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People ex re Madigan v. Dixon-Marquette Cement

August 27, 2003

THE PEOPLE EX REL. LISA MADIGAN, ATTORNEY GENERAL OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
DIXON-MARQUETTE CEMENT, INC., A DELAWARE CORPORATION, AND PRAIRIE MATERIAL SALES, INC., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lee County. No. 00--CH--68 Honorable Tomas M. Magdich, Judge, Presiding.

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

In September 2000 plaintiff, the Illinois Attorney General, filed a nine-count complaint against defendants, Dixon-Marquette Cement, Inc. (Dixon-Marquette) and Prairie Material Sales, Inc. (Prairie Material), seeking injunctive relief and civil penalties based on alleged violations of the Illinois Environmental Protection Act (the Act) (415 ILCS 5/1 et seq. (West 2000)) and the Pollution Control Board's (the Board) waste-disposal regulations (35 Ill. Adm. Code Sub Title G (2000)). At issue in this appeal are counts VI through IX, which are premised on defendants' failure to obtain a permit from the Illinois Environmental Protection Agency (the Agency) to conduct a waste-storage, waste-treatment, or waste-disposal operation (415 ILCS 5/21(d)(1) (West 2000)). The trial court granted defendants' motion to dismiss (735 ILCS 5/2--615 (West 2000)), determining that the plain language of section 21(d)(1) of the Act exempted defendants from the permit requirement. The trial court further made a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), and plaintiff timely appeals. We reverse and remand.

Plaintiff's complaint alleged that defendant Dixon-Marquette operates a cement production business on property in Dixon; the property is owned by defendant Prairie Material. Dixon-Marquette's cement manufacturing process generates a waste by-product called cement kiln dust, which is deposited on the property. Defendants have been depositing cement kiln dust in a pile on the property since at least 1970. The cement kiln dust pile covers an area approximately 30 acres in size and reaches approximately 70 feet high. An analysis of the cement kiln dust revealed that it contains arsenic, barium, chromium, lead, manganese, selenium, and cadmium. The Rock River runs approximately 200 yards from the dust pile, and the wet weather runoff from the dust pile discharges into the river.

Section 21(d)(1) of the Act provides:

"No person shall:

(d) Conduct any waste-storage, waste-treatment, or waste-disposal operation:

(1) without a permit granted by the Agency or in violation of any conditions imposed by such permit, *** as may be necessary to assure compliance with this Act and with regulations and standards adopted thereunder; provided, however, that, except for municipal solid waste landfill units that receive waste on or after October 9, 1993, no permit shall be required for (i) any person conducting a waste-storage, waste-treatment, or waste-disposal operation for wastes generated by such person's own activities which are stored, treated, or disposed within the site where such wastes are generated ***." 415 ILCS 5/21(d)(1) (West 2002).

Plaintiff's complaint alleged causes of action against defendants for water pollution, water pollution hazard, offensive conditions, open dumping, and causing or allowing litter as a result of the open dumping. Count VI of plaintiff's complaint alleged a cause of action based on defendants' conducting a waste- disposal operation without a permit, in violation of section 21(d) of the Act (415 ILCS 5/21(d) (West 2000)). Count VII alleged numerous violations of the Board's waste-disposal regulations, premised on defendants' failure to apply for and obtain a permit. Count VIII alleged that defendants, without a permit, have disposed of waste at the site. Count IX alleged that defendants violated section 21(d) of the Act and the Board's waste-disposal regulations by failing to provide a properly certified operator to supervise the operations of the facility.

Defendants moved to dismiss the complaint pursuant to section 2--615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--615 (West 2000)). In their motion, defendants argued that section 21(d)(1) of the Act exempted from the permit requirement facilities that dispose of their own waste at the site where it is generated. Defendants argued that, because Dixon-Marquette generates cement kiln dust at its facility on the property and disposes of the kiln dust on the same property, section 21(d)(1) of the Act does not require them to obtain a permit. Defendants concluded that, because they were not required to obtain a permit, each of plaintiff's counts that were based on defendants' alleged failure to obtain a permit should be dismissed.

The parties fully briefed the issue of whether defendants were statutorily required to obtain a permit to conduct waste storage, treatment, or disposal operations. In support of their motion to dismiss, defendants argued that the plain language of section 21(d)(1) of the Act served to exempt from permitting requirements their on-site disposal operations. In response, plaintiff relied on two appellate court decisions that construed the exemption, Reynolds Metals Co. v. Pollution Control Board, 108 Ill. App. 3d 156 (1982), and Pielet Bros. Trading, Inc. v. Pollution Control Board, 110 Ill. App. 3d 752 (1982).

In Reynolds Metals, the First District considered whether a company was subject to the Act's permit requirements for the on-site disposal of its wastes generated from its aluminum metal and aluminum alloys fabrication operation. The company's landfill covered 3½ acres and ranged in depth from 80 to 85 feet. Between 1970 and 1979, the wastes deposited included construction waste, banding iron, fluxing tubes, and sludge. Prior to 1970, materials were deposited in the landfill; however, their nature and characteristics were unknown. The Board found that the landfill, due to its permeability, cracks, or fissures, was an extremely dangerous site unless it was properly managed. Reynolds Metals, 108 Ill. App. 3d at 160. The Board further found that the amounts of refuse involved were too great and the site was too unsound, presenting "a real potential for serious environmental harm." Reynolds Metals, 108 Ill. App. 3d at 159. The Board determined that it was not the type of activity envisioned by the legislature when it enacted the exemption to the section 21(d) permit requirement. Reynolds Metals, 108 Ill. App. 3d at 159.

The reviewing court noted that, although the exemption was not applicable to hazardous wastes, the Act did not specifically limit the exemption to wastes posing no potential for environmental harm. Reynolds Metals, 108 Ill. App. 3d at 160, citing Ill. Rev. Stat. 1979, ch. 111½, par. 1021(e) (now 415 ILCS 5/21(d) (West 2002)). It determined that, because the parties urged differing interpretations of the exemption, it would look beyond the language of the statute and construe it in a manner consistent with its purpose. Reynolds Metals, 108 Ill. App. 3d at 160. In doing so, it determined that the exemption was inapplicable to the company's landfill. Reynolds Metals, 108 Ill. App. 3d at 161. In affirming the Board's orders, the reviewing court reasoned that exempting from agency oversight a landfill site "which presents so great a potential for serious environmental harm" would be contrary to the objectives of the permit requirement. Reynolds Metals, 108 Ill. App. 3d at 161.

In Pielet Bros., the Fifth District similarly adopted the Board's construction of the section 21 exemption (Ill. Rev. Stat. 1977, ch. 111½, par. 1021(e) (now 415 ILCS 5/21(d) (West 2002))) as it pertained to the permit requirements. Pielet Bros., 110 Ill. App. 3d at 756-57. In Pielet Bros., the record reflected that a company operated an automobile shredder and that, after culling a junk automobile for valuable components and shredding the automobile, the company magnetically removed the ferrous components for resale and discarded the remaining refuse, or "fluff," at the site. The site was approximately 80 acres in size, and the company added approximately 250 cubic yards of fluff to the site per day. The Board considered the size of the site, the daily volume of fluff received, the inflammability of the fluff and the number of on-site fires, the metallic content of the fluff, and its potential to leach into the water. Pielet Bros., 110 Ill. App. 3d at 755. In determining that the company did not qualify for a permit exemption, the Board concluded that the exemption pertained only to " ' "minor amounts of refuse which could be disposed of without environmental harm upon the site where it was generated" ' [citations]." Pielet Bros., 110 Ill. App. 3d at 754.

Relying on R.E. Joos Excavating Co. v. Pollution Control Board, 58 Ill. App. 3d 309 (1978), the reviewing court determined that an ambiguity existed in the statutory language of section 21 and looked beyond the language of the statute to determine the legislative intent. The reviewing court concluded that the exemption "must be given a somewhat more restrictive construction than that suggested by a literal reading of [the statute] standing alone." Pielet Bros., 110 Ill. App. 3d at 755. The reviewing court also considered the amendments to the statute since the Board began construing the statute and noted that the legislature had demonstrated its acquiescence to the Board's interpretation because it had not amended or more specifically defined the exemption. Pielet Bros., 110 Ill. App. 3d at 757. Applying this construction, the reviewing court found that the company's operation did not concern "minor amounts" of refuse and agreed with the Agency's ...


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