THE PEOPLE ex rel. LISA MADIGAN, Appellee,
J.T. EINODER, INC., et al., Appellants
Richard J. Prendergast, Seamus C. Prendergast, Lionel W. Weaver and Brian C. Prendergast, of Richard J. Prendergast, Ltd., of Chicago, for appellants.
Lisa Madigan, Attorney General, of Springfield (Carolyn E. Shapiro, Solicitor General, and Christopher M.R. Turner, Assistant Attorney General, of Chicago, of counsel), for the People.
JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.
[¶1] On July 19, 2000, the Attorney General for the State of Illinois on his own motion and at the request of the Illinois Environmental Protection Agency (IEPA), filed a complaint in the circuit court of Cook County against J.T. Einoder, Inc. (JTE) and Tri-State Industries, Inc. (Tri-State), alleging that JTE and Tri-State were operating a solid waste disposal site without a permit, in violation of the Environmental Protection Act (Act). 415 ILCS 5/1 et seq. (West 2000). Subsequently, in an amended complaint filed on January 31, 2005, John Einoder, the sole owner and operator of Tri-State, and Janice Einoder, the principal owner and president of JTE, were added to the suit as party defendants in their individual capacities.
[¶2] After several years of litigation, the circuit court ruled in the State's favor, holding that defendants had violated the Act by engaging in open dumping and by permitting the deposit of construction and demolition debris (CDD) waste above grade without a permit. Monetary penalties were imposed on each defendant. In addition, the court granted the State's request for mandatory injunctive relief, ordering defendants to remove any and all material deposited above grade at the site.
[¶3] Defendants appealed and the appellate court affirmed the circuit court's judgment, with one justice concurring in part and dissenting in part. 2013 IL App. (1st) 113498, 377 Ill.Dec. 816, 2 N.E.3d 1097.
[¶4] We granted defendants' petition for leave to appeal. For reasons explained below, we affirm in part and reverse in part the judgment of the appellate court.
[¶6] The essential facts of this case are not in dispute. In 1993, a 40-acre parcel of land located near the intersection of Rt. 30 and Rt. 83, in unincorporated Lynwood, Illinois (the Lynwood site), was purchased by John Einoder and placed in a land trust for the benefit of Tri-State. The property, which contained a large sand pit, was developed into a construction and demolition resource recovery facility and landfill using leased equipment and operators provided by JTE, a closely held corporation owned by Janice Einoder (90%) and John Einoder (10%).
[¶7] Sometime in 1995 the site began accepting general construction and demolition debris (GCDD), and clean construction
and demolition debris (CCDD). Soon thereafter, the IEPA received a complaint that open dumping was taking place at the site. As a result, Gino Bruni, an inspector for the IEPA, visited the site in December 1995. After inspecting the site, Bruni filed a report indicating that, at the time of inspection, approximately " 500,000 cubic yards of wood, asphalt, brick, concrete and scrap metal" had been deposited at the site. A citation was issued to Tri-State for open dumping without a permit.
[¶8] In 1996, JTE installed an Eagle 1400, which is a large waste processing machine, at the Lynwood site. Janice Einoder then contacted the Bureau of Land (BOL) at the IEPA to notify them that the site was now an operational recycling facility for GCDD and CCDD. JTE submitted a proposal to the IEPA, seeking to have the site designated as a recycling facility. In response to the proposal, Edwin Bakowski, manager of the permit section at the BOL, sent a letter to " J.T. Einoder, Attn: Janice T. Einoder." In the letter Bakowski stated: " Certain recycling activities do not require a Bureau of Land permit, however, facilities not requiring a permit may only receive recyclable materials *** which have an established market and are not mixed with solid waste prior to receipt." The letter noted that the site could operate as a recycling facility without a permit only if JTE revised its proposal and agreed to accept solely CCDD, scrap metal, or harvested or untreated wood. Bakowski noted that, according to JTE's proposal, the site was accepting nonrecyclable GCDD materials in addition to recyclable CCDD materials. According to Bakowski, in this situation--where the recyclable and nonrecyclable materials are comingled prior to their arrival at the facility-- all of the material is designated as " solid waste" and the facility would require a permit as a " waste transfer station."
[¶9] The IEPA continued to make inspections of the site and on December 11, 1996, sent a Violation Notice Letter (VNL-1996-01190), to Tri-State and JTE, pursuant to section 31(a)(1) of the Act (415 ILCS 5/31(a)(1) (West 1996)). In the notice, the IEPA alleged that Tri-State and JTE were operating an open dump/solid waste disposal site without a permit in violation of environmental statutes, regulations, or permits. After receiving this notice, John and Janice Einoder, as well as attorneys representing Tri-State and JTE, engaged in numerous phone conversations, written correspondence, and personal meetings with several IEPA representatives in an effort to address the Violation Notice and determine what, if any, permits needed to be obtained and what action needed to be taken for the site to be in compliance with IEPA regulations. No consensus was reached.
[¶10] According to the record, the Lynwood site received 9,763 loads of waste (nearly all CCDD) during the period of January 1998 to May 1998. All of this waste was deposited at the sand pit as fill so that, by May 1998, the waste had grown into a " hill" which was 40 feet above grade.
[¶11] In April 1998, new Violation Notice Letters were sent to Tri-State and JTE. In response, John and Janice Einoder again met with IEPA representatives to discuss the alleged violations. Subsequently,
the Einoders submitted a remediation proposal to the Agency. That proposal, however, was rejected. As a result, on August 20, 1998, the IEPA sent JTE a Notice of Intent to Pursue Legal Action, pursuant to section 31(b) of the Act (415 ILCS 5/31(b) (West 1996)), stating that the IEPA was " providing this notice because it may pursue legal action against ...