People Ex Rel. Ryan v. Agpro, Inc.

803 N.E.2d 1007, 345 Ill. App. 3d 1011, 281 Ill. Dec. 386, 2004 Ill. App. LEXIS 64
Appellate Court of Illinois·Decided January 27, 2004·No. 2-03-0021·Published·Cited by 15 cases

Opinion

JUSTICE KAPALA

delivered the opinion of the court:

The State brought an action in 1994 against defendants, Agpro, Inc. (Agpro), and David J. Schulte (Schulte), individually and as president of Agpro, alleging violations of the Environmental Protection Act (the Act) (415 ILCS 5/1 et seq. (West 1992)). The State sought injunctive relief, cost recovery, and civil penalties. The matter was tried to the court without a jury in 2002. The trial court entered judgment in favor of the State and against defendants in the amount of $54,432.25 for the State’s pre-July 1996 remediation costs and imposed a $5,000 civil penalty against defendants. The State appeals and defendants cross-appeal.

I. FACTS

In a second amended complaint for injunctive relief, cost recovery, and civil penalties the State alleged that from May 1988 to April 1993 Schulte was the president of Agpro, an Illinois corporation engaged in the business of custom application and distribution of agricultural pesticides and fertilizers. It was alleged further that defendants were the owners of the Agpro site located at 803 Central Street in the town of Woosung (Agpro site). In count I, titled “Water Pollution,” it was alleged that defendants, as a result of their business operations, caused or allowed pesticides to be discharged upon the ground and, in turn, into the surface water and groundwater in violation of section 12(a) of the Act (415 ILCS 5/12(a) (West 1996)). The State alleged that the water pollution was ongoing and prayed for a finding that defendants violated section 12(a) of the Act. In count II it was alleged that defendants created a water pollution hazard in violation of section 12(d) of the Act (415 ILCS 5/12(d) (West 1996)). In count III it was alleged that defendants violated section 12(a) and spill prevention regulations (35 Ill. Adm. Code § 306.102(b) (2003)). In these first three counts, the State also prayed for an order enjoining defendants from further violations of the Act and requiring them to remediate the environmental damage they caused; civil penalties; and the State’s costs in bringing the action. In count I\( the State sought recovery pursuant to section 22.2 of the Act (415 ILCS 5/22.2 (West 1996)) for its remediation costs.

A two-day bench trial was held in September 2002. The trial court entered a memorandum opinion and judgment order containing its findings of fact and conclusions of law. The trial court found that soil samples taken by agents of the Illinois Environmental Protection Agency (IEPA) in April 1989 and October 1990 from locations on the Agpro site showed contamination with the pesticides alachlor, atrazine, and metolachlor. Soil samples taken in October 1990 from locations in Woosung away from the Agpro site showed no contamination with those pesticides. Soil samples collected in December 1993 from the Ag-pro site showed contamination with the pesticides alachlor, atrazine, metolachlor, and metribuzin. Those same soil samples showed extremely high levels of ammonia and nitrates. Soil samples collected in December 1993 from locations in Woosung away from the Agpro site showed no contamination with pesticides or nitrates and significantly lower levels of contamination with ammonia. Soil samples collected from the Agpro site in October 2000 were contaminated with high concentrations of ammonia and nitrates, as well as with alachlor, metolachlor, atrazine, and other pesticides. Soil samples collected from locations away from the Agpro site in October 2000 had no detectible ammonia, much less contamination with nitrates, and no detectible contamination with pesticides.

The trial court found further that water samples from private wells at and immediately surrounding the Agpro site collected in December 1988, February 1989, March 1989, April 1989, February 1990, October 1990, March 1991, December 1992, and February 1993 contained levels of various pesticides that exceeded maximum contamination levels of the Illinois Pollution Control Board and the United States Environmental Protection Agency. Samples taken in March 1989 of water from wells in Woosung farther away from the Agpro site showed no detectible contamination. Well water samples collected in December 1992, February 1993, May 1993, November 1993, December 1993, January 1999, August 2000, and October 2000 indicated that the level of pesticide contamination in private wells at and immediately surrounding the Agpro site decreased over time beginning shortly after defendants ceased operations. Over time, the plume of contaminated groundwater had moved farther out from the Agpro site, with lower levels of pesticide contamination reaching outlying private wells.

The trial court found that Schulte admitted in a July 1988 conversation with an IEPA inspector that he intentionally rinsed out the pesticide/fertilizer application vehicles, or “floaters,” on the gravel area at the Agpro site. During the same conversation, Schulte also admitted that one of his floaters leaked at least 100 gallons of metolachlor solution onto the ground at the Agpro site. Schulte admitted in a letter that he wrote to the IEPA that, at least prior to July 1988, his floaters were rinsed out at the Agpro site.

The trial court found credible the trial testimony of Woosung resident and former Agpro employee Paul Biggerstaff. Biggerstaff lived adjacent to the Agpro site for 17 years and worked for Agpro as part-time seasonal help in the early to mid-1980s. Biggerstaff testified that while he was working for Agpro, Agpro employees rinsed out chemical containers onto the ground every day and floaters were routinely emptied of residual product over the drain at the Agpro site. Bigger-staff testified about two large spills that occurred during the time that he worked for Agpro and one that occurred after he stopped working for Agpro. Biggerstaff also testified that Agpro floaters leaked their product onto the street and the chemicals collected at the side of the road near his and other houses.

The trial court also found credible the trial testimony of Bruce Lambert, who at one time worked as a floater driver for Agpro. Lambert testified that the solution produced from rinsing out the inside of the floater “would have gone right on the gravel parking lot with everything else.” Additionally, the trial court credited the testimony of Allen Mackey, who related that the floaters were rinsed off and washed out at the Agpro site.

Further, the trial court found credible the testimony of James Saleh, an IEPA project manager and geologist with expertise regarding soil contamination by pesticides and fertilizers. Saleh testified to the following factual indicators that defendants’ operations and the contaminated soil on the Agpro site caused or contributed to the pesticide and fertilizer contamination of the private water wells in Woosung.

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People Ex Rel. Ryan v. Agpro, Inc., 803 N.E.2d 1007, 345 Ill. App. 3d 1011, 281 Ill. Dec. 386, 2004 Ill. App. LEXIS 64 (Ill. Ct. App. 2004).

803 N.E.2d 1007 (People Ex Rel. Ryan v. Agpro, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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