Village of Wilsonville v. SCA Services, Inc.

• Decision Date: 22 May 1981
• Docket Number: No. 52885,52885
• Parties: , 55 Ill.Dec. 499, 16 ERC 1105, 11 Envtl. L. Rep. 20,698 The VILLAGE OF WILSONVILLE et al., Appellees, v. SCA SERVICES, INC., Appellant.
• Court: Illinois Supreme Court

Page 824

426 N.E.2d 824

86 Ill.2d 1, 55 Ill.Dec. 499, 16 ERC 1105,

11 Envtl. L. Rep. 20,698

The VILLAGE OF WILSONVILLE et al., Appellees, v. SCA SERVICES, INC., Appellant.

No. 52885.

Supreme Court of Illinois.

May 22, 1981.

Rehearing Denied Oct. 19, 1981.

Henry L. Mason, III, Thomas M. McMahon and Robert M. Olian of Sidley & Austin, Chicago, Fred C. Prillaman of Mohan, Alewelt & Prillaman, Springfield, and Stuart Dobbs of Denby, Dobbs, Meno & Bloomer, Carlinville (William C. Brashares and Melvin J. Duvall, Jr., of Cladouhos & Brashares, Washington, D. C., and Lawrence C. Hutchings, Boston, Mass., of counsel), for appellant.

Paul C. Verticchio, Gillespie, for appellees Village of Wilsonville and Macoupin County Farm Bureau.

Tyrone C. Fahner and William J. Scott, Attys. Gen., Springfield (Richard W. Cosby, Ann L. Carr, and A. L. Zimmer, Asst. Attys. Gen., of counsel), for the People.

Kenneth R. Boyle, State's Atty., Carlinville, for appellee the County of Macoupin.

Eugene H. Bernstein of Isham, Lincoln & Beale, Chicago, for amicus curiae Commonwealth Edison Co.

John M. Cannon and Susan W. Wanat, Chicago, for amici curiae Chicago Ass'n of Commerce and Industry, Illinois Mfrs.' Ass'n, and Mid-America Legal Foundation.

Mary C. Bryant, Chicago, and Dorothy A. Darrah and Richard S. Mallory, Washington, D. C., for amicus curiae United States Environmental Protection Agency.

David O. Ledbetter, Washington, D. C., for amicus curiae U. S. Dept. of Justice.

Kirkland & Ellis, Chicago (Daniel W. Vittum, Jr., Frank L. Winter, and Donald W. Rupert, Chicago, of counsel), for amici curiae John Sexton Sand & Gravel Corp. and John Sexton Contractors.

CLARK, Justice:

On April 18, 1977, the plaintiff village of Wilsonville (the village) filed a complaint seeking injunctive relief in the circuit court of Macoupin County. Plaintiffs Macoupin County and the Macoupin County Farm Bureau were granted leave to intervene on April 29, 1977, and May 9, 1977, respectively. They filed complaints substantially similar to the village's complaint. The gravamen of the complaints was that the operation of the defendant's chemical-waste-disposal site presents a public nuisance and a hazard to the health of the citizens of the village, the county, and the State. The Attorney General of Illinois filed a complaint on May 26, 1977, seeking an injunction pursuant to the Environmental Protection Act (Ill.Rev.Stat.1975, ch. 1111/2, pars. 1003(d), 1003(n), 1012(d), 1043). After several amendments to the complaints and several motions were made and decided, the Attorney General's action and the other action were consolidated and set for trial. Trial began on June 7, 1977, consumed 104 days, and resulted in judgment for the plaintiffs on August 28, 1978. The trial court's judgment order concluded that the site constitutes a nuisance and enjoined the defendant from operating its hazardous-chemical-waste landfill in Wilsonville. It ordered the defendant to remove all toxic waste buried there, along with all contaminated soil found at the disposal site as a result of the operation of the landfill. Further, the court ordered the defendant to restore and reclaim the site.

The defendant appealed. The Appellate Court for the Fourth District unanimously affirmed the trial court's judgment. (77 Ill.App.3d 618, 33 Ill.Dec. 163, 396 N.E.2d 552.) We allowed the defendant's petition for leave to appeal. (73 Ill.2d R. 315.) We affirm.

The record in this matter is over 13,000 pages long. The appellate court opinion sets out many pertinent facts. It is only necessary to summarize them here.

The defendant has operated a chemical-waste landfill since 1977. The site comprises approximately 130 acres, 90 of which are within the village limits of the plaintiff village. The remaining 40 acres are adjacent to the village. The defendant enters into agreements with generators of toxic chemical waste to haul the waste away from the generators' locations. The defendant then delivers it to the Wilsonville site, tests random samples of chemical waste, and then deposits the waste in trenches. There are seven trenches at the site. Each one is approximately 15 feet deep, 50 feet wide, and 250 to 350 feet long. Approximately 95% of the waste materials were buried in 55-gallon steel drums, and the remainder is contained in double-wall paper bags. After the materials are deposited in the trenches, uncompacted clay is placed between groups of containers and a minimum of one foot of clay is placed between the top drum and the top clay level of the trench.

The site is bordered on the east, west, and south by farmland and on the north by the village. The entire site, the village, and much of the surrounding area is located above the abandoned Superior Coal Mine No. 4, which operated from 1917 to 1954. The No. 6 seam of the mine was exploited in this area at a depth of 312 feet. The mining method used to extract coal was the room-and-panel method, whereby about 50% of the coal is left in pillars which provide some support for the earth above the mine. There was testimony at trial by Dr. Nolan Augenbaugh, chairman of the Department of Mining, Petroleum and Geological Engineering at the University of Missouri at Rolla, that pillar failure can occur in any mine where there is a readjustment of stress. Also on the defendant's site is a 30- to 40-feet-high pile of "gob," or mine spoil of coal, shale, and clay, which was accumulated over the time the mine was operated. Acid drainage from the mine has seeped into the ground and contaminated three surface drainage channels at the site. The defendant has attempted to remedy this situation by covering the surface of the "gob pile" with excess soil from the trenches.

There are 14 monitoring wells along the perimeter of the site. They are designed to detect liquids which seep through the soil and into the wells. They are not designed to contain liquids, however. In fact, monitoring wells Nos. 5 and 6 are 650 feet apart, which would allow many materials to pass between those two wells and not be discovered. The wells are sampled quarterly by a private laboratory, and test results are submitted to the Illinois Environmental Protection Agency (IEPA). Additional water samples are taken from three surface channels and are tested and reported in the same manner as samples taken from the wells. The surface drainage and the groundwater drainage from the site are to the south, away from the village and toward farmland.

The village has no sewage-treatment plant and no municipally owned sewage system. Most homes are served by septic tanks, and some homes and businesses are connected to private sewers. The water-distribution system is centralized, and water is purchased from Gillespie, Illinois. The system was built in 1952 after the village tried unsuccessfully to find sufficient water by drilling municipal wells in the area. There are still 73 water wells in the village, some of which are used to water gardens or wash cars. At least one well is used to water pets, and another is used for drinking water. South of defendant's site, approximately one-half mile from the gob pile, is the Vassi Spring, the owner of which intends to use it as his water supply when he builds his home. Further south are four more springs used to water livestock.

On February 11, 1976, the defendant applied to the IEPA for a permit to develop and operate the hazardous-waste landfill. A developmental permit was issued by the IEPA on May 19, 1976. After a preoperation inspection was conducted by the IEPA, an operational permit was issued to the defendant on September 28, 1976. Each delivery of waste material to the site must be accompanied by a supplemental permit issued by the IEPA. A supplemental permit specifies the chemical nature and quantity of the waste to be deposited at the sites. Between November 12, 1976, and June 7, 1977, the first day of trial, the defendant had obtained 185 such permits.

The materials deposited at the site include polychlorinated biphenyls (PCBs), a neurotoxic, possibly carcinogenic chemical which it has been illegal to produce in this country since 1979. Due to the extensive use of PCBs in electrical equipment such as transformers, capacitors, and heat-transfer systems, and in hydraulic systems, any PCBs that were produced legally now have to be disposed of when they are no longer in use. PCBs have been stored at the site in liquid, solid and semi-solid form. Additionally, there are a number of now-empty drums which had once contained PCBs, which are also buried at the site. Other materials buried at the site in large quantities are solid cyanide, a substance known as C5, 6, paint sludge, asbestos, pesticides, mercury, and arsenic. Considerable evidence was adduced to show that these and other substances deposited at the site are extremely toxic to human beings. Some of the adverse reactions which could result from exposure to these materials are pulmonary diseases, cancer, brain damage, and birth defects.

The general geologic profile of the site shows a surface layer of about 10 feet of loess (wind-blown silt and clay material), under which lies 40 to 65 feet of glacial till. In the till material there is a thin sand layer of a few inches to approximately two feet. Some ground water has been found in the sand layer. All trenches dug at the site have between 10 to 15 feet of glacial till below them. The glacial till is reported to be very dense and is not very permeable. Thus liquids do not travel through it quickly.

Permeability studies conducted before the site opened by John Mathes, a professional engineer hired by the defendant, indicate permeability results ranging from 7.4 X 10 -8 centimeters per second to 1.2 X 10 -8 centimeters per second (cm/sec.). (The larger the negative exponent is, the less permeable the soil. E. g., a finding of 10 -8 cm/sec. indicates that the soil is less permeable than would a reading of 10 -4...