People v. Einoder

• Decision Date: 01 April 2004
• Docket Number: No. 95944., No. 95942, No. 95943
• Citation: 283 Ill.Dec. 551,808 N.E.2d 517,209 Ill.2d 443
• Parties: The PEOPLE of the State of Illinois, Appellant, v. John T. EINODER et al., Appellees.
• Court: Illinois Supreme Court

808 N.E.2d 517

209 Ill.2d 443

283 Ill.Dec. 551

The PEOPLE of the State of Illinois, Appellant, v. John T. EINODER et al., Appellees.

Nos. 95942, 95943, 95944.

Supreme Court of Illinois.

April 1, 2004.

Lisa Madigan, Attorney General, Springfield (Gary Feinerman, Solicitor General, and Linda Woloshin, Mark L. Josephson and Russell K. Benton, Assistant Attorneys General, Chicago, of counsel), for the People.

Peter B. Carey, Diana R. Lamphiere and Leland E. Shalgos, Chicago, for appellees.

Justice KILBRIDE delivered the opinion of the court:

Defendants, John T. Einoder, Tri-State Industries, Inc., and J.T. Einoder, Inc., were charged, in three separate indictments, for criminal disposal of waste under section 44(p)(1)(A) of the Illinois Environmental Protection Act (Act) (415 ILCS 5/44(p)(1)(A) (West 2000)). The circuit court of Cook County granted defendants' motion to dismiss each of the indictments, finding that section 44(p)(1)(A) is unconstitutionally vague. This is a direct appeal by the State in each case pursuant to Supreme Court Rule 302(a) (134 Ill.2d R. 302(a)). The cases have been consolidated on appeal. We reverse and remand.

I. BACKGROUND

On February 19, 2002, defendants were charged in three separate indictments for the offense of criminal disposal of waste under section 44(p)(1)(A) of the Act (415 ILCS 5/44(p)(1)(A) (West 2000)). The indictments alleged that defendants committed criminal disposal of waste by knowingly conducting a waste-disposal operation and accepting for disposal more than 250 cubic feet of concrete containing protruding rebar, construction debris, demolition debris, and general refuse, without a permit as required by section 21(d) of the Act (415 ILCS 5/21(d) (West 2000)).

On May 30, 2002, the State filed a motion to expand defendant John Einoder's conditions of bond to comply with the Act. In its motion to expand the conditions of bond, the State alleged that the "general construction or demolition debris" brought to the site by defendant John Einoder is not managed in accordance with section 22.38(b) of the Act, governing "facilit[ies] accepting exclusively general construction or demolition debris for transfer, storage, or treatment." 415 ILCS 5/22.38(b) (West 2000). The State therefore alleged that defendant John Einoder is subject to the requirements of section 21(d) of the Act and is required to obtain an Illinois Environmental Protection Agency permit to conduct such activity.

In its motion to expand defendant John Einoder's conditions of bond, the State further alleged that he has allowed "clean construction or demolition debris" to be deposited on the site, above grade, and otherwise not managed in accordance with the provisions of section 3.78a of the Act, without a permit.

Defendants filed a motion to dismiss the indictments arguing, inter alia, that the statute is unconstitutionally vague because the term "grade" is not defined in the Act. Defendants also argued that the term "waste" fails to define the criminal offense with sufficient definiteness that ordinary people can understand what is prohibited conduct.

The trial court granted defendants' motion to dismiss, holding that the statute is unconstitutionally vague on its face. The trial court reasoned:

"As the Defendants correctly note in their motion to Dismiss, the term `grade' is not defined in the Act. `Grade' in its ordinary meaning has multiple meanings and can mean (1) the degree of rise' or descent of a sloping surface, as a highway, railroad, etc.; such as a sloping part; (2) the ground level around a building; (3) to make (ground) level or slope (ground) evenly for a roadway, etc.; (4) to change gradually; go through a series of stages—at grade, on the same level or degree of rise. See Webster's New World Dictionary, Second College Edition, `Grade.'"

Thus, the trial court determined that "[b]ecause the statute fails to provide any reference points to assist in interpreting how grade should be measured, this court interprets the term grade as an ambiguous or vague term."

The trial court further reasoned that:

"The term `waste' also fails to define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Therefore, the statute fails to define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."

The trial court concluded that:

"Defendants have shown the statute to be vague in the sense that no standard of conduct is specified at all, based on the terms `waste' and `grade.' Further, this court concludes that because Section 5/44(p)(1)(A) is a penal statute, it fails to adequately define the criminal offense in such a manner that does not encourage arbitrary and discriminatory enforcement. Therefore, based on these findings, this court grants the Defendants [sic] motion to dismiss and finds the section of the Act is unconstitutionally vague."

The State appealed each case directly to this court pursuant to Supreme Court Rule 302(a) (134 Ill.2d R. 302(a)). The cases were consolidated in this appeal.

II. ANALYSIS

The State argues that the trial court erred in holding that section 44(p)(1)(A) is unconstitutionally vague on its face because the statute does not implicate first amendment rights and the trial court received no evidence to find vagueness as applied to defendants. We agree with the State. A defendant can challenge a statute as unconstitutionally vague in two ways: (1) on the statute's face, or (2) as the statute is applied to defendant's actions. See People v. Greco, 204 Ill.2d 400, 416, 274 Ill.Dec. 73, 790 N.E.2d 846 (2003). A defendant may not challenge the facial vagueness of a statute that does not implicate first amendment freedoms unless the statute "is incapable of any valid application." (Emphasis added.) People v. Izzo, 195 Ill.2d 109, 112, 253 Ill.Dec. 425, 745 N.E.2d 548 (2001).

The relevant statute at issue, section 44(p)(1)(A) of the Act, states:

"(p) Criminal Disposal of Waste.

(1) A person commits the offense of Criminal Disposal of Waste when he or she:

(A) if required to have a permit under subsection (d) of Section 21 of this Act, knowingly conducts a waste-storage, waste-treatment, or waste-disposal operation in a quantity that exceeds 250 cubic feet of waste without a permit." (Emphasis added.) 415 ILCS 5/44(p)(1)(A) (West 2000).

The term "waste," as used in section 44(p)(1)(A), is defined in section 3.53 as:

"any garbage, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility or other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities * * *." 415 ILCS 5/3.53 (West 2000).

Section 21(d), referred to in section 44(p)(1)(A) of the Act, provides that no person shall:

"[c]onduct any waste-storage, waste-treatment, or waste-disposal operation:

(1) without a permit granted by the Agency or in violation of any conditions imposed by such permit, * * * provided, however, that, except for municipal solid waste landfill units that receive waste on or after October 9, 1993, no permit shall be required for * * * (ii) a facility located in a county with a population over 700,000, operated and located in accordance with Section 22.38 of this Act, and used exclusively for the transfer, storage, or treatment of general construction or demolition debris." (Emphasis added.) 415 ILCS 5/21(d)(1) (West 2000).

The term "general construction or demolition debris" as used in section 21(d)(1)(ii) is defined in section 3.78 of the Act as:

"non-hazardous, uncontaminated materials resulting from the construction, remodeling, repair, and demolition of utilities, structures, and roads * * *.

General construction or demolition debris does not include uncontaminated soil generated during construction, remodeling, repair, and demolition of utilities, structures, and roads provided the uncontaminated soil is not commingled with any general construction or demolition debris or other waste." (Emphasis added.) 415 ILCS 5/3.78 (West 2000).

The term "clean construction or demolition debris" is defined in section 3.78a of the Act as:

"uncontaminated broken concrete * * *. Clean construction or demolition debris does not include uncontaminated soil generated during construction, remodeling, repair, and demolition of utilities, structures, and roads provided the uncontaminated soil is not commingled with any clean construction or demolition debris or other waste. To the extent allowed by federal law, clean construction or demolition debris shall not be considered 'waste` if it is (i) used as fill material below grade outside of a setback zone * * *, or (ii) separated or processed and returned to the economic mainstream in the form of raw materials or products, * * * if used as a fill material, it is used in accordance with item (i), or (iii) solely broken concrete without protruding metal bars used for erosion control, or (iv) generated from the construction or demolition of a building, road, or other structure and used to construct * * * an above-grade area shaped so as to blend into an extension of the surrounding topography or an above-grade manmade functional structure not to exceed 20 feet in height * * *." (Emphases added.) 415 ILCS 5/3.78a (West 2000).

We review de novo a decision holding a statute unconstitutional. People ex rel. Sherman v. Cryns, 203 Ill.2d 264, 290, 271 Ill.Dec. 881, 786 N.E.2d 139 (2003). "Statutes are presumed to be constitutional, and the party challenging the validity of the statute has the burden to clearly establish the constitutional invalidity." Cryns, 203 Ill.2d at 290, 271 Ill.Dec. 881, 786 N.E.2d...