding subsidence. Glover defined subsidence as the settling of the ground, due to the diminution of the underground support structure, and either the pillars pushing into the fine clay bottom below the coal system, or the roof fracturing immediately above the coal seam and continuing to the surface. He stated that subsidence normally can be expected to appear, on the average, 40 years after a mine has closed down. Glover never visited the instant disposal site, but he had examined the information relative to Superior Mine No. 4 and he had witnessed subsidences many times in the field over the course of 27 years as a mining engineer. Glover offered the opinion that there is a possibility of subsidence wherever coal is mined and underground support is removed.

Several of the defendant's expert witnesses, James Douglas Andrews, the designer of the site and a consulting engineer for the defendant, John A. Mathes, an engineer, Steven Hunt, a geologist with the Illinois State Geological Survey (ISGS), and Paul B. DuMontelle, an engineering geologist with ISGS and coordinator of environmental geology for the Survey, testified in summary that there would be subsidence at the site, but that it would not be deep, would close in a short time, and could be repaired by means of engineering techniques.

Another of plaintiffs' witnesses, Dr. Arthur Zahalsky, offered the opinion that an "explosive interaction," resulting in chemical explosions, fires, or emissions of poisonous gases, will occur at the site. Dr. Zahalsky is a professor of biochemistry and head of the laboratory of biochemical parasitology at Southern Illinois University at Edwardsville. He testified in essence that if sufficient oxygen could reach the buried chemicals, and he believed it could, then an explosive interaction of unknown date of occurrence, magnitude, and duration is likely. Moreover, Dr. Zahalsky testified that it is unknown what interactions might occur when the waste materials combine after the deterioration of the steel containers and paper bags.

The defendant challenged Dr. Zahalsky's opinion during cross-examination and requested him to diagram the precise chemical formula which would result in an explosive interaction. Dr. Zahalsky testified that a precise formula could not be diagrammed. He stated that the defendant's trench logs indicate that several of the chemical wastes have flash points less than 80 degrees Fahrenheit. Zahalsky reviewed the trench logs and gave examples of chemicals, such as paranitroaniline, which is a strong oxidizing agent and may be explosive, and also paint sludge, which has a flash point of less than 80 degrees Fahrenheit, which could result in a chemical fire. Dr. Zahalsky offered one scenario in which acidic chlorinated degreasers would interact with waste phenolic, releasing the phenolics so that the flash point would be achieved, thereby setting off the paint sludges which, in turn, would set off paint wastes, which would achieve the temperature sufficient for the ignition and combustion of liquid PCBs. All of these materials are deposited together in trench No. 3.

Finally, considerable testimony was adduced, much of it conflicting, as to dust, odors, and spills of chemical waste which have occurred in the village. Various residents testified that dust emanating from the site blew toward their houses. Also, odors which caused burning eyes, running noses, headaches, nausea, and shortness of breath were mentioned in testimony. The odors themselves were said to resemble, among other things, fertilizer, insecticide, and burning rubber. There was further testimony that the dust and odors interfered with the witnesses' ability to use their yards for gardening or other recreational uses. The defendant presented witnesses who denied that the disposal site was the source of any odors, and that the odors resulted from the local practices of openly burning refuse and dumping sewage into a nearby creek.

There was testimony that trucks carrying the waste materials to the disposal site via Wilson Avenue, the main street of the village, sometimes spilled toxic liquids onto the street. The evidence is undisputed, both from the defendant's receiving reports and testimony from IEPA inspectors, that many drums arrived on the site leaking waste materials. Also, Sam Campagna, defendant's site manager, testified that he heard that a drum had once been dropped into a trench rather than stacked using a drum handler. He did not know whether rumors that this practice persisted were true or not, but he had ordered that such a practice cease.

The defendant has raised several issues on appeal: (1) whether the finding of the circuit and appellate courts> that the waste-disposal site is a prospective nuisance is contrary to the manifest weight of the evidence; (2) whether those courts> applied the wrong legal standard in finding that the waste-disposal site constitutes a prospective nuisance; (3) whether the circuit and appellate courts> erred in failing to balance the equities, either in finding a prospective nuisance or in fashioning relief; (4) whether the courts> erred in failing to defer to, or to otherwise weigh, the role of the IEPA, the United States Environmental Protection Agency (USEPA), and the Illinois State Geological Survey (ISGS); (5) whether the courts> erred in finding that plaintiffs have no adequate remedy at law; (6) whether the courts> erred in ordering a mandatory injunction; and, finally, (7) whether the courts>' decisions constituted a taking of property without due process of law.

We conclude that the evidence in this case sufficiently establishes by a preponderance of the evidence that the chemical-waste-disposal site is a nuisance both presently and prospectively. The defendant does not challenge the fact that the spillage from improperly contained chemical waste, the odors, and the dust created by the site constitute a present interference with the right of the plaintiffs to enjoy and use their property. Thus, we will not belabor this point.

The defendant points out three areas where, it argues, the trial court made erroneous findings of fact. The defendant refers to: (1) Dr. Arthur Zahalsky's opinion testimony concerning an explosive interaction and Dr. Stephen Hall's testimony which concurred in that opinion; (2) evidence concerning soil permeability; and, (3) infiltration of water into the trenches, and of migration out of the defendant's trenches of chemical waste either through the "bathtub effect" or subsidence.

We have reviewed the extensive record compiled in this case. While it is true that the defendant vigorously challenged the evidence concerning an explosive interaction, permeability, and infiltration and migration due to subsidence, the defendant has not overcome the natural and logical conclusions which could be drawn from the evidence. Findings of fact made by the trial court will not be set aside unless they are contrary to the manifest weight of the evidence. John Calnan Co. v. Talsma Builders, Inc. (1977), 67 Ill.2d 213, 218; Kenny Construction Co. v. Metropolitan Sanitary District (1971), 52 Ill.2d 187, 196.

Defendant argues that Dr. Zahalsky and Dr. Hall are unqualified to render opinions concerning an explosive interaction occurring in the trenches. Dr. Zahalsky is a professor of biochemistry at Southern Illinois University at Edwardsville, the holder of a doctorate in that discipline, and has been active in his field since 1967. Dr. Hall is an associate professor of science and technology in the Department of Chemistry at Southern Illinois University at Edwardsville. He was awarded a doctorate in inorganic and analytical chemistry in 1967, as well as a master's degree in environmental health. While working on that master's degree, his second, Dr. Hall studied toxicology, a course dealing with the health effects of chemicals, and took courses on air pollution and occupational health and safety as affected by chemicals in the work environment. Currently, Dr. Hall teaches a course in industrial toxicology at the University.

Over a limited objection by the defendant, the court qualified Dr. Hall as an expert in the fields of industrial toxicology, analytical, organic and inorganic chemistry, occupational hygiene, and environmental health.

Defendant placed several experts on the stand to refute the conclusions of Drs. Zahalsky and Hall. These experts testified that the fire-retardant properties of some of the chemicals would prevent chemical fires, that the gases predicted by Dr. Hall due to the mixing of chemicals would not occur, and that other chemical reactions predicted by Dr. Hall would not occur.

The defendant particularly relies upon the opinion of Dr. Raymond D. Harbison, a professor of pharmacology at Vanderbilt University, a toxicologist and consultant to the USEPA on toxic-waste handling. Dr. Harbison offered the opinion that the instant site is the most advanced scientific landfill in this country, and that the inventory system and the "absolute confinement" of the materials to the site render the interaction of the chemicals an impossibility.

At bottom, Dr. Harbison's opinion is premised upon his belief that the materials at the site will be sufficiently confined so that they will not pose a threat to the health or lives of the residents of the village. Dr. Harbison's opinions were discounted by the trial court, however, due to the substantial evidence which shows that the soil is more permeable than originally thought; that there is migration of water out of the trenches; and that there is subsidence in the area. Moreover, Dr. Harbison's opinion must be further discounted due to his erroneous statement that the waste materials will be sufficiently confined since "there is no ground water to be contaminated anyway below the particular site." Dr. Harbison later amended that statement to say there was no "usable water supply below the site" in terms of volume. This statement is also erroneous and also ignores evidence that the ground water would flow from beneath the site, thereby transporting any contamination into Cahokia Creek and could eventually flow into the Mississippi River. Thus we will not overturn the trial court's findings on this issue. They are amply supported by the manifest weight of the evidence.

The defendant next contends that the appellate and circuit courts> misinterpreted the permeability tests admitted into evidence. It is argued that permeability coefficients are but one factor in determining the permeability of soil. We agree, but the fact remains that the defendant placed a good deal of emphasis on the tests conducted by John Mathes and Dr. Williams, which show that the soil at the site is more permeable than the IEPA suggested standard of 1 x 10[-8] cm/sec. These courts> also relied upon the testimony of Dr. Williams, defendant's witness, that the soil was probably even more permeable than indicated in the tests. Based on this evidence the trial court was correct in finding that the permeable nature of the ...


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