Appeal from the Circuit Court of Cook County; the Hon. George
A. Higgins, Judge, presiding.
PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 19, 1985.
Plaintiff, Waste Management of Illinois, Inc., filed an amended complaint seeking declaratory judgment that the attempt of the defendants, Illinois Environmental Protection Agency (the Agency) and its director, Richard Carlson, to collect fees on hazardous waste received for treatment by plaintiff at its CID facility from April 1, 1980, to June 17, 1982, was invalid, and also seeking a preliminary and permanent injunction against assessing and collecting the fees. An agreed order for preliminary injunction was entered. Thereafter plaintiff's motion for summary judgment on count III, which alleged that defendants exceeded statutory authority, was denied. Following trial on count III of the amended complaint, the court entered a judgment order thereon in favor of defendants and against plaintiff. The order found no just reason for delaying enforcement or appeal of the final judgment on count III pursuant to Supreme Court Rule 304(a) (87 Ill.2d R. 304). Plaintiff appeals from that order.
The central issue on appeal is whether the Agency is authorized to collect the fee for hazardous waste which plaintiff receives for treatment at its CID facility and later deposits at the site.
The pertinent facts are not in dispute. Plaintiff is engaged in the business of treating and disposing of hazardous waste and operates the CID facility in Calumet City. The facility is a 429-acre compound containing several distinct areas at which certain differentiable operations take place. Hazardous waste is received for either disposal or treatment. The treatment occurs at a different area of the facility than the disposal. At one area, hazardous wastes are treated either by the on-site pug mill or by being processed through the dewatering system which removes chemical solids and other contaminants from water-base wastes. The treated wastes are then deposited at the CID landfill, and the treated waters are returned to the regular municipal sewage disposal system. At two other areas at the facility, hazardous waste is received for direct disposal without treatment. From April 1, 1980, to June 17, 1982, the Agency assessed the fee on hazardous waste received by plaintiff at its CID facility for disposal but not on hazardous waste received for treatment.
On or about June 17, 1982, the agency and its director Richard Carlson advised plaintiff in a letter that hazardous waste received for treatment by plaintiff at its CID facility would be subject to the fee established by section 22.2 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1022.2), and retroactively assessed the fee on all hazardous waste received for treatment at the facility for the period from April 1, 1980, to June 17, 1982. Plaintiff thereupon brought this action on August 16, 1982.
Plaintiff's initial complaint against the defendants contained four counts. An amended complaint was thereafter filed adding a fifth count. Count I alleged that defendants violated the Illinois Administrative Procedure Act; count II alleged impermissible retroactive rule making; count III alleged that such conduct violated statutory authority; count IV alleged violations of the constitutions of Illinois and the United States; and count V alleged discrimination in favor of the on-site waste disposers. Each of the five counts sought a preliminary and thereafter a permanent injunction to enjoin the assessment and collection of a fee on hazardous waste received for treatment by the facility and a declaratory judgment invalidating the June 17, 1982, order of the Agency. Count V additionally requested as alternative relief an order that the Agency assess and collect the fee on all hazardous waste disposed of at all other hazardous waste disposal sites, including those of on-site generators. Defendants filed an answer and also a counterclaim for judgment against the plaintiff for the fee for all hazardous waste received for treatment at its CID facility since April 1, 1980, plus interest.
Following the entry on August 26, 1982, of an agreed order for preliminary injunction enjoining collection of the fee for hazardous wastes received for treatment since April 1, 1980, plaintiff filed a motion for summary judgment on count III which was denied by the trial court. The matter proceeded to trial on count III of the amended complaint upon the pleadings, affidavits, memoranda and arguments of counsel. In announcing its decision, the trial court stated in pertinent part:
"I think under all the circumstances considering the type of material that is the subject of the litigation, waste of a hazardous nature, the statutes and actions of the Legislature in conjunction with the statutes and all memoranda and arguments that have been submitted on the general question of disposal and treatment of hazardous waste materials have always been centered intensively on what should be the public interest. It really is not a question of fees. It is not a question of convenience. It is not a question of anything other than hazardous waste has created a situation that very seriously affects the public, the welfare of the public, the health of the public, and the right of the public generally to be protected against or free of any deleterious conditions against hazardous waste in existence, whether it be hazardous waste for the disposal or hazardous waste for the process of treatment. * * * [G]etting down to what appears to be the rock-bottom consideration of the situation, hazardous waste, whether it is for disposal or whether it is for treatment, is still hazardous waste. And for the period of its storage, no matter how long a period of time it may be stored or how short a period of time it may be stored, it still is hazardous waste bearing a complexion or a content that can be deleterious to the welfare of the public.
I think that the Court must assume this position; that because we have one site, because we do not have an existence of contiguity, because we have a situation requiring the delivery and disposition of all types of hazardous waste, whether indicated for disposal or treatment, said disposition being on the one site which contains both an area for storing and a pug mill for treatment, that the fair interpretation of the Court must place upon the condition that it is one site upon which hazardous waste is stored.
Consequently, the Court finds it necessary to be in agreement with the position of the State that whether or not the hazardous waste is tagged for purposes of disposal or tagged for the purpose of treatment, the fact that it is delivered and stored in the one site placed it in a category that makes it a subject of the provisions of the State regarding payment of the necessary fee. So the Court will so rule."
On March 6, 1984, the court entered a judgment order on count III which incorporated its oral opinion and found that plaintiff's hazardous waste treatment facility is part of plaintiff's CID hazardous waste disposal site and is not a separate or independent site, and that section 22.2 imposes the hazardous waste fee on all hazardous waste received by plaintiff at its CID site whether or not said hazardous waste is treated at plaintiff's hazardous waste treatment facility. The order then entered judgment for defendants and against plaintiff on count III and found no just reason for delaying enforcement or appeal pursuant to Supreme Court Rule 304 (87 Ill.2d R. 304).
Plaintiff appeals the decision as to count III. The other counts remain pending in the trial ...