People v. Letsos

561 N.E.2d 371, 203 Ill. App. 3d 443, 149 Ill. Dec. 93, 1990 Ill. App. LEXIS 1522
CourtAppellate Court of Illinois
DecidedSeptember 28, 1990
DocketNo. 2-89-0709
StatusPublished
Cited by2 cases

This text of 561 N.E.2d 371 (People v. Letsos) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Letsos, 561 N.E.2d 371, 203 Ill. App. 3d 443, 149 Ill. Dec. 93, 1990 Ill. App. LEXIS 1522 (Ill. Ct. App. 1990).

Opinion

JUSTICE GEIGER

delivered the opinion of the court:

After a bench trial, the defendant Peter Letsos was convicted of violating subsection 44(j)(l)(A) of the Illinois Environmental Protection Act (the Act) (Ill. Rev. Stat. 1989, ch. 111/2, par. 1044(j)(l)(A)), based on allegations that he discharged a contaminant into the waters of the State without a permit. He was sentenced to two years’ probation, 200 hours of community service and a $7,500 fine. He appeals, arguing that subsection 44(j)(l)(A) is unconstitutional and that the State failed to prove him guilty beyond a reasonable doubt. We affirm.

The major events underlying the charges against the defendant occurred in Glen Ellyn (the village) on September 30, 1987, at or near a former gas station (the property). The defendant had purchased the property for redevelopment. The evidence showed that midafternoon on that day, the defendant began pumping the contents of underground gas storage tanks located on the property into the village’s storm sewers. He allegedly believed that the tanks contained only water. During the pumping it was determined that the tanks were being emptied of gasoline, and the pumping was stopped.

Based on those events, the defendant was cited with the above-stated offense, as well as calculated criminal disposal of hazardous waste, criminal disposal of hazardous waste, and reckless disposal of hazardous waste (Ill. Rev. Stat. 1989, ch. HV-k, pars. 1044(b), (c), (f), respectively). After the close of the State’s case the defendant moved for a directed verdict. The court granted the motion as to the latter three charges; those charges are not at issue in this appeal. The defendant brought this appeal from his conviction based on subsection 44(j)(l)(A).

The defendant’s first argument on appeal is that subsection 44(j)(l)(A), together with the other sections upon which its definition depends, is unconstitutional because it is vague, ambiguous, and subject to arbitrary enforcement. The defendant’s argument focuses upon the Act’s broad definition of the pivotal term “contaminant” (Ill. Rev. Stat 1989, ch. 1111/2, par. 1003.06). The State and Federal Constitutions’ due process provisions require that criminal statutes provide “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” People v. Jihan (1989), 127 Ill. 2d 379, 385.

Under subsection 44(j)(l)(A), it is unlawful for a person knowingly to violate subsection 12(f) of the Act. (111. Rev. Stat. 1989, ch. IIIV2, pars. 1044(j)(l)(A), 1012(f).) Subsection 12(f) provides, in relevant part, that “No person shall” cause or allow the discharge of any “contaminant” into the waters of the State without compliance with a National Pollutant Discharge Elimination System (NPDES) permit. (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1012(f); see ch. IIIV2, pars. 1011(a)(2), 1039(b); 33 U.S.C. §1342 (1986).) Subsection 12(f) further provides that no permit shall be required for discharges that do not require a permit under the Federal Water Pollution Control Act (the Pollution Control Act). (HI. Rev. Stat. 1989, ch. HV-k, par. 1012(f).) The Act defines “contaminant” as “any solid, liquid, or gaseous matter, any odor, or any form of energy, from whatever source.” Ill. Rev. Stat. 1989, ch. 1111/2, par. 1003.06.

We agree with the defendant that the Act’s definition of “contaminant” is so broad as to include most substances. However, as the State observes, the Act does not require a permit for discharge of any “contaminant,” but only for discharges requiring a permit under the Pollution Control Act. Thus, we consider subsection 44(j)(l)(A)’s constitutionality in light of the relevant Federal provisions.

The Pollution Control Act does not rely upon the term “contaminant.” Rather, under it a permit is required only for the discharge of a “pollutant.” (33 U.S.C. §§ 1311(a), 1342(a) (1986); EPA v. California ex rel. State Water Resources Control Board (1976), 426 U.S. 200, 205, 48 L. Ed. 2d 578, 583, 96 S. Ct. 2022, 2025; compare Ill. Rev. Stat. 1989, ch. HV-lz, par. 1011(a)(2).) The Pollution Control Act defines “pollutant” as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water[, with some exceptions].” 33 U.S.C. §1362(6) (1988).

The State argues that subsection 44(j)(l)(A) is not unconstitutionally vague when it is read together with the appropriate sections of the Pollution Control Act. We agree.

The defendant argues generally that a State statute which requires review of an entire Federal statute to ascertain fully its meaning is not constitutionally acceptable. We are not persuaded by his unsupported argument. The Act relies upon the Pollution Control Act for complete definition of the offense. However, as the State argues, a State statute may adopt Federal statutory provisions by reference. See Thorpe v. Mahin (1969), 43 Ill. 2d 36, 49.

The defendant also argues that the Pollution Control Act cannot cure the Act’s unconstitutional vagueness, because the Pollution Control Act refers to the term “pollutant” rather than the term “contaminant” used in the Act (compare Ill. Rev. Stat. 1989, ch. IIIV2, par. 1011(a)(2), with 33 U.S.C. § 1342(a) (1986)). We find that the difference is of no consequence and reject the defendant’s unsupported argument. Section 12(f) of the Act prohibits contaminant discharge without a permit only if a permit is required under the Pollution Control Act (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1012(f)); analysis of the Pollution Control Act points clearly to the Federal definition for “pollutant” to determine whether the Pollution Control Act requires a permit. The definition of the subsection 44(j)(l)(A) offense is clear; it is immaterial that the Act and the Pollution Control Act use different operative terms.

The defendant additionally argues that even if the Federal definition for “pollutant” satisfies constitutional requirements by limiting the subsection 44(j‘Xl)(A) offense, the definition is not sufficient in this case. The defendant relies upon the fact that the Pollution Control Act definition for “pollutant” does not include gasoline, the substance at issue here. Although the Pollution Control Act definition does not specifically name “gasoline” or “petroleum products,” the United States Court of Appeals has stated that it is apparent that Congress intended to include discharged gasoline in the definition. (United States v. Hamel (6th Cir. 1977), 551 F.2d 107, 111.) In light of Hamel, and in the absence of counterauthority, we reject the defendant’s argument.

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Bluebook (online)
561 N.E.2d 371, 203 Ill. App. 3d 443, 149 Ill. Dec. 93, 1990 Ill. App. LEXIS 1522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-letsos-illappct-1990.