case they addressed issues a broader look ability one involving the individual liability of a corporate officer act you know capacity of such kind that by the corporation that failed to comply with the requirements of illinois environmental protection act in this case the individual liability of a corporate officer for the deposit of that hazardous screen construction demolition debris or the corporation to that person and any p disposal of material the significance of the second issue is even broader in scope since it is not limited to the environmental protection air or water regulations environment or creating the environment it's a question employable to any change in a statute that imposes a new liability for past actions of persons or entities were not previously subject to such liability in short when can such a change in the lobby protection act section forty two b prior to that time that the state was not authorized to seek mandatory injunctive relief under circumstances such as those present in this case and by that i mean with respect to not hazardous material then section forty two we after the appellate court decided the agro gays section forty two it was amended in the state argued before this court that the to forty two we did not change the law it merely clarified existing law this court rejected that argument and held the of them it was a change in the law now we must determine whether they're changing the law which imposes the extraordinary of a burden and additional monetary liability associated with mandatory injunctive relief can be applied retroactively on the subject of retroactivity section forty two is and acted after the conduct in this case has led to a violation it is the failure to get a permit for the deposit of clean c and d above grade and after the site was closed voluntarily in two thousand and three in fact the amendment was made after the case was filed well after the case was filed section forty two each is not clearly indicate that the amendment was intended to be applied retroactively that's not a disputed issue no one disputes including the majority that the first step in the process of analyzing retroactivity specifically does the of mehmet address the issue is just not contested here by the state or break even else  utilised section for the statute of statutes once you determine that the amendment itself doesn't specifically address protectively once you're there you go to section four and you try to determine whether or not  preamble section two of the act to determine the general assembly's intent three decades later when the event was enacted judge mason decided with respect to this point in concluded the majority should have followed the analytical framework outlined by this court you know cavaney and coming out and novak given the substantial case law on the subject in terms of the analytical framework for determining retroactivity including not only these cases but the united states supreme court's decision langridge it's difficult to understand why the appellate court did not follow those cases yes just made judge mason did her dissent it was right out there was a major subject of concern judge mason addressed in her dissent i have no way of explaining why the majority start to take refuge in a thirty year old preamble scholarly discussion of the history and the reasons why you don't apply he says retroactively unless you unless you fit within the framework already this court chose to go to this judge that statutes i not sure there is any real difference in any event the question is whether or not there was some material burden additional burden established by the that section four it quote forbids retroactive application of substantive changes statutes now i just want to pause for a minute on this interesting academic discussion about or dissent if it makes a big difference as to what the consequences of the conduct are i don't care what you call immediately it's a substantive change it adds a new bur and it is a fiction to say well it if it's if it's a remedy it's kind of procedural revard told us what machine what procedural is revised says received procedural is the machinery of carrying out  and the practice means that i quote those legal rules which directs the course of proceedings to bring the parties into court before in the course of the court's proceedings after they are brought in regard this court to find what procedural means we're not talking procedural here we're talking about a substantive significant change just mason pointed out the prior examples of substantive arguments included sports decision and of or act and  describing procedural issues here the stake of course it claims that that this is a procedural in nature but i wonder if you could talk about if it is procedural then the amendment could cost up to one hundred  step is to remember we're talking here particularly about mandatory injunctive relief an extraordinary remedy and the third step is are there situations in which even if you find a procedural you don't apply have retroactively even if you find it however you classify it as non substantive how do you do you deal with that situation and that is dealt with in a case  i'm not sure i pronouncing it right and it's also really dealt with in the basic law of mandatory injunctions or injunctions generally you have to look at the consequences of issuing a junction especially a mandatory injunction which this  even impossible then there's an unreasonable unfair application of the retroactive provision in this court or any court has of full authority not to go that way not to not not to apply it retroactively in this case we have a hill that consists of clean construction and demolition debris it is not he answers it was tested it was found to be ninety nine point nine percent clean structural demolition debris point one when they're deciding to issue a permit or anything else and what they do there is they they go to the local officials and say what's your view on this the mayor of linwood testified don't take down that we don't want we don't want all of th come with trying to remove that and by the way we would like to keep the hill there because we want to what energy generating windmills on their heel to generate electricity for the surrounding suburbs another way this is name escapes me at the moment was the head of the this hill up were the local officials the support of the defense position and for good reason there's seven hundred fifty thousand cubic yards of non hazardous material in the site it would take forty eight thousand truckloads to remove best the state's evidence it would cost anywhere from eight million to one hundred thirty million dollars depending upon which witness you're talking about to remove this hill and by the way this is one of those situations where the you know the old adage if you're going to shoot a bear you better kill it you don't want to just wounded if you started removing this hill and in all the vegetation vegetation that's there which would be the first step of removing the skill you'll have an environmental disaster and one of the reasons the local officials you're out are addressed that issue is they don't want forty eight thousand truckloads of material and diesel fuel and everything  they said leave it as it is it's not hurting anyone pass on that yes that is adding a provision that is a mandatory injunction already substance here or is it is it the factual basis here other words if it were a little mound and took two truckloads would that be all right or if and that's so i'd like to hear you talk but that's that that's a an interesting question because you don't want to divvy it too far from the to really it's an extraordinary remedy it's seldom employed and it's it's employed very cautiously so you know it's tempting to say well you know it's just you know one truckload of material and it ought to be ordered removed and therefore you should apply this retroactively but i suppose under the circumstances a judge who's considering a mandatory injunction of those circumstances would say it's no big deal move it it's no it's no big bird this isn't something it's going to overwhelm but when you get to the point of forty eight thousand truckloads of this material you're dealing with a substantive change and if you're dealing with a substantive change this for his me that absolutely clear that they are law cannot be applied retroactively and in this case all the facts they can think other clearly it should've been just a judge just as mason understood that and unfortunately the majority of the appellate court simply didn't follow the frame i would say and in any case where you're ordering when you're when you're making this kind of change it's me and it's it's it's a substitute change in it when i say this going to change i mean this this case goes from completely different and new remedy and there is if that's more than simply like for example increasing the amount of a fine it's a completely it's a complete change in the law and under the circumstances i think what the court needs to do is to say you can't do that i know that the the draconian consequences of doing so are not so great in that circumstance and there's a temptation to say when you can do it and there's a if there's a way the court could fashion that exception i think that i think everyone could live with it but in terms of you know it's the bad cases make very hard cases make bad law situation where you do have to draw the line someplace and say it doesn't fall within the procedural bucket under of our is that's not the definition of procedure but that and bear in mind that the the last we have the situation was a remedy case that the leading case in the united states on this component of monetary relief there and the supreme court in a very carefully crafted as i said scholarly opinion said we're not going to apply that change retroactively and expose the defendant to a new remedy of compensatory damages it's going to be applied prospectively only that was a remedy issue everything about things from his remedy so look them up and say remedy is really procedural and procedural doesn't count under section four and therefore you should find it and retroactive is just iranian's reasoning it certainly isn't supported by the process including as i indicated earlier the theosis case which was the party possessed when he acted increases a party's liability or imposes new duties with respect to transactions already completed that's clearly what's going on here there are new duties imposed by monetary penalties and by the way there is no question if anybody is takes the view that well these defendants did is they wished and maybe we ought to ignore all of this they were fine the general assembly did not intend that the case that the that the new act will remedy should apply in some circumstances retroactively but in other circumstances now where the particulars this particular circumstances of the application of characterization we do claim that yes in the amended statute itself they didn't indicated but it is it is in the broad authorization of that new act the remedy when under the standard principles of statutory construction is read in conjunction with the other provisions act in conjunction with the other provisions of the act it's amending and this is consistent with the federal law and actually consistent well with with the the underlying analysis in illinois well for instance in convening illinois we actually when we don't find expressed and we agree it's hard it's it's a little hard to get your arms around isn't it the fact that we're we're looking at whether the amendment is there's either legislative intent in the amendment and we can look to the other areas of am act and then if not let's just say for purposes of argument your argument the two b and c to see did not have a clear legislative purpose or with respect to the then you're looking only two that you would agree and then you'd only be looking into the amendment itself as to whether whatever the a member brought into play was retroactive or perspective it's a little hard to get her moment now you know we actually don't quite agree with that because we  in this case the provision we're looking at is section two that you were going to read in conjunction with but you would still read whatever that a military act is in conjunction with all the other provisions if they also for some reason indicated and that's in the we cite the federal case us feel all incorporation it when it looked at the and then did the investments having the response cost claims under circle up and if there was no express statement in the a mandatory act there itself it looked at it and try to look at that language in that statute that was being added in light in conjunction with the other provision haven't cited to it but there's a subsequent case of clarifying under langridge once you have it if you don't find the express statement you still part of the standard principles of statutory construction looking at that statute in light of the other act as a whole are you doing to find out is to case that was cited now if the court doesn't even if the court doesn't agree with us that that provision that when you look at that brought that brought authorization in the light of that of section two struck aeration and it's directive but that doesn't provide a however it appears that this particular landfill ceased its operations in two thousand and three so this is pretty fact intensive case and if they had if they ceased the operation in two thousand and three this was one year before the a member isn't th correct correct and so you're arguing now why it should be applied retroactively says when they did cease and desist even though that the the remedy is  nature you don't get the question of whether or not there are particular injunction and there are disagreements i thought it should have been a different injunction or a lesser injunction given the circumstances of the case now we take it we dispute that too but still that is no longer that is not relevant to the question  second step of land grab which we don't have a retroactive fact in that case it decided that yes instead it was a close call and said it was a difficult decision there are pages two eighty two to two eighty three whether or not that addition would be the of new compensatory damages but they d significant monetary relief under for their violations the only ten change was a new remedy which is the flipside here of an equitable remedy for how we address the current ongoing damage that resulted from that and this and that so that we can look at didn't affect the substance of the act it didn't change the conduct that was subject liability it didn't change the elements of proof or the grounds for recovery instead it just looked at the relief the type of relief the cases that the defendants relied upon the other devorah cases those weren't looking at different additional relief they were actually looking at change amendments that were made that either provided that only plaintiffs had causes of action against the defendant or defendants who entities that were change at the monitor relief case beside this winter and hirsch that that point that would change to the usury statute added additional monetary penalties there's no to this that that was the case but the court private same analysis and our team has it is substantively different it does you're adding a new equitable relative when already they were subjected to significant monetary relief anyway but that kind of change is procedural if you notice for the reasons i set forth in our brief and  prendergast would we have to overrule prior precedent to agree with you i don't believe so you know i think that you'd have to what you'd have to do if you didn't agree with me or somehow overrule or depart from cavity com and one thing i don't know exactly the point the council is making there but i want to be clear it is not disputed and certainly was disputed by the appellate court majority that the amendment does not address to figure out legislative intent thirty years later then you might as well throw out all this analysis and we'll just go to the preamble of any statute because it's always going to have general purposes language in it you can use as a as a foundation for any change or mak there was a disagreement among the court as to how you get to where you get but there were seven members of this court voted the same way cavity one would have would have applied one one group would have the majority would have gone to section four and the the remaining three would have said just just falling just a thought but i think it's a distinction without a difference i think you're right at the end of the day did you impose a new burden on someone if you did it's substantive if you did  court whether and i don't want to be unfair about this i used my time on the subject i did not have to genocide in order counsel did not raise chinese i noted in his arguments so i need some guidance as to whether i can go there so i'm not going to try to repeat all of them but the the case is on this are fairly uniform that if you don't have personal involvement in active participation in your own personal capacity and not is an officer or not is a employee of the company you do not have personal liability and the reason for that is is and i can with the limited time i use the best example i can use there are a lot of disposal companies dispose of of waste in the environment in the state of illinois the the largest is probably waste management they probably have i'm sure a lot of executives they probably have a lot of people who are at high levels and probably far far more in genocide in order here and the petko decision is the is the key decision here because the language of their case impact though you had an executive who knew everything was going on and he had bet at the site and this is the site it actually had written checks to landowners to compensate them for damage done at the site the patco court held that's not personal involvement active participation they have just not satisfy the criteria and given that given the case in the in the tank case the activities of g m s sign order with respect to the site with respect to the and i don't mean that she has to go out there in order to be alive  on it and unload material or directly on loading of material but she just was not actively involved in the operation of the site she had a company that was actively involved by virtue of the fact that the machinery and personnel released to the other company tri state but she was not actively about their company that she did here in gauged in a lot of other businesses a lot of the snow removal business and contracts with other sit with cities and contracts with private enterprise not personal involvement that doesn't satisfy the criteria of go and she should not have been found by above this case personally or company yes john's company yes john you know your honour's we could have come in here and try to spin a janice this is that site like ten or twelve times in ten or twelve years and then several occasions just stayed in the car were husband was there in another occasion she dropped off holiday gifts and bonuses to see that the the actual price that's to be charged each truck is determined by the person on site she signed those in a in a mystery a passerby as president of the company just like my hypothetical waste management executive they probably sign a lot of contracts on behalf of the company signing those contracts is an act of an executive in a company is not personal involvement in their participation and the appellate court seized on that one particular act because they couldn't put her at the site they couldn't hear were involved in any of that she couldn't here were supervising employees none of the other existed in fact the state goes out of its way to run away run away from the testimony of two of its own witnesses bruni was the chief investigator on the site in strasbourg was the sikh chief state police officer who served as an inspector of the site its last work said she had nothing to do with the operation had nothing to do with the operation those that's the testimony in this case from the state's witnesses they say as did the appellate court well maybe schlossberg you know she signed contracts maybe he didn't but it doesn't make any difference she involved in the operations in the car signing of the contracts was a decision of an executive of a company just like any of those executives who waste management if we're going to make that the law there's an awful lot of people out there that are suddenly going to be vulnerable to court orders that require them to remove not hazardous material individually and are going to be subject to huge fines just as the other three defendants were subject ones thank you very much sources other questions thank you for your arguments today in your soused this