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Illini Environmental, Inc. v. The Environmental Protection Agency

Court of Appeals of Illinois, Fifth District

October 3, 2014

ILLINI ENVIRONMENTAL, INC., Plaintiff-Appellant,

Motion to publish granted, October 3, 2014.

Corrected, October 7, 2014.

Rule 23 order filed August 11, 2014.

Page 901

Appeal from the Circuit Court of St. Clair County. No. 11-MR-178. Honorable Richard A. Aguirre, Judge, presiding.


In an appeal arising from a trial court's orders with respect to plaintiff's actions in the course of its operations as a solid waste management facility that did not have the Environmental Protection Agency's permission to receive or treat hazardous waste, the appellate court affirmed various orders and decisions of the trial court, including an order denying plaintiff's claim that the doctrine of res judicata barred an enforcement action on a notice of violation concerning the labeling of waste plaintiff was transporting, the decision that the Agency did provide the required statutory notice that it rejected plaintiff's compliance commitment agreement, the trial court's conclusion that plaintiff could not establish that certain waste it was transporting was not hazardous and that the Agency actually knew the waste was hazardous, and the trial court's denial of plaintiff's motion for summary judgment on its claim that the Agency improperly published a notice of a violation by plaintiff on the Agency's website.

For Appellant: Joseph M. Kellmeyer, Brian C. Stone, Thompson Coburn LLP, St. Louis, MO.

For Appellee: Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro, Solicitor General, Christopher M. R. Turner, Assistant Attorney General, Chicago, IL.

JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Presiding Justice Welch and Justice Cates concurred in the judgment and opinion.


Page 902


[¶1] Illini Environmental, Inc. (Illini), appeals from the trial court's May 6, 2013, order denying its motion for summary judgment. On appeal, Illini argues that dismissal of an enforcement action filed by the Illinois Environmental Protection Agency (EPA or Agency) against Illini was res judicata on certain issues of fact in Illini's declaratory judgment action. Illini claims that the EPA accepted its proffered " Compliance Commitment Agreement" and therefore cannot pursue enforcement

Page 903

on one of the two violation notices. Illini also argues that the trial court erred in finding that Illini was responsible for determining whether waste was hazardous. Illini further argues that the trial court erred in concluding that Illini violated Illinois law in listing itself as a generator of waste that it transported from another company to an Illinois landfill. Finally, Illini argues that the trial court was incorrect in concluding that the Illinois EPA complied with applicable law when it posted information on its website about Illini's violations. We affirm.

[¶2] FACTS

[¶3] Illini is an Illinois corporation based in Caseyville. Illini operates a solid waste management facility, but does not have EPA permission to receive or treat hazardous waste.

[¶4] 2010 Violation--SG Solutions

[¶5] In early May 2010, an Illini vehicle went to Indiana to pick up waste from SG Solutions. SG Solutions previously tested the waste and learned that it contained hazardous levels of arsenic and chromium. SG Solutions properly labeled the drums as containing hazardous waste. When the Illini driver arrived, he delivered an Illini-generated manifest for these drums of waste. The manifest indicated that the waste Illini was to transport was nonhazardous. The Illini driver changed the identification labels on the drums to nonhazardous to match the manifest and then obtained the signature of an SG Solutions agent on Illini's manifest. Illini transported the waste to its Caseyville facility and then processed the waste by mixing it with other waste to create a solid. Illini shipped the new solidified waste to an Illinois landfill. The records that went with the solidified waste to the landfill indicated that the waste was not special or hazardous.

[¶6] Sometime later, SG Solutions reported to the EPA that Illini's documentation mislabeled the waste it picked up as nonhazardous. SG Solutions reanalyzed the waste samples and reached the same conclusion it had previously reached that the waste was hazardous. Thereafter, in September 2010, the EPA issued a notice of violation (Notice 01282) to Illini indicating that Illini violated several Illinois Pollution Control Board (Board) regulations and a condition of its permit. Additionally, the EPA alleged that Illini violated several subsections of section 21 of the Environmental Protection Act (Act) by treating hazardous waste without a permit to do so. 415 ILCS 5/21(d), (e), (f) (West 2008). The EPA asked Illini to cease accepting and treating hazardous waste.

[¶7] The EPA issued a separate notice to SG Solutions for its involvement.

[¶8] Illini responded and denied that it had violated the Act or the Board regulations, and denied that the waste was hazardous. Illini requested a meeting to address Notice 01282. The EPA agreed to the meeting, explaining that Illini must provide a written response following the meeting and propose a " Compliance Commitment Agreement" (CCA) containing a timeline for achieving compliance. The EPA held the meeting, and afterwards Illini sent a letter in November 2010 denying all violations. In the letter, Illini stated that it was going to purchase a computer system for cross-checking customer waste profiles against shipment manifests in order to mitigate the chance for miscommunication. The EPA treated Illini's letter as its CCA and sent its response. In this letter, the EPA mistakenly identified the company that submitted the proposed CCA as SG Solutions instead of Illini. The EPA rejected the proposed CCA. Acknowledging its mistake, the EPA claims that despite the misnomer, its rejection

Page 904

operated as a rejection of Illini's November 2010 CCA.

[¶9] On March 1, 2011, the EPA sent Illini a notice of its intent to pursue legal action.

[¶10] 2011 Violation--Tri-Rinse

[¶11] In December 2010, Illini picked up a load of liquid waste from a Missouri facility, Tri-Rinse, and brought it back into Illinois for disposal in Jackson County. Upon accepting the load of waste, Illini terminated the manifest offered by Tri-Rinse and created a substitute one that identified Illini--not Tri-Rinse--as the generator of the waste. After leaving the liquid waste at the Jackson County, Illinois, facility for solidification and disposal, an apparent chemical reaction occurred, resulting in the evacuation of several homes and hospitalization of some of the residents.

[¶12] The EPA then issued a notice of violation to Illini (Notice 01008) informing Illini that it violated administration regulations by not identifying the actual generator of the waste on the manifest. The EPA also made written demand to Illini that it correctly identify the generator of any waste Illini picks up for disposal. Specifically, the EPA directed Illini to list itself as the generator only if Illini generated the waste in its Caseyville facility. The EPA rejected Illini's CCA. Illini refused to meet with the EPA to discuss this violation. The EPA notified Illini that it intended to pursue legal action.

[¶13] Court Proceedings

[¶14] Declaratory Judgment Action

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