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People ex rel. Ryan v. McFalls

April 27, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, EX REL.
JAMES E. RYAN, ATTORNEY GENERAL, AND EX REL.
GARY SPENCER, STATE'S ATTORNEY OF WHITESIDE COUNTY, ILLINOIS,
PLAINTIFF-APPELLANT,
V.
LEWIS MCFALLS,
DEFENDANT-APPELLANT,
AND
PRESCOTT CONSTRUCTION COMPANY; CITY OF STERLING; ROCK RIVER ROOFING AND SIDING COMPANY; THOMAS CRAIG; JOSEPH CRAIG; TIMOTHY CRAIG; WOLOHAN LUMBER COMPANY; MARVIN R. LOFGREN D/B/A LOFGREN CONSTRUCTION COMPANY; LEROY E. DUSING; KEVIN L. HOHLEN; RANDY J. SPOTTS; CHRISTINE SPOTTS; WAYNE E. LAPP; WILLIS C. SIMPSON; WILLIAM H. MILLER; JORDAN TOWNSHIP/TOWN OF JORDAN; WILLIE E. STANLEY; KEVIN J. WOLF, INDIVIDUALLY, AND AS OWNER OF WOLF CONSTRUCTION; KENNETH REITZEL D/B/A REITZEL ROOFING COMPANY; GENE MCFALLS, INDIVIDUALLY, ANDAS OWNER OF NORTHWEST ROOFING; ROBERT W. BURGER, INDIVIDUALLY, AND AS OWNER OF BURGER BROTHERS TRUCKING & EXCAVATING; COMMONWEALTH EDISON; AND WILLIAM FRANKFOTHER;
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 14th Judicial Circuit, Whiteside County, Illinois, No. 97--CH--34 Honorable Dan A. Dunagan, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Slater

The State filed a 51-count amended complaint alleging that Lewis McFalls, Commonwealth Edison Company (ComEd), and 22 other defendants had violated subsections 21(a) and 21(p)(1) of the Illinois Environmental Protection Act (the Act) (415 ILCS 5/1 et seq. (West 1996)). 415 ILCS 5/21(a), 21(p)(1) (West 1996). On ComEd's motion, the trial court dismissed all counts of the complaint except those directed against McFalls. The State and McFalls appeal pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). For the reasons that follow, we reverse the trial court's order and remand for further proceedings.

BACKGROUND

Title V of the Act addresses land pollution and refuse disposal. 415 ILCS 5/20 et seq. (West 1996). Section 21 of the Act lists a number of prohibited acts. 415 ILCS 5/21 (West 1996). Subsections 21(a) and 21(p)(1) (415 ILCS 5/21(a), 21(p)(1) (West 1996)) provide:

"No person shall:

(a) Cause or allow the open dumping of any waste.

(p) In violation of subdivision (a) of this Section, cause or allow the open dumping of any waste in a manner which results in any of the following occurrences at the dump site:

(1) litter[.]"

Under the Act, the term "person" includes, among others, individuals, corporations, and political subdivisions. 415 ILCS 5/3.26 (West 1996). "Open dumping" means "the consolidation of refuse from one or more sources at a disposal site that does not fulfill the requirements of a sanitary landfill." 415 ILCS 5/3.24 (West 1996). "Refuse" means "waste" which, in turn, denotes "any garbage, sludge *** or other discarded material ***." 415 ILCS 5/3.31, 3.53 (West 1996).

In counts I through XXIII and counts XXV through XLVI of its amended complaint, the State alleges that ComEd and 22 others caused open dumping and caused open dumping resulting in litter, in violation of subsections 21(a) and 21(p)(1), by dumping various waste materials on certain real property located in Sterling, Illinois. In the remaining six counts of its complaint, the State alleges that Lewis McFalls, as the owner of the property, violated subsections 21(a) and 21(p)(1) and various other provisions of the Act not at issue in this appeal.

ComEd filed a section 2--615 motion (735 ILCS 5/2--615 (West 1996)) contending that the two counts directed against it should be dismissed. In particular, ComEd argued that, in order to violate subsections 21(a) and 21(p)(1), a party must either own the allegedly illegal disposal site or exercise control over it. Therefore, according to ComEd, in view of the State's failure to allege ComEd's ownership or control, the State fails to state a cause of action. All other defendants except McFalls joined ComEd's motion.

The trial court granted the motion and dismissed every count of the State's complaint except those directed at McFalls. In so ruling, the trial court concluded that only an owner or operator of an allegedly illegal disposal site may "cause or allow" open dumping within the meaning of subsections 21(a) and 21(p)(1). In its written order, the trial court based this construction on the following propositions: (1) other subsections of section 21 that employ the phrase "cause or allow" only apply to owners or operators, while subsections that do not use the phrase apply to any person undertaking the prohibited act; (2) the construction is necessary to avoid absurd and unjust results; and (3) the legislature's addition of subsection 45(d) (415 ILCS 5/45(d) (West 1996)) implies that a person not alleged to be an owner or operator of the illegal disposal site cannot be joined in the original complaint.

ANALYSIS

On appeal, the State and McFalls contend that the trial court erred by granting ComEd's motion to dismiss because, by the plain language of the Act, the class of persons who may "cause" open dumping in violation of subsections ...


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