Valstad v. Cipriano

• Decision Date: 10 May 2005
• Docket Number: No. 4-04-0223.,4-04-0223.
• Citation: 293 Ill.Dec. 544,357 Ill. App.3d 905,828 N.E.2d 854
• Parties: Harold VALSTAD, Individually and on Behalf of Valstad Quarry, Inc.; Allendale Gravel Company, Inc.; Anna Quarries, Inc.; Bluff City Materials, Inc.; Buckhart Sand & Gravel Company, Inc.; C & H Gravel Company; Casper Stolle Quarry & Contracting Company; Central Stone Company; Cessford Construction Company; Charles Heuerman Trucking; Christian County Limestone Company, LLC, d/b/a Pana Limestone Quarry Company; Collinson Stone Company; Columbia Quarry Company; Conco-Western Stone Company; Eagle Creek Quarries; Elmer Larson, Inc.; Elmhurst-Chicago Stone Company; Feltes Sand & Gravel Company, Inc.; Fox River Stone Company; Hastie Mining & Trucking Company; Joliet Sand & Gravel Company; Lawrence Gravel, Inc.; Macklin Incorporated; Martin Marietta Materials, Inc.; Material Service Corporation; Meyer Material Company; Mid America Sand & Gravel Company; Monmouth Stone Company; MSJ Larson, Inc.; Nokomis Quarry Company; Riverstone Group, Inc.; R.L. O'Neal & Sons, Inc.; Rockford Sand & Gravel, Inc.; Southern Illinois Stone Company; Tuscola Stone Company; U.S. Silica Company; Unimin Corporation; Valley View Industries, Inc.; Wendling Quarries, Inc.; West Central Materials, Inc., d/b/a McClure Quarries; and Western Sand & Gravel Company, Plaintiffs-Appellants, v. Renee CIPRIANO, Director, the Illinois Environmental Protection Agency; The Illinois Environmental Protection Agency; and Judy Barr Topinka, Illinois State Treasurer, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

828 N.E.2d 854

357 Ill. App.3d 905

293 Ill.Dec. 544

Harold VALSTAD, Individually and on Behalf of Valstad Quarry, Inc.; Allendale Gravel Company, Inc.; Anna Quarries, Inc.; Bluff City Materials, Inc.; Buckhart Sand & Gravel Company, Inc.; C & H Gravel Company; Casper Stolle Quarry & Contracting Company; Central Stone Company; Cessford Construction Company; Charles Heuerman Trucking; Christian County Limestone Company, LLC, d/b/a Pana Limestone Quarry Company; Collinson Stone Company; Columbia Quarry Company; Conco-Western Stone Company; Eagle Creek Quarries; Elmer Larson, Inc.; Elmhurst-Chicago Stone Company; Feltes Sand & Gravel Company, Inc.; Fox River Stone Company; Hastie Mining & Trucking Company; Joliet Sand & Gravel Company; Lawrence Gravel, Inc.; Macklin Incorporated; Martin Marietta Materials, Inc.; Material Service Corporation; Meyer Material Company; Mid America Sand & Gravel Company; Monmouth Stone Company; MSJ Larson, Inc.; Nokomis Quarry Company; Riverstone Group, Inc.; R.L. O'Neal & Sons, Inc.; Rockford Sand & Gravel, Inc.; Southern Illinois Stone Company; Tuscola Stone Company; U.S. Silica Company; Unimin Corporation; Valley View Industries, Inc.; Wendling Quarries, Inc.; West Central Materials, Inc., d/b/a McClure Quarries; and Western Sand & Gravel Company, Plaintiffs-Appellants, v. Renee CIPRIANO, Director, the Illinois Environmental Protection Agency; The Illinois Environmental Protection Agency; and Judy Barr Topinka, Illinois State Treasurer, Defendants-Appellees.

No. 4-04-0223.

Appellate Court of Illinois, Fourth District.

Argued February 23, 2005.

Decided May 10, 2005.

Christine G. Zeman (argued), Hodge, Dwyer & Zeman, Springfield, for Harold Valstad.

Lisa Madigan, Attorney General, Gary S. Feinerman, Solicitor General, Jerald S. Post, Assistant Attorney General (argued), Chicago, for Renee Cipriano, Director.

Robert A. Messina, Illinois Environmental Regulatory Group, Springfield, for Amicus Curiae, Illinois Environmental Regulatory Group.

Roger Huebner, General Counsel, Illinois Municipal League, Springfield, for Amicus Curiae, Illinois Municipal League.

Justice STEIGMANN delivered the opinion of the court:

Effective in relevant part July 1, 2003, the General Assembly enacted Public Act 93-32, which is the state budget implementation act for fiscal year 2004 (Pub. Act 93-32, eff. in relevant part on July 1, 2003 (2003 Ill. Legis. Serv. 400, 400) (section 999-1 specified the law took effect on becoming law (June 20, 2003), except the provisions of article 75, which became effective July 1, 2003, except those sections specified as taking effect later (Pub. Act § 999-1, eff. June 20, 2003 (2003 Ill. Legis. Serv. at 567))). In part, Public Act 93-32 added to the Illinois Environmental Protection Act (Act) section 12.5, which requires the Illinois Environmental Protection Agency (Illinois EPA or agency) to collect annual fees from certain holders of National Pollutant Discharge Elimination System (NPDES) permits (Pub. Act 93-32, § 75-52, eff. July 1, 2003 (2003 Ill. Legis. Serv. 400, 482)); 415 ILCS 5/12.5 (West Supp.2003)). In June 2003, the Illinois EPA issued notices to certain NPDES permit holders, including plaintiffs Harold Valstad, the owner and operator of Valstad Quarry, Inc., and 40 other owners and operators of Illinois quarries, requesting that they pay fees under newly added section 12.5 of the Act. Plaintiffs later paid the fees under protest.

In August 2003, plaintiffs filed a revised complaint against defendants Renee Cipriano, the Illinois EPA Director, the Illinois EPA, and Illinois State Treasurer Judy Barr Topinka, alleging, in pertinent part, that (1) section 12.5 of the Act (415 ILCS 5/12.5 (West Supp.2003)) violates (a) the Illinois Constitution's uniformity clause (Ill. Const. 1970, art. IX, § 2), (b) the Illinois Constitution's equal-protection and due-process clauses (Ill. Const. 1970, art. I, § 2), (c) the Federal Water Pollution Prevention and Control Act (Clean Water Act) (33 U.S.C. §§ 1251 through 1387 (2000)), (d) regulations promulgated under the Clean Water Act, and (e) the supremacy clause of the United States Constitution (U.S. Const., art. VI); and (2) Public Act 93-32, which includes section 12.5 of the Act, violates the single-subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8(d)).

In September 2003, defendants filed a motion to dismiss plaintiffs' complaint, pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2002)). Following October 2003 and January 2004 hearings, the trial court granted defendants' motion to dismiss.

Plaintiffs appeal, arguing that (1) defendants' motion to dismiss was legally deficient and (2) the trial court erred by (a) dismissing their August 2003 complaint and (b) refusing to allow them an opportunity to amend their complaint. We disagree and affirm.

I. BACKGROUND

As earlier stated, effective July 1, 2003, the General Assembly enacted Public Act 93-32, the state budget implementation act for fiscal year 2004 (Pub. Act 93-32, eff. in relevant part July 1, 2003 (2003 Ill. Legis. Serv. 400)). Public Act 93-32 amended over 30 different acts, some extensively and others in minor respects. For example, Public Act 93-32 amended (1) the Secretary of State Act (15 ILCS 305/0.01 through 15 (West 2002)), (2) the State Finance Act (30 ILCS 105/1 through 40 (West 2002)), (3) the Retailers' Occupation Tax Act (35 ILCS 120/1 through 14 (West 2002)), (4) the Motor Fuel Tax Law (35 ILCS 505/1 through 21 (West 2002)), (5) the Nursing Home Care Act (210 ILCS 45/1-101 through 3A-101 (West 2002)), (6) the Viatical Settlements Act (215 ILCS 158/1 through 99 (West 2002)), (7) the Illinois Vehicle Code (625 ILCS 5/1-100 through 20-402 (West 2002)), and (8) the Act at issue here (415 ILCS 5/1 through 56.6 (West 2002)). Among other things, Public Act 93-32 added to the Act section 12.5, which requires the Illinois EPA to collect annual fees from certain NPDES permit holders (Pub. Act 93-32, § 75-52, eff. July 1, 2003 (2003 Ill. Laws 400, 489); 415 ILCS 5/12.5 (West Supp.2003)). The annual fees vary by the source of the pollutant discharge and, for some sources, the "[d]esign [a]verage [f]low rate" of discharge. 415 ILCS 5/12.5(e)(5) (West Supp.2003). In particular, the Act provides that (1) for NPDES permits for "mines other than mines producing coal [(aggregate mines)], the fee is $5,000" (415 ILCS 5/12.5(e)(4) (West Supp.2003)) and (2) for NPDES permits for "industrial storm water, the fee is $500" (415 ILCS 5/12.5(e)(9) (West Supp.2003)). Section 12.5(j) of the Act (415 ILCS 5/12.5(j) (West Supp.2003)) also provides that (1) all fees collected by the agency should be deposited into the Illinois Clean Water Fund, which was created as a special fund by Public Act 93-32 (Pub. Act 93-32, § 75-52, eff. July 1, 2003 (2003 Ill. Laws 400, 490)); and (2) "[s]ubject to [a]ppropriation, the moneys in the [f]und shall be used by the [a]gency to carry out the [a]gency's clean water activities."

In June 2003, the agency issued notices to certain NPDES permit holders, requesting that they pay fees under newly added section 12.5 of the Act (415 ILCS 5/12.5 (West Supp.2003)). Plaintiffs, who had been issued NPDES permits for aggregate mines, stormwater discharge, or both, paid the fees under section 2a.1 of the State Officers and Employees Money Disposition Act (commonly referred to as the Protest Fund Act) (30 ILCS 230/2a.1 (West 2002)). Those fees ranged from $500 to $53,000 for individual plaintiffs and totaled $461,000.

In August 2003, Valstad Quarry and the Illinois Association of Aggregate Producers filed a petition seeking leave to file a complaint under part three of article XI of the Code (commonly referred to as the Disbursement of Public Monies Act) (735 ILCS 5/11-301 through 11-304 (West 2002)). That initial complaint sought to restrain and enjoin the disbursement of funds collected under section 12.5 of the Act (415 ILCS 5/12.5 (West Supp.2003)). Later in August 2003, defendants filed an objection to the petition, arguing that (1) the Illinois Association of Aggregate Producers lacked standing and (2) the Disbursement of Public Monies Act was not applicable. Still later in August 2003, the parties entered into an agreed order, under which the trial court (1) entered a temporary order restraining defendants from transferring the fees paid under protest from the State's protest fund, (2) granted Valstad Quarry and the Illinois Association of Aggregate Producers leave to withdraw the original complaint, and (3) granted plaintiffs (Valstad and 40 other owners and operators of Illinois quarries who were members of the Illinois Association of Aggregate Producers) leave to file a revised complaint.

In late August 2003, plaintiffs filed a revised complaint, alleging, in pertinent part, that (1) section 12.5 of the Act (415 ILCS 5/12.5 (West Supp.2003)) violates (a) the Illinois Constitution's uniformity clause (Ill. Const. 1970, art. IX, § 2) (count V), (b) the Illinois Constitution's equal-protection and due-process clauses (Ill. Const. 1970, art. I, § 2) (count II), (c) the Clean Water Act (33 U.S.C. §§ 1251 through 1387 (2000)) (count VII), (d) regulations promulgated under the Clean Water Act (count VI), and (e) the supremacy clause of the United States Constitution (count VIII); and (2) Public Act 93-32, which includes section 12.5 of the Act, violates section 8(d) of article IV of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8(d)) (count IV). (Counts I and III are not at issue in this appeal.)

In September 2003, defendants filed a motion to dismiss plaintiffs' complaint under section 2-615 of the Code (735 ILCS 5/2-615 (West 2002)), arguing, in pertinent part, that counts II, IV, V, VI, VII, and VIII failed to state a cause of action. Defendants also filed a brief in support of their motion. In October 2003, plaintiffs filed a response to defendants' motion.

Fol...