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Docket Nos. 95942, 95943, 95944 cons.-Agenda 6-January 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHN
T. EINODER et al., Appellees.

Opinion filed April 1, 2004.

JUSTICE KILBRIDE delivered the opinion of the court:

Defendants, John T. Einoder, Tri-State Industries, Inc., and J.T.Einoder, Inc., were charged, in three separate indictments, for criminaldisposal of waste under section 44(p)(1)(A) of the Illinois EnvironmentalProtection Act (Act) (415 ILCS 5/44(p)(1)(A) (West 2000)). The circuitcourt of Cook County granted defendants' motion to dismiss each of theindictments, finding that section 44(p)(1)(A) is unconstitutionally vague.This is a direct appeal by the State in each case pursuant to SupremeCourt Rule 302(a) (134 Ill. 2d R. 302(a)). The cases have beenconsolidated on appeal. We reverse and remand.

I. BACKGROUND

On February 19, 2002, defendants were charged in three separateindictments for the offense of criminal disposal of waste under section44(p)(1)(A) of the Act (415 ILCS 5/44(p)(1)(A) (West 2000)). Theindictments alleged that defendants committed criminal disposal of wasteby knowingly conducting a waste-disposal operation and accepting fordisposal more than 250 cubic feet of concrete containing protruding rebar,construction debris, demolition debris, and general refuse, without a permitas required by section 21(d) of the Act (415 ILCS 5/21(d) (West 2000)).

On May 30, 2002, the State filed a motion to expand defendant JohnEinoder's conditions of bond to comply with the Act. In its motion toexpand the conditions of bond, the State alleged that the "generalconstruction or demolition debris" brought to the site by defendant JohnEinoder is not managed in accordance with section 22.38(b) of the Act,governing "facilit[ies] accepting exclusively general construction ordemolition debris for transfer, storage, or treatment." 415 ILCS5/22.38(b) (West 2000). The State therefore alleged that defendant JohnEinoder is subject to the requirements of section 21(d) of the Act and isrequired to obtain an Illinois Environmental Protection Agency permit toconduct such activity.

In its motion to expand defendant John Einoder's conditions of bond,the State further alleged that he has allowed "clean construction ordemolition debris" to be deposited on the site, above grade, and otherwisenot managed in accordance with the provisions of section 3.78a of theAct, without a permit.

Defendants filed a motion to dismiss the indictments arguing, interalia, that the statute is unconstitutionally vague because the term "grade"is not defined in the Act. Defendants also argued that the term "waste"fails to define the criminal offense with sufficient definiteness that ordinarypeople can understand what is prohibited conduct.

The trial court granted defendants' motion to dismiss, holding that thestatute is unconstitutionally vague on its face. The trial court reasoned:

"As the Defendants correctly note in their motion to Dismiss,the term 'grade' is not defined in the Act. 'Grade' in its ordinarymeaning has multiple meanings and can mean (1) the degree ofrise or descent of a sloping surface, as a highway, railroad, etc.;such as a sloping part; (2) the ground level around a building; (3)to make (ground) level or slope (ground) evenly for a roadway,etc.; (4) to change gradually; go through a series of stages-atgrade, on the same level or degree of rise. See Webster's NewWorld Dictionary, Second College Edition, 'Grade.' "

Thus, the trial court determined that "[b]ecause the statute fails to provideany reference points to assist in interpreting how grade should bemeasured, this court interprets the term grade as an ambiguous or vagueterm."

The trial court further reasoned that:

"The term 'waste' also fails to define the criminal offense withsufficient definiteness that ordinary people can understand whatconduct is prohibited and in a manner that does not encouragearbitrary and discriminatory enforcement. Therefore, the statutefails to define the criminal offense with sufficient definiteness thatordinary people can understand what conduct is prohibited andin a manner that does not encourage arbitrary and discriminatoryenforcement."

The trial court concluded that:

"Defendants have shown the statute to be vague in the sense thatno standard of conduct is specified at all, based on the terms'waste' and 'grade.' Further, this court concludes that becauseSection 5/44(p)(1)(A) is a penal statute, it fails to adequatelydefine the criminal offense in such a manner that does notencourage arbitrary and discriminatory enforcement. Therefore,based on these findings, this court grants the Defendants [sic]motion to dismiss and finds the section of the Act isunconstitutionally vague."

The State appealed each case directly to this court pursuant toSupreme Court Rule 302(a) (134 Ill. 2d R. 302(a)). The cases wereconsolidated in this appeal.

II. ANALYSIS

The State argues that the trial court erred in holding that section44(p)(1)(A) is unconstitutionally vague on its face because the statute doesnot implicate first amendment rights and the trial court received noevidence to find vagueness as applied to defendants. We agree with theState.

A defendant can challenge a statute as unconstitutionally vague in twoways: (1) on the statute's face, or (2) as the statute is applied todefendant's actions. See People v. Greco, 204 Ill. 2d 400, 416 (2003).A defendant may not challenge the facial vagueness of a statute that doesnot implicate first amendment freedoms unless the statute "is incapable ofany valid application." (Emphasis added.) People v. Izzo, 195 Ill. 2d 109,112 (2001).

The relevant statute at issue, section 44(p)(1)(A) of the Act, states:

"(p) Criminal Disposal of Waste.

(1) A person commits the offense of Criminal Disposal ofWaste when he or she:

(A) if required to have a permit under subsection (d) ofSection 21 of this Act, knowingly conducts a waste-storage, waste-treatment, or waste-disposal operation ina quantity that exceeds 250 cubic feet of waste without apermit." (Emphasis added.) 415 ILCS 5/44(p)(1)(A)(West 2000).

The term "waste," as used in section 44(p)(1)(A), is defined insection 3.53 as:

"any garbage, sludge from a waste treatment plant, watersupply treatment plant, or air pollution control facility or otherdiscarded material, including solid, liquid, semi-solid, orcontained gaseous material resulting from industrial, commercial,mining and agricultural operations, and from community activities***." 415 ILCS 5/3.53 (West 2000).

Section 21(d), referred to in section 44(p)(1)(A) of the Act, providesthat no person shall:

"[c]onduct any waste-storage, waste-treatment, or waste-disposal operation:

(1) without a permit granted by the Agency or in violationof any conditions imposed by such permit, *** provided,however, that, except for municipal solid waste landfill unitsthat receive waste on or after October 9, 1993, no permitshall be required for *** (ii) a facility located in a county witha population over 700,000, operated and located inaccordance with Section 22.38 of this Act, and usedexclusively for the transfer, storage, or treatment of generalconstruction or demolition debris." (Emphasis added.) 415ILCS 5/21(d)(1) (West 2000).

The term "general construction or demolition debris" as used insection 21(d)(1)(ii) is defined in section 3.78 of the Act as:

"non-hazardous, uncontaminated materials resulting from theconstruction, remodeling, repair, and demolition of utilities,structures, and roads ***.

General construction or demolition debris does not includeuncontaminated soil generated during construction, remodeling,repair, and demolition of utilities, structures, and roads providedthe uncontaminated soil is not commingled with any generalconstruction or demolition debris or other waste." (Emphasisadded.) 415 ILCS 5/3.78 (West 2000).

The term "clean construction or demolition debris" is defined insection 3.78a of the Act as:

"uncontaminated broken concrete ***. Clean construction ordemolition debris does not include uncontaminated soil generatedduring construction, remodeling, repair, and demolition of utilities,structures, and roads provided the uncontaminated soil is notcommingled with any clean construction or demolition debris orother waste. To the extent allowed by federal law, cleanconstruction or demolition debris shall not be considered 'waste'if it is (i) used as fill material below grade outside of a setbackzone ***, or (ii) separated or processed and returned to theeconomic mainstream in the form of raw materials or products,*** if used as a fill material, it is used in accordance with item (i),or (iii) solely broken concrete without protruding metal bars usedfor erosion control, or (iv) generated from the construction ordemolition of a building, road, or other structure and used toconstruct *** an above-grade area shaped so as to blend intoan extension of the surrounding topography or an above-grademanmade functional structure not to exceed 20 feet in height***." (Emphases added.) 415 ILCS 5/3.78a (West 2000).

We review de novo a decision holding a statute unconstitutional.People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 290 (2003). "Statutesare presumed to be constitutional, and the party challenging the validity ofthe statute has the burden to clearly establish the constitutional invalidity."Cryns, 203 Ill. 2d at 290. If reasonably possible, a court must construea statute so as to affirm its constitutionality. People v. Fuller, 187 Ill. 2d1, 10 (1999), quoting People v. Shephard, 152 Ill. 2d 489, 499 (1992).

Due process "requires that a statute 'give the person of ordinaryintelligence a reasonable opportunity to know what is prohibited, so thathe may act accordingly.' " Russell v. Department of Natural Resources,183 Ill. 2d 434, 442 (1998), quoting Grayned v. City of Rockford, 408U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2298-99 (1972).In Russell, this court recognized the well-established rule that " ' "[v]agueness challenges to statutes which do not involve First Amendmentfreedoms must be examined in the light of the facts of the case athand." ' " Russell, 183 Ill. 2d at 442, quoting Village of HoffmanEstates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7, 71L. Ed. 2d 362, 369 n.7, 102 S. Ct. 1186, 1191 n.7 (1982), quotingUnited States v. Mazurie, 419 U.S. 544, 550, 42 L. Ed. 2d 706, 713,95 S. Ct. 710, 714 (1975). Moreover, "to prevent arbitrary anddiscriminatory enforcement," a statute must provide explicit standards forpolice officers, judges, and juries. Russell, 183 Ill. 2d at 442. A statuteviolates due process "on the basis of vagueness ' "only if its terms are soill-defined that the ultimate decision as to its meaning rests on the opinionsand whims of the trier of fact rather than any objective criteria or facts." ' "Cryns, 203 Ill. 2d at 291, quoting Stern v. Norwest Mortgage, Inc., 179Ill. 2d 160, 168 (1997), quoting People v. Burpo, 164 Ill. 2d 261, 265-66 (1995).

"In order to succeed on a vagueness challenge to a statute that doesnot involve a first amendment right, a party must establish that the statuteis vague as applied to the conduct for which the party is beingprosecuted." (Emphasis added.) Cryns, 203 Ill. 2d at 291. A merehypothetical involving a disputed meaning of some terms of a statute doesnot make the statute unconstitutionally vague. Greco, 204 Ill. 2d at 416." 'The fact that the [statute] might operate unconstitutionally under someconceivable set of circumstances is insufficient to render it wholly invalid***.' " In re C.E., 161 Ill. 2d 200, 211 (1994), quoting United Statesv. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095,2100 (1987).

A statute that does not impact first amendment rights "will not bedeclared unconstitutionally vague on its face unless it is incapable of anyvalid application." (Emphasis added.) Izzo, 195 Ill. 2d at 112. Avagueness challenge against a statute that does not affect first amendmentrights is examined "in light of the particular facts of the case." Greco, 204Ill. 2d at 416. "When the statute is examined in the light of the facts of thecase and the statute clearly applies to the party's conduct, then a challengeto the statute's constitutionality based upon vagueness will beunsuccessful." Cryns, 203 Ill. 2d at 291-92.

In Greco, the defendant was charged under section 4-103.2 of theIllinois Vehicle Code (625 ILCS 5/4-103.2 (West 2000)) withpossession of stolen special mobile equipment. The defendant moved todismiss the indictment against him, contending that the definition of "specialmobile equipment" contained in section 1-191 of the Vehicle Code (625ILCS 5/1-191 (West 2000)) was unconstitutionally vague. Withoutmaking any factual findings, the circuit court determined that "specialmobile equipment," as defined in section 1-191 of the Vehicle Code, wasvague on its face and granted the defendant's motion to dismiss.

This court held that the defendant did not have standing to challengethe statute as vague on its face because the first amendment was notimplicated. Greco, 204 Ill. 2d at 416. We were unable to determinewhether the statute was unconstitutionally vague as applied to thedefendant since there had been no fact finding in the case. Accordingly,we remanded the cause to the circuit court for further factual development.Greco, 204 Ill. 2d at 416.

Similarly, in In re R.C., 195 Ill. 2d 291 (2001), prospective adoptiveparents sought permission to adopt a child without obtaining the naturalmother's consent, alleging that, pursuant to section 1(D)(p) of theAdoption Act (750 ILCS 50/1(D)(p) (West 1998)), she was unfit andunable to discharge parental responsibilities due to mental impairment. Themother filed a motion to dismiss the complaint on the grounds that, amongother things, section 1(D)(p) was unconstitutional. The circuit court heldthat the statute was unconstitutional on its face.

This court held that because the first amendment was not implicated,the mother could not contend that section 1(D)(p) was vague on its faceif the statute clearly applied to her. In re R.C., 195 Ill. 2d at 299. Wewere unable to determine whether the statute was unconstitutionally vagueas applied to the mother when there had been no fact finding in the case.In re R.C., 195 Ill. 2d at 299. Accordingly, we held that it wasinappropriate for the circuit court to declare the statute vague and that itsdetermination that the statute was vague was premature. In re R.C., 195Ill. 2d at 299-300.

Here, as in Greco and In re R.C., the statute involved does notimplicate first amendment rights and defendants do not allege that thestatute is incapable of any valid application. Thus, defendants had nostanding to assert a facial vagueness challenge, and the trial court erred infinding section 44(p)(1)(A) unconstitutionally vague on that basis.Regardless of the State's assertion of the proper test for a facial vaguenesschallenge, the trial court's order did not discuss or acknowledge the firstamendment facial vagueness standard, nor did it find the statute "incapableof any valid application" (see In re R.C., 195 Ill. 2d at 299; Izzo, 195 Ill.2d at 112).

"In cases *** that do not involve first amendment freedoms, dueprocess is satisfied if: (1) the statute's prohibitions are sufficientlydefinite, when measured by common understanding andpractices, to give a person of ordinary intelligence fair warning asto what conduct is prohibited, and (2) the statute providessufficiently definite standards for law enforcement officers andtriers of fact that its application does not depend merely on theirprivate conceptions." Greco, 204 Ill. 2d at 416.

Accord Izzo, 195 Ill. 2d at 113; People v. Falbe, 189 Ill. 2d 635, 640(2000).

In Izzo, the defendant, a high school student, was charged withpossessing a knife on school property without the permission of the chiefsecurity officer, in violation of section 21-6 of the Criminal Code of 1961(Criminal Code) (720 ILCS 5/21-6 (West 1998)). The defendant fileda motion to dismiss the complaint, alleging that section 21-6 wasunconstitutionally vague because it does not adequately define whoqualifies as a "chief security officer." The trial court granted defendant'smotion to dismiss, holding that the statute was unconstitutionally vague.

This court analyzed in Izzo whether section 21-6 of the CriminalCode was unconstitutionally vague as applied to the facts of the case. Werecognized that if the defendant's "own conduct clearly [fell] within thestatute's proscriptions," due process was not offended, "even though thestatute might be vague as to other conduct in other circumstances." Izzo,195 Ill. 2d at 113. In other words, the defendant "cannot escape the law'sreach by arguing that the statute might be vague as applied to someoneelse." Izzo, 195 Ill. 2d at 113. Because the defendant claimed nouncertainty or confusion concerning the statute's wording, we held that thestatute's "supposed vagueness was irrelevant." Izzo, 195 Ill. 2d at 115.

In People v. Jihan, 127 Ill. 2d 379 (1989), the defendant wasconvicted of practicing midwifery without a license, in violation of thenow-repealed Medical Practice Act (Ill. Rev. Stat. 1985, ch. 111, par.4401 et seq.). The defendant appealed her conviction, asserting that shewas convicted under an unconstitutionally vague statute because the term"midwifery," as applied to her, was ambiguous. The defendant contendedthat it was not clear whether the term had "the broad meaning of assistingat childbirth" or "the more narrow meaning of actually delivering the childat birth." (Emphasis in original.) Jihan, 127 Ill. 2d at 388. This court heldthat there was evidence presented that the defendant had assisted at thebirth, but that there was no evidence that the defendant had delivered thechild. Jihan, 127 Ill. 2d at 389. Accordingly, this court concluded that theAct was unconstitutionally vague as it applied to the defendant because thestatute did not provide sufficient notice that her conduct was prohibited.Jihan, 127 Ill. 2d at 389.

As in Greco, Izzo, In re R.C., and Jihan, this case does not involvefirst amendment freedoms, nor does defendant claim that the statute isincapable of any valid application, and the vagueness challenge could notproperly have been resolved except by application to the facts of the case.Unlike Jihan, where evidence had been presented, the parties agreed,both in their briefs and during oral argument that there has been no factfinding in this case. The State argues, however, that the record in this caseis sufficient to show that the terms "grade" and "waste" are notunconstitutionally vague as applied to defendants. The State contends thatit presented expert opinions from civil engineers. As defendants point out,however, the opinions produced by the State are in dispute, as theaffidavits are unsworn and unauthenticated and do not establish thequalifications for the State's experts to offer such opinions. In its replybrief and during oral argument, the State conceded that the trial court didnot engage in the necessary fact finding as to the application of the statuteto defendants.

Simply put, this case does not involve first amendment freedoms.Moreover, defendants have not contended that the statute is incapable ofany valid application. Rather, defendants contend that the statute isunconstitutionally vague "as applied" in this case. Despite defendants' as-applied challenge, they presented no evidence demonstrating how thedisputed statutory sections are vague as applied to their conduct.Accordingly, without a factual basis to assess the as-applied effect of thedisputed statute, the trial court could not rule on the validity of the statute.

We conclude that the trial court must vacate the order on vaguenessand reassess the validity of the statutory sections once the parties presenta proper evidentiary basis to test the validity of the statute. We remandthis cause for further proceedings.

III. CONCLUSION

We hold that the trial court improperly dismissed the indictmentsagainst defendants based on the holding that section 44(p)(1)(A) of theIllinois Environmental Protection Act, and its related sections, areunconstitutionally vague on its face. Accordingly, the judgment of thecircuit court of Cook County is reversed, and the cause is remanded forfurther proceedings consistent with this opinion.

Circuit court judgment reversed;

cause remanded.