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Docket No. 97986-Agenda 19-November 2004.

THE PEOPLE ex rel. JAMES E. RYAN, Attorney General,
Appellant, v. AGPRO, INC., et al., Appellees.

Opinion filed February 3, 2005.
 

JUSTICE GARMAN delivered the opinion of the court:

In this case we must decide whether section 42(e) of theEnvironmental Protection Act (the Act) (415 ILCS 5/1 et seq. (West2002)), authorizes a court to issue a mandatory injunction requiringa polluter to clean up contamination it caused. In 1994 the Statebrought suit against defendants Agpro, Inc., and David J. Schulte, asan individual and as president of Agpro, Inc., seeking injunctive relief,recovery of remediation costs, and civil penalties. In 2002 the matterproceeded to a bench trial, after which the circuit court of OgleCounty awarded certain remediation costs and imposed a civil penalty,but refused injunctive relief. The State appealed and defendants cross-appealed. The appellate court reversed and remanded on an issuepertaining to remediation costs, but affirmed the circuit court in allother respects, including the denial of injunctive relief. 345 Ill. App.3d 1011. The State then petitioned this court for leave to appeal thedenial of injunctive relief, which we allowed pursuant to Rule 315(177 Ill. 2d R. 315).

BACKGROUND

We state only those facts necessary to understand the singlequestion before this court. The appellate court's opinion includes amore complete statement. See 345 Ill. App. 3d at 1014-18.

Between 1988 and 1993 defendants operated a business applyingfertilizers and pesticides to farm fields. The business was based at asite in the town of Woosung (the Agpro site). The State alleged, andthe circuit court found, that defendants caused or allowed the soil atthe Agpro site to be contaminated by pesticides. The contaminants arealso present in the groundwater and in several wells immediatelysurrounding the Agpro site. In 1991 federal authorities remedied thecontamination of the wells by installing filtration systems in eightprivate residences. As of 2000 testing of wells on and adjacent to theAgpro site continued to show pesticide contamination.

The State asked the circuit court to order defendants to takecertain actions to clean up the Agpro site, such as removal of allcontaminated soil. The circuit court refused, citing three expressgrounds, the first of which was that "there is no legal basis to issue aninjunction which requires the Defendants to perform affirmative acts."The appellate court found this ground sufficient to affirm, and thus didnot reach any other grounds for the denial of injunctive relief. Beforethe appellate court, the State argued that section 42(e) of the Actauthorizes issuance of a mandatory injunction requiring defendants toclean up the Agpro site. At all relevant times section 42(e) of the Actprovided that, "[t]he State's Attorney of the county in which theviolation occurred, or the Attorney General, may *** institute a civilaction for an injunction to restrain violations of this Act." 415 ILCS5/42(e) (West 2002). The appellate court reasoned that the word"restrain" in section 42(e) shows "that the legislature contemplated apreventative injunction or restraining order rather than a mandatoryinjunction commanding a defendant to do some affirmative act." 345Ill. App. 3d at 1019. The appellate court then considered and rejecteda number of contrary arguments.

The appellate court filed its decision on January 27, 2004. Somesix months later the General Assembly amended section 42(e) toprovide for an injunction, "prohibitory or mandatory," to restrainviolations of the Act and to permit the circuit court to "require suchother actions as may be necessary to address violations of this Act."Pub. Act 93-831,