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People ex rel Ryan v. Agpro

January 27, 2004

[5] THE PEOPLE EX REL. JAMES E. RYAN, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
AGPRO, INC. AND DAVID J. SCHULTE, INDIV. AND AS PRESIDENT OF AGPRO, INC., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



[6] Appeal from the Circuit Court of Ogle County. No. 94-CH-8 Honorable Timothy P. Nieman, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Kapala

[8]  The State brought an action in 1994 against defendants, Agpro, Inc. (Agpro) and David J. Schulte (Schulte), individually and as president of Agpro, alleging violations of the Environmental Protection Act (the Act) (415 ILCS 5/1 et seq. (West 1992)). The State sought injunctive relief, cost recovery, and civil penalties. The matter was tried to the court without a jury in 2002. The trial court entered judgment in favor of the State and against defendants in the amount of $54,432.25 for the State's pre-July 1996 remediation costs and imposed a $5,000 civil penalty against defendants. The State appeals and defendants cross-appeal.

[9]  I. FACTS

[10]   In a second amended complaint for injunctive relief, cost recovery, and civil penalties the State alleged that from May 1988 to April 1993 Schulte was the president of Agpro, an Illinois corporation engaged in the business of custom application and distribution of agricultural pesticides and fertilizers. It was alleged further that defendants were the owners of the Agpro site located at 803 Central Street in the town of Woosung (Agpro site). In count I, titled "Water Pollution," it was alleged that defendants, as a result of their business operations, caused or allowed pesticides to be discharged upon the ground and, in turn, into the surface water and groundwater in violation of section 12(a) of the Act (415 ILCS 5/12(a) (West 1996)). The State alleged that the water pollution was ongoing and prayed for a finding that defendants violated section 12(a) of the Act. In count II it was alleged that defendants created a water pollution hazard in violation of section 12(d) of the Act (415 ILCS 5/12(d) (West 1996)). In count III it was alleged that defendants violated section 12(a) and spill prevention regulations (35 Ill. Adm. Code §306.102(b) (2003)). In these first three counts, the State also prayed for an order enjoining defendants from further violations of the Act and requiring them to remediate the environmental damage they caused; civil penalties; and the States costs in bringing the action. In count IV, the State sought recovery pursuant to section 22.2 of the Act (415 ILCS 5/22.2 (West 1996)) for its remediation costs.

[11]   A two-day bench trial was held in September 2002. The trial court entered a memorandum opinion and judgment order containing its findings of fact and conclusions of law. The trial court found that soil samples taken by agents of the Illinois Environmental Protection Agency (IEPA) in April 1989 and October 1990 from locations on the Agpro site showed contamination with the pesticides alachlor, atrazine, and metolachlor. Soil samples taken in October 1990 from locations in Woosung away from the Agpro site showed no contamination with those pesticides. Soil samples collected in December 1993 from the Agpro site showed contamination with the pesticides alachlor, atrazine, metolachlor, and metribuzin. Those same soil samples showed extremely high levels of ammonia and nitrates. Soil samples collected in December 1993 from locations in Woosung away from the Agpro site showed no contamination with pesticides or nitrates and significantly lower levels of contamination with ammonia. Soil samples collected from the Agpro site in October 2000 were contaminated with high concentrations of ammonia and nitrates, as well as with alachlor, metolachlor, atrazine, and other pesticides. Soil samples collected from locations away from the Agpro site in October 2000 had no detectible ammonia, much less contamination with nitrates, and no detectible contamination with pesticides.

[12]   The trial court found further that water samples from private wells at and immediately surrounding the Agpro site collected in December 1988, February 1989, March 1989, April 1989, February 1990, October 1990, March 1991, December 1992, and February 1993 contained levels of various pesticides that exceeded maximum contamination levels of the Illinois Pollution Control Board and the United States Environmental Protection Agency. Samples taken in March 1989 of water from wells in Woosung farther away from the Agpro site showed no detectible contamination. Well water samples collected in December 1992, February 1993, May 1993, November 1993, December 1993, January 1999, August 2000, and October 2000 indicated that the level of pesticide contamination in private wells at and immediately surrounding the Agpro site decreased over time beginning shortly after defendants ceased operations. Over time, the plume of contaminated groundwater had moved farther out from the Agpro site, with lower levels of pesticide contamination reaching outlying private wells.

[13]   The trial court found that Schulte admitted in a July 1988 conversation with an IEPA inspector that he intentionally rinsed out the pesticide/fertilizer application vehicles, or "floaters," on the gravel area at the Agpro site. During the same conversation, Schulte also admitted that one of his floaters leaked at least 100 gallons of metolachlor solution onto the ground at the Agpro site. Schulte admitted in a letter that he wrote to the IEPA that, at least prior to July 1988, his floaters were rinsed out at the Agpro site.

[14]   The trial court found credible the trial testimony of Woosung resident and former Agpro employee Paul Biggerstaff. Biggerstaff lived adjacent to the Agpro site for 17 years and worked for Agpro as part-time seasonal help in the early to mid-1980s. Biggerstaff testified that while he was working for Agpro, Agpro employees rinsed out chemical containers onto the ground every day and floaters were routinely emptied of residual product over the drain at the Agpro site.

[15]   Biggerstaff testified about two large spills that occurred during the time that he worked for Agpro and one that occurred after he stopped working for Agpro. Biggerstaff also testified that Agpro floaters leaked their product onto the street and the chemicals collected at the side of the road near his and other houses.

[16]   The trial court also found credible the trial testimony of Bruce Lambert, who at one time worked as a floater driver for Agpro. Lambert testified that the solution produced from rinsing out the inside of the floater "would have gone right on the gravel parking lot with everything else." Additionally, the trial court credited the testimony of Allen Mackey, who related that the floaters were rinsed off and washed out at the Agpro site.

[17]   Further, the trial court found credible the testimony of James Salch, an IEPA project manager and geologist with expertise regarding soil contamination by pesticides and fertilizers. Salch testified to the following factual indicators that defendants' operations and the contaminated soil on the Agpro site caused or contributed to the pesticide and fertilizer contamination of the private water wells in Woosung. Soil samples collected away from the Agpro site were below analytical detection limits for pesticides, showing that the groundwater contamination of the private wells and the soil contamination on the Agpro site did not come from the adjacent fields; the pesticides (alachlor, atrazine, metolachlor, metribuzine, and cyanazine) that were found in the soil samples collected on the Agpro site were also found in the water collected from private wells in Woosung; the private wells where pesticide contamination was detected were all very close or right next to the Agpro site; and the pesticide contamination in the private wells peaked near the time that Agpro ceased operations and has since decreased. However, Salch admitted that he could not determine that the activities of Agpro, as opposed to the prior site operators, were responsible for the contamination found at the Agpro site.

[18]   As to count I of the second amended complaint, the trial court concluded that defendants caused or allowed water pollution in violation of section 12(a) of the Act by discharging contaminants into the environment through spillage, solution from washing trucks, and leakage from trucks at the Agpro site. As to count II, the trial court concluded that defendants deposited contaminants on the land, creating a water pollution hazard in violation of section 12(d) of the Act. As to count III, the State declares that the trial court found that defendants failed to provide required secondary containment areas to prevent the spilling of contaminants in violation of section 12(a) of the Act.

[19]   After reviewing the trial court's order, however, it is unclear to us whether the court found a violation of the Act as alleged in count III. The trial court concluded further that Schulte was personally liable under the Act for the violations Agpro committed when Schulte was president of Agpro. The trial court found that Schulte caused or allowed the contamination of the Agpro site and had control over the pollution or was in control of the area from where the pollution occurred and did not take precautions to prevent the pollution.

[20]   As to the State's request in count IV for recovery of its costs incurred in performing remedial actions at and around the Agpro site, the trial court concluded that section 22.2(f) of the Act (415 ILCS(f) (West 2002)) provided for the recovery of such costs. However, the trial court determined that, although defendants' conduct certainly contributed to the contamination, the evidence did not conclusively show that defendants were the sole source of the contamination of the wells in Woosung. The trial court concluded that defendants were responsible for all the costs incurred by the State prior to July 1, 1996, totaling $54,432.25, and entered a joint and several judgment against defendants in that amount.

[21]   The trial court found that Agpro had not been in operation since 1993 and no longer existed as a legal entity; that defendants were not currently engaged in any activities that would require an injunction; that there was no evidence that Schulte had any continuing ownership interest in the Agpro site giving him authority to do anything at the site; and that there was no legal basis to issue an injunction requiring defendants to perform affirmative acts. Therefore, the trial court denied the State's request for injunctive relief.

[22]   The trial court imposed a civil penalty against defendants in the amount of $5,000 and entered a joint and several judgment against defendants in that amount. Lastly, the trial court ordered that defendants reimburse the State for the costs it incurred in bringing the action. The State's appeal and defendants' cross-appeal followed.

[23]   II. ANALYSIS

[24]   A. THE STATE'S CONTENTIONS ON APPEAL

[25]   1. Defendants' Remediation Obligation

[26]   The State's first contention is that the trial court erred in refusing to order defendants to clean up the Agpro site. In its prayer for relief at the conclusion of count I of the second amended complaint, the State requested an order:

[27]   "Ordering AGPRO and David Schulte to conduct a Remedial Investigation and Feasibility Study to determine the nature and extent of the contamination to the surface and groundwaters and the water supply wells of the residences and businesses in the Village of Woosung, and to take all measures necessary to correct the ecological problems, including the removal of all pesticide contaminated soils from the site to a permitted disposal site and the remediation of any contaminated groundwater[.]"

[28]   In counts II and III, the same request was made excluding the remediation of any contaminated groundwater. The trial court gave three bases for denying these requests: (1) there was no legal basis to issue an injunction requiring defendants to perform affirmative acts; (2) Agpro no longer existed; and (3) there was no evidence showing that Schulte had any continuing connection to, or ownership interest in, the Agpro site.

[29]   The State contends that the Act authorized the trial court to order defendants to take affirmative steps to remediate the contamination they caused. The State argues that, given the evidence of a continuing water pollution hazard at the Agpro site due to the contaminated soil, section 42(e) of the Act authorized the trial court to order defendants to take affirmative steps to remediate the Agpro site. Section 42(e) of the Act provides that "[t]he State's Attorney of the county in which the violation occurred, or the Attorney General, may, at the request of the Agency or on his own motion, institute a civil action for an injunction to restrain violations of this Act." 415 ILCS 5/42(e) (West 2000). Defendants assert that the only way to "restrain" a continuing violation of the Act is to order the violator to take steps to put an end to the continuing violation.

[30]   Whether section 42(e) of the Act provides authority for the issuance of a mandatory injunction in this case is a question of statutory interpretation. The cardinal principle of statutory interpretation is that the court must effectuate legislative intent. In re Justin M.B., 204 Ill. 2d 120, 123 (2003). The best indicator of legislative intent is statutory language. In re Justin M.B., 204 Ill. 2d at 123. If the statutory language is plain, the court cannot read limitations or conditions into the ...


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