Lloyd A. Fry Roofing Co. v. Pollution Control Bd.
| Decision Date | 28 May 1974 |
| Docket Number | No. 56629,56629 |
| Parties | LLOYD A. FRY ROOFING COMPANY, a corporation, Petitioner, v. POLLUTION CONTROL BOARD et al., Respondents. |
| Court | United States Appellate Court of Illinois |
Arnstein, Gluck, Weitzenfeld & Minow, Chicago, for petitioner.
William J. Scott, Atty. Gen. of Ill., for respondent Pollution Control Board.
Patrick A. Keenan, DePaul Law Clinic, Chicago, for S.O.R.E., Hemmerich and others.
This is a petition for review of an order of the Pollution Control Board. 1 The Board denied petitioner Fry Roofing Company (hereinafter Fry) a variance from the Environmental Protection Act, 2 found that Fry has caused air pollution as defined by Sections 3(b) and 9(a) of the Act 3 and has emitted particulates into the atmosphere in an amount exceeding the limits set forth in the Rules and Regulations Governing the Control of Air Pollution. The Board ordered Fry to cease and desist the emission of particulates, and assessed a penalty against Fry in the amount of $50,000 for violation of the Act and the Rules and Regulations.
Fry contends that: 1) the Environmental Protection Act is unconstitutional in that: (a) it is vague and indefinite; (b) unlimited discretion and legislative power is delegated to the Pollution Control Board; (c) the Act confers judicial power upon an administrative agency; (d) application of the Act results in a denial of equal protection of law; and (e) the Act denies the right to a jury trial; 2) the hearing was unfair in that: (a) the Board did not 'hear' the evidence becuase the Board members are not required to attend the hearing; (b) the hearing officer did not comply with his duty to exclude immaterial and prejudicial evidence as required by the Act; (c) the hearing officer was not impartial; and (d) Fry was denied its right to submit a brief and argument before the Board; and 3) the decision of the Board is not supported by competent, sufficient evidence.
Fry is one of the world's largest manufacturers of asphalt roofing operating 24 plants in various parts of the United States. The facility involved in the present proceeding is located in Summit, Illinois. The Vollney Felt Mill occupies the same premises, supplying the felt used in the operation. The Trumbull Asphalt Company, while purportedly being a separate entity unconnected with Fry, is located contiguous to the Fry plant in Summit as it is in other parts of the country where Fry plants are located, and supplies the asphalt used in Fry's manufacturing process.
On January 7, 1971, Fry filed a petition for a variance from the provisions of the Environmental Protection Act. The petition stated that Fry had installed no control equipment because of possible relocation problems caused by the proposed South-West Expressway. On February 26, 1971, a complaint was filed before the Pollution Control Board by members of a community group known as S.O.R.E. 4 The complainants alleged 'that Respondent Fry did, on February 17, 1971, cause and allow the discharge and emission into the environment of contaminants so as to cause or tend to cause air pollution in Illinois, and further that Respondent Fry has engaged and continues to engage in a pattern of conduct such as to cause and allow the discharge and emission into the environment of contaminants so as to cause or tend to cause air pollution in Illinois.' Such allegations clearly allege violations of Section 9(a) of the Act and inform Fry of the manner of the alleged pollution. However, the complaint does not allege violations of the Rules and Regulations promulgated by the Board.
Section 31 of the Act 5 requires that the complaint state 'the manner in, and the extent to which such person (the person complained against) is said to violate this law.' Notice to the alleged violator is a fundamental element of due process. Charges in an administrative proceeding need not be drawn with the same refinements as pleadings in a court of law, but the charges must be sufficiently clear and specific to allow preparation of a defense. (Greco v. State Police Merit Board, 105 Ill.App.2d 186, 245 N.E.2d 99.) Section 31 requires notice of a specific violation charged and notice of the specific conduct constituting the violation. See Citizens Utilities Co. v. Pollution Control Board, 9 Ill.App.3d 158, 289 N.E.2d 642. In addition P.C.B. Procedural Rule 304(c)(2) requires that the complaint contain 'a concise statement of the facts upon which the respondents are claimed to be in violation.'
In the instant case the complaint did not allege violations of the Rules and Regulations Governing the Control of Air Pollution. Therefore, the Board improperly found Fry in violation of the Rules and Regulations, and we reverse that part of the Board's order. We do not believe that this defect was cured by the facts that the hearing on Fry's petition for a variance from the Rules and Regulations was consolidated with the enforcement proceedings based upon the complaint, and that Fry introduced evidence regarding its emission rates which are governed by the Regulations. Therefore we will consider only that evidence concerning a violation of Section 9(a) of the Act.
A lengthy hearing covering more than 900 pages in the record was held before the hearing officer. In order to consider defendant's contentions, the testimony and evidence adduced must be summarized. Geddam Reddy, an engineer employed by the Environmental Protection Agency, testified on direct examination that, from a reading of generally accepted treatises on air pollution emission factors, he was convinced that emissions from asphalt roofing companies are carcinogenic and dangerous to human health. He stated that since Fry had no emission control equipment, it was emitting carcinogenic materials. Near the end of the hearing, the hearing officer struck the direct testimony of this witness on the basis that he had never visited the Fry plant and had not inspected it. Reddy was later called by Fry and stated that Fry Exhibit 1, United States Environmental Protection Agency Manual (1971 preliminary draft), was a generally accepted emission standard manual.
Ronald Kluszewski, a trustee of the Village of Summit, testified as to the contents and background of a resolution passed by the trustees on January 18, 1971, requesting a denial of Fry's variance application, and also requesting that Fry be required to comply with pollution control laws and regulations. He also testified to complaints from citizens and to his opinion as to public feeling. Finally, he testified that he was able to pinpoint the 'obnoxious' odor as emanating from Fry and that it interfered with his enjoyment of his home.
The Summit Chief of Police also testified to complaints regarding the odors emitted by Fry. 63 complaints from 1966 were introduced into evidence; many of these pertained to Trumbull Asphalt Company and did not name Fry. The witness stated that he had gotten approximately 20 complaints per year since he became chief in 1966; none of these were introduced into evidence.
A Vista volunteer testified to being present at a meeting on December 18, 1970 with Lloyd Fry, Jr. and members of S.O.R.E. Mr. Fry told the group that he knew that he was polluting, but S.O.R.E. could take him to court to make him stop. This witness also testified that his understanding of the law was that Fry would be compensated for control equipment if the plant was condemned for the proposed highway, and that this was discussed at the meeting.
Approximately 12 members of S.O.R.E. then testified. Affidavits from all these witnesses were introduced into evidence. These affidavits related that on February 17, 1971 the affiants observed gray smoke and a sickening odor being emitted from the Fry smokestacks, and that this odor interfered with their enjoyment of their property and environment. Many of these affidavits related incidents prior to February 17, 1971 and subsequent to that date in which the smoke and odor emanating from Fry produced ill effects. One of the affidavits contained newspaper articles reflecting public concern over Fry's operation; two affidavits contained information regarding Fry's operations and lawsuits in three other states. One witness testified that S.O.R.E. has received 111 complaints regarding Fry during December and January of 1971 and 1972. These witnesses were cross-examined extensively by Fry as to their certainty in identifying the source of the odors they attributed to Fry, and as to the contents of their affidavits.
The complainants also called Lloyd Fry Jr. and Harvey Hoffman, the former Director of Environmental Control at the Fry plant, as adverse witnesses. Fry stated that he did not know what type of particulates the plant was emitting, and did not know of an injunction against the Fry plant in California. Hoffman was questioned regarding the pollution control equipment installed in Fry's other plants.
William Zenisek, an expert witness for the Environmental Protection Agency testified that he visited Fry in 1968 and 1971 and estimated the emissions rate from the United States Environmental Protection Agency Manual, 1968 (E.P.A. Exhibit 1). No tests were conducted on the Fry plant to determine actual emission rates. This witness testified that there is no official update of the 1968 manual, only preliminary revisions. Air Pollution Engineering Manual, U.S. Department of Public Health, 1967 was also introduced into evidence (E.P.A. Exhibit 3) as depicting the state of the art as it relates to asphalt saturators and the control of emissions.
Steven Rosenthal, an environmental protection engineer employed by the Evironmental Protection Agency testified that he visited the Fry plant two or three times in 1971, and observed a disagreeable odor. He computed the Fry emission rate from the 1968 Environmental Protection Agency Manual. He stated that in his opinion the wood flour he...
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