Rule 23 order filed              2014 IL App (5th) 130244
August 11, 2014;
Motion to publish granted             NO. 5-13-0244
October 3, 2014; corrected
October 7, 2014.                         IN THE

                             APPELLATE COURT OF ILLINOIS

                            FIFTH DISTRICT
________________________________________________________________________

ILLINI ENVIRONMENTAL, INC.,                 )     Appeal from the
                                            )     Circuit Court of
      Plaintiff-Appellant,                  )     St. Clair County.
                                            )
v.                                          )     No. 11-MR-178
                                            )
THE ENVIRONMENTAL                           )
PROTECTION AGENCY,                          )     Honorable
                                            )     Richard A. Aguirre,
      Defendant-Appellee.                   )     Judge, presiding.
________________________________________________________________________

       JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
       Presiding Justice Welch and Justice Cates concurred in the judgment and opinion.

                                      OPINION

¶1     Illini Environmental, Inc. (Illini), appeals from the trial court's May 6, 2013, order

denying its motion for summary judgment. On appeal, Illini argues that dismissal of an

enforcement action filed by the Illinois Environmental Protection Agency (EPA or

Agency) against Illini was res judicata on certain issues of fact in Illini's declaratory

judgment action.        Illini claims that the EPA accepted its proffered "Compliance

Commitment Agreement" and therefore cannot pursue enforcement on one of the two

violation notices. Illini also argues that the trial court erred in finding that Illini was

responsible for determining whether waste was hazardous. Illini further argues that the
                                             1
trial court erred in concluding that Illini violated Illinois law in listing itself as a generator

of waste that it transported from another company to an Illinois landfill. Finally, Illini

argues that the trial court was incorrect in concluding that the Illinois EPA complied with

applicable law when it posted information on its website about Illini's violations. We

affirm.

¶2                                           FACTS

¶3        Illini is an Illinois corporation based in Caseyville. Illini operates a solid waste

management facility, but does not have EPA permission to receive or treat hazardous

waste.

¶4                              2010 Violation–SG Solutions

¶5        In early May 2010, an Illini vehicle went to Indiana to pick up waste from SG

Solutions.       SG Solutions previously tested the waste and learned that it

contained hazardous levels of arsenic and chromium. SG Solutions properly labeled the

drums as containing hazardous waste. When the Illini driver arrived, he delivered an

Illini-generated manifest for these drums of waste. The manifest indicated that the waste

Illini was to transport was nonhazardous. The Illini driver changed the identification

labels on the drums to nonhazardous to match the manifest and then obtained the

signature of an SG Solutions agent on Illini's manifest. Illini transported the waste to its

Caseyville facility and then processed the waste by mixing it with other waste to create a

solid. Illini shipped the new solidified waste to an Illinois landfill. The records that went

with the solidified waste to the landfill indicated that the waste was not special or

hazardous.
                                                2
¶6     Sometime later, SG Solutions reported to the EPA that Illini's documentation

mislabeled the waste it picked up as nonhazardous. SG Solutions reanalyzed the waste

samples and reached the same conclusion it had previously reached that the waste was

hazardous. Thereafter, in September 2010, the EPA issued a notice of violation (Notice

01282) to Illini indicating that Illini violated several Illinois Pollution Control Board

(Board) regulations and a condition of its permit. Additionally, the EPA alleged that

Illini violated several subsections of section 21 of the Environmental Protection Act (Act)

by treating hazardous waste without a permit to do so. 415 ILCS 5/21(d), (e), (f) (West

2008). The EPA asked Illini to cease accepting and treating hazardous waste.

¶7     The EPA issued a separate notice to SG Solutions for its involvement.

¶8     Illini responded and denied that it had violated the Act or the Board regulations,

and denied that the waste was hazardous. Illini requested a meeting to address Notice

01282. The EPA agreed to the meeting, explaining that Illini must provide a written

response following the meeting and propose a "Compliance Commitment Agreement"

(CCA) containing a timeline for achieving compliance. The EPA held the meeting, and

afterwards Illini sent a letter in November 2010 denying all violations. In the letter, Illini

stated that it was going to purchase a computer system for cross-checking customer waste

profiles   against   shipment    manifests   in   order   to   mitigate    the   chance   for

miscommunication. The EPA treated Illini's letter as its CCA and sent its response. In

this letter, the EPA mistakenly identified the company that submitted the proposed CCA

as SG Solutions instead of Illini. The EPA rejected the proposed CCA. Acknowledging


                                              3
its mistake, the EPA claims that despite the misnomer, its rejection operated as a rejection

of Illini's November 2010 CCA.

¶9     On March 1, 2011, the EPA sent Illini a notice of its intent to pursue legal action.

¶ 10                              2011 Violation–Tri-Rinse

¶ 11   In December 2010, Illini picked up a load of liquid waste from a Missouri facility,

Tri-Rinse, and brought it back into Illinois for disposal in Jackson County.            Upon

accepting the load of waste, Illini terminated the manifest offered by Tri-Rinse and

created a substitute one that identified Illini–not Tri-Rinse–as the generator of the waste.

After leaving the liquid waste at the Jackson County, Illinois, facility for solidification

and disposal, an apparent chemical reaction occurred, resulting in the evacuation of

several homes and hospitalization of some of the residents.

¶ 12   The EPA then issued a notice of violation to Illini (Notice 01008) informing Illini

that it violated administration regulations by not identifying the actual generator of the

waste on the manifest. The EPA also made written demand to Illini that it correctly

identify the generator of any waste Illini picks up for disposal. Specifically, the EPA

directed Illini to list itself as the generator only if Illini generated the waste in its

Caseyville facility. The EPA rejected Illini's CCA. Illini refused to meet with the EPA

to discuss this violation. The EPA notified Illini that it intended to pursue legal action.

¶ 13                                 Court Proceedings

¶ 14                           Declaratory Judgment Action

¶ 15   Illini filed its declaratory judgment suit against the EPA in 2011. The court

granted the EPA's motion to dismiss. Illini refiled the petition. The amended petition
                                          4
asked the court for declarations about each of the two notices of violation, and about the

EPA's reporting of each notice on its website. Because the three counts of the complaint

are the foundations of Illini's summary judgment motion, we outline each.

¶ 16   Count I sought a declaration on a general basis that applicable administrative

regulations do not place the responsibility for the correctness of the manifests on the

entity transporting the waste. Specifically, Illini asked the court to declare that because

Illini did not generate the SG Solutions waste it picked up for transport in Indiana, Illini

bore no responsibility to ensure that the manifest was correct, and therefore Illini violated

no regulations in its handling of the waste. Alternatively, Illini asked the court to declare

that Notice 01282 is resolved because the EPA named SG Solutions instead of Illini when

the EPA rejected its CCA.

¶ 17   Count II asked the court to declare that Illini violated no regulations in listing itself

on the manifest as the "generator" of the waste, when it took immediate possession of

Tri-Rinse's waste and did not stop at its own facility in Caseyville before transporting the

waste to another facility.

¶ 18   Count III asked the court to declare that the EPA violated the Environmental

Protection Act by posting a press release on its website about the EPA's filing of a notice

of violation against Illini. Illini also sought a declaration that the Act mandates that the

EPA strike reference to these notices of violation when the alleged violators challenge the

notices.




                                               5
¶ 19                  EPA's Enforcement Action on Notice 01282

¶ 20   One month later, the Illinois Attorney General filed its enforcement action against

Illini on Notice 01282 in St. Clair County circuit court. Illini filed a motion to dismiss on

the basis that its declaratory judgment case already presented these issues. Alternatively,

Illini argued that the complaint should be dismissed pursuant to section 2-619(a)(9) of the

Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2008)). The theory of Illini's

motion was that the State failed to allege facts supporting its supposed violation of

applicable regulations or laws, and therefore the notice attempted to impose obligations

upon Illini not required by law.

¶ 21   With the knowledge that there were simultaneous cases pending in the circuit

court with the same underlying set of facts, the court in the enforcement action reserved

its ruling on Illini's motion to dismiss until the court in the declaratory judgment action

ruled on the EPA's motion to dismiss. In the declaratory judgment action, the court

partially granted the EPA's motion to dismiss.        After this ruling in the declaratory

judgment case, the court in the enforcement action entered an order setting a hearing on

Illini's motion to dismiss. The hearing was set for March 27, 2012. No one from the

EPA appeared at the motion hearing, and the enforcement action court granted Illini's

motion to dismiss. The court provided no specific foundation for its order.

¶ 22                        Illini's Summary Judgment Motion

¶ 23                                    Count I

¶ 24   Illini filed its motion for summary judgment in the declaratory judgment action.

Illini argued that the circuit court's dismissal of the enforcement action, when an EPA
                                              6
representative did not appear in court for a scheduled hearing, barred the EPA from

attempting to enforce Notice 01282 because of application of res judicata. Alternatively,

Illini contended that the EPA's inclusion of SG Solutions' name on its rejection of its

CCA for Notice 01282 equated to the EPA's acceptance of Illini's agreement. Illini also

argued that Notice 01282 was defective because it ignored Illini's claim that as a

transporter of waste, it had no obligation to confirm that the manifest was accurate, and

also claimed that the EPA ignored its claims that its own tests of the waste showed that

the waste was not hazardous.

¶ 25                                       Count I I

¶ 26   With respect to Notice 01008, Illini argued that regulations did not require it to list

Tri-Rinse as the generator of the waste.

¶ 27                                     Count III

¶ 28    Illini argued that section 31(c)(1) of the Act (415 ILCS 5/31(c)(1) (West 2008))

did not authorize the EPA to publish the notices of violation on its website before the

notices were referred to the Attorney General for legal action.

¶ 29                            EPA's Response to Motion

¶ 30   The EPA attached an affidavit and several documents to support its contention that

SG Solutions' waste was hazardous. Regarding the res judicata claim, the EPA argued

that the trial court's dismissal of its enforcement action was not a final adjudication on the

merits of Illini's claims. The EPA discounted its misnomer in referring to the CCA as

being SG Solutions' agreement rather than Illini's agreement, arguing that the intent of its

rejection remained clear despite the misnomer and that the mistake does not shield Illini
                                           7
from enforcement.     As to the Tri-Rinse notice, the EPA claimed that the facts are

undisputed–that Illini falsely listed itself as the generator on the manifest involving the

Tri-Rinse waste transported to an Illinois landfill. Finally, the EPA contends that section

4(b) of the Act (415 ILCS 5/4(b) (West 2008)) mandates its duty to disseminate

information related to hazardous waste and enforcement actions, and that publication of

the notices was consistent with its authority pursuant to section 31(c)(1) of the Act (415

ILCS 5/31(c)(1) (West 2008)).

¶ 31                                The Court's Ruling

¶ 32   The circuit court denied Illini's motion. The court determined that dismissal of the

related enforcement action contained no explicit ruling on the merits of the claims, and

thus Illini could not use the doctrine of res judicata to invalidate the EPA's enforcement

of Notice 01282. The court concluded that although the EPA mistakenly labeled its

rejection of the CCA as a rejection of SG Solutions' CCA, the intent of the rejection was

certain. Alternatively, even if somehow the misnomer invalidated the EPA's rejection of

Illini's CCA, the Attorney General maintained the authority to enforce a violation of the

Act and regulations. The court found that Illini was aware or should have known that the

originally labeled hazardous waste it picked up at SG Solutions was, in fact, hazardous,

and that in modifying the labels on the barrels to indicate that they contained

nonhazardous waste in order to match Illini's manifest, Illini was aware of the illegality of

doing so. While the court stated that it would not hold as a matter of law that Illini

violated the regulations, the court could not agree with Illini's claim that it had no

knowledge. The court's order stated, "[t]he Illinois Attorney General can proceed with
                                           8
enforcement against Illini for the violations alleged" in Notice 01282. The court also

ruled that Illini violated regulations regarding its handling of the Tri-Rinse waste because

Illini was fully aware that it did not generate that waste, despite what it stated on the

manifest. Finally, the court found that the EPA had statutory authority to establish and

maintain public information of its enforcement actions on the website pursuant to both

sections 4 and 31 of the Act, as well as pursuant to the Freedom of Information Act (5

ILCS 140/1 et seq. (West 2008)). Illini appealed this order.

¶ 33                              LAW AND ANALYSIS

¶ 34   In determining whether summary judgment was correct, the trial court must

consider all evidence in the record against the movant and liberally in favor of the

opponent. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). The court

must consider all pleadings, depositions, admissions, and affidavits on file to decide if

there is any issue of material fact. Myers v. Health Specialists, S.C., 225 Ill. App. 3d 68,

72, 587 N.E.2d 494, 497 (1992). If there are disputed facts, then the trial court must

"view all evidence in the light most favorable to the nonmoving party and draw all

reasonable inferences from the facts presented in favor of the nonmovant." Martens v.

MCL Construction Corp., 347 Ill. App. 3d 303, 312, 807 N.E.2d 480, 487 (2004) (citing

In re Estate of Hoover, 155 Ill. 2d 402, 410-11, 615 N.E.2d 736, 739-40 (1993)). Courts

should not use summary judgment to resolve questions of fact, but to determine whether

a factual question exists. Id. (citing Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d

511, 517, 622 N.E.2d 788, 792 (1993)). A mere factual possibility will not defeat a

summary judgment motion. Wilmere v. Stibolt, 152 Ill. App. 3d 642, 648, 504 N.E.2d
                                       9
916, 919 (1987). In considering the motion, the court should not ignore evidence or

inferences negative to plaintiff's position. Yacko v. Curtis, 339 Ill. App. 3d 299, 302, 789

N.E.2d 1274, 1276 (2003).

¶ 35   A decision to deny summary judgment on a declaratory judgment action is

reviewed de novo. See Farmers Automobile Insurance Ass'n v. Coulson, 402 Ill. App. 3d

779, 780, 931 N.E.2d 1257, 1259 (2010).

¶ 36                                     Res Judicata

¶ 37   Res judicata is a legal doctrine that serves to bar a subsequent action if an initial

court action concluded with a final judgment on the merits involving the same claim and

the same parties or their privies. Sherrod v. Ramaswamy, 314 Ill. App. 3d 357, 361, 732

N.E.2d 87, 90 (2000); Cabrera v. First National Bank of Wheaton, 324 Ill. App. 3d 85,

92, 753 N.E.2d 1138, 1144 (2001). The three required elements to establish res judicata

are a final judgment on the merits rendered by a court of competent jurisdiction, identical

causes of action, and identical parties or privies. State Farm Fire & Casualty Co. v. John

J. Rickhoff Sheet Metal Co., 394 Ill. App. 3d 548, 558, 914 N.E.2d 577, 588 (2009). The

burden of proof rests with the party seeking to use the doctrine. Diversified Financial

Systems, Inc. v. Boyd, 286 Ill. App. 3d 911, 915, 678 N.E.2d 308, 310 (1997).

¶ 38   In this case, the trial court refused to apply the doctrine of res judicata. The court

concluded that Illini did not prove that the dismissal of the EPA's enforcement action was

a final judgment on the merits. A final judgment on the merits is one "adjudicating the

contested rights in a conclusive and definitive manner." Zenith Vending Corp. v. Village

of Schaumburg, 180 Ill. App. 3d 354, 360, 535 N.E.2d 1033, 1037 (1989).
                                           10
¶ 39   The written court order which dismissed the EPA enforcement action included no

basis for the dismissal. Illini's main argument in its motion to dismiss the enforcement

action involved section 2-619(a)(3) of the Code of Civil Procedure–that the declaratory

judgment action between the same parties was currently pending.            735 ILCS 5/2-

619(a)(3) (West 2008). Illini did not base its argument on the merits of the pending

declaratory judgment action, but simply argued that the two cases involved the same set

of facts and issues. The court's order could have been in response to this argument. The

procedural history from the enforcement action case supports this possibility.          The

enforcement action court would not rule upon Illini's motion to dismiss until the

declaratory judgment court ruled upon the EPA's motion to dismiss. As soon as the

declaratory judgment court partially granted the EPA's motion to dismiss, the

enforcement action court set the hearing on the pending motion in its court, and at the

hearing dismissed the EPA's complaint. Because Illini's motion was based upon section

2-619(a)(3) and not upon the merits of the case, we find that the trial court's order was

based on the identity of facts and issues in the two cases in accordance with the judicial

economy goals of section 2-619(a)(3).

¶ 40   Dismissals pursuant to section 2-619(a)(3) are not final adjudications on the

merits. Zenith Vending Corp., 180 Ill. App. 3d at 360-61, 535 N.E.2d at 1036-37. The

essential goal of section 2-619(a)(3) is judicial economy, relieving courts and litigants of

the burden of duplicative litigation. Ransom v. Marrese, 122 Ill. 2d 518, 530, 524 N.E.2d

555, 560 (1988). A section 2-619(a)(3) dismissal does not reach substantive claims, but

serves to suspend the proceedings, allowing the plaintiff the opportunity to renew the
                                         11
claim at another time and/or in a different forum. International Insurance Co. v. Morton

Thiokol, Inc., 185 Ill. App. 3d 686, 691, 542 N.E.2d 6, 9 (1989). Therefore, dismissal

pursuant to this section does not constitute a final judgment on the merits.         Zenith

Vending Corp., 180 Ill. App. 3d at 361, 535 N.E.2d at 1037.

¶ 41   Illini cites to Avery v. Auto-Pro, Inc., 313 Ill. App. 3d 747, 731 N.E.2d 319 (2000),

in support of its claim that the dismissal was final and on the merits. Upon review of this

case, we conclude that it is distinguishable. The prior claim in Avery was a dismissal on

the basis of the statute of limitations pursuant to section 2-619(a)(5) of the Code of Civil

Procedure (735 ILCS 5/2-619(a)(5) (West 1998)). If a party did not timely file suit in

keeping with a statute of limitations, the party cannot make the claim. A resulting

dismissal because a party violated the statute of limitations constituted a final judgment

on the merits. Avery, 313 Ill. App. 3d at 750, 731 N.E.2d at 322.

¶ 42   Section 2-619(a)(3) is designed to avoid duplicative litigation. If we accepted

Illini's theory, court two could dismiss the action because it was pending in court one, and

then court one could dismiss the action because of the dismissal in court two. The Code

of Civil Procedure does not contemplate that outcome. The intent of the rule is that one

of the two cases will proceed after dismissal of the other. Accordingly, we find that the

trial court properly denied Illini's claim that the doctrine of res judicata barred the

enforcement action on the EPA notice of violation.

¶ 43           Count I–Rejection of Illini's Compliance Commitment Agreement

¶ 44   Illini argues that the EPA did not provide the required statutory notice that it

rejected Illini's CCA. Section 31(a)(7) of the Environmental Protection Act requires the
                                            12
EPA to respond to an alleged violator's CCA within 30 days. 415 ILCS 5/31(a)(7) (West

2008). Illini acknowledges that its attorney received a certified letter from the Illinois

EPA in December 2010, rejecting a CCA. The EPA sent the letter within the 30 days,

named Illini as the violator, was directed to Illini's attorney, listed the correct notice of

violation number 01282, and named and rejected the November 30, 2010, CCA Illini sent

to the EPA. However, because the letter stated that SG Solutions submitted the CCA

(instead of Illini submitting the November 30, 2010, CCA), Illini argues that the EPA

failed to timely reject its CCA, and thus is prohibited from referring the matter to the

Attorney General for prosecution. Section 31(a)(9) of the Act provides:

       "The Agency's failure to respond to a written response submitted *** within 30

       days *** shall be deemed an acceptance by the Agency of the proposed

       Compliance Commitment Agreement for the violations alleged in the written

       noticed issued *** as contained within the written response." 415 ILCS 5/31(a)(9)

       (West 2008).

¶ 45   The Illinois legislature enacted section 31 of the Environmental Protection Act to

establish a prelitigation process for the alleged violators to meet and work with the EPA

to correct violations. See Alternate Fuels, Inc. v. Director of the Illinois Environmental

Protection Agency, 215 Ill. 2d 219, 226, 830 N.E.2d 444, 448 (2004). If the EPA and the

alleged violator are not able to reach an agreement, then sections 31(b) and (c) of the Act

direct the EPA to refer the case to the Attorney General or to a State's Attorney for

prosecution. 415 ILCS 5/31(b), (c) (West 2008).


                                             13
¶ 46   In this case, the Illinois EPA timely rejected the CCA, albeit with the

aforementioned misnomer. Illini takes the position that the EPA, with this error, forfeited

all rights to prosecute Illini for violations of the Act. Illini cites no legal authority for this

theory. Section 31(a)(7) specifically states that within those 30 days, the EPA must send

a written response "upon the person complained against." 415 ILCS 5/31(a)(7) (West

2008). Reviewing the EPA letter at issue, there were numerous identifying details in the

letter, not the least of which was that the letter indicated that Illini Environmental of

Caseyville was the violator, and listed the correct notice of violation number.               We

conclude that the letter served as a timely rejection of Illini's CCA.

¶ 47   Even if somehow the rejection letter was deficient, we conclude that the Attorney

General maintains the right to enforce violations of the Act pursuant to section 31(a)(10)

of the Act. 415 ILCS 5/31(a)(10) (West 2008). Section 31(a)(10) provides that even in

situations where the EPA has accepted a violator's CCA, the Agency is allowed to

continue negotiations on matters which are still in disagreement. Id.

¶ 48              Merits of Count I of Illini's Declaratory Judgment Action

¶ 49   Count I involved the waste Illini picked up in Indiana from SG Solutions. Illini

asked the court to declare that it did not generate the waste and therefore did not violate

any laws or regulations or the terms of its operating permit. Illini also sought the court's

declaration that despite SG Solutions' hazardous label on its barrels of waste, Illini had no

obligation to certify or confirm that information.

¶ 50   The terms and provisions of the Act must be liberally construed in order to

effectuate its purposes.     415 ILCS 5/2(c) (West 2008).            Furthermore, the Board's
                                          14
administrative regulations have the effect of law. Granite City Division of National Steel

Co. v. Illinois Pollution Control Board, 155 Ill. 2d 149, 162, 613 N.E.2d 719, 724 (1993).

We must look to the language of the regulations to ascertain the Agency's intent. People

ex rel. Madigan v. Illinois Commerce Comm'n, 231 Ill. 2d 370, 380, 899 N.E.2d 227, 232

(2008). Courts must give substantial deference to the agency's reasonable interpretation

of its own regulations and associated statutes. Provena Covenant Medical Center v.

Department of Revenue, 236 Ill. 2d 368, 387 n.9, 925 N.E.2d 1131, 1143 n.9 (2010).

With these general principles in mind, we turn to the provisions the EPA claims Illini

violated.

¶ 51   Sections 21(d), (e), and (f) of the Environmental Protection Act prohibit the

treatment or transportation of hazardous waste in violation of conditions of a permit

issued by the Agency, or in violation of any regulations or standards adopted by

the Board pursuant to the Act. 415 ILCS 5/21(d), (e), (f) (West 2008). "No person may

conduct any hazardous waste storage, hazardous waste treatment, or hazardous waste

disposal operation *** [w]ithout a *** permit for the *** hazardous waste

management[ ] facility ***." 35 Ill. Adm. Code § 703.121(a)(1) (2003).

¶ 52   Both parties agree that Illini's operating permit does not authorize it to receive or

treat hazardous waste at its facility. There is no dispute that SG Solutions tested the

waste and determined that it contained hazardous levels of both arsenic and chromium.

In accordance with those test results, SG Solutions labeled the waste in the barrels as

hazardous. In this case, Illini's agent, upon arrival at the Indiana facility, modified the

barrels to match Illini's manifest. The manifest indicated the waste to be picked up was
                                           15
nonhazardous, while the barrels clearly were labeled as hazardous. We do not know why

Illini's agent did not try to confirm that the barrel contents were actually hazardous before

he made these changes. However, that reason is irrelevant. Illini's permit did not grant

Illini the authority to transport hazardous waste to its Caseyville facility.        This is

precisely what Illini did.

¶ 53   Illini also disputes that the waste was actually hazardous. In two separate tests

performed by SG Solutions, the results indicated that the waste was hazardous. One

week after Illini took delivery of the SG Solutions waste, an Illini employee questioned

the discrepancy regarding the waste classification. Illini still had the SG Solutions drums

in its possession, although Illini had already removed, consolidated, and transported the

waste to a landfill in East St. Louis. An independent laboratory hired by Illini tested the

residue from the drums and determined that the residue was not hazardous. Although

both SG Solutions and Illini tested the waste for hazardous properties with different

outcomes, SG Solutions conducted testing on the full sample, while Illini's testing, at

best, was only of residue. Illini had already shipped the processed waste to the landfill

when it decided to test the residue. Furthermore, Illini failed to attest to the methods

used to sample or analyze the residue, does not state that the residue tested was

representative of the waste, and does not state that the sample and test by the independent

laboratory complied with Board regulations. We agree with the trial court's conclusion

that Illini was unable to establish that the waste was not hazardous.

¶ 54   Furthermore, we agree with the trial court that Illini must be charged with the

knowledge that the waste was hazardous. To hold otherwise defies logic. SG Solutions
                                        16
labeled the barrels of waste as hazardous. SG Solutions' labels provided the necessary

information to mandate inquiry into the nature of the waste, because Illini had no ability

to receive and transport hazardous waste. Illini contends that because the agent for SG

Solutions signed the manifest that listed the waste as nonhazardous, this intervening act

by SG Solutions relieved Illini of any responsibility to ascertain the true nature of the

waste Illini was planning to haul. We disagree. Regulations require the generator of the

waste to create and sign a manifest. In this case, Illini created the manifest–not SG

Solutions. Illini listed the waste as nonhazardous. However, Illini's manifest was in

direct conflict with the labeling and sample test results from the barrels. The regulations

do not suggest that Illini can rely on the manifest labeling alone to avoid obligations.

However, in this case, Illini went an additional step in modifying the label on each barrel

it planned to transport. Knowledge or intent is not required to prove violation of the

Environmental Protection Act. See Hindman v. Pollution Control Board, 42 Ill. App. 3d

766, 769, 356 N.E.2d 669, 672 (1976); People v. A.J. Davinroy Contractors, 249 Ill.

App. 3d 788, 792-93, 618 N.E.2d 1282, 1286 (1993). While lack of knowledge could be

relevant to the penalty the Agency may impose, lack of knowledge has no bearing on

whether Illini committed violations. 415 ILCS 5/42(h)(2) (West 2008).

¶ 55   Based upon our review of the record, we find that the trial court properly denied

Illini's request for a summary judgment on count I of its declaratory judgment. Illini's

claim that it did not violate its permit or regulations by transporting and receiving the

hazardous waste at its Caseyville site is unsupported by the evidence or the law.


                                            17
¶ 56             Merits of Count II of Illini's Declaratory Judgment Action

¶ 57    Count II of Illini's declaratory judgment dealt with pickup of waste on December

17, 2010, in Missouri. Illini substituted a manifest in picking up the waste for the one

prepared by the generator of the waste, Tri-Rinse. Illini claims that the EPA improperly

issued notice of violation number 01008 because it did not violate any regulations in its

handling of the Tri-Rinse waste.

¶ 58    Section 21(j) of the Act prohibits any company from conducting any special waste

transportation operation that violates any Board regulations. 415 ILCS 5/21(j) (West

2008). If a carrier transports special waste, a manifest listing the "generator" of the waste

(including the generator's identification number) must accompany the waste. 35 Ill.

Adm. Code §§ 809.301, 809.501 (2012). The Act defines a generator as "any person

whose act or process produces waste." 415 ILCS 5/3.205 (West 2008). The regulations

define a special waste transporter as "any person who transports special waste from any

location." 35 Ill. Adm. Code § 809.103 (2012).

¶ 59    On December 17, 2010, Illini picked up special waste from Tri-Rinse in Missouri.

This fact is not in dispute. Therefore, Illini transported special waste. Tri-Rinse created a

manifest to accompany the waste it generated.          Upon accepting that waste, Illini

terminated that manifest and substituted its own manifest.         On this manifest, Illini

identifies itself both as the transporter of the waste and as its generator. With this

manifest, Illini hauled the waste to the Southern Illinois Regional Landfill in DeSoto,

Illinois.


                                             18
¶ 60   Illini's argument is simply that its actions violated no laws or regulations.

Specifically, Illini contends that by picking up the waste for transport, Illini's role

somehow changed and Illini became the waste's generator. Illini argues that this manner

of labeling and handling of waste products is standard in the industry and accurately

follows the waste from "cradle to grave." As defined above, a generator of waste is not

merely the entity presently in charge of the waste, but is an entity that engages in an act

or process–like a treatment–on the waste. Illini acknowledges that it did not treat or

change the composition of the waste before delivering it to the landfill.

¶ 61   Despite Illini's argument that this type of manifest creation and labeling is standard

in the waste industry, Illini did not comply with regulation 809.301 (35 Ill. Adm. Code §

809.301 (2012)) when it labeled itself as the generator of the waste. Irrespective of

industry practice, that practice fails to comply with Illinois regulations and does not

insulate Illini and other companies from liability for noncompliance.           In this case,

problems arose after the waste arrived at the landfill. The manifest used when the waste

arrived at the landfill did not correctly list the generator of the waste, and so it required

extra investigation by the EPA in order to locate the generator, identify the waste

byproducts, and address the problems at the landfill.

¶ 62   Having considered all of the evidence, we find that the trial court's denial of Illini's

summary judgment as to count II of its declaratory judgment complaint was correct and

should be affirmed.




                                              19
¶ 63              Merits of Count III of Illini's Declaratory Judgment Action

¶ 64   In count III, Illini contends that the EPA has no authority to post a notice of

violation on its website prior to when the EPA refers the notice to the Attorney General

for enforcement. Illini cites to statutes argued as applicable by the EPA at the hearing.

That statute provides in part that with respect to a notice of violation regarding any form

of waste:

       "[T]he Agency shall annually publish a list of all such notices served. The list

       shall include the date the investigation commenced, the date notice was sent, the

       date the matter was referred to the Attorney General, if applicable, and the current

       status of the matter." 415 ILCS 5/31(c)(1) (West 2008).

Illini concludes that this is the extent of what the EPA may do in the way of publication,

and that no publication can occur until after the Attorney General is involved to enforce

the notice of violation. We find that Illini's interpretation of this statute is too narrow.

While the Act mandates that the EPA publish an annual notice listing each notice of

violation issued, section 31 of the Act contains no provision that would limit the EPA to

one annual notice. Furthermore, there is no requirement in section 31(c)(1) that the EPA

can only include notices of violation that have gone to enforcement.

¶ 65   The public has great interest in the environment of our state. Our legislature has

declared that "environmental damage seriously endangers the public health and welfare"

and that it is necessary to have a unified statewide program that exists in cooperation with

other states and the federal government to protect our environment. 415 ILCS 5/2(a)(i),

(ii) (West 2008). The Environmental Protection Act grants authority to the EPA to
                                      20
collect and disseminate information and data. Granite City Division of National Steel

Co., 155 Ill. 2d at 162, 613 N.E.2d at 725. That authority stems from section 4(b) of the

Act, which mandates that the Agency "collect and disseminate such information, acquire

such technical data, and conduct such experiments as may be required to carry out the

purposes of this Act." 415 ILCS 5/4(b) (West 2008). In fact, all files, records, and data

maintained by the Agency and the Board, as well as the Department of Natural

Resources, must be open for public inspection and copying. 415 ILCS 5/7(a) (West

2008).

¶ 66     Accordingly, upon review of the law, we conclude that the trial court's denial of

summary judgment on the matter of the EPA's publication of Illini's notice of violation

was proper.

¶ 67                                   CONCLUSION

¶ 68     For the foregoing reasons, the judgment of the circuit court of St. Clair County is

hereby affirmed.



¶ 69     Affirmed.




                                             21
                                  2014 IL App (5th) 130244

                                      NO. 5-13-0244

                                          IN THE

                           APPELLATE COURT OF ILLINOIS

                                 FIFTH DISTRICT
________________________________________________________________________

ILLINI ENVIRONMENTAL, INC.,                     )     Appeal from the
                                                )     Circuit Court of
      Plaintiff-Appellant,                      )     St. Clair County.
                                                )
v.                                              )     No. 11-MR-178
                                                )
THE ENVIRONMENTAL                               )
PROTECTION AGENCY,                              )     Honorable
                                                )     Richard A. Aguirre,
      Defendant-Appellee.                       )     Judge, presiding.
________________________________________________________________________

Rule 23 Order Filed:                August 11, 2014
Motion to Publish Granted:          October 3, 2014
Opinion Filed:                      October 3, 2014
________________________________________________________________________

Justices:           Honorable Melissa A. Chapman, J.

                  Honorable Thomas M. Welch, P.J., and
                  Honorable Judy L. Cates, J.,
                  Concur
________________________________________________________________________

Attorney          Joseph M. Kellmeyer, Thompson Coburn LLP, One U.S. Bank
for               Plaza, St. Louis, MO 63101
Appellant
________________________________________________________________________

Attorneys         Lisa Madigan, Attorney General, State of Illinois, Michael A.
for               Scodro, Solicitor General, Christopher M. R. Turner, Assistant
Appellee          Attorney General, 100 West Randolph Street, 12th Floor, Chicago,
                  IL 60601
________________________________________________________________________
