                                  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.


                                                     -2-
¶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

                                                   -3-
       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

                                                   -4-
       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
                                                     -5-
       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).
                                                   -6-
       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
                                                    -7-
       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.


                                                    -8-
¶ 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?
                                                   -9-
                    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).

                                                  - 10 -
¶ 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
                                                    - 11 -
       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

                                                   - 12 -
       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,
                                                     - 13 -
       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
                                                    - 14 -
       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.
                                                     - 15 -
¶ 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
                                                  - 16 -
       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

                                                   - 17 -
       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
                                                    - 18 -
       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
                                                    - 19 -
       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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