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May 22, 1997


Appeal from the Circuit Court of McHenry County. No. 94--CH--46. Honorable James C. Franz, Judge, Presiding.

Released for Publication June 24, 1997.

The Honorable Justice Colwell delivered the opinion of the court. Geiger, P.j., and Thomas, J., concur.

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

The plaintiff, the People of the State of Illinois, filed a three-count complaint against the defendant, Stonehedge, Inc., alleging that deicing salt stored on Stonehedge's industrial property leaked into the area's groundwater supply, thereby contaminating it. The trial court ruled that there was no triable issue of fact that supported the plaintiff's argument regarding each of the counts and granted the defendant's motion for summary judgment, from which the plaintiff appeals. We affirm in part, reverse in part, and remand.

The following facts are taken from the plaintiff's complaint. At all times relevant to this case, Stonehedge was in the business of spreading deicing salt, which has sodium chloride as its principal constituent, during winter months for snow removal in the western and northwestern Chicago suburban area. In fall 1988, Stonehedge began storing deicing salt on its property and continued to store salt until approximately fall 1992. Stonehedge stored the deicing salt on the ground and without a concrete pad or cover.

On several occasions between December 16, 1991, and December 7, 1992, the McHenry County Department of Health analyzed the water from wells at several homes adjacent to the site where the deicing salt was stored. The tests revealed high chloride levels in the groundwater in the wells. The plaintiff subsequently filed a complaint against Stonehedge, alleging that the defendant's pile of deicing salt was leaking into the groundwater.

Count I of the plaintiff's complaint alleged that Stonehedge's causing the discharge of the salt into the groundwater violated sections 12(a) and 12(d) of the Environmental Protection Act (Act) (415 ILCS 5/12(a), (d) (West 1994). Count II alleged that, by allowing the salt to leak through the ground, Stonehedge altered the physical, chemical, and biological qualities of the water so as to render it unfit for use as potable water as measured by the Public Water Supply Regulations. See 35 Ill. Adm. Code ยง 620.410(a) (1996). Count III alleged that, by depositing the deicing salt within 200 feet of two existing potable water supply wells, Stonehedge violated section 14.2(a) of the Act. See 415 ILCS 5/14.2(a) (West 1994). The plaintiff sought injunctive relief and other civil remedies under all three counts.

The defendant filed a motion to dismiss the plaintiff's complaint which was denied by the trial court. The defendant then filed a motion for summary judgment on each of the plaintiff's counts. The trial court granted the defendant's motion for summary judgment on all three counts of the plaintiff's complaint. We note that a court reporter was not present at the hearing to record the arguments and ruling made on this date. In its order, however, the trial court commented that, although it did not know how the plaintiff could prove its case, the defendant's motion was granted as a matter of law.

On appeal, the plaintiff contends that the court's order is erroneous because a genuine issue of material fact exists regarding each of the counts in its complaint.

Summary judgment is appropriate only when the pleadings, depositions, and admissions on file, together with the affidavits, if any, disclose that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Bolingbrook Equity I Limited Partnership v. Zayre of Illinois, Inc., 252 Ill. App. 3d 753, 764, 191 Ill. Dec. 909, 624 N.E.2d 1287 (1993). While plaintiffs need not prove their cases at the summary judgment stage, they must come forward with some facts that would arguably entitle them to judgment. Jones v. Minster, 261 Ill. App. 3d 1056, 1059, 200 Ill. Dec. 22, 635 N.E.2d 123 (1994). Indeed, summary judgment is a drastic measure and should be granted only if the movant's right to judgment is clear and free from doubt. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 180 Ill. Dec. 691, 607 N.E.2d 1204 (1992). Therefore, where a reasonable person can draw divergent inferences from undisputed facts, summary judgment should be denied. Outboard, 154 Ill. 2d at 102. Finally, our review of the trial court's entry of summary judgment is de novo. Monticello Insurance Co. v. Wil-Freds Construction, Inc., 277 Ill. App. 3d 697, 701, 214 Ill. Dec. 597, 661 N.E.2d 451 (1996).

We turn first to count I of the plaintiff's complaint. Count I alleges that the defendant stored deicing salt on its property without a concrete pad or cover, thereby allowing the salt to seep into the ground and cause water pollution in violation of sections 12(a) and 12(d) the Act. In pertinent part, section 12 provides:

"No person shall:

(a) Cause or threaten or allow the discharge of any contaminants into the environment in any State so as to cause or tend to cause water pollution in Illinois, either alone or in combination with matter from other sources, or so as to violate regulations or standards adopted by the Pollution Control Board under this Act.

(d) Deposit any contaminants upon the land in such place and manner so as to create a water pollution hazard." 415 ...

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