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Wilsonville, Village of v. SCA Servs., Inc.

Citation: 11 ELR 20698
No. No. 52885, 426 N.E.2d 824/16 ERC 1105/86 Ill. 2d 1, (Ill., 05/22/1981) Aff'd

The Illinois Supreme Court affirms a lower court ruling which, despite the fact that appellant's hazardous waste site is permitted by the Illinois Environmental Protection Agency (IEPA), held that the site constitutes a private and public nuisance, enjoined its operation, and ordered appellant to remove all wastes and contaminated soil buried on-site and to restore and reclaim the site. The court notes that the site is located over an abandoned coal mine shaft which makes the site susceptible to subsidence, ground fracturing, and breach of the waste containment system. Moreover, the wastes buried at the site pose substantial risks to the appellees because of their highly toxic nature, the potential for groundwater contamination, and the probability that the site could erupt into chemical fires and emit poisonous gases. The court concludes that the trial court (1) properly found that the site is a prospective nuisance, (2) applied the proper legal standard in reaching that determination, and (3) properly balanced the equipties of the relative harm to appellees and appellant. In addition, the court agrees with the lower courts that an injunction may lie against a prospective nuisance when the proof shows that the apprehension of material injury is real and immediate. Moreover, the court upholds the lower courts' finding that the opinions of the IEPA and intervenor U.S. Environmental Protection Agency (EPA) are not entitled to great weight because they are based on evidence that was clearly refuted at trial and because EPA's own regulations indicate that defendant's operation is not safe with respect to PCBs buried at the site. Finally, the lower courts' decisions do not constitute a taking of property without just compensation since appellant cannot expect to operate such an extremely hazardous business in such a manner and at such a location and expect to be immune from liability for creating a nuisance.

Counsel for Appellant
Henry L. Mason III
Sidley & Austin
One First National Plaza, Chicago IL 60603
(312) 329-5632

Counsel for Appellees
Paul Verticchio
Verticchio & Verticchio
100 E. Chestnut St., Gillespie IL 62033
(217) 839-4411