Incinerator, Inc. v. Pollution Control Bd.

• Citation: 319 N.E.2d 794,59 Ill.2d 290
• Decision Date: 27 November 1974
• Docket Number: No. 46369,46369
• Parties: , 7 ERC 1342 INCINERATOR, INC., Appellant, v. The POLLUTION CONTROL BOARD et al. (The Environmental Protection Agency, Appellee.)
• Court: Illinois Supreme Court

Page 794

319 N.E.2d 794

59 Ill.2d 290, 7 ERC 1342

INCINERATOR, INC., Appellant, v. The POLLUTION CONTROL BOARD et al. (The Environmental

Protection Agency, Appellee.)

No. 46369.

Supreme Court of Illinois.

Nov. 27, 1974.

Pedersen & Houpt, Chicago (Richard V. Houpt, Chicago, of counsel), for appellant.

William J. Scott, Atty. Gen., Springfield (Richard W. Cosby and Dennis R. Fields, Asst. Attys. Gen., of counsel), for appellee.

UNDERWOOD, Chief Justice:

The Environmental Protection Agency (EPA) brought an action against appellant, Incinerator, Inc., alleging violation of various provisions of the Environmental Protection Act (Ill.Rev.Stat.1971, ch. 111 1/2, par. 1001 et seq.) and of certain rules and regulations of the Illinois Pollution Control Board adopted pursuant thereto. At the conclusion of extensive hearings before the Pollution Control Board, the Board fined appellant $20,000 for causing air pollution and $5,000 for failure to file an 'Air Contaminant Emission Reduction Program.' Appellant was further ordered to cease and desist operations until such time as satisfactory air-pollution-control equipment was installed and other specified corrections were accomplished. Its petition for variance, which was considered at the same time, was denied. The appellate court affirmed (Incinerator, Inc. v. Pollution Control Board (1973), 15 Ill.App.3d 514, 305 N.E.2d 35), and we have allowed appellant's petition for leave to appeal.

Since 1958 appellant has operated a large refuse incinerator situated in the village of Stickney near its border with the town of Cicero. The plant operates seven days a week and has the capability of processing 500 tons of solid waste per day in its two rotary-kiln incinerators. Refuse from various municipalities accounts for most of the plant's capacity, although the plant also accepts refuse from private scavengers. On April 2, 1971, the EPA filed a complaint alleging that during specified periods appellant: (1) had caused air pollution in violation of section 9(a) of the Environmental Protection Act and corresponding provisions of the Air Pollution Control Act previously in effect; (2) had emitted particulate matter in violation of Rule 3--3.232 of the Pollution Control Board's rules and regulations governing the control of air pollution; (3) had discharged smoke in excess of and in violation of the same section of said rules and regulations; and (4) had failed to file a letter of intent to file an 'Air Contaminant Emission Reduction Program' as required by section 2--2.12 of said rules and regulations. The EPA subsequently filed an amendment charging appellant with installation of new pollutioncontrol equipment without obtaining a permit as required by section 9(b) of the Act and Rule 3--2.110 of the Board's rules and regulations. Shortly after the complaint was filed, appellant filed a petition for variance before the Pollution Control Board which was consolidated with the complaint for hearing. In its answer to the EPA's complaint, appellant denied causing air pollution as charged and pleaded an affirmative defense that the compliance required by the EPA was 'technologically unfeasible as the available pollution control equipment had (not) yet proven to be effectively adaptable to this or similar institutions.' Appellant admitted its failure to comply with the Board's rules and regulations requiring the filing of the 'Air Contaminant Emission Reduction Program.'

The principal question raised on this appeal concerns the alleged violation of section 9(a) of the Environmental Protection Act. In order to properly define the issues involved, it is necessary to set forth the pertinent statutory provisions. Section 9(a) provides that: '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.' (Ill.Rev.Stat.1971, ch. 111 1/2, par. 1009(a).) The term 'air pollution' is defined in section 3(b) of the Act 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.' (Emphasis added.) (Ill.Rev.Stat.1971, ch. 111 1/2, par. 1003(b).) Section 33(c) of the Act provides as follows: '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.' (Ill.Rev.Stat.1971, ch. 111 1/2, par. 1033(c).) Section 33(a) of the Act contains the following provisions with regard to decisions rendered by the Board: 'After due consideration of the written and oral statements, the testimony and arguments that shall be submitted at the hearing, or upon default in appearance of the respondent on return day specified in the notice, the Board shall issue and enter such final order, or make such final determination, as it shall deem appropriate under the circumstances. In all such matters the Board shall file and publish a written opinion stating the facts and reasons leading to its decision.' (Emphasis added.) Ill.Rev.Stat.1971, ch. 111 1/2, par. 1033(a).

It is evident that in section 3(b) the legislature has by definition created two categories of 'air pollution.' The first is 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. The second category is the presence of such contaminants in such amounts, characteristics and duration as to unreasonably interfere with the enjoyment of life or property. We are here concerned with the second category of air pollution, and the issues may be summarized as follows: (1) Must the various factors specified in section 33(c) be proved and considered by the Board in determining whether there has been a violation of the Act by causing air pollution of the type which unreasonably interferes with the enjoyment of life or property; (2) in rendering its decision, to what extent must the Board make specific findings as to such factors or otherwise show that it has taken them into consideration; and (3) in this case was the Board's finding that appellant had caused air pollution against the manifest weight of the evidence?

In City of Monmouth v. Pollution Control Board (1974), 57 Ill.2d 482, 313 N.E.2d 161, it was alleged that section 9 of the Environmental Protection Act was unconstitutional for the reason that it did not contain sufficient standards for determining what constitutes air pollution. We there held that section 9(a) when read in conjunction with other provisions of the Act, including section 33(c), contains sufficient standards. Likewise in City of Waukegan v. Pollution Control Board (1974), 57 Ill.2d 170, 311 N.E.2d 146, we observed that section 33(c) provides a protection against arbitrariness and furnishes guidelines for the Board in reaching its decision. However, in neither of those cases did we give specific attention to the related issues now raised on this appeal.

The provisions here in question rather clearly direct that the unreasonableness of an alleged air-pollution interference must be determined by the Board with reference to the section 33(c) criteria. Air pollution of the second category is not proved unless there has been a showing of an unreasonable interference with the enjoyment of life or property. Section 33(c) sets forth four categories of factors which bear upon the question of reasonableness and specifically directs that the Board 'shall take into consideration' such factors in making its orders and determinations. Section 33(a) requires the Board to file and publish a written opinion stating the facts and reasons leading to its decision. The Board must take into consideration the factors referred to in section 33(c) and must indicate that it has done so in its written opinion by stating the facts and reasons leading to its decision.

Our examination of the record before us indicates that the Pollution Control Board did hear evidence pertaining to the section 33(c) criteria and did take those factors into consideration in reaching its determination. We have further concluded that the Board's finding that appellant had caused air pollution in violation of section 9(a) of the Act was not against the manifest weight of the evidence and that the $20,000 penalty imposed for the violation was justified under the...