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People ex rel. Madigan v. Lincoln, Ltd.

Court of Appeals of Illinois, First District, Fourth Division

December 22, 2016

THE PEOPLE OF THE STATE OF ILLINOIS ex rel. LISA MADIGAN, Attorney General of the State of Illinois, Plaintiff-Appellant,
LINCOLN, LTD., an Illinois Corporation; JOHN EINODER; LAND OF LINCOLN DEVELOPMENT COMPANY, an Illinois Corporation; DONALD P. CLARKE; LESLIE E. CLARKE; and VINCENT CAINKAR, Defendants, Land Of Lincoln Development Company, Donald P. Clarke, Leslie E. Clarke, and Vincent Cainkar, Defendants-Appellees; The Village of Ford Heights, an Illinois Municipal Corporation, Intervenor-Defendant.

         Appeal from the Circuit Court of Cook County 04-CH-12782 Honorable David B. Atkins, Judge Presiding

          JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justice Howse concurred in the judgment and opinion.



         ¶ 1 The parties have been litigating for 12 years about a 40-acre landfill that operated in Ford Heights, Illinois, between 2002 and 2007 without a waste disposal permit from the Illinois Environmental Protection Agency (IEPA or agency) and accumulated a mound of debris that is at least 70 feet tall, 1780 feet long, and 800 feet wide. Settled rulings have established that the landfill materials are the type that required a permit and that the operators of the now-shuttered site, who were leasing the land, are liable for remediation and fines to be determined after this second interlocutory appeal. The argument now presented on appeal by the People of the State of Illinois ex rel. Lisa Madigan, Attorney General of the State of Illinois, on behalf of IEPA, is that liability should be extended to the owners of the property and to an individual officer of the owner corporation. The primary landowner is Land of Lincoln Development Corporation (LOLDC). The individual officer is Vincent Cainkar. The People contend that once the landowner was notified by IEPA that the agency believed the landfill needed a permit, the landowner should have obtained a permit itself or forced the facility owner-operator to either get a permit or stop operating and that the landowner's failure to act means it "allowed" open dumping in violation of sections 21(a) and 21(p) of the Environmental Protection Act (Act) (415 ILCS 5/21(a), (p) (West 2002)). The People also contend that because the material has not yet been removed, the landowner has "store[d] or abandon[ed]" waste at an unpermitted landfill in violation of section 21(e) of the Act. 415 ILCS 5/21(e) (West 2002). The People's argument for holding Mr. Cainkar personally liable is that he was either a "responsible corporate officer" of LOLDC, an active participant in the statutory violations, or the "alter ego" of LOLDC. LOLDC and Mr. Cainkar respond that the record indicates LOLDC did not operate, control, or have the capacity to control the landfill operations and that there is no factual basis for taking the extraordinary step of holding the corporation's individual officer personally liable.

         ¶ 2 The Ford Heights property is located south of the City of Chicago, east of Bishop Ford Expressway and north of Lincoln Highway, at or near 2061 East 14th Street. It was and is owned by Leslie E. Clarke, her husband Donald P. Clarke, and LOLDC, which is an Illinois corporation whose shareholders and officers are the Mr. and Mrs. Clarke, Cathy Cainkar, and Cathy's husband, attorney Vincent Cainkar. Mr. Clarke and Mr. Cainkar are cousins. For simplicity, we are referring to the individual corporate officer as Mr. Cainkar and to the corporate and individual property owners collectively as either LOLDC or the landowner. The landfill operations began pursuant to an agreement between Lincoln, Ltd., LOLDC, and the Village of Ford Heights.

         ¶ 3 In a written royalty agreement executed in November 2001, LOLDC's corporate predecessor agreed to give access to its property to the corporate predecessor of Lincoln, Ltd., as the developer of, among other things, a "clean construction or demolition debris landfill." The agreement indicated the developer, which we will refer to as Lincoln, had "the financial resources and technical expertise to engineer, develop, and operate" the proposed facility and would "provide services and sufficient capital to develop the proposed facility." Lincoln also expressly "agree[d] to develop and operate the Facility in compliance with all federal, state and local laws and regulations, and current practices and technology, including conforming with the requirements of the Illinois Environmental Protection Act and the Surface-Mined Land Conservation and Reclamation Act, " and to obtain any required permits. The contract also stated it was "expressly agreed to by the parties that nothing contained herein shall be construed to make the parties hereto partners or joint venturers, nor shall either party be entitled to bind the other in any manner by its actions." Under the contract, Lincoln became obligated to "indemnify, defend and hold Owner harmless from and against all suits, causes of action, claims, damages, judgments, penalties, demands, injunctions, costs, disbursements or expenses (including reasonable attorney's fees) of any kind" whether they be "imposed upon, incurred by or asserted or awarded against the Owner" due to "the ownership or operation of the Facility by the Developer or the release of any substances in violation of any environmental law." Disputes were to be handled through mediation, or, as a last resort, binding arbitration. LOLDC was to receive 27% of Lincoln's gross revenues from disposal at the site and other income.

         ¶ 4 The November 2001 version of the parties' contract misstated Mr. Cainkar's title as corporate president and Mrs. Clarke's title as corporate secretary. One of the People's arguments for holding Mr. Cainkar personally liable is that he "sometimes signed corporate documents using titles held by other people." However, the 2001 contract was not performed on and was superseded by a "Royalty Agreement" between LOLDC and Lincoln dated July 1, 2002, which was executed by Mrs. Clarke with her correct title of president of LOLDC. The plan was for Lincoln to operate its landfill on LOLDC's land for up to 20 years and then cover the accumulated debris to form a ski hill and outdoor recreation facility.

         ¶ 5 Operations began in mid-2002, and within two months, IEPA was inspecting the site. It is undisputed that the material discarded on the property is categorized mostly as "clean construction or demolition debris" within the meaning of the Act and consists of broken brick, concrete, and cinder blocks, and soil, sand, and clay generated from construction or demolition activities. See 415 ILCS 5/3.160, 3.535, 3.385 (West 2002) (defining "waste" and "refuse"). The Act defines "clean construction or demolition debris" as "uncontaminated broken concrete without protruding metal bars, bricks, rock, stone, reclaimed asphalt pavement, or soil generated from construction or demolition activities." 415 ILCS 5/3.160(b) (West 2002). The Act defines "refuse" as "waste" (415 ILCS 5/3.385 (West 2010)) and specifies that "waste" includes "any garbage *** or other discarded material." 415 ILCS 5/3.535 (West 2002). This statute does not define "litter, " but the Litter Control Act defines it as "any discarded, used or unconsumed substance or waste. 'Litter' may include, but is not limited to, any garbage, trash, refuse, debris, rubbish *** or anything else of an unsightly or unsanitary nature, which has been discarded, abandoned or otherwise disposed of improperly." 415 ILCS 105/3(a) (West 2002).

         ¶ 6 Title V of the Act addresses refuse disposal and land pollution. 415 ILCS 5/20 et seq. (West 2002). Section 21 of Title V lists various prohibited acts. 415 ILCS 5/21 (West 2002). Subsection 21(e) (415 ILCS 5/21(e) (West 2002)) prohibits as follows:

"No person shall:
** *
e. Dispose, treat, store or abandon any waste, or transport any waste, or transport any waste into this State for disposal, treatment, storage or abandonment, except at a site or facility which meets the requirements of this Act and of regulations and standards thereunder."

         ¶ 7 Together, subsections 21(a) and 21(p) (415 ILCS 5/21(a), 21(p) (West 2002)) provide:

"No person shall:
(a) Cause or allow the open dumping of any waste.
** *
(p) In violation of subdivision (a) of this Section, cause or allow the open dumping of any waste in a manner which results in any of the following occurrences at the dump site:
(1) litter;
** *
(7) deposition of
(ii) clean construction or demolition debris[.]" 415 ILCS 5/21 (West 2002).

         ¶ 8 Under the Act, the term "person" includes individuals, corporations, and other entities not relevant here. 415 ILCS 5/3.315 (West 2002). The Act defines "open dumping" as "the consolidation of refuse from one or more sources at a disposal site that does not fulfill the requirements of a sanitary landfill." 415 ILCS 5/3.305 (West 2002).

         ¶ 9 In a letter dated October 3, 2002, IEPA informed LOLDC that the agency deemed the landfill operation to be in violation of environmental statutes, regulations, or permits. The letter offered "SUGGESTED RESOLUTIONS, " such as obtaining an "NPDES" wastewater discharge permit, ceasing all open dumping, and removing all the landfill material within one month. Counsel purporting to represent Lincoln, LOLDC, and Mr. Cainkar responded on November 18, 2002, that the material being accepted at the site was not "waste" as that term was used in the statute requiring a disposal permit, and counsel emphasized that the operation was part of an economic development plan that had been zoned and licensed by the Village of Ford Heights and that it was generating tax revenues for the municipality and eventually jobs at the planned outdoor recreation facility. Mr. Cainkar would subsequently testify, however, that at no time did Lincoln's attorney also represent LOLDC and Mr. Cainkar. In any event, the agency responded on January 22, 2003, that counsel's letter "fails to adequately address the violations listed" and that if they could not reach an agreement, IEPA might refer the matter for enforcement proceedings.

         ¶ 10 In February 2003, Mr. Cainkar lobbied for a legislative amendment that would specifically exclude "clean construction and demolition debris" from the definition of "waste" if the material was "used to construct a recreation facility at a site located within an Enterprise Zone, as certified by the Department of Commerce and Community Affairs, pursuant to a permit issued by a municipality with an equalized assessed valuation of less than $15, 000, 000." It is undisputed that the seemingly general language referred only to the Ford Heights landfill. The People cite Mr. Cainkar's lobbying as an indication that he chose to "allow" open dumping to continue. Mr. Cainkar subsequently wrote a letter to counsel, advising that the IEPA was opposing the proposed legislation by arguing that the owner of Lincoln, John Einoder, was "unscrupulous, among other things." Mr. Cainkar's lobbying was unsuccessful.

         ¶ 11 In June 2003, IEPA again notified LOLDC of the possibility of legal action and that LOLDC could meet with IEPA to attempt to resolve the agency's concerns. One of the agency's concerns was that there was no NPDES permit for the discharge of water from a retention pond to a ditch along the east side of the property. Lincoln had applied for the NPDES permit, and in September 2003, Mr. Cainkar reminded Mr. Einoder by letter that he had failed to follow through on his application, which was in breach of his contractual obligation to develop and operate the facility in compliance with environmental law. Mr. Einoder subsequently obtained the permit.

         ¶ 12 IEPA referred its "waste" findings to the Attorney General for enforcement, and on August 6, 2004, which was nearly two years after IEPA had inspected and offered "SUGGESTED RESOLUTIONS, " the People filed a complaint for injunctive relief and civil penalties against Lincoln, Mr. Einoder, and LOLDC.

         ¶ 13 Within 10 days, LOLDC served Lincoln with notice of default of their royalty agreement and demanded that Lincoln immediately cease operating. Lincoln, however, maintained that its operations were not violating any environmental law, and it refused to shut down. Ten days later, LOLDC repeated the notice, but Lincoln again ignored the property owner's demand. On September 24, 2004, when the People filed a motion for preliminary injunction, LOLDC joined in the People's motion to close the facility and demanded that Lincoln reimburse LOLDC in accordance with the indemnification clause in their royalty agreement. However, in a letter dated October 5, 2004, Lincoln countered that "any agreement [LOLDC reaches] with the State of Illinois to deny Lincoln, Ltd. the access to which it is entitled by contract amounts to a breach of that contract and would entitle Lincoln, Ltd. to damages for the loss of net income from the project and further entitle Lincoln, Ltd. to suspend performance of its obligations [including the indemnification clause] until the breach is cured." A series of hostile letters were then exchanged between LOLDC and Lincoln during October, but LOLDC persistently maintained "we have not and will not sit idly by while [Lincoln acts illegally]" and that none of the royalty agreement provisions "could conceivably be interpreted as requiring the property owners to accede to or cooperate with illegal activities." LOLDC also made clear that it would continue to join in and cooperate with "the State's effort to enjoin [Lincoln's] *** illegal operations." The People, however, failed to obtain a hearing date for their motion to close the facility, and Lincoln continued to operate. Lincoln also rejected LOLDC's indemnification demand (unless LOLDC tendered its defense to Lincoln), at which point LOLDC demanded arbitration in accordance with the royalty agreement. Lincoln, however, also rebuffed LOLDC's demand to arbitrate. LOLDC then filed a motion within the circuit court proceedings for an order compelling Lincoln to arbitrate, and the court granted the order. In the arbitration proceedings, LOLDC again contended Lincoln's operations were illegal and that Lincoln should be ordered to shut down. Lincoln, nonetheless, continued operating. Lincoln took a similar obstructionist tack with respect to the People's action and contended substantial discovery was necessary before the dispute could proceed to hearing. It is unclear from the record and briefs on appeal how the People responded, but according to LOLDC, the People simply allowed their case to "languish for over three years, " and the People have not disagreed with LOLDC's recitation of the facts.

         ¶ 14 In 2007, the People proceeded by moving for partial summary judgment as to whether the accumulated debris was "waste, " and the trial court granted the People's motion. Lincoln appealed in 2007. The Village of Ford Heights was a proponent of Lincoln's landfill operation, and it sought and received leave to intervene in the appeal as Lincoln's co-appellant. Lincoln asked the circuit court for a stay of execution pending the appeal. Lincoln was unwilling or unable to put up an appeal bond, and the circuit court denied the stay. Lincoln then agreed to close the site effective December 12, 2007, without prejudice, provided it could reopen the site if its appeal was successful. The appeal was not successful (People ex rel. Madigan v. Lincoln, Ltd., 383 Ill.App.3d 198, 200, 890 N.E.2d 975, 976 (2008)), and the site has remained closed.

         ¶ 15 After Lincoln and Ford Heights' interlocutory appeal failed, the People sought a permanent injunction that would require, among other things, that Lincoln move all the landfill material to a permitted facility. Several more years passed as the parties prepared for trial on the injunction request by negotiating stipulations and engaging in motion practice. One of the motions, for instance, concerned whether LOLDC could suspend its efforts to arbitrate with Lincoln and instead proceed against Lincoln in court, given that their designated arbitrator had ceased doing business and that the royalty agreement did not provide for the appointment of a successor arbitrator. In 2009, the court vacated its order to arbitrate and granted LOLDC leave to proceed with litigation. That same day, LOLDC filed its counterclaim against Lincoln, seeking, among other things, groundwater monitoring, remediation of its property, indemnification of its various expenses stemming from the unpermitted landfill, an accounting, and approximately $100, 000 in unpaid royalties. This was opposed by a motion to dismiss, then an answer which included affirmative defenses. LOLDC's motion to strike Lincoln's affirmative defenses was granted. By agreed injunctive order which the People, Lincoln, and LOLDC entered into in 2009, LOLDC went to the expense of hiring an environmental consultant who drilled and tested the groundwater for four quarters, and this effort confirmed that there was no contamination coming from the former site of Lincoln's operations.

         ¶ 16 Another dispute was whether the 2007 partial summary judgment imposed liability on LOLDC for the waste Lincoln had accumulated on LOLDC's land. The judge who entered the 2007 order was no longer presiding over the case. In 2011, the judge then presiding ruled that LOLDC's liability had not yet been determined. At this point, the People filed an amended complaint to revise and add claims against LOLDC.[1] In 2012, the court granted LOLDC's motion for partial summary judgment against Lincoln as to its indemnification claim and specified "pursuant to the Royalty Agreement, [LOLDC] had no role in the operation or development in the landfill in question" and "LOLDC did not allow Lincoln to operate illegally." The court concluded, "Lincoln, Ltd. is obligated to indemnify LOLDC for the underlying environmental violations and for reasonable attorney's fees, costs, and expenses of this litigation."

         ¶ 17 Effective July 23, 2012, the Illinois legislature banned the establishment or permitting of any "new municipal solid waste landfill unit or a new sanitary landfill in a county of more than 2, 000, 000 inhabitants." 415 ILCS 5/22.43a (West 2014). This wording encompasses Cook County and thus Ford Heights, Illinois, and the unpermitted landfill at issue.

         ¶ 18 Between late 2012 and early 2014, LOLDC and the People filed cross-motions for partial summary judgment as to the People's amended complaint. The trial court resolved these motions in LOLDC's favor in 2014. When LOLDC filed a subsequent motion for partial summary judgment as to the remaining counts of the People's amended complaint, the court ruled that its previous reasoning was dispositive, and it granted LOLDC's motion. The court clarified that its summary judgment rulings encompassed the Clarkes even though they were not identified by name in the prior rulings. The People asked for reconsideration, but the motion was denied. After that, the court entered an order specifying that there was no reason to delay either enforcement or appeal of its summary judgment rulings as to LOLDC and the People. This interlocutory appeal by the People pursuant to Supreme Court Rule 304(a) followed. Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010).

         ¶ 19 We first address LOLDC's contention that the People concede the appeal by limiting the appellate arguments to only three of the nine counts that were addressed by the summary judgment rulings. LOLDC argues that all nine counts are "inextricably intertwined, and flow from the identical factual basis, " and that by appealing as to only counts X, XIV, and XV, the People concede the correctness of the other counts and thus concede the entire appeal. LOLDC cites the general principle that arguments not raised in an opening brief are waived and shall not be addressed in the appellant's reply brief or a petition for rehearing. Interstate Bank of Oak Forest v. Sluis, 79 Ill.App.3d 1039, 1045, 398 N.E.2d 1015, 1018 (1979); Ill. S.Ct. R. 341(h)(7) (eff. July 1, 2008).

         ¶ 20 We do not find LOLDC's "all or nothing" argument persuasive. It is circular reasoning, and it is not supported by the cited authority. Sluis, 79 Ill.App.3d at 1045, 398 N.E.2d at 1018 (court found that certain arguments were waived by inadequate briefing, but court addressed remaining argument). The People were under no obligation to maintain all their claims on appeal, even if all nine counts were based on one set of common facts. The claims are not dependent upon each other, and the People were free to abandon theories and limit their focus to the claims and arguments they considered most persuasive and likely to succeed. The People did not concede their appeal by concentrating their efforts on three of the nine theories they presented in the trial court. Their arguments, and thus our consideration, concern three counts and are not affected by the status of the other six counts. We will address the merits of the parties' appellate arguments as to counts X, XIV, and XV of the amended complaint.

         ¶ 21 The policy underlying summary judgment proceedings is to streamline litigation, avoid unnecessary trials, and reduce congestion on the court's calendar. Lincoln, 383 Ill.App.3d at 204, 890 N.E.2d at 980. Thus, when the pleadings, depositions, admissions, and affidavits on file, viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law, the entry of summary judgment is appropriate. Lincoln, 383 Ill.App.3d at 204, 890 N.E.2d at 980. In a summary judgment proceeding, the court does not decide factual issues and instead determines whether any exist. Lincoln, 383 Ill.App.3d at 204, 890 N.E.2d at 980. If reasonable persons could disagree about the material facts or diverge on the inferences fairly drawn from those facts, then the court must deny the motion and resolve the facts and inferences at trial. Montes v. Hawkins, 126 Ill.App.3d 419, 423, 466 N.E.2d 1271, 1274 (1984). Summary judgment should be granted only when the right of the moving party is clear and free from doubt. Lincoln, 383 Ill.App.3d at 204, 890 N.E.2d at 980. An appellate court addresses the issues de novo, without any deference to the trial court's findings. Lincoln, 383 Ill.App.3d at 204, 890 N.E.2d at 980.

         ¶ 22 The Illinois legislature enacted the Act to establish a unified, statewide program to restore, protect, and enhance the quality of the environment in Illinois. 415 ILCS 5/2(b) (West 2002). The Act is to be liberally construed to effect its purposes. 415 ILCS 5/2(c) (West 2002); People ex rel. Ryan v. McFalls, 313 Ill.App.3d 223, 226, 728 N.E.2d 1152, 1154 (2000). The General Assembly specified that a primary purpose of the Act is to assure that "adverse effects upon the environment are fully considered and borne by those who cause them." 415 ILCS 5/2(b) (West 2002).

         ¶ 23 As we indicated, the People argued for summary judgment on grounds that LOLDC "allowed" open dumping within the meaning of the Act, and on appeal, this argument is limited to counts X and XV. This argument is about the sufficiency of LOLDC's actions to prevent Lincoln from operating the landfill illegally. The People contend the property owner is liable for allowing open dumping given its "capacity to control" the premises and prevent pollution on its land. They contend the individual property owners were familiar with the Act and had experience in waste disposal matters, given that in 1990, they applied for and received a permit from IEPA to own, develop, and operate a 30-acre landscape waste composting facility on the land at issue and that it did not begin operating that composting business until after receiving the permit. The People contend LOLDC nonetheless chose to let its Ford Heights property be used as a landfill, authorized a prohibited use by agreeing to let Lincoln accumulate debris above ground level, and entered into the July 2002 royalty agreement with Lincoln's principal, Mr. Einoder, despite knowing that he was a defendant in a civil enforcement proceeding. They support this contention with Mr. Cainkar's statements at a deposition in 2007:

"Q. Did you have an understanding that a permit was required by the Illinois Environmental Protection Agency?
A. I don't think I'm really-I mean, I'm not an environmental lawyer. I don't know that I could tell you what-what is or what is not required because that's a changing field of law.
Q. Okay. So you had no idea at all whether Mr. Einoder or Lincoln, Ltd., was required to get a permit from the IEPA in order to do the business that's outlined in the royalty agreement?
A. That is correct. I understood it was their responsibility, and if they needed it, they had to get it.
Q. Do you know if any types of permits were ever given to Lincoln, Ltd., or to Mr. Einoder from the IEPA?
A. I have-I don't know.
Q. Were you aware, at the time that the royalty agreement was signed, that Mr. Einoder was involved in any litigation with the Illinois Environmental Protection Agency?
A. I was-
Q. I would say Mr. Einoder and [his corporation]?
A. I was aware that Mr. Einoder was involved in some litigation involving another facility located east of us. I don't know who the litigation was with.
Q. You don't know the subject of the litigation?
A. No."

         The People also cite a letter written in late 2002 indicating that IEPA violation notices had been sent to Mr. Einoder regarding his other waste site in Lynwood, Illinois, and that he was disputing whether the statutory definitions of "waste" and "grade" were sufficiently clear and definite to prohibit the way he was using that other property. The People argue that LOLDC was aware that a permit was necessary, as demonstrated by the violation notices that LOLDC received from IEPA and Mr. Cainkar's lobbying for a legislative change. LOLDC, however, failed to ensure that Lincoln obtain a permit and did not require Lincoln to shut down until after the People filed suit. Thus, LOLDC "ignored warning signs and condoned continued dumping, " which leads the People to conclude that LOLDC "allowed" open dumping of the clean general construction or demolition debris within the meaning of sections 21(a) and (p) of the Act. 415 ILCS 5/21(a), (p) (West 2002).

         ¶ 24 We are not persuaded by the People's argument. The argument is flawed in part because it is irrelevant whether some of the individual property owners were familiar with the Act or had prior experience with the permitting process, because knowledge, awareness, or intent are not elements of a violation of section 21(a) and (p) of the Act. See Phillips Petroleum Co. v. Pollution Control Board, 72 Ill.App.3d 217, 220, 390 N.E.2d 620, 623 (1979). Liability is found when IEPA shows the alleged polluter had the capability of controlling the pollution or at least had control of the premises where the pollution occurred. Phillips Petroleum, 72 Ill.App.3d at 220, 390 N.E.2d at 623.

         ¶ 25 A case illustrating the "capacity to control" is Phillips Petroleum, in which IEPA filed an administrative action against the owner of a train tank car that derailed in Glen Ellyn, Illinois, and released a tankerful of noxious gas, which caused personal injuries and property damage. Phillips Petroleum, 72 Ill.App.3d at 218, 390 N.E.2d at 622. The owner had entrusted its property into the hands of a railroad company for delivery to a consignee in Wisconsin. Phillips Petroleum, 72 Ill.App.3d at 220, 390 N.E.2d at 623. The Illinois Pollution Control Board ruled that the owner was liable for the emission of its gas, but on appeal, the court found that at the time the derailment occurred, the tank owner was not in "sufficient control over the source of the pollution" for liability to attach. Phillips Petroleum, 72 Ill.App.3d at 220-21, 390 N.E.2d at 623. Consistent with this holding is Meadowlark, which involved water pollution that took place when rain seeped through mine refuse piles, creating acidic runoff, in violation of section 12(a) of the Act. Meadowlark Farms, Inc. v. Pollution Control Board, 17 Ill.App.3d 851, 854, 308 N.E.2d 829, 831 (1974). The court emphasized that the respondent company owned the refuse piles, which had accumulated for many years, that the rain seepage from the piles killed fish, and that the company "had the capability of controlling the pollutional discharge." Meadowlark, 17 Ill.App.3d at 861, 308 N.E.2d at 836.

         ¶ 26 The standard requiring a defendant to have exercised sufficient control over the source of the pollution is repeated in various cases the People now cite as reason to hold LOLDC liable for the landfill materials that were improperly discarded on its property. See People v. Fiorini, 143 Ill.2d 318, 346, 574 N.E.2d 612, 623 (1991) ("The analysis applied by courts in Illinois for determining whether an alleged polluter has violated the Act is whether the alleged polluter exercised sufficient control over the source of the pollution."); People v. Brockman, 143 Ill.2d 351, 373, 574 N.E.2d 626, 635 (1991) (citing authority from various jurisdictions for the proposition that there is an "oft-stated rule that liability for the pollution requires that the defendant be in control of the pollution"); People v. A.J. Davinroy Contractors, 249 Ill.App.3d 788, 793, 618 N.E.2d 1282, 1286 (1993) ("The State must show that the alleged polluter has the capability of control over the pollution or that the alleged polluter was in control of the premises where the pollution occurred."); Gonzalez v. Pollution Control Board, 2011 IL App (1st) 093021, ¶ 33, 960 N.E.2d 772 (citing A.J. Davinroy, 249 Ill.App.3d at 793).

         ¶ 27 However, none of the cases the People cite provide reasoning to hold a property owner liable for environmental violations committed by or under the watch of a separate facility operator. The first case, Fiorini, involved property owners who were operating a waste dump on their own property just west of Ottawa, Illinois, which became the subject of an IEPA enforcement action, and the issue was whether those owner-operators could maintain an action against third parties who were alleged to have improperly generated, transported, or otherwise arranged for the dumping of demolition debris on the property. Fiorini, 143 Ill.2d 318, 574 N.E.2d 612. LOLDC was neither the owner-operator of a waste facility nor a dumper, and Fiorini's analysis of third-party action concepts such as contribution and indemnity is not relevant to whether IEPA was entitled to summary judgment against LOLDC for what occurred while Lincoln was using LOLDC's land. Fiorini, 143 Ill.2d 318, 574 N.E.2d 612. Similarly, Brockman was ...

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