People ex rel. Ryan v. Stonehedge, Inc. ( 1997 )

                             No. 2--96--0620

_________________________________________________________________

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE OF           )  Appeal from the Circuit Court

ILLINOIS, ex rel. JAMES RYAN,        )  of McHenry County.

Attorney General of the State   )  

of Illinois, and ex rel. GARY   )

W. PACK, State's Attorney of    )

McHenry County, Illinois,       )  No. 94--CH--46

                               )  

    Plaintiff-Appellant,            )

                                    )  

v.                              )         

                               )

STONEHEDGE, INC.,               )  Honorable

                                    )  James C. Franz,

    Defendant-Appellee.             )  Judge, Presiding.

______________________________________________________________

    JUSTICE COLWELL delivered the opinion of the court:

    The plaintiff, the People of the State of Illinois, filed a

three-count complaint against the defendant, Stonehedge, Inc.,

alleging that deicing salt stored on Stonehedge's industrial

property leaked into the area's groundwater supply, thereby

contaminating it.  The trial court ruled that there was no triable

issue of fact that supported the plaintiff's argument regarding

each of the counts and granted the defendant's motion for summary

judgment, from which the plaintiff appeals.  We affirm in part,

reverse in part, and remand.

    The following facts are taken from the plaintiff's complaint.

At all times relevant to this case, Stonehedge was in the business

of spreading deicing salt, which has sodium chloride as its

principal constituent, during winter months for snow removal in the

western and northwestern Chicago suburban area.  In fall 1988,

Stonehedge began storing deicing salt on its property and continued

to store salt until approximately fall 1992.  Stonehedge stored the

deicing salt on the ground and without a concrete pad or cover.  

    On several occasions between December 16, 1991, and December

7, 1992, the McHenry County Department of Health analyzed the water

from wells at several homes adjacent to the site where the deicing

salt was stored.  The tests revealed high chloride levels in the

groundwater in the wells.  The plaintiff subsequently filed a

complaint against Stonehedge, alleging that the defendant's pile of

deicing salt was leaking into the groundwater.

    Count I of the plaintiff's complaint alleged that Stonehedge's

causing the discharge of the salt into the groundwater violated

sections 12(a) and 12(d) of the Environmental Protection Act (Act)

(415 ILCS 5/12(a), (d) (West 1994).  Count II alleged that, by

allowing the salt to leak through the ground, Stonehedge altered

the physical, chemical, and biological qualities of the water so as

to render it unfit for use as potable water as measured by the

Public Water Supply Regulations.  See 35 Ill. Adm. Code §620.410(a)

(1996).  Count III alleged that, by depositing the deicing salt

within 200 feet of two existing potable water supply wells,

Stonehedge violated section 14.2(a) of the Act.  See 415 ILCS

5/14.2(a) (West 1994).  The plaintiff sought injunctive relief and

other civil remedies under all three counts.

    The defendant filed a motion to dismiss the plaintiff's

complaint which was denied by the trial court.  The defendant then

filed a motion for summary judgment on each of the plaintiff's

counts.  The trial court granted the defendant's motion for summary

judgment on all three counts of the plaintiff's complaint.  We note

that a court reporter was not present at the hearing to record the

arguments and ruling made on this date.  In its order, however, the

trial court commented that, although it did not know how the

plaintiff could prove its case, the defendant's motion was granted

as a matter of law.

    On appeal, the plaintiff contends that the court's order is

erroneous because a genuine issue of material fact exists regarding

each of the counts in its complaint.  

    Summary judgment is appropriate only when the pleadings,

depositions, and admissions on file, together with the affidavits,

if any, disclose that there is no genuine issue as to any material

fact and the moving party is entitled to judgment as a matter of

law.  Bolingbrook Equity I Limited Partnership v. Zayre of

Illinois, Inc., 252 Ill. App. 3d 753, 764 (1993).  While plaintiffs

need not prove their cases at the summary judgment stage, they must

come forward with some facts that would arguably entitle them to

judgment.  Jones v. Minster, 261 Ill. App. 3d 1056, 1059 (1994).

Indeed, summary judgment is a drastic measure and should be granted

only if the movant's right to judgment is clear and free from

doubt.  Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154

Ill. 2d 90, 102 (1992).  Therefore, where a reasonable person can

draw divergent inferences from undisputed facts, summary judgment

should be denied.  Outboard, 154 Ill. 2d at 102.  Finally, our

review of the trial court's entry of summary judgment is de novo.

Monticello Insurance Co. v. Wil-Freds Construction, Inc., 277 Ill.

App. 3d 697, 701 (1996).       

    We turn first to count I of the plaintiff's complaint.  Count

I alleges that the defendant stored deicing salt on its property

without a concrete pad or cover, thereby allowing the salt to seep

into the ground and cause water pollution in violation of sections

12(a) and 12(d) the Act.  In pertinent part, section 12 provides:

         "No person shall:

         (a) Cause or threaten or allow the discharge of any

    contaminants into the environment in any State so as to cause

    or tend to cause water pollution in Illinois, either alone or

    in combination with matter from other sources, or so as to

    violate regulations or standards adopted by the Pollution

    Control Board under this Act.

                                  * * *

         (d) Deposit any contaminants upon the land in such place

    and manner so as to create a water pollution hazard."  415

    ILCS 5/12(a), (d) (West 1994).

    In its motion for summary judgment, the defendant made several

arguments regarding count I.  Although the trial court stated that

it was granting the defendant's order as a matter of law, it did

not explain upon which ground it was granting summary judgment.  As

our review of the trial court's entry of summary judgment is de

novo, however, we will address each of the defendant's arguments.

See Monticello, 277 Ill. App. 3d at 701.

    First, the defendant contended that section 12 of the Act does

not apply to the instant case because only the Illinois Groundwater

Protection Act (415 ILCS 55/1 et seq. (West 1994)) can be used to

control groundwater in Illinois.  In its reply to the plaintiff's

response for summary judgment, however, the defendant abandoned

this argument and stated that the Act could apply to groundwater,

but only the State's groundwater.  Accordingly, since the

plaintiff's complaint alleges only that private wells were

contaminated, the Act does not apply in this case.

    We disagree with the defendant's characterization of the

plaintiff's complaint.  Count I of the plaintiff's complaint

alleges that the defendant's deicing salt contaminated the State's

groundwater.  As proof of this contamination, the plaintiff refers

to chloride levels of water in nearby wells that contain this

groundwater.  Accordingly, although the plaintiff refers to

contaminated wells, the water in the wells is the groundwater that

the plaintiff alleges the defendant contaminated.  Therefore, the

plaintiff's complaint does allege that the State's groundwater is

polluted and section 12 of the Act applies to this case.

    Second, the defendant argued that the plaintiff has not

brought forth any evidence that the Stonehedge site is

contaminated.  The defendant contended that the plaintiff did not

conduct any tests on the Stonehedge site; consequently, there is no

proof that the site is contaminated.  Further, the defendant

pointed to the plaintiff's expert's deposition testimony as proof

that the deicing salt did not seep through the ground and

contaminate the groundwater.

    This court first notes that, at the hearing on the plaintiff's

motion to reconsider, the trial court commented that it did not

grant summary judgment on count I on this basis.  We agree with the

trial court's decision.  As the plaintiff points out in its briefs,

its complaint does not allege that the Stonehedge site storing the

deicing salt was contaminated.  Instead, the complaint alleges that

the deicing salt leaked into the groundwater, thereby contaminating

it.  The defendant does not refer this court to any statute,

regulation, or other evidence that states that a court must find

that a site is contaminated before it can conclude that the site

contaminated groundwater.  Accordingly, that the plaintiff did not

sample the Stonehedge site, and did not produce evidence that the

Stonehedge site was contaminated, does not affect the merits of

this action.

    Moreover, a review of the pages of the deposition attached to

the defendant's motion for summary judgment demonstrates that the

well water referred to by the plaintiff's expert was not

necessarily free from groundwater contamination.  When asked

whether the test revealed that the groundwater in a certain

downgradient well was contaminated, the expert responded that he

"would have to look further at the file" to be able to answer the

question.  When asked the question a second time, the plaintiff's

expert repeated his response that he would have to look at his file

and the history of the samples taken from that well to answer the

question.  Finally, when pressed for an answer the third time, the

expert stated that he did not believe he had data available that

could demonstrate that the water in the well was contaminated, but

that he "would have to go back and look at the file."  We find this

testimony insufficient to establish as a matter of law that the

groundwater in that downgradient well was uncontaminated.  Instead,

this testimony shows that the expert was unable to answer the

attorney's question regarding the quality of water in a certain

well.  

    Third, the defendant argued that the plaintiff failed to

follow the proper testing procedures used to demonstrate

noncompliance with the groundwater standard.  Specifically, the

defendant claimed that the plaintiffs did not comply with the

methods set forth in section 620.240(e)(1) of Title 35 of the

Illinois Administrative Code (Code) (35 Ill. Adm. Code

§620.240(e)(1) (1996)), which outlined the conditions of collecting

samples of groundwater under a potential primary source or

secondary source.

    The plaintiff acknowledges that it did not comply with section

620.240(e) of the Code.  The plaintiff, however, explains that

subsection (e) does not apply to this case because the plaintiff

did not monitor groundwater underlying a potential primary source

or secondary source.  Instead, the plaintiff argues that it was

required to follow, and followed, section 620.505(a)(5), which

applies to groundwater that is collected from a well.

    Section 620.505(a) provides:

         "Compliance with standards at a site is to be determined

    as follows:

                                  * * *

         5)  At any point at which groundwater monitoring is

    conducted using any water well or monitoring well that meets

    the following conditions:

              A)  For a potable well other than a community water

         supply well, a construction report has been filed with

         the Department of Public Health for such potable well, or

         such well has been located and constructed (or

         reconstructed) to meet the Illinois Water Well

         Construction Code."  35 Ill. Adm. Code §620.505(a)

         (1996).

There is no dispute that the groundwater sampled in the instant

case came from two water wells downgradient from Stonehedge's

property.  Accordingly, we agree with the plaintiffs that in the

instant case section 620.505(a)(5)(A) applies instead of section

620.240(e)(1).  We find, however, that there is no evidence that

the plaintiff has complied with section 620.505(a)(5)(A).

    Under section 620.505(a)(5)(A), a water well can be monitored

for groundwater quality if a construction report has been filed

with the Department of Public Health or if the well meets the

Illinois Water Well Construction Code (Well Code) (77 Ill. Adm.

Code §920.10 et seq. (1996)).  See 35 Ill. Adm. Code

§620.505(a)(5)(A) (1996).  The plaintiff acknowledges that there

are not any construction reports on file concerning the wells at

issue.  Instead, the plaintiff contends that the wells meet the

second part of the test outlined in section 620.505(a)(5), as they

are wells that meet the Well Code.  

    There is no evidence, however, that the wells in question

comply with the Well Code.  The plaintiff crafts the unique

argument that the wells are in compliance with the Well Code while

at the same time acknowledging that the wells are not in compliance

with the requirements in the Well Code.  Indeed, the plaintiff

admits that the wells do not meet the standards or requirements set

out by the Well Code for a well.  The plaintiff maintains, however,

that because the wells existed before the Well Code was enacted,

the wells were "grandfathered" in as being in compliance with the

Well Code, even if they do not meet the Well Code's requirements.

    In support of its argument, the plaintiff refers this court to

section 920.110 of the Well Code (77 Ill. Adm. Code §920.110

(1996)).  According to section 920.110, "[w]ells constructed prior

to the adoption of this Part may not meet the criteria established.

When a well is to undergo modification, reconstruction, or repair,

the work shall include those changes necessary to make the well

conform to this Part."  77 Ill. Adm. Code §920.110(a) (1996).  The

plaintiff contends that this section provides that, because the

wells in the instant case existed before the Well Code was enacted,

they are in compliance with the Well Code for the purposes of

groundwater monitoring.  We disagree.

    The fundamental canon of statutory construction is to

ascertain and give effect to the intention of the legislature.

Nottage v. Jeka, 172 Ill. 2d 386, 392 (1996).  The most reliable

indicator of legislative intent is the language of the statute

which is given its plain and ordinary meaning.  Boaden v.

Department of Law Enforcement, 171 Ill. 2d 230, 237 (1996).  Where

the language of the statute is clear and unambiguous, we must give

it effect as written, without reading into it exceptions,

limitations, or conditions that the legislature did not express.

Garza v. Navistar International Transportation Corp., 172 Ill. 2d

373, 378 (1996).  Courts should not, under the guise of statutory

construction, add requirements or impose limitations that are

inconsistent with the plain meaning of the statute.  Nottage, 172

Ill. 2d at 392.  

    Using these principles, this court must determine whether the

legislature intended for wells that do not comply with the criteria

of the Well Code to be wells from which samples may be taken to

determine whether the groundwater is in compliance with the

groundwater quality standards.  We find that a reasonable reading

of the statute shows that the legislature did not intend this

result.

    This court agrees with the plaintiff that the Well Code

acknowledges that existing wells may not meet the criteria

established in the Well Code.  See 77 Ill. Adm. Code §920.110(a)

(1996).  We do not believe, however, that such an acknowledgement

signifies that all existing wells, even though in noncompliance

with the Well Code's requirements, are automatically considered

wells in compliance with the Well Code.  Instead, we find that

section 920.110's purpose was to acknowledge that the wells in

existence at the time the Well Code was enacted did not have to

meet the Well Code requirements unless or until the well was

modified.  Then, as soon as a well was modified in some way, it

would have to be modified in such a manner that it complied with

the Well Code criteria.  See 77 Ill. Adm. Code §920.110(a) (1996).

    A look at section 620.505(e)(5)(A) supports our analysis.  In

section 620.505(e)(5)(A), the Code explains that a well meets the

conditions to test for contamination if the well has been

constructed or reconstructed to meet the Well Code.  If all

existing wells were automatically considered to be in compliance

with the Well Code for the purposes of testing for contamination,

there would be no reason for the legislature to refer to wells

reconstructed to meet the Well Code criteria.  Consequently, for

the word reconstructed to have any meaning under the Well Code,

existing wells cannot be considered to be automatically in

compliance with the Well Code.  See Harris v. Minor Healthcare

Corp., 111 Ill. 2d 350, 362-63 (1986) (courts will avoid the

construction of a statute which would render any part of it

meaningless).

    Therefore, we find that the portion of the Well Code that

states that existing wells may not meet the Well Code's criteria

merely provides that an existing well need not be modified to meet

the criteria under the Well Code.  Instead, existing wells would

only be required to meet the criteria in the Well Code at the time

that they were modified, reconstructed, or repaired.  See 77 Ill.

Adm. Code §920.110 (1996).  In this case, the wells at issue

existed at the time the Well Code was enacted and were never

modified, reconstructed, or repaired to meet the Well Code

criteria.  Accordingly, they do not meet the Well Code's

requirements for testing for contaminated groundwater.  Thus, we

find that the plaintiff's groundwater samples cannot be used to

determine whether the groundwater in those wells was contaminated,

and, if so, whether the water was contaminated by the defendant's

deicing salt.  Consequently, the trial court's grant of summary

judgment was proper concerning count I.

    Count II of the plaintiff's complaint also depends on the

groundwater samples taken from the wells that we have deemed not in

compliance with the Well Code.  Therefore, we find that summary

judgment was properly granted also regarding count II.

    Count III of the plaintiff's complaint alleges that Stonehedge

violated section 14.2 of the Act by placing at least 50,000 pounds

of deicing salt in a pile, which qualifies as a new potential

secondary source (415 ILCS 5/3.60(5) (West 1994)), within 200 feet

of two existing water supply wells (see 415 ILCS 5/14.2 (West

1994)).  Stonehedge contends, however, that it is not a "new"

potential secondary source and that the plaintiff has not brought

forth any evidence that it ever stored more than 50,000 pounds of

deicing salt on its property.

    There is no dispute that a potential secondary source is a

unit, facility, or site that stores or accumulates at any time more

than 50,000 pounds of any deicing agent.  See 415 ILCS 5/3.60(5)

(West 1994).  Further, both parties agree that a "new" potential

secondary source under the Act is a potential secondary source that

is not in existence at its location as of July 1, 1988.  See 415

ILCS 5/3.60(6)(i) (West 1994).  The parties disagree, however, as

to whether the Stonehedge site meets both of these definitions.

    First, the defendant argues that it is not a potential

secondary source because it has never stored more than 50,000

pounds of deicing salt on its site.  Stonehedge contends that its

president stated in an affidavit that, based on his personal

knowledge and upon the records, there was never as much as 50,000

pounds of deicing salt stored on the facility.  Accordingly, the

burden was upon the plaintiff to present facts contrary to the

affidavit.  Since the plaintiff has failed to bring forth any facts

that dispute the facts in the president's affidavit, however, the

defendant's affidavit is uncontested and the material facts therein

must be accepted as true.  See Carruthers v. B.C. Christopher &

Co., 57 Ill. 2d 376, 381 (1974).  Therefore, Stonehedge argues, the

trial court correctly found that, as a matter of law, Stonehedge

never stored more than 50,000 pounds of deicing salt on its

property.

    The plaintiff acknowledges that it cannot rely on its

pleadings if the defendant has filed a motion for summary judgment

with affidavits or depositions attached to support its allegations.

The plaintiff maintains, however, that there are not any affidavits

or depositions in the record that support the defendant's

allegation that it has never stored more than 50,000 pounds of

deicing salt on its property.  Specifically, the plaintiff states

that the affidavit referred to by the defendant was attached to an

earlier motion to dismiss that was later withdrawn.  Consequently,

the plaintiff maintains that the defendant has not brought forth

any evidence supporting its allegation that Stonehedge has never

stored more than 50,000 pounds on its site, and the plaintiff is

entitled to rely on its pleadings to create a question of material

fact.

    We agree with the plaintiff that the record is absent of any

evidence that Stonehedge never stored more than 50,000 pounds of

deicing salt on its property.  As the plaintiff maintains, the

affidavit Stonehedge refers to was attached to a motion to dismiss

that was later withdrawn.  Indeed, we note that the trial court's

order granting the defendant's motion to withdraw the motion to

dismiss provides explicitly that the defendant's motion to withdraw

its affidavit is also allowed.  The record shows that Stonehedge

never refiled the affidavit.  Further, Stonehedge does not contend

that it ever refiled the affidavit, or that any other document it

filed in its motion for summary judgment supports its position that

it never stored more than 50,000 pounds of salt on its property.  

    As a result, we find that the plaintiff's allegations

contained in its pleadings that Stonehedge was a potential

secondary source because it stored over 50,000 pounds of deicing

salt on its property remains a question of fact that precludes

summary judgment on that issue.  See Malone v. American Cyanamid

Co., 271 Ill. App. 3d 843, 846 (1995) (a party opposing a motion

for summary judgment need not file any counteraffidavits and may

rely solely upon the pleadings to create a material question of

fact until the movant supplies facts that would clearly entitle him

to judgment as a matter of law).

    Second, Stonehedge contends that, even if a question of

material fact exists as to the amount of salt it had on its

facility, summary judgment was proper because the record

demonstrates that it was not a "new" potential secondary source as

a matter of law.  Stonehedge argues that it attached portions of

deposition testimony to its motion for summary judgment that show

that Stonehedge has been storing deicing salt on its facility since

1987.  Therefore, Stonehedge maintains that since it has been

storing salt before July 1, 1988, it cannot be considered a "new"

source.  We disagree.

    We note that the defendant has fashioned an interesting

argument regarding this count of the plaintiff's complaint.  On one

hand, Stonehedge argues that it never has stored more than 50,000

pounds of deicing salt on its property.   On the other, Stonehedge

contends that it cannot be a new source because it has stored more

than 50,000 pounds of deicing salt on its facility prior to July 1,

1988.  Nevertheless, we find the record inadequate to determine

that, as a matter of law, Stonehedge is not a new potential

secondary source.

    Under the Act, a new potential secondary source is a potential

secondary source that was not in existence as of July 1, 1988.  In

this case, the storage of more than 50,000 pounds of deicing salt

is the event that qualifies Stonehedge as being a potential

secondary source.  Accordingly, if, as the plaintiff alleges,

Stonehedge first stored or accumulated more than 50,000 pounds of

deicing salt after July 1, 1988, it would be a "new" potential

secondary source.  In other words, Stonehedge's evidence that it

stored deicing salt on its site prior to July 1, 1988, is

irrelevant concerning the issue of whether Stonehedge is a new

potential secondary source.  Instead, the only relevant inquiry is

whether Stonehedge stored or accumulated more than 50,000 pounds of

deicing salt before July 1, 1988.  

    The defendant has not produced any evidence that it stored

more than 50,000 pounds of deicing salt on its facility prior to

July 1, 1988.  Consequently, the plaintiff did not have the burden

of producing contrary evidence and the question of whether the

defendant is a new potential secondary source remains a question of

fact for the trier of fact to decide.  See Malone, 271 Ill. App. 3d

at 846 (party opposing a motion for summary judgment need not file

any counteraffidavits to create a material question of fact unless

the moving party presents evidence that precludes any possible

liability).

    In conclusion, we find that the trial court's order granting

summary judgment for the defendant on counts I and II of the

plaintiff's complaint was proper.  We find, however, that the

record was insufficient to establish, as a matter of law, that the

defendant never stored more than 50,000 pounds of deicing salt on

its property and that the defendant was not a new potential

secondary source.  Accordingly, the court's grant of summary

judgment regarding count III was erroneous and is reversed.

    For the foregoing reasons, the judgment of the circuit court

of McHenry County is affirmed in part and reversed in part, and the

cause is remanded.

    Affirmed in part and reversed in part; cause remanded.

    GEIGER, P.J., and THOMAS, J., concur.