CHICAGO — A split state appeals panel has tossed out nearly $8 million in penalties levied against a landowner and company accused by the state of illegal dumping in Ford Heights, as well as a judgment that may have required them to spend $100 million more to remove the allegedly illegally dumped construction materials.
The Illinois First District Appellate Court overturned a lower court’s injunction and civil penalties in an order issued Nov. 5. Justice Daniel Pierce wrote the decision; Justice Mary Ellen Coghlan concurred.
Justice Michael Hyman dissented.
The decision was issued as an unpublished order under Supreme Court Rule 23, which restricts its use as precedent.
The court dispute dates back nearly two decades to a 2002 written agreement that established the entity known as Lincoln Ltd. could dump clean construction debris at a Ford Heights property whose owners were Donald and Leslie Clarke, of Land of Lincoln Development Company. The Clarkes, who got a share of profits from Lincoln’s dumping, said the plan was to turn the property into a winter sports facility.
The state sued in 2004, under then Attorney General Lisa Madigan, alleging the dumping violated the Illinois Environmental Protection Act. A trial court ruled in favor of the landowners. But a First District appellate panel reversed part of the judgment.
A second lawsuit followed in which the appeals panel said the owners weren’t liable for Lincoln’s violations from 2002 to 2007 because Lincoln was acting outside the written agreement and the Clarkes were trying to stop Lincoln by enforcing contractual rights. The panel also said the Clarkes needed to deal with the illegal waste and sent the case nack to Cook County Circuit Court so Cook County Judge David Atkins could order pollution remediation.
With the case back in circuit court, the state sought a permanent injunction as well as fines and penalties against Lincoln Ltd. and Land of Lincoln Development. Atkins issued an injunction requiring all the defendants to implement a plan for debris removal and monitor groundwater conditions. The Clarkes convinced Atkins to modify the order to apply only to Lincoln Ltd., but when that didn’t yield action, Attorney General Kwame Raoul asked Atkins to force the Clarkes to implement the injunction.
On Jan. 25, 2019, Atkins imposed a $1.8 million penalty against the Clarkes and a $6 million penalty against Lincoln Ltd. They both appealed, leading to the panel’s Nov. 5 opinion.
On appeal, Lincoln said the permanent injunction should be invalidated because it applied to past conduct in that it requires removal of all waste at the site, even though some of it was dumped before a 2004 IEPA amendment changed what kind of relief is available. The panel agreed, noting “only prohibitive injunctive relief was available” the first two years Lincoln operated the site.
Pierce wrote the record shows “the waste pile was approximately half its final volume around the time the amendment” took effect in July 2004. But Atkins ordered the entire pile removed. The state said the waste pile is “undifferentiated,” making a sitewide cleanup appropriate, but the majority disagreed. Pierce said if Atkins couldn’t distinguish which waste predated the amendment, he should “consider other means of ordering remediation of the site that do not impose new liability on the defendants.”
The panel further said Atkins misconstrued its earlier ruling, with Pierce writing “we did not intend on finding removal was the only remedy available.” That approach is estimated to cost $100 million over seven years. Lincoln said it is no longer operating or making money, the Clarkes said debris removal would lead to air and water pollution as well as traffic congestion.
Atkins, according to Pierce, “should hold an evidentiary hearing to consider whether another remedy might impose a lesser environmental burden and be more financially viable.”
Regarding the financial penalties, the panel said Atkins erred by using gross revenue as a way to determine the defendants’ economic benefit for dumping without a permit, while also failing to properly assess how long the violations persisted. The majority remanded the case for further hearings on appropriate penalties.
In his dissent, Hyman disagreed with both the majority’s opinion and its decision to designate the decision as a written order under Rule 23.
Because the waste is undifferentiated, Hyman wrote, the majority shouldn’t have raised the hypothetical scenario of two distinct piles at the dump site. He also reviewed the initial First District ruling and said Atkins wasn’t wrong to read that as a directive to compel waste removal.
“On remand, the defendants stipulated they dumped about half of the waste before the 2004 amendment and half after,” Hyman wrote. “Both parties presented arguments to the trial court about whether requiring removal of the entire pile would constitute retroactive application. The trial court concluded, based on the facts and law, that the entire pile must be removed. Remanding for another hearing serves no purpose other than rehashing issues the trial court has already addressed and causing further delay.”
Hyman also said the civil penalties were neither arbitrary nor unreasonable and should be affirmed. He said the totals reflect both the duration of the violation and the money each party earned through illegal dumping.
Land of Lincoln has been represented in the action by attorney Jeffrey D. Jeep, of Chicago.