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12/30/88 the Environmental v. Fitz-Mar

December 30, 1988

THE ENVIRONMENTAL PROTECTION AGENCY ET AL., PLAINTIFFS-APPELLEES

v.

FITZ-MAR, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

533 N.E.2d 524, 178 Ill. App. 3d 555, 127 Ill. Dec. 652 1988.IL.1925

Appeal from the Circuit Court of Cook County; the Hon. Anthony Scotillo, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARTMAN delivered the opinion of the court. BILANDIC and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Defendant Fitz-Mar, Inc., appeals from a circuit court order granting plaintiffs' motion for a preliminary injunction and insists the lower court abused its discretion in granting the motion for injunctive relief.

Defendant, a corporation licensed to do business in Illinois, operates a solid waste landfill in Chicago Heights, Illinois, pursuant to a permit received in 1981 from plaintiff Illinois Environmental Protection Agency (IEPA or agency). The landfill is divided into 16 separate dumping areas or cells; defendant must obtain an operational permit from the IEPA for each area before it may commence dumping refuse there.

On February 26, 1987, the IEPA, plaintiff State's Attorney of Cook County, Illinois (State's Attorney), and plaintiff Attorney General of Illinois (Attorney General), both as counsel to the agency and under their independent authority, filed a two-count, verified complaint against defendant. Count I alleged that: on September 20, 1986, plaintiffs filed a complaint with the Illinois Pollution Control Board (Board) concerning defendant's alleged dumping of refuse in unpermitted areas and other violations of the Illinois Environmental Protection Act (Act) (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1001 et seq.); the 1986 complaint was still pending before the Board; and defendant had additionally dumped waste in other, unpermitted cells, in violation of, inter alia, section 21 of the Act (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1021). Relief requested by plaintiffs included an injunction to restrain defendant from depositing refuse in unpermitted portions of the landfill and the imposition of fines. In count II, plaintiffs alleged that "[by] or before July, 1986," defendant improperly allowed to collect, and failed to properly dispose of, leachate at the landfill; the complaint filed with the Board alleged improper handling of leachate at the site; and defendant submitted a leachate management plan to the agency which the agency rejected on February 11, 1987. Plaintiffs requested that the court levy fines and enjoin defendant from violating the Act by collecting and pumping leachate and contaminants into waters within and without the landfill.

On the same day, plaintiffs moved for a preliminary injunction and unsuccessfully moved for a temporary restraining order to enjoin defendant from violating the Act. Defendant answered and moved to dismiss; plaintiffs responded thereto.

Following hearings held pursuant to plaintiffs' motion on March 19, 1987, the circuit court entered an order: (1) granting a preliminary injunction enjoining defendant from discharging contaminants into a creek running adjacent to the landfill; (2) ordering defendant to file a completed application for a leachate management system and applications for operating permits for areas 12 through 16 within seven days; (3) stating that plaintiffs would review the applications pursuant to their statutory authority; (4) preliminarily enjoining defendant from accepting refuse from any source other than the City of Chicago Heights pending further litigation or until the court ordered otherwise; and (5) preliminarily enjoining defendant from dumping or depositing refuse in any area of the landfill where no refuse was currently present, including but not limited to area 16 and that part of area 15 where no refuse existed. An additional order, entered April 13, 1987, denied plaintiffs' request to enjoin dumping in unpermitted areas.

On May 13, 1987, plaintiffs moved the court to vacate the April 13 order and for further injunctive relief. Addressing the court's refusal to enjoin the dumping of waste in unpermitted cells, plaintiffs stated that: (1) plaintiffs need only demonstrate a violation of the Act and standing to be entitled to injunctive relief; and (2) in the hearing held pursuant to the motion for a preliminary injunction, "it was admitted that [defendant] had purposely, was currently, and intended to continue to dump refuse in areas of its landfill which were not permitted to accept refuse." Plaintiffs also asserted that: (1) on March 27, 1987, defendant submitted applications for permits to operate areas 12 through 16 and for a permit to operate a leachate management system; (2) on April 23, 1987, the IEPA issued to defendant a letter of rejection, or "deemed not filed," regarding the application for a permit to operate a leachate management system; (3) on April 24, 1987, the agency issued to defendant a "deemed not filed" letter, rejecting the applications for permits to operate areas 12 through 16 and delineating further material necessary to complete the applications; (4) data submitted by defendant with the applications for dumping permits indicated elevated groundwater levels of various contaminants; (5) the groundwater data, collected from bedrock beneath the landfill, was due to the operation of the dumping ground; (6) plaintiffs had received information from Burt Fowler (Fowler), defendant's registered engineer, that areas 12 and 13 of the landfill were "filled onto the existing side slopes of Chicago Heights Municipal No. 1 Landfill"; and (7) that practice exceeded defendant's authority as granted by the developmental permit issued by the agency. Plaintiffs asked the court to reconsider the order entered April 13, 1987, refusing to enjoin the unpermitted dumping and grant plaintiffs an evidentiary hearing to present the additional evidence raised by this motion.

The circuit court denied plaintiffs' motion to reconsider on February 17, 1988, and, following hearings, entered an order on March 1, 1988, enjoining defendant from depositing refuse in unpermitted refuse cells. Defendant appeals. I

Defendant initially maintains the court abused its discretion by enjoining defendant where plaintiffs were responsible for defendant's failure to comply with the Act. Defendant argues that, at a meeting held one month following receipt of the "deemed not filed" letters, IEPA permit manager Charlie Zeal (Zeal) told Fowler that the agency would not grant operational permits to defendant absent proof that defendant was not the cause of the groundwater contamination. Based on this representation, defendant concentrated its efforts on resolving the groundwater dilemma and failed to submit to the agency the material sought in the "deemed not filed" letters; Fowler was trying to address the problems "in the proper order of priority."

Plaintiffs characterize defendant's claim as equitable estoppel, or the effect of voluntary conduct of a party whereby he is precluded from asserting rights against another party who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse. (Willowbrook Development Corp. v. Pollution Control Board (1981), 92 Ill. App. 3d 1074, 1078, 416 N.E.2d 385; see also Jones v. Meade (1984), 126 Ill. App. 3d 897, 902-03, 467 N.E.2d 657.) To prevail, defendant must demonstrate: (1) words or conduct by plaintiffs constituting either a misrepresentation or concealment of material facts; (2) plaintiffs' knowledge that representations made were untrue; (3) defendant did not know the representations to be false either at the time they were made or at the time they were acted upon; (4) plaintiffs intended or expected that their conduct or representations would be acted upon by the defendant; (5) defendant relied ...


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