Appeal from the Circuit Court for the 9th Judicial Circuit, Warren County, Illinois No. 98--LM--8 Honorable William D. Henderson Judge, Presiding
The opinion of the court was delivered by: Justice Breslin
The State filed suit against defendants, Arthur and Margaret Davies and Forest Gittings, to recover $9,938.58 in cleanup costs spent by the Environmental Protection Agency (Agency) to remove 5,000 to 6,000 tires on the Davieses' property. The trial court found that section 55.3 of the Environmental Protection Act (Act)(415 ILCS 5/55.3 (West 1998)), which allows the State to clean up waste tire accumulations and recover costs against the owners of the tires, could not be retroactively applied to the Davieses and that the Davieses were not owners or operators of the tires under the Act. The court granted a motion by the Davieses' for summary judgment and the State appeals. We reverse and hold that section 55.3 of the Act may be utilized to recover the cost of removing waste tire accumulations being presently maintained in violation of the Act.
The Davieses allowed Gittings, who was involved in a tire service repair business, to deposit 5,000 to 6,000 used tires in a ravine on their property sometime prior to August of 1989. After inspecting the property in December of 1994, the Agency issued an "Administrative Warning Notice" to the Davieses and Gittings demanding that they stop the dumping and remove all tires. The notice required the defendants to submit a tire removal agreement to the Agency and to sign a letter of commitment to undertake and complete the tire removal.
Arthur Davies sent a letter to the Agency requesting more time to remove the tires. In the letter, he indicated that there was no law against using the tires as an erosion control device when he allowed Gittings to deposit the tires in the ravine in 1984. Although the Davieses removed the tires from the ravine, they merely stacked them elsewhere on their property. Therefore, in compliance with section 55.3 of the Act, an Agency contractor removed the tires at a total cost to the State of $9,938.58.
When the State filed a complaint in the circuit court to recover the cost of the tire removal, the Davieses answered that they allowed Gittings to dump the tires on their property in 1984 and that no dumping had occurred after August 31, 1989, the effective date of Title XIV of the Act, which includes section 55.3. 415 ILCS 5/55.3 (West 1998). The Davieses admitted in their answer to the State's complaint that they were using the tires as an erosion control device.
The Davieses also filed a motion for summary judgment, claiming that they were neither the owners nor the operators of the tire accumulation as those terms are defined under the Act. In response, the State submitted the letter from the Davieses in which Arthur had indicated that the tires were being used to stop erosion.
The court issued summary judgment on behalf of the defendants because it found that section 55.3 could not be retroactively applied to the Davieses. The court also found that the Davieses were not the owners or operators of the tire accumulation. The State now appeals.
On appeal, the State argues that the trial court erred in determining that section 55.3 of the Act may not be utilized to recover cleanup costs from the Davieses because such an application of the Act would be impermissibly retroactive. This analysis concerns a question of law which we review de novo. E&E Hauling, Inc. v. Ryan, 306 Ill. App. 3d 131, 713 N.E.2d 178 (1999).
Section 55.3 of the Act allows the Illinois Environmental Protection Agency to remove used and waste tire accumulations from any private or public property upon a finding that the accumulation creates a hazard to public health or the environment. 415 ILCS 5/55.3(b)(3), (e) (West 1998). The "owner or operator" of any accumulation is liable for the costs incurred by the Agency in removing the tires. 415 ILCS 5/55.3(g) (West 1998).
The Davieses argue, and the trial court agreed, that they are not liable for the cost of cleanup under the Act because the tires were dumped prior the date when section 55.3 was enacted. The State contends that the Act is not being retroactively applied because it was subsequent to the enactment of the Act that (1) the threat to the environment existed from the accumulation of tires; (2) the Agency entered on the Davieses' property and removed the tires; and (3) the State initiated the current litigation to recover costs.
The Illinois Supreme Court has defined a retroactive change in the law as one that takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past. First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 664 N.E.2d 36 (1996). A general rule of statutory construction in Illinois, founded upon constitutional provisions that guarantee due process of law, requires that an amendatory act be construed as prospective only. Chemrex, Inc. v. Pollution Control Board, 257 Ill. App. 3d 274, 628 N.E.2d 963 (1993).
But the presumption of prospectivity is rebuttable by express statutory language to the contrary or by necessary implication. Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 522 N.E.2d 1195 (1988). The United States Supreme Court has stated that courts must effectuate legislative intent regarding retroactivity and that, even absent explicit statutory language mandating retroactivity, laws may be applied retroactively if courts are able to discern "clear congressional intent ...