City of Monmouth v. Pollution Control Bd.

• Decision Date: 29 May 1974
• Docket Number: Nos. 45896 and 45901,s. 45896 and 45901
• Citation: 313 N.E.2d 161,57 Ill.2d 482
• Parties: The CITY OF MONMOUTH, Appellee and Appellant, v. The POLLUTION CONTROL BOARD et al., Environmental Protection Agency, Appellant and Appellee.
• Court: Illinois Supreme Court

Page 161

313 N.E.2d 161

57 Ill.2d 482

The CITY OF MONMOUTH, Appellee and Appellant, v. The POLLUTION CONTROL BOARD et al., Environmental Protection

Agency, Appellant and Appellee.

Nos. 45896 and 45901.

Supreme Court of Illinois.

May 29, 1974.

Bufford W. Hottle, Jr., Monmouth, and Kenneth R. Shorts, Waukegan, for appellant and appellee.

William J. Scott, Atty. Gen., Chicago (Larry R. Eaton and Prescott E. Bloom, Asst. Attys. Gen., of counsel), for appellee and appellant.

GOLDENHERSH, Justice:

The City of Monmouth (hereafter City) petitioned the appellate court (Ill.Rev.Stat.1971, ch. 111 1/2, par. 1041; ch. 110, par. 264 et seq.) to review an order of the Pollution Control Board (hereafter the Board) in which it found that the City had violated section 9(a) of the Environmental Protection Act (Ill.Rev.Stat.1971, ch. 111 1/2, par. 1009(a)) and ordered it to take the actions hereafter discussed and to pay a fine. The appellate court (10 Ill.App.3d 823, 295 N.E.2d 136) vacated the order and remanded the cause to the Board for further proceedings. The Environmental Protection Agency and the Board, jointly, and the City, filed petitions for leave to appeal as a matter of right or in the alternative for leave to appeal, and we allowed both petitions for leave to appeal.

The Environmental Protection Agency commenced these proceedings by filing with the Board a complaint in which it alleged that the City was permitting a sewerage lagoon which it owned and operated to emit obnoxious odors into the environment causing air pollution in violation of section 9(a) of the Act. It asked the Board to enter a cease-and-desist order, to direct the City to physically cover the first stage of its three-stage lagoon, to obtain another source of water with a lower sulphate content or take any other measures necessary to terminate the odor, and to assess a penalty of $10,000 for each violation and $1,000 for each day the violation continued. Following a hearing the Board entered an order finding the City in violation of section 9(a), imposed a $2,000 fine, ordered the City to submit to the Environmental Protection Agency complete plans, specifications and a schedule detailing a program for covering the lagoon and incinerating the hydrogen sulfide which caused the odors, to file monthly progress reports with the Environmental Protection Agency and the Board, and 'to cease and desist from causing air pollution due to the uncontrolled emission of hydrogen sulfide odors within six months from date.' The City filed its plans, specifications and timetable with the Environmental Protection Agency as ordered by the Board, and also filed a petition for review in the appellate court.

The City contends first that the power conferred upon the Board to impose fines (Ill.Rev.Stat.1971, ch. 111 1/2, pars. 1033(b) and 1042) is invalid in that it is an unconstitutional delegation of judicial power. In City of Waukegan v. Pollution Control Board, 57 Ill.2d 170, 311 N.E.2d 146, we considered and decided adversely to the City the contentions and arguments presented in this case and they need not now be further discussed.

The City contends next that because a fine was imposed the action before the Board was a criminal proceeding. It argues that the complaint upon which a criminal proceeding is instituted must be verified (Ill.Rev.Stat.1971, ch. 38, par. 107--9) and the unverified complaint filed with the Board is, therefore, insufficient; that it was denied the right of trial by jury guaranteed by section 13 of article I of the Illinois Constitution, S.H.A., and as provided for in section 115--4 of the Code of Criminal Procedure (Ill.Rev.Stat.1971, ch. 38, par. 115--4), and that the evidence does not, as required by section 3--1 of the Criminal Code, prove beyond a reasonable doubt that it is guilty of the offense charged in the complaint. Our opinion in Waukegan makes it plain that the fines authorized by sections 33(b) and 42 of the Act were not designed to be, nor are they, criminal sanctions. The constitutional guarantee that 'the right to trial by jury as heretofore enjoyed shall remain inviolate' (Ill.Const. (1970), art. I, sec. 13) has been consistently interpreted by this court as inapplicable to special or statutory proceedings unknown to the common law. See People ex rel. Keith v. Keith,38 Ill.2d 405, 231 N.E.2d 387.

The City contends next that the order of the Board cannot be sustained because it is contrary to the decisions of this court holding that persons living in industrial communities must suffer without remedy any uncomfortable odors which are ordinarily and necessarily prevalent there. (See Gardner v. International Shoe Co., 386 Ill. 418, 54 N.E.2d 482, and cases cited therein.) In the Environmental Protection Act, the General Assembly has provided remedies to prevent or lessen air pollution which are in addition to those remedies recognized by the common law (see Ill.Rev.Stat.1971, ch. 111 1/ 2, par. 1045), and this it may do. City of Aurora v. Burns, 319 Ill. 84, 149 N.E. 784.

The City contends next that section 9 of the Environmental Protection Act (Ill.Rev.Stat.1971, ch. 111 1/2, par. 1009) is unconstitutional for the reasons that it does not contain sufficient standards for determining what constitutes air pollution and that the Board has not adopted regulations and standards as contemplated by that section. Section 9 provides: 'No person shall: (a) Cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, or so as to violate regulations or standards adopted by the Board under this Act.' It is apparent that under section 9(a) a complaint may be based on the violation of either the express statutory provision or the 'regulations or standards adopted by the Board * * *.' The complaint charged a violation of the express provision of the statute and not of a standard or regulation adopted by the Board and we need not, therefore, further consider the contention concerning the Board's failure to adopt regulations and standards. As to the City's contention that the statute is invalid by reason of its failure to contain adequate standards, a 'contaminant' as defined in section 3(d) of the Act (Ill.Rev.Stat.1971, ch. 111 1/2, par. 1003(d)) includes 'any odor'; 'air pollution' is defined in section 3(b) (ch. 111 1/2, par. 1003(b)) as 'the presence in the atmosphere of one or more contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant, or animal life, to health, or to property, or to unreasonably interfere with the enjoyment of life or property,' and section 33(c) of the Act (ch. 111 1/2, par. 1033(c)) provides:

'(c) In making its orders and determinations, the Board shall take into consideration all the facts and circumstances bearing upon the reasonableness of the emissions, discharges or deposits involved including, but not limited to:

(i) the character and degree of injury to, or interference with the protection of the health, general welfare and physical property of the people;

(ii) the social and economic value of the pollution source;

(iii) the suitability or unsuitability of the pollution source to the area in which it is located, including the question of priority of location in the area involved; and

(iv) the technical practicability and economic reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from such pollution source.'

We hold that section 9(a), when read in conjunction with sections 3(b), 3(d) and 33(c), contains sufficient standards.

The City contends next that the finding of the Board that it was in violation of section 9(a) is against the manifest weight of the evidence. The record, which contains a stipulation of facts and the transcript of two days of testimony, shows that in the early 1960's, in an effort to bring industry to the area, the City agreed to provide water and sewerage facilities for a meat-packing plant to be built in the City. With funds derived partly from general-obligation and partly from revenue bonds, the City constructed a sewage-treatment system, a water well, a water tower, and installed necessary pumping equipment. The sewage-treatment facility was constructed in 1965 in accordance with a permit issued by the State Sanitary Water Board. This facility serves only the packing company, other residents of the City being served by another treatment facility. It is a three-cell waste-stabilization system and was designed as a water-pollution-control treatment facility to treat the waste from a hog-kill and packing-plant operation estimated at 3,000 hogs per day. The system is of a type commonly used in the meat-packing industry. The first cell of the three-stage lagoon system is 275 feet square and 15 feet deep, while the second and third cells are approximately 48 acres each and 5 feet deep. The total volume of water in the three cells is 117,000,000 gallons and from the third cell the water is discharged into a creek.

The packing company began operating in April, 1966, and within 4 months the City was advised by the Sanitary Water Board that residents of the...