People v. J.T. Einoder, Inc.

Illinois Official Reports

Appellate Court

People ex rel. Madigan v. J.T. Einoder, Inc., 2013 IL App (1st) 113498

Appellate Court THE PEOPLE ex rel. LISA MADIGAN, Attorney General of the

Caption State of Illinois, Plaintiff-Appellee and Cross-Appellant, v. J.T.

EINODER, INC., an Illinois Corporation, TRI-STATE

INDUSTRIES, INC., an Illinois Corporation, JOHN EINODER, an

Individual, and JANICE EINODER, an Individual, Defendants-

Appellants and Cross-Appellees.

District & No. First District, Third Division

Docket No. 1-11-3498

Filed December 11, 2013

Held In an action arising from defendants’ operation of an unpermitted

(Note: This syllabus landfill, the trial court’s subject matter jurisdiction was not affected by

constitutes no part of the the Environmental Protection Agency’s failure to notify defendants

opinion of the court but that they would be sued in their individual capacities, defendants’

has been prepared by the contention that a permit was not required for their operations was

Reporter of Decisions properly rejected, the evidence established that defendant wife

for the convenience of participated in the alleged violations along with her husband, and the

the reader.) entry of a mandatory injunction requiring the removal of the

above-grade waste and the penalties and fines were upheld, but the

appellate court rejected the State’s contention that defendants should

have been ordered to take corrective action in the event groundwater

contamination was discovered.

Decision Under Appeal from the Circuit Court of Cook County, No. 00-CH-10635; the

Review Hon. Richard J. Billik, Jr., Judge, presiding.

Judgment Affirmed.

Counsel on Richard Prendergast and Seamus Prendergast, both of Richard J.

Appeal Prendergast, Ltd., of Chicago, for appellants.

Lisa Madigan, Attorney General, of Chicago (Brett E. Legner,

Assistant Attorney General, of counsel), for appellee.

Panel PRESIDING JUSTICE HYMAN delivered the judgment of the court,

with opinion.

Justice Neville concurred in the judgment and opinion.

Justice Mason concurred in part and dissented in part, with opinion.

OPINION

¶1 Plaintiff-appellee and cross-appellant, the State of Illinois, filed a seven-count complaint

against defendants-appellants and cross-appellees J.T. Einoder, Inc. (JTE), Tri-State

Industries, Inc. (Tri-State), John Einoder (John), and Janice Einoder (Janice) (together, the

Einoders), arising out of defendants’ operation of an unpermitted landfill near Lynwood,

Illinois. Following a bench trial, the court found in favor of the State on the first five counts, all

of which generally alleged defendants had engaged in waste disposal or dumping operations

above grade without a permit. The circuit court directed a verdict in favor of defendants on

counts VI and VII, which alleged that defendants failed to properly notify and document the

general construction and demolition debris accepted at the landfill and failed to perform a

hazardous waste determination. The court ordered mandatory injunctive relief in the form of

removal of the waste above grade and groundwater testing, and assessed fines of $500,000

each against John and JTE; $750,000 against Tri-State; and $50,000 against Janice, which was

later reduced to $27,300 on reconsideration.

¶2 On appeal, defendants contend: (1) the Illinois Environmental Protection Agency’s failure

to give notice of its intent to pursue legal action against the Einoders in their individual

capacities as required by sections 31(a)(1) and (b) of the Environmental Protection Act (Act)

(415 ILCS 5/31(a)(1), (b) (West 2010)), deprived the court of subject matter jurisdiction; (2)

no permit was required for the above-grade disposal of clean construction and demolition

debris during the time the Lynwood site was operational; (3) the evidence was insufficient to

find Janice personally liable for violations of the Act; (4) the court erred in entering a

mandatory injunction ordering removal of the waste above grade; and (5) the penalties and

fines assessed were unduly harsh.

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¶3 The State cross-appeals on the ground that the circuit court erred when, in addition to

periodic groundwater testing, it failed to order defendants to take corrective action in the event

that contamination of groundwater is found. For the reasons that follow, we affirm the circuit

court’s order and reject the State’s contention on cross-appeal.

¶4 BACKGROUND

¶5 The source of this controversy is a 90-foot hill located on a 40-acre site south of Lincoln

Highway and east of Torrence Avenue in unincorporated Cook County near Lynwood, Illinois.

From afar, the hill appears to be covered with vegetation and soil, but erosion gullies reveal

that buried beneath this layer of greenery is construction and demolition debris (CDD).

¶6 CDD is a general term encompassing both clean construction and demolition debris

(CCDD) as well as general construction demolition debris (GCDD). During the time the site

was operational, CCDD referred to uncontaminated broken concrete without protruding metal

bars, bricks, rock, stone, reclaimed asphalt pavement, or dirt or sand (later amended to soil)

generated from construction or demolition activities (415 ILCS 5/3.78a (West 1998)), while

GCDD included nonhazardous, uncontaminated materials resulting from construction,

remodeling, repair and demolition activities, limited to such items as bricks, concrete, wood,

and plaster (415 ILCS 5/3.78 (West 1998)).

¶7 The hill was formerly a sandpit that was purchased in 1993 and held in a land trust for the

benefit of Tri-State, which is wholly owned and operated by its president, John. JTE, a closely

held corporation, often leased equipment and operators to Tri-State for use at the site. During

the relevant time period, Janice owned 90% of JTE and also served as its president, while John

owned 10% and served as secretary.

¶8 The Lynwood site first came to the attention of the Illinois Environmental Protection

Agency (Agency) in 1995, when the Agency received anonymous reports of open dumping.

Gino Bruni, an environmental professional specialist for the Agency, testified that he first

visited the site in December 1995 in response to these reports. At that time, he issued a citation

for dumping without a permit. Similar citations followed his visits in 1996 and 1997.

¶9 In March 1996, JTE proposed to begin a recycling operation at the site. This recycling

operation would entail receiving CDD at the site, separating and processing it, and returning

the material to the economic mainstream. In response to JTE’s proposal, Edwin Bakowski, the

manager of the permit section for the Bureau of Land at the Agency, sent a letter to JTE to the

attention of Janice in which he explained the circumstances under which a recycling facility

could operate without a permit. He was concerned because JTE’s proposal indicated it would

accept nonrecyclable materials and he informed JTE that it could operate the facility without a

permit only if it revised its proposal to accept solely CCDD. At the time, CCDD was defined as

uncontaminated concrete, brick, stone, and reclaimed asphalt.

¶ 10 Several months later in June 1996, a hearing was held before the Cook County zoning

board (Board) regarding JTE’s application to operate a recycling facility for construction and

demolition debris at the site. At the hearing, Janice testified to her experience in operating

recycling facilities–three years–and also provided details as to the proposed hours of the

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facility’s operation, the number of employees, and the entities expected to deposit materials for

recycling. The Board recommended that the application be granted, but there is conflicting

evidence in the record as to the extent and duration of the facility’s operation.

¶ 11 In the meantime, Bruni continued to return to the site for follow-up visits because the

Agency remained concerned about the type of material the site was accepting. On March 25,

1998, Bruni had the opportunity to observe the site’s operations from 7 a.m. to 12:30 p.m. That

morning, 205 truckloads of construction and demolition debris were brought onto the site.

Defendants generally charged between $25 to $40 per truckload of debris and between $75 to

$150 for “hard to handle” loads. That morning, all but one load consisted of CCDD. The

remaining load consisted of GCDD, which includes wood, drywall and scrap metal. A

recycling machine known as the Eagle 1400 was located at the bottom of the sandpit, about 40

feet below ground. That machine was processing some GCDD. On that occasion, Bruni

observed that the debris above grade covered an area 100 yards by 50 yards and was 5 yards

deep.

¶ 12 Paul Purseglove, employed by the Agency as a field operations manager in the Bureau of

Land, accompanied Bruni on his March 25 site visit. Purseglove spoke to John, who

demonstrated the use of the Eagle 1400. While Purseglove was happy with John’s plans for a

recycling facility, he expressed concern with regard to the fill operation that was taking place.

Purseglove observed that about 5 acres of the 40-acre pit had been filled with CCDD, and the

pile was beginning to grow above grade. John reassured Purseglove that the material above

grade would be compacted.

¶ 13 According to Purseglove, “grade” refers to the elevation of the ground in a specific area,

expressed in terms of feet above mean sea level (MSL). At the site, grade was 631 MSL.

Purseglove initially explained that while an amendment to the Act in 1997 exempted

below-grade disposal of CCDD from permit requirements, in 1998 a permit was still required

for CCDD disposed above grade. Somewhat contradictorily, Purseglove testified at trial that

the permit for CCDD came into effect in 2005 or 2006. Later, he clarified:

“[A]s of 2005, 2006 you are required to have a permit to put it [CCDD] below grade.

Earlier on when this matter came to issue there was no permit required to put clean

construction and demolition debris below-grade. But there has always been a

requirement to have a permit when you start going above-grade. And that’s one of the

problems with this site, that Mr. Einoder went above-grade *** and did not have a

permit to do that.”

CDD, in contrast, requires a permit for disposal both above and below grade.

¶ 14 Following the March inspections, the Agency sent a violation notice to Tri-State to the

attention of John and Janice on April 17, 1998. The notice generally alleged the dumping and

disposal of waste without a permit as required by section 21 of the Act. 415 ILCS 5/21 (West

2010). Defendants responded with a remediation proposal, which the Agency rejected in July

1998.

¶ 15 On August 20, 1998, the Agency sent a notice of intent to pursue legal action to JTE

addressed to the attention of John and Janice, based on charges that open dumping of waste

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was occurring and waste disposal operations were being conducted without a permit in

violation of the Act. The Agency had learned from one of Bruni’s inspections that between

January 1998 and May 11, 1998, 9,763 loads of waste had been deposited at the site.

¶ 16 Defendants successfully persuaded the Agency to dig 10 test pits at the site to determine

the content of the material being used as fill before bringing suit. The digging occurred in

November 1998 and the inspection followed one month later. The vast majority of the material

unearthed was CCDD, with less than 0.1% of GCDD.

¶ 17 After sporadic inspections in 1999 and 2000 revealed a growing pile of CCDD above

grade, the Illinois Attorney General eventually brought suit against Tri-State and JTE in July

2000. The complaint alleged that suit was brought by the Attorney General both on her own

motion and at the request of the Agency. The complaint contained allegations of open

dumping; conducting waste disposal operations without a permit; development and operation

of a solid waste management site without a permit; disposal of waste at an unpermitted site;

causing or allowing litter; failing to properly notify and document the GCDD accepted at the

site and failing to limit percentage of nonrecyclable CDD; and failing to perform a hazardous

waste determination.

¶ 18 Following the filing of the complaint, the State moved for a temporary restraining order

and a preliminary injunction to halt the continued disposal of CCDD above grade. In April

2001, the court granted the motion in part and enjoined defendants from allowing open

dumping of waste and conducting waste disposal operations that were not otherwise allowed as

part of the recycling operation allegedly occurring at the site. Nevertheless, defendants

continued to accept materials for disposal based on their belief that the term “grade” as used in

the Act was vague and therefore, their conduct was not prohibited. In 2002, John revealed to

Bruni that the site was receiving about 20 to 40 loads of CDD per day. It was not until

sometime in 2003 that the site ceased operations, at which point Purseglove estimated that the

site contained 48,000 truckloads of waste.

¶ 19 In 2005, the State amended its complaint to include the Einoders as defendants in their

individual capacities, notwithstanding the fact that the Agency had never sent either John or

Janice a notice of intent to take legal action. At trial, Ronald Schlossberg, an environmental

investigator for the Illinois State Police who investigated criminal violations of the Act,

testified that in his investigation of the Lynwood site, he learned that Janice was not involved

in its “actual operation.”

¶ 20 Janice likewise denied having any personal involvement at the site, testifying that she

visited the Lynwood facility only 12 to 15 times in 10 years. During those visits, she would

accompany John and she would usually wait in the car while he conducted business, though on

some occasions she distributed paychecks or Christmas gifts to employees. Janice stated that

John managed the daily operations through his company, Tri-State. With regard to JTE’s

involvement, Janice explained that it was limited to leasing equipment for use at the site to

Tri-State, the owner of the property.

¶ 21 On cross-examination, Janice admitted that she executed 273 contracts on behalf of JTE

for the recycling and disposal of material at the site between 1996 and 2002, but testified that

she signed these forms at the suggestion of her insurance company to protect JTE from liability

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if its equipment operators were injured. Janice also acknowledged that numerous letters and

documents sent to the Agency listed JTE as the owner or operator of the site.

¶ 22 The circuit court ultimately found for the State on all counts related to disposal of waste

and operation of a waste disposal site without a permit, but directed a verdict in favor of

defendants on the issues of whether defendants failed to properly notify the Agency and

document the GCDD accepted at the landfill and failed to perform a hazardous waste

determination.

¶ 23 After the court ruled on liability, the parties proceeded to the remedies phase of the

bifurcated trial. The State sought an injunction ordering defendants to remove the waste pile

and undertake groundwater testing, and, in the event contamination of the groundwater was

found, to take corrective action. In addition, the State asked for $5 million in fines against all

defendants.

¶ 24 Defendants, through the testimony of their consulting engineer, John Lardner, maintained

that capping the site would be a more environmentally sound remedy. Capping refers to the

process of covering a landfill with clay, topsoil, and vegetation. Lardner explained that

removal of the waste pile would require excavation and could take three to four years to

complete. Additionally, the numerous truckloads of material that would need to be transported

to other landfills would release pollution into the atmosphere. In contrast, capping would cause

little disturbance to the land and would allow the site to be used by the community, perhaps as

a sled hill.

¶ 25 After hearing additional testimony from Lynwood village leaders and the Einoders’ son,

the circuit court issued a 38-page written ruling granting the State’s request for a mandatory

injunction and ordered defendants to remove the above-grade waste pile and undertake

groundwater testing. The court also imposed fines of $750,000 against Tri-State, $500,000

each against JTE and John, and $50,000 against Janice, later reduced to $27,300 on

reconsideration. Defendants timely filed this appeal.

¶ 26 ANALYSIS

¶ 27 Subject Matter Jurisdiction

¶ 28 We first address defendants’ challenge to the trial court’s subject matter jurisdiction, which

is based on the Agency’s failure to satisfy the notice requirements of sections 31(a)(1) and

31(b) of the Act with respect to John and Janice in their individual capacities. Because this

issue presents a question of law, we exercise de novo review. Crossroads Ford Truck Sales,

Inc. v. Sterling Truck Corp., 2011 IL 111611, ¶ 26.

¶ 29 Section 31(b) provides:

“as a precondition to the Agency’s referral or request to the Office of the Illinois

Attorney General or the State’s Attorney of the county in which the alleged violation

occurred for legal representation regarding an alleged violation *** the Agency shall

issue and serve, by certified mail, upon the person complained against a written notice

informing that person that the Agency intends to pursue legal action.” (Emphasis

added.) 415 ILCS 5/31(b) (West 2010).

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It is undisputed that the Agency never sent notice to John and Janice in their individual

capacities prior to naming them as defendants in their amended complaint filed on January 31,

2005. John and Janice filed a motion to dismiss the amended complaint, which was granted as

to Janice. The State then filed a second amended complaint on August 4, 2005, again naming

Janice as a defendant, which withstood another motion to dismiss. What is disputed is whether

this notice requirement is jurisdictional. We hold that it is not.

¶ 30 Because our constitution provides that circuit courts have jurisdiction of all justiciable

matters (Ill. Const. 1970, art. VI, § 9), courts do not have to depend on a statute for

jurisdictional authorization (Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 530 (2001)). Stated

differently, since jurisdiction is conferred by the constitution, the legislature cannot, except in

the area of administrative review, impose conditions precedent on the exercise of that

jurisdiction by way of statute. Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199

Ill. 2d 325, 335 (2002).

¶ 31 The cases on which defendants rely in support of their contention that the notice

requirement is a jurisdictional prerequisite concern either review of an administrative agency’s

jurisdiction (Illinois Power Co. v. Pollution Control Board, 137 Ill. App. 3d 449 (1985);

Wabash & Lawrence Counties Taxpayers & Water Drinkers Ass’n v. Pollution Control Board,

198 Ill. App. 3d 388 (1990)), or the circuit court’s jurisdiction to review an administrative

agency’s decision (Fredman Brothers Furniture Co. v. Department of Revenue, 109 Ill. 2d 202

(1985)), and as such, are inapposite. For example, in Fredman Brothers, the supreme court

held that the timely filing of an appeal was essential to the circuit court’s exercise of

jurisdiction where the court was called on to review a decision of the Department of Revenue

pursuant to the court’s special statutory authority. Fredman Brothers, 109 Ill. 2d at 209-10.

The same is not true here. The circuit court was not reviewing a decision of the Agency, but

was exercising original jurisdiction over the controversy between the Agency and defendants.

Accordingly, the failure of the Agency to comply with the statutory notice requirement did not

deprive the court of subject matter jurisdiction and defendants’ argument in this regard must

fail. See In re Custody of Sexton, 84 Ill. 2d 312, 319-21 (1981).

¶ 32 Our decision also finds support in the distinction between directory and mandatory

statutory provisions. A statutory provision is mandatory if the legislative intent was to impose

a particular consequence for failing to comply with the provision. People v. Borys, 2013 IL

App (1st) 111629, ¶ 24. Generally, a procedural command to a government official is

presumed directory; however, this presumption may be overcome if: (1) there is negative

language prohibiting further action in the case of noncompliance; or (2) the right the provision

is designed to protect would generally be injured under a directory reading. People v. Delvillar,

235 Ill. 2d 507, 517 (2009).

¶ 33 Here, although section 31(b) uses the word “shall” (which often indicates a mandatory

obligation (Holly v. Montes, 231 Ill. 2d 153, 160 (2008))), the statute does not prescribe any

consequences resulting from the Agency’s noncompliance with its provisions. Nor is the right

of the party complained against necessarily injured by construing this section as directory. The

purpose of the notice requirement, as defendants argue, is to permit parties facing Agency

action for alleged violations of the Act to attempt to resolve those violations before the

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commencement of suit. If parties like defendants fail to receive notice and were prejudiced by

that failure, the Agency’s failure to comply with section 31(b) could be raised as an affirmative

defense. Given the extensive discussions before the filing of the lawsuit between the Agency,

on the one hand, and JTE and Tri-State, through John and Janice, on the other, the likelihood

that John and Janice could demonstrate prejudice resulting from the Agency’s failure to give

them notice is remote, at best.

¶ 34 Further, given the purpose behind the notice requirement, a defendant could certainly seek

relief from the court in which the suit is pending directing the Agency to engage in that process

before proceeding with the litigation. Here, however, the Einoders forfeited these avenues of

relief by their failure to raise the lack of notice before trial. Because, at most, the Agency’s

failure to give notice to the Einoders could have been raised as an affirmative defense, the

Agency’s failure to give notice to the Einoders in their individual capacities had no effect on

the trial court’s subject matter jurisdiction.

¶ 35 Liability

¶ 36 Defendants’ claim that they were not required to obtain a permit

¶ 37 Next, defendants contend that the statute as written between 1998 and 2003 did not require

a permit for using CCDD as fill because such use did not constitute “waste.” This presents a

question of statutory interpretation, which we review de novo. People v. Chapman, 2012 IL

111896, ¶ 23.

¶ 38 Because the State’s allegations are largely premised on defendants’ alleged disposal of

waste without a permit, if, as defendants maintain, the CCDD disposed of at the site did not

constitute “waste,” it follows that there can be no violation of the Act. The relevant provision

of the Act as it existed during the time the violations occurred reads as follows:

“ ‘Clean construction or demolition debris’ means uncontaminated broken concrete

without protruding metal bars, bricks, rock, stone, reclaimed asphalt pavement, or soil

generated from construction or demolition activities. *** To the extent allowed by

federal law, clean construction or demolition debris shall not be considered ‘waste’

when (i) used as fill materials below grade outside of a setback zone if covered by

sufficient uncontaminated soil to support vegetation within 30 days of the completion

of filling or if covered by a road or structure, or (ii) separated or processed and returned

to the economic mainstream in the form of raw materials or products, provided it is not

speculatively accumulated ***.” (Emphasis added.) 415 ILCS 5/3.78a (West 1998).

¶ 39 On appeal, defendants do not dispute the circuit court’s finding that over 700,000 cubic

yards of CCDD at the site are above grade. Nevertheless, they ask us to ignore the plain

statutory language exempting from a permit only CCDD that is used as fill below grade based

on statements made by: (1) Edwin Bakowski, manager of the permit section for the Bureau of

Land at the Agency; (2) Illinois State Representative Julie Hamos; and (3) Paul Purseglove, the

Agency manager for field operations in the Bureau of Land. Examination of the evidence

relied on by defendants does not support their position.

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¶ 40 Turning first to Bakowski’s statement, in his April 1996 letter to JTE addressed to the

attention of Janice, he discussed JTE’s proposed recycling operation at the Lynwood site.

Bakowski described how facilities recycling only CCDD, ferrous and nonferrous metals, or

harvested or untreated wood that is made into a commercial product do not require a permit.

Significantly, this is in keeping with the statutory language exempting CCDD that is

“separated or processed and returned to the economic mainstream in the form of raw materials

or products” from the definition of waste for which a permit is required. See 415 ILCS 5/3.8a

(West 2000).

¶ 41 Based on a review of JTE’s recycling proposal, however, Bakowski determined that not all

materials received at the site would be recyclable, and consequently, a permit application

would be necessary. At the conclusion of the letter, Bakowski noted: “If you revise your

planned activities to accept only clean construction or demolition debris, scrap metal or

harvested or untreated wood, you will not be required to obtain a permit.” When read in

context, this latter statement does not support defendants’ argument that Bakowski authorized

them to continue CCDD fill operations without a permit. Rather, Bakowski’s statement

regarding unpermitted receipt of CCDD was limited to CCDD that would be recycled. While

there was conflicting testimony regarding the extent, if any, to which CCDD received at the

site was recycled, it is beyond dispute that the vast majority was not recycled, given that the

pile of debris now stands nearly 90 feet above the surrounding elevation.

¶ 42 Representative Hamos’s statements are likewise taken out of context. During the 2005

legislative session, Representative Hamos sponsored a bill proposing additional regulation of

CCDD disposal. That bill, a form of which has since been enacted as section 22.51 of the Act

(415 ILCS 5/22.51 (West 2010)), required a permit for CCDD used in fill operations. In

explaining the purpose of this proposed legislation, Representative Hamos stated that as the

law was then currently formulated, no application for a permit was required for CCDD fill.

94th Ill. Gen. Assem., House Proceedings, May 27, 2005, at 61 (statements of Representative

Hamos).

¶ 43 Though defendants contend that Representative Hamos’s remarks demonstrate that

disposal of CCDD was wholly unregulated until 2005, this statement can reasonably be read to

reflect Representative Hamos’s understanding that CCDD disposed below grade was exempt

from permit requirements and the bill was intended to close this loophole. This reading is

supported by subsection 22.51(d) of the Act itself (415 ILCS 5/22.51(d) (West 2010)), which

states that this section “applies only to clean construction or demolition debris that is not

considered ‘waste’ as provided in Section 3.160 of this Act.” (Emphasis added.) (Section 3.160

is the current section 3.78a.) This is an implicit recognition that some CCDD–i.e., that

disposed of above grade or not accepted for purposes of recycling–is considered waste and was

already subject to regulation.

¶ 44 Finally, defendants rely heavily on the following question and answer during Paul

Purseglove’s cross-examination:

“Q. And the permit for clean construction and demolition debris came into being in

1997, 1998 when we changed the definition for what clean construction and demolition

debris was?

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A. The permit for clean construction and demolition debris came into effect in 2005

or 2006.”

We are not inclined to place great weight on this isolated response where the balance of

Purseglove’s testimony reflected his understanding that the Act required a permit to dispose of

CCDD above grade during the time the site was operational. Indeed, on further

cross-examination, he clarified that while the 2005 or 2006 amendment to the Act required a

permit to dispose of CCDD below grade, “there has always been a requirement to have a

permit when you start going above-grade.”

¶ 45 In any event, stripping the statements of Bakowski, Representative Hamos and Purseglove

of context and taking them at face value would not compel us to accept defendants’ argument.

Offhand statements by legislators and Agency employees cannot trump the language of a

statute where the language is clear on its face. See Brucker v. Mercola, 227 Ill. 2d 502, 513

(2007) (noting that it is unnecessary to resort to other aids of construction where statutory

language is unambiguous). From 1998 to 2003, the Act explicitly stated that only CCDD (1)

used as fill below grade or (2) recycled and returned to the economic mainstream was exempt

from the definition of waste and, therefore, exempt from permitting requirements. Because

from 1998 to 2003 virtually all the CCDD transported to the site was disposed of above grade

and was not recycled, and because such material was included in the definition of waste under

the Act, we reject defendants’ argument that they were not required to obtain a permit for the

operation.

¶ 46 Janice’s individual liability

¶ 47 Defendants next challenge the circuit court’s determination that Janice was liable for

violations of the Act in her individual capacity. We have previously held that corporate officers

are “persons” under the Act and thus may be subject to liability for violations of the Act.

People ex rel. Burris v. C.J.R. Processing, Inc., 269 Ill. App. 3d 1013, 1016 (1995); see also

415 ILCS 5/3.315 (West 2010) (defining “person,” in relevant part, as “any individual”). But

this liability is limited to officers who have personal involvement or participate actively in

violations of the Act. C.J.R. Processing, 269 Ill. App. 3d at 1018. Therefore, more is required

than merely establishing the corporate officer had a management position or general corporate

authority (People ex rel. Madigan v. Tang, 346 Ill. App. 3d 277, 289 (2004)); however, it is not

necessary to show that the officer actually performed the physical act that constituted a

violation (People ex rel. Ryan v. Agpro, Inc., 345 Ill. App. 3d 1011, 1028 (2004)).

¶ 48 A trial court’s decision as to corporate officer liability will not be reversed unless it is

manifestly erroneous. People ex rel. Madigan v. Petco Petroleum Corp., 363 Ill. App. 3d 613,

623 (2006). Manifest error is that which is clearly evident, plain, and indisputable. People v.

Morgan, 212 Ill. 2d 148, 155 (2004). As always, the circuit court, as the trier of fact, was in a

superior position to judge the credibility of witnesses and determine the weight to be given to

their testimony. Chicago’s Pizza, Inc. v. Chicago’s Pizza Franchise Ltd. USA, 384 Ill. App. 3d

849, 859 (2008). We will uphold credibility determinations unless they are against the manifest

weight of the evidence. In re Christopher K., 217 Ill. 2d 348, 373 (2005).

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¶ 49 The evidence at trial went beyond a showing that Janice had general corporate authority.

The State introduced over 200 contracts signed by Janice that authorized various companies

and individuals to deposit construction material, broken concrete and asphalt, dirt, clay, bricks,

rocks and stone at the site. While Janice testified that she entered into these contracts only for

insurance purposes, the trial court was free to disbelieve that testimony in light of the plain

language of the contracts, which set forth the materials that would be accepted at the site and

the terms under which the acceptance would occur. Janice continued to sign these contracts

even after she admitted to receiving violation notices from the Agency and after suit was filed.

¶ 50 Moreover, as the president and 90% owner of JTE, it was reasonable for the court to

conclude that Janice was not merely effectuating a corporate decision in signing the contracts,

but instead played a substantial role in making that decision. This is particularly true in light of

Janice’s testimony that she was heavily involved in the day-to-day operations of JTE. Again,

although Janice denied JTE’s involvement at the site beyond merely renting equipment to

Tri-State, it was not contrary to the manifest weight of the evidence for the trial court to

conclude otherwise. There was evidence that in communications with the Agency, Janice

referred to JTE as the “operator” of the site; several letters from the Agency regarding

violations at the site were addressed to JTE and Janice’s attention; and Janice testified at a

hearing on behalf of JTE before the Cook County zoning board regarding permission to

operate the site as a recycling facility. All of these facts support the trial court’s determination

that notwithstanding Janice’s attempt to minimize her involvement in the operation of the

landfill, she was sufficiently involved to warrant holding her personally liable for the

violations of the Act committed by JTE.

¶ 51 Janice’s conduct is not unlike that of the individual defendants in United States v.

Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726 (8th Cir. 1986), which the court

in C.J.R. Processing cited as an example of the appropriate imposition of personal liability

under the Act. In Northeastern Pharmaceutical, a corporate officer was found to have violated

the federal Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6973 (Supp. 1986))

in his individual capacity where he personally arranged for the transportation and disposal of

hazardous substances. Northeastern Pharmaceutical, 810 F.2d at 745-46. Likewise, Janice’s

conduct in signing literally hundreds of contracts constituted an arrangement for and the

authorization of disposal of debris above grade, which is precisely the violation of the Act

charged by the State. Under these circumstances, we cannot say the circuit court’s

determination as to her personal liability was manifestly erroneous.

¶ 52 The testimony of Ronald Schlossberg, an environmental investigator for the Illinois State

Police who investigated the site to determine if there had been criminal violations of the Act,

does not compel a different conclusion. On cross-examination, Schlossberg was asked if he

became aware early in his investigation that Janice “was not involved in the actual operation at

the landfill,” and he responded affirmatively. Defendants did not probe Schlossberg on this

point, and thus we do not know what Schlossberg believed constituted “actual operation.” Nor

do we know to what extent Schlossberg investigated Janice in connection with violations at the

site. It is unclear, for example, whether at the time he reached this conclusion, Schlossberg was

aware of the hundreds of contracts executed by Janice authorizing the transportation of waste

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to the site, her representations to the Agency that JTE “operated” the site, and her testimony

before the Cook County zoning board seeking authorization to operate the site as a recycling

facility. The circuit court was not required to accept Janice’s testimony regarding her

involvement in the operations at the site over the other evidence that Janice participated in

violations of the Act.

¶ 53 Remedies

¶ 54 Mandatory injunctive relief

¶ 55 Having affirmed the court’s holding with regard to liability, we next consider defendants’

arguments regarding the remedies imposed. To reiterate, defendants’ conduct giving rise to the

State’s claim for mandatory injunctive relief occurred (and ceased) before the effective date of

the amendment of section 42(e). Initially, defendants challenge the court’s decision to order

mandatory injunctive relief in the form of removal of the above-grade CCDD at the site.

Defendants maintain that at the time of the violations, section 42(e) of the Act did not authorize

mandatory injunctive relief. See People ex rel. Ryan v. Agpro, Inc., 214 Ill. 2d 222, 234 (2005)

(holding that under pre-2004 Act, defendants could not be ordered to take affirmative action to

clean Agpro site where section 42(e) did not authorize imposition of mandatory injunction).

The State acknowledges Agpro, but correctly points out that the version of section 42(e) at

issue in Agpro was amended in response to the appellate court’s decision in Agpro, 214 Ill. 2d

at 229-30. Thus, in Agpro, the legislature enacted the amendment after the case achieved

finality but while still on appeal. And it is the amendment, not the earlier version, that is

applicable here.

¶ 56 Until 2004, section 42(e) read as follows: “The State’s Attorney of the county in which the

violation occurred, or the Attorney General, may *** institute a civil action for an injunction to

restrain violations of this Act.” 415 ILCS 5/42(e) (West 2002). Following an amendment

effective July 28, 2004, the section now reads:

“The State’s Attorney of the county in which the violation occurred, or the Attorney

general, may *** institute a civil action for an injunction, prohibitory or mandatory, to

restrain violations of this Act *** or to require such other actions as may be necessary

to address violations of this Act, any rule or regulation adopted under this Act, any

permit or term or condition of a permit, or any Board order.” (Emphases added.) 415

ILCS 5/42(e) (West 2010).

Since neither party disputes that mandatory injunctions were not available under the former

section 42(e) but authorized under the latter, the only issue for resolution is whether the 2004

amendment may be applied retroactively. As this is an issue of statutory interpretation, our

review is de novo. People v. Chapman, 2012 IL 111896, ¶ 23.

¶ 57 When considering the retroactive application of a statutory amendment, the first step is to

determine whether the legislature indicated the temporal reach of the amendment. Caveney v.

Bower, 207 Ill. 2d 82, 91 (2003). Our supreme court has explained that if the legislature did not

expressly indicate its intent in the text of the amended statute itself, then we must turn to

section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2010)), which is “the general saving

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clause of Illinois.” People v. Glisson, 202 Ill. 2d 499, 505 (2002). By way of this statute, the

legislature has indicated the temporal reach of every statutory amendment, and we need never

proceed beyond step one in our analysis. Caveney, 207 Ill. 2d at 92. We would reach step two

only if the legislature did not make its intentions regarding retroactive application clear, in

which case the issue becomes whether applying the statute would have a retroactive impact. Id.

at 91.

¶ 58 The amendment to section 42(e) does not expressly state that it applies to all cases pending

on or before its effective date. That the Act “takes effect upon becoming law” (Pub. Act 93-831

(eff. July 28, 2004)) is not a sufficient expression of legislative intent that the statute should be

applied retroactively. But that does not end our inquiry.

¶ 59 Several provisions of the Act indicate that the legislature intended for the penalty

provisions to be applied retroactively. Most significant is section 2(b). This provision, which

states the Act’s purpose, focuses on the past. As set out in section 2(b), the Act is designed to

“restore, protect and enhance the quality of the environment, and to assure that adverse effects

upon the environment are fully considered and borne by those who cause them.” (Emphases

added.) 415 ILCS 5/2(b) (West 2010). Furthermore, section 2(c) specifies that the Act “shall be

liberally construed” to fulfill its purposes. 415 ILCS 5/2(c) (West 2010). One way to “restore”

the property where defendants illegally dumped solid waste is to remove the above-grade

waste material from the site and conduct groundwater testing. The Act expressly requires that

the party that caused the adverse effects must pay the restoration costs.

¶ 60 This was the reasoning of the Second District in State Oil Co. v. People, 352 Ill. App. 3d

813 (2004), which is persuasive here. In State Oil, the Second District found that a provision in

the Act making owners of underground storage tanks liable for costs associated with

remediating pollution discharged from those tanks can be applied retroactively. Id. at 819. The

Second District relied on one of the general purposes of the Act, as expressed in section 2(b), to

“restore the environment.” The court also relied on the Act’s mandate for liberal judicial

construction to accomplish its purpose. 415 ILCS 5/2(c) (West 2010). The court stated that “it

is clear that the legislature intended the Act to address ongoing problems, which by definition

existed at the time that the Act was enacted.” State Oil, 352 Ill. App. 3d at 819. Similarly, here,

the legislature’s intent–that sites adversely affected by illegal waste disposal be restored–can

only be effectuated by requiring defendants to remove the waste.

¶ 61 Simply allowing defendants to pay a fine without cleaning the affected site ignores a key

purpose of the Act. Further, failing to permit a trial court to order a defendant that has engaged

in illegal waste disposal to restore the property would, in effect, nullify the language of section

2(b) of the Act. See Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 232 (2001) (court must

avoid “an interpretation which would render any portion of the statute meaningless”).

¶ 62 The dissent takes issue with our reliance on section 2(b) and State Oil Co., contending that

the language “does not shed any light on whether the legislature intended a change in the law

enacted decades later to apply retroactively.” Infra ¶ 89. But that misstates the nature of the

legislative intent at issue. An act’s preamble “has long been recognized as one of the

quintessential sources of legislative intent.” Atkins v. Deere & Co., 177 Ill. 2d 222, 232 (1997),

and the legislature in the 2004 amendment does not touch one word of section 2(b). Thus,

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instead of shedding no light, the preamble remains the best indicator of the legislature’s intent.

The alternative would be to ignore any policies in a statute that preceded its amendment merely

because some part of the statute was subsequently amended. This turns legislative intent on its

head.

¶ 63 Aside from the language and purpose of the Act itself, case law supports a finding that

remedial provisions–section 42(e) is a remedial provision which varies the relief that may be

imposed for violating the Act–should be applied retroactively. This court has held that

“statutes and amendatory acts are presumed to operate prospectively unless the statutory

language is so clear as to admit of no other construction. [Citations.] [An exception] to this

general rule is that statutes or amendments which relate only to remedies or forms of procedure

are given retrospective application.” (Internal quotation marks omitted.) Shoreline Towers

Condominium Ass’n v. Gassman, 404 Ill. App. 3d 1013, 1023 (2010). See also In re Marriage

of Duggan, 376 Ill. App. 3d 725, 729 (2007) (“If an amendatory act merely affects the remedy

or law of procedure, all rights of action will be enforceable under the new procedure even if

they accrued prior to the change of law and the action was instituted prior to the amendment

***.” (Internal quotation marks omitted.)). While this exception does not apply where a party

has a vested right at stake, as the State properly takes note, defendants have no vested right in

illegally dumping waste or in a particular remedy or procedure after they have been found

liable for doing so.

¶ 64 The dissent contends section 42(e) is a substantive provision rather than procedural or

remedial, because, the section, as amended, imposes a new liability on defendants by allowing

the State to seek injunctive relief where previously it could only do so in certain exigent

circumstances. For support the dissent cites to two cases dating from the 1950s, Dworak v.

Tempel, 17 Ill. 2d 181 (1959), and Theodosis v. Keeshin Motor Express Co., 341 Ill. App. 8

(1950), cases in which retroactive application would either divest or affect vested rights or

impair the obligation of a contract in actions involving private rather than public rights. But, no

“vested right” is involved here. See In re Marriage of Duggan, 376 Ill. App. 3d at 729 (A

“vested right” has to be “sufficiently well established to be protected under the due process

clause of the constitution.”); Keystone Service Co. v. 5040-60 North Marine Drive

Condominium Ass’n, 153 Ill. App. 3d 220, 223 (1987). And no private right is involved either.

¶ 65 A retroactive law has been defined as one that takes away or impairs vested rights acquired

under existing laws, or creates a new obligation, imposes a new duty, or attaches a new

disability in respect to transactions or considerations already passed. Griffin v. City of North

Chicago, 112 Ill. App. 3d 901, 904-05 (1983). Section 42(e) does not divest or affect vested

rights, impair the obligation of a contract, or violate the due process clause. The critical point is

that defendants did not have a vested right to engage in dumping solid waste on the property

without a permit. Because no vested right has been affected, the application of the amended

section 42(e) is proper, irrespective of when the cause of action accrued or the complaint was

filed.

¶ 66 The mandatory injunctive relief, under the amendment, altered solely the applicable

remedial standards. An injunction is only a remedy for an underlying cause of action and is not

a cause of action in itself. See Town of Cicero v. Metropolitan Water Reclamation District of

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Greater Chicago, 2012 IL App (1st) 112164, ¶ 46 (permanent injunction is an equitable

remedy, not a separate cause of action). There is no “injunctive” cause of action under Illinois

law, or, for that matter, federal law. Whether or not the injunction issues depends entirely on

the plaintiff prevailing at trial on the merits of its claim. Cicero, 2012 IL App (1st) 112164,

¶ 46 (citing City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 431 (2004)). In other

words, the injunction is limited to procedural relief only, and not any substantive outcome.

¶ 67 The dissent believes requiring the hill’s removal now to be “clearly” unnecessary. Whether

removal is or is not a necessary remedy is well within the discretion of the trial court, sitting in

equity, to fashion as it deems necessary and appropriate under the circumstances.

¶ 68 Therefore, we conclude that the court could order removal of the waste pile at the site, as

mandatory injunctive relief was available under the statute. The court also granted mandatory

injunctive relief in the form of ordering defendants to undertake testing of the groundwater

below the site, but this portion of the court’s order is not challenged on appeal and is therefore

not subject to our review. For this same reason, we reject the State’s contention on cross-appeal

that the circuit court erred in failing to order defendants to take corrective active action if

groundwater testing revealed contamination.

¶ 69 Amount of fines

¶ 70 The only remaining issue concerns the fines imposed by the circuit court. Under section

42(a) of the Act, a court is authorized to impose a maximum penalty of $50,000 for a violation

of the Act and an additional penalty of $10,000 for each day the violation continues. 415 ILCS

5/42(a) (West 2010). The court has broad discretion when imposing civil penalties under this

section, and we will not disturb the court’s decision unless it is clearly arbitrary, capricious or

unreasonable. People ex rel. Ryan v. McHenry Shores Water Co., 295 Ill. App. 3d 628, 638

(1998) (citing ESG Watts, Inc. v. Pollution Control Board, 282 Ill. App. 3d 43, 50-51 (1996)).

¶ 71 In exercising its discretion, the court may consider: (1) the duration and gravity of the

violation; (2) the defendant’s due diligence in attempting to comply with the Act’s

requirements; (3) economic benefits the defendant received by delaying compliance; (4) the

monetary penalty that would deter the defendant from committing additional violations and

would aid in enhancing voluntary compliance by those similarly situated; (5) the number,

proximity in time and gravity of any previously adjudicated violations; (6) whether the

defendant self-disclosed its noncompliance to the Agency; and/or (7) whether the defendant

has agreed to undertake a “supplemental environmental project.” 415 ILCS 5/42(h) (West

2010). Here, the court referred generally to section 42(h) prior to issuing its remedies ruling.

¶ 72 Defendants initially contend the fines imposed were “unprecedented” and “unduly harsh”

in light of the lack of clear regulations for disposal and storage of CCDD. Because, as we have

already concluded, the disposal of the materials deposited at the site was clearly regulated

under the Act before the time operations commenced, we again reject this argument as a basis

for overturning the fine imposed by the trial court. We also have already addressed and

rejected defendants’ argument, repeated here, that there was insufficient evidence to hold

Janice personally liable for the violations charged. We again reject those arguments as a basis

for reversing the fines against her.

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¶ 73 Defendants also contend that the record is devoid of evidence demonstrating that they

derived an economic benefit as a result of their failure to comply with the Act. We disagree. As

the circuit court noted, there is evidence that the site received over 9,700 loads of CCDD in the

period between January and May 1998. At a rate of between $25 to $40 a load, at a minimum,

defendants generated revenues of $242,500 in less than six months. Other evidence revealed

that the site contained roughly 721,000 cubic yards of waste above grade. John Lardner

testified that a truckload could contain 13 cubic yards of material, which amounts to over

55,000 truckloads deposited at the site between 1998 and 2003, when operations ceased.

Purseglove made the more conservative estimate that the site contained 48,000 truckloads of

material, resulting in gross profits for defendants between $1.2 million and $1.9 million. This

does not take into account the higher rates of between $75 to $150 that defendants charged for

“hard to handle fill.” Certainly, these calculations could reasonably allow the court to conclude

that defendants obtained a substantial economic benefit from operating the unpermitted

landfill, particularly where defendants never contended or presented evidence that the site was

a money-losing operation. Contra Central Illinois Light Co. v. Pollution Control Board, 17 Ill.

App. 3d 699, 702-03 (1974) (pointing to lack of basis for a penalty as further evidence that

lower court erred in finding violation of Act).

¶ 74 Although defendants fault the State for failing to present evidence regarding the net profits

generated by operations at the site, there is no requirement under the Act that penalties

imposed bear a mathematical relationship to the net profits realized by virtue of the violations

charged. Indeed, this approach could encourage potential violators to simply factor in the

estimated penalty to the cost of doing business, thus defeating the dual purpose of the

imposition of penalties, which is to punish violators and discourage other similarly situated

parties from engaging in prohibited conduct. If defendants wanted the trial court to consider

evidence that net profits were substantially less than the reasonable estimate of gross profits

provided by the State, nothing precluded defendants from presenting that evidence, which was

readily available to them.

¶ 75 Further, it appears that at least in one important respect, Tri-State’s cost of doing

business–the rental of equipment and operators used in its operations–should not under any

circumstances have been factored in to the determination of an appropriate penalty. The

equipment and operators used by Tri-State were leased from JTE, which, as noted, was entirely

owned by John and Janice. Thus, because the rental payments were not made to a disinterested

third party, but to an entity likewise charged with violating the Act and wholly owned by the

individual defendants, the court could properly have refused to reduce the profits realized by

defendants to account for this cost.

¶ 76 Even assuming that this estimation of gross profits, standing alone, was too speculative to

support the trial court’s fines, we nevertheless cannot conclude that the civil penalties imposed

were arbitrary, capricious, or unreasonable. Importantly, economic benefit is only one of many

factors a trier of fact may look to when imposing fines. The other considerations, such as

deterrence, self-disclosure of violations, and the duration of violations, do not have an easily

calculable monetary value. The trial court could properly have reasoned that defendants’

continued operations for five years after receiving violation notices from the Agency

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necessitated particularly severe penalties in order to deter future violators from engaging in

similar conduct.

¶ 77 Finally, defendants’ argument for a reduction in penalties due to their lack of awareness

regarding permit requirements is disingenuous given the evidence adduced at trial. Purseglove

testified that as early as March 1998, he informed John during a site visit that a permit was

required to deposit fill material above grade. Bruni also cautioned John when he noticed

above-grade deposits. Then, in April 1998, the Agency sent its first violation notice to

Tri-State. Thus, if defendants initially believed a permit was not necessary, by 1998 they

certainly knew that the Agency did not agree with them. Yet despite this knowledge, they

continued operations at the site for the next five years, including three years following the

filing of the State’s lawsuit in July 2000. Indeed, there is evidence that in 2002, well after suit

was filed, the site received as many as 20 to 40 loads of CDD per day. These facts do not reflect

“due diligence” in attempting to comply with the Act’s requirements. To the contrary, they are

indicative of flagrant violations of the Act, distinguishing defendants’ conduct from that of

other violators who were assessed comparatively lesser penalties. See, e.g., Standard Scrap

Metal Co. v. Pollution Control Board, 142 Ill. App. 3d 655, 662 (1986) (defendant violator

applied for and was granted a permit after suit was filed against it); McHenry Shores, 295 Ill.

App. 3d at 631 (after receiving enforcement letter from Agency, defendant made some attempt

to remedy violations). Accordingly, we do not find the court’s decision to impose fines against

each defendant or the amount of those fines to be an abuse of discretion.

¶ 78 CONCLUSION

¶ 79 For the reasons stated, we affirm the trial court’s findings with regard to liability, the

imposition of a civil penalty in the form of fines, and entry of the mandatory injunction

ordering defendants to undertake removal of the waste. We further affirm the trial court’s

denial of the additional mandatory injunctive relief requested by the State in its counter-appeal.

¶ 80 Affirmed.

¶ 81 JUSTICE MASON, concurring in part and dissenting in part.

¶ 82 With the exception of the mandatory injunctive relief granted by the trial court, I agree that

the trial court’s judgment should be affirmed. However, I disagree with the majority’s

conclusion that the 2004 amendment to section 42(e) of the Act may be applied retroactively to

authorize the mandatory injunction ordered by the trial court and, for that reason, I respectfully

dissent.

¶ 83 As the majority acknowledges, defendants’ operation of the Lynwood site ceased prior to

the July 24, 2004 effective date of the amendment to section 42(e). The majority also

recognizes our supreme court’s decision in Agpro, in which the court determined that “the

recent amendment [of section 42(e)] is not a retrospective ‘clarification’ of existing law, but is

instead a change in the law.” (Emphasis added.) People ex rel. Ryan v. Agpro, Inc., 214 Ill. 2d

222, 230 (2005). Yet, despite the Agpro court’s recognition that prior to its amendment, section

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42(e) did not authorize a court to impose mandatory injunctive relief requiring a party violating

the Act to remedy any harm to the environment, the majority concludes that the amendment

may, indeed, be applied retroactively in this case because (1) the legislature has indicated that

the amendment should be applied retroactively to enforce the “remedial” purposes of the Act

and (2) the amendment is “procedural,” rather than “substantive.” Because I conclude that

there is no expression of legislative intent that the amendment be applied retroactively and

retroactive application improperly imposes new liabilities for past conduct, I would reverse the

mandatory injunction granted by the trial court.

¶ 84 Our supreme court’s decision in Caveney v. Bower, 207 Ill. 2d 82 (2003), dictates the steps

we must follow in determining whether the amendment to section 42(e) should be applied

retroactively. The first question is whether the legislature has clearly indicated the temporal

reach of the amendment. If so, the intent of the legislature should be given effect, “absent a

constitutional prohibition.” Id. at 91. If there is no clear expression of legislative intent, “then

the court must determine whether applying the statute would have a retroactive impact, i.e.,

whether it would impair rights a party possessed when he acted, increase a party’s liability for

past conduct, or impose new duties with respect to transactions already completed.” (Emphasis

added.) Id.

¶ 85 As to the first inquiry, the majority concedes that Public Act 93-381–the Act amending

section 42(e)–contains no clear expression of legislative intent in that it simply provides that

the amendment “takes effect upon becoming law.” Pub. Act 93-381 (eff. July 28, 2004). See

Foster Wheeler Energy Corp. v. LSP Equipment, LLC, 346 Ill. App. 3d 753, 760 (2004)

(considering identical language in section 99 of the Building and Construction Contract Act

(815 ILCS 665/99 (West 2002))). Ordinarily, where courts have construed a statute to apply

retroactively, the language has been explicit. For example, in Commonwealth Edison Co. v.

Will County Collector, 196 Ill. 2d 27, 41-42 (2001), the supreme court considered amendments

to the Counties Code (55 ILCS 5/5-1024 (West 1994)), and the Local Governmental and

Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/9-107 (West

1994)), both of which stated that the amendments’ validation of taxes “applies to all cases

pending on or after the effective date of this amendatory Act of 1994.” (Internal quotation

marks omitted.) The amendment to the Tort Immunity Act also validated levies adopted

“either before, on or after the effective date of [the Act].” (Internal quotation marks omitted.)

Commonwealth Edison, 196 Ill. 2d at 42. The court termed this language “an unequivocal

expression of legislative intent” that the amendments should apply to validate levies enacted

prior to the amendments’ effective date. Id.

¶ 86 But notwithstanding that the amendment itself contains no clear expression of its temporal

reach, the majority concludes that other provisions of the Act, specifically sections 2(b) and

2(c) (415 ILCS 5/2(b), (c) (West 2010)), clearly express a legislative intent that the Act’s

“penalty provisions” be applied retroactively. Citing section 2(b), the majority relies on the

Act’s “remedial” nature and concludes that the amendment to section 42(e) must be given

retroactive effect because such a result fosters the Act’s stated purposes to “restore” the

environment and impose liability for “adverse effects” on the environment on those who cause

them and is further consistent with section 2(c)’s direction that the Act be “liberally

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construed.” Without the retroactive application of amended section 42(e) to compel defendants

to “clean up” the Lynwood site, the majority reasons that the Act’s salutary purposes will be

frustrated.

¶ 87 As a threshold matter, the “remedial” nature of any legislation is not a stand-alone basis

upon which to gauge its retroactive effect. Were that the case, courts would deem most

legislative enactments retroactive because the vast majority of legislation is designed to

remedy a problem to which the new or amended law is addressed.

¶ 88 That aside, the preference for the prospective application of statutes “has existed from time

out of mind.” Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 308 (1988).

This preference is founded upon “ ‘[the] fundamental principle of jurisprudence that

retroactive application of new laws is usually unfair.’ ” Id. at 309 (quoting 2 Norman J. Singer,

Sutherland on Statutory Construction § 41.02, at 340 (Sands 4th ed. 1986)). Therefore, the

general rule of construction is that an amendatory act will be construed as prospective in its

application. Rivard, 122 Ill. 2d at 309.

¶ 89 The majority’s focus on the Act’s remedial nature is precisely the justification rejected by

the Agpro court for a “broad” interpretation of the Act to allow for mandatory injunctions.

Agpro, 214 Ill. 2d at 234 (“The State argues the purposes of the Act are better served when

polluters can be ordered to clean up even in nonemergency situations. However, because the

language of section 42(e) is plain and unambiguous, we cannot consider the State’s policy

arguments.”). Section 2(b)’s language regarding the Act’s purposes and section 2(c)’s

direction that the Act be liberally construed have been a part of the Act since it was passed in

1970. This original statement of purpose–extant more than 30 years at the time section 42(e)

was amended in 2004–does not shed any light on whether the legislature intended a change in

the law enacted decades later to apply retroactively. This is why the reasoning of State Oil Co.

v. People, 352 Ill. App. 3d 813 (2004), upon which the majority relies, is unpersuasive.

¶ 90 Given the lack of any unequivocal expression of legislative intent, under Caveney, the

inquiry then turns to whether the amendment to section 42(e) will have a retroactive impact. In

order to resolve this question, Caveney directs us to the general savings clause in section 4 of

the Statute on Statutes for clarification regarding the legislature’s intent. Section 4 provides:

“No new law shall be construed to repeal a former law, whether such former law is

expressly repealed or not, as to any offense committed against the former law, or as to

any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or

claim arising under the former law, or in any way whatever to affect any such offense or

act so committed or done, or any penalty, forfeiture or punishment so incurred, or any

right accrued, or claim arising before the new law takes effect, save only that the

proceedings thereafter shall conform, so far as practicable, to the laws in force at the

time of such proceeding.” (Emphases added.) 5 ILCS 70/4 (West 2010).

Caveney concluded that this is a “clear legislative directive” with regard to the temporal reach

of statutory amendments: “those that are procedural in nature may be applied retroactively,

while those that are substantive may not.” Caveney, 207 Ill. 2d at 92. Thus, if the amendment is

determined to have a retroactive effect, i.e., if it affects substantive rights or obligations, “the

court must presume that the legislature did not intend” that the amendment be applied

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retroactively. 207 Ill. 2d at 91. An example of an amendment that is substantive in nature is one

that imposes a new liability on a defendant. Dworak v. Tempel, 17 Ill. 2d 181, 187 (1959); see

Theodosis v. Keeshin Motor Express Co., 341 Ill. App. 8, 25 (1950) (holding that a statutory

amendment increasing the limits on recovery under the Injuries Act of 1947 from $10,000 to

$15,000 was substantive and could not be applied retroactively).

¶ 91 On this point, the majority concludes that because the amendment relates only to “remedies

or forms of procedure,” it is a procedural change in the law that may properly be given

retroactive effect. Supra ¶ 63. To reach this conclusion, the majority engages in a “vested

rights” analysis and posits that since defendants had no vested right to engage in dumping solid

waste without a permit, there is no reason to refrain from giving the amendment to section

42(e) retroactive effect. And if the vested rights doctrine was the only framework for analyzing

the temporal reach of the amendment to section 42(e), the majority would be correct.

¶ 92 But the majority overlooks another basis for determining that the retroactive application of

an amended law is impermissible, i.e., whether such application will increase a party’s liability

for past conduct. Caveney, 207 Ill. 2d at 91. In the context of this case, a finding that a court

can, via a mandatory injunction, require defendants to remove the waste deposited at the site

clearly exposes defendants to greater and more onerous liabilities than was the case in 2003

when their violations of the Act ceased. Prior to 2004, the State had no right to seek mandatory

injunctive relief to require the cleanup of waste dumped without a permit. Agpro establishes

this beyond question. Agpro also outlines the pre-amendment methods available to the State:

“[I]n emergencies a polluter may be ordered to clean up. In all other circumstances, the State

may clean up and send the polluter the bill. In any case, [the] polluter may prefer to clean up

voluntarily so as to control the costs.” (Emphasis added.) Agpro, 214 Ill. 2d at 233-34. The

retroactive application of the amendment to section 42(e) substantively alters this remedial

scheme by allowing the State to bypass the interim decision as to whether remediation of the

site is warranted so that it will conduct the clean up itself and instead permits the State to

impose that obligation directly upon defendants. Therefore, the amendment’s retroactive

application in the context of this case is impermissible.

¶ 93 This last point is particularly significant here given that, unlike many environmental cases,

the waste at issue in this case is uncontaminated and nonhazardous to the environment.

Photographs of the site in the record show that, over time, trees and vegetation have covered

the hill. Without retroactive application of the amendment to section 42(e), it is inconceivable

that the State would prioritize the expenditure of scarce resources to “clean up” a site that, in its

present state, poses no threat to the environment. Thus, because it is unlikely that the State

would expend the funds necessary to remediate nonhazardous waste, defendants would, in

turn, receive no “bill” from the State for the expense. This is especially true given the fact that

defendants have an ongoing obligation to monitor the groundwater at and around the site, relief

that they have not challenged on appeal. If and when the effects of that monitoring show any ill

effects on the surrounding environment, nothing would prevent the State from seeking to

require defendants, under amended section 42(e), to remediate those conditions at that time.

¶ 94 The majority maintains that removal of the hill is the only way to satisfy the Act’s goal of

“restoring” the environment. I disagree. If defendants had spewed toxins into the earth that had

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migrated into groundwater, I would agree with the conclusion, despite the legal unavailability

of the remedy. But the Agency does issue permits for landfills receiving CCDD. There is no

evidence in the record that the Agency would have refused to issue a permit to defendants. The

Agency does allow permitted landfills to accumulate CCDD above grade. And the Agency

does allow landfill operators who cease operations to take precautions, such as capping, to

prevent any minor amounts of contaminants from migrating offsite. Given that the evidence in

the record shows the presence of a minuscule amount (less than 0.1%) of potential

contaminants in the material deposited at the site, the requirement that the entirety of the hill be

removed is clearly not necessary.

¶ 95 For all of the foregoing reasons, I would reverse that aspect of the trial court’s judgment

awarding the State mandatory injunctive relief.

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