Lonza, Inc. v. Illinois Pollution Control Bd.
| Decision Date | 13 August 1974 |
| Docket Number | No. 73--133,73--133 |
| Citation | 315 N.E.2d 652,21 Ill.App.3d 468 |
| Parties | LONZA, INC., Appellant, v. ILLINOIS POLLUTION CONTROL BOARD and Environmental Protection Agency, Appellees. |
| Court | United States Appellate Court of Illinois |
John C. Parkhurst, Leiter, Newlin, Fraser, Parkhurst & McCord, Peoria, for appellant.
Larry R. Eaton, Asst. Atty. Gen., Springfield, for appellees.
This action was brought by the Environmental Protection Agency against two respondents, Ashland Chemical Company and Baird Chemical (now Lonza, Inc.) by a complaint filed on May 1, 1972 alleging violations of Illinois Revised Statutes, 1971, Chapter 111 1/2, Paragraph 1009(a) by causing air pollution in the form of odor contaminants either alone or in combination with other sources at their adjacent plants near Mapleton, Peoria County, Illinois. The Board after a hearing ordered each respondent to pay a $10,000 fine, submit a program for abatement of their odor nuisances and achieve abatement within a certain time. From this order Lonza seeks review pursuant to statute and Supreme Court Rule 335 (Ill.Rev.Stat.1971, Ch. 110A, Par. 335). Ashland has sought review under a separate action.
The Lonza plant, originally owned by Baird, was constructed shortly after the Ashland plant facilities about 1961 and Lonza's premises are immediately adjacent to and roughly west of Ashland's plant. The two plants are separated from the residential part of Mapleton by Route 24 and a distance of a few hundred yards.
The Ashland plant is a basic chemical plant which engages in the production of a wide variety of products. About sixty-five percent of Lonza's plant production consists of producing sorbitol, a seventy percent sugar solution.
Both plants utilize waste water treatment systems. Ashland's system proceeds to an 18.5 acre lagoon and then to a 105 acre lagoon from which there is no effluent. Lonza's system has two 1-acre receiving lagoons which have no effluent discharge.
One of the issues raised by Lonza in its brief relates to the constitutionality of the penalty provisions of the Environmental Protection Act. City of Waukegan v. Pollution Control Board, 57 Ill.2d 170, 311 N.E.2d 146 and City of Monmouth v. The Pollution Control Board, 1974, Ill., 313 N.E.2d 161, decided after Lonza filed its brief have now settled this issue and hold the penalty provision to be constitutional.
Lonza also raised an issue concerning the propriety of the denial of its motion to sever its case from that of Ashland. Lonza's contention is that the denial of the motion to sever constituted an abuse of discretion prejudicial to Lonza. We hold here that there was no abuse of discretion particularly in view of section 9(a) of the Environmental Protection Act under which section this action against the two companies was brought which provides that emissions which cause air pollution either alone or in combination with contaminants from other sources are prohibited. This denial of severance did not of course relieve the Pollution Control Board of its duty to find that each company was a source of the pollution.
Before discussing the sufficiency of the evidence and the propriety of the Board's order it would be helpful to keep in mind that the stated purpose of the Illinois legislature in passing the Environmental Protection Act is '* * * to establish a unified, statewide program supplemented by private remedies, to restore, protect and enhance the quality of the environment, and to assure that adverse effects upon the environment are fully considered and borne by those who cause them.' Illinois Revised Statutes, 1971, Chapter 111 1/2, Section 1002(b). In order to attain the stated goals one of the requirements for membership on the Pollution Control Board is that the members be technically qualified and one of the authorizations given to the Director of the Environmental Protection Agency is to employ technical assistants and consultants. This requirement of technical qualification for Board members and the provision for hiring of technical assistants is not only to enable the determination of the existence of pollution but more so to render advice and assistance to polluters and potential polluters to assist them in complying with the requirements of the Environmental Protection Act. The Act's purpose is to protect the environment of the State of Illinois. It was not enacted primarily to punish polluters but rather to protect, enhance and restore the environment by eliminating, lessening and preventing pollution.
The principal issue is whether Lonza was the source of odor contaminants constituting air pollution within the meaning of the Environmental Protection Act. In this respect we are concerned with the construction, interpretation and application of the statutory provisions in order to ascertain the intention of the legislature.
Air pollution is defined in section 3(b) of the Act as follows, 'Air pollution 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, or to unreasonably interfere with the enjoyment of life or property.' The first question relating to this definition of air pollution is whether the 'or' preceding 'to unreasonably interfere with the enjoyment of * * *' is used in the disjunctive sense or in the conjunctive sense.
There is considerable support in the cases for construing the term 'or' in a statute to mean 'and'. Moriarty v. Murphy, 387 Ill. 119, 55 N.E.2d 281 (1944), People ex rel Watson v. House of Vision, 16 Ill.App.3d 487, 306 N.E.2d 697 (1973), Mills v. Milan, 68 Ill.App.2d 63, 214 N.E.2d 915 (1966), Goldblatt v. City of Chicago, 30 Ill.App.2d 211, 174 N.E.2d 222 (1961). The primary reason for such a construction is to effectuate the intention of the legislature where there is ambiguity as to its meaning. In Moriarty the court held, 'It is the settled law of this state that the words 'or' and 'and' will not be given their literal meaning when to do so renders the sense of a statutory enactment dubious. The strict meaning of such words is more readily departed from than that of other words. Where it is necessary to effectuate the intention of the legislature, the word 'or' is sometimes considered to mean 'and', and the word 'and' to mean 'or'.'
The difference is that if the 'or' is used in the disjunctive sense them air pollution for the purposes of the Environmental Protection Act exists either when there is injury to * * * or * * * unreasonable interference with the enjoyment of life or property.' It would be necessary in such case to envisage circumstances where there is unreasonable interference with the enjoyment of life or property and at the same time no injury to life or property. If, however, the 'or' preceding 'to unreasonably interfere with * * *' is used in the conjunctive sense then air pollution for the purposes of the act must be more than merely an injury. This injury must unreasonably interfere with the enjoyment of life or property. This latter use of the word 'or' to mean 'and' would also serve to give significance to section 33(c) of the Act which sets forth four categories of facts and circumstances which the Pollution Control Board shall take into consideration bearing on the reasonableness of the emissions, discharges or deposits.
This action was brought under section 9(a) of the Environmental Protection Act which prohibits the discharge or emission of any contaminant so as to cause or tend to cause air pollution. Air pollution is defined in section 3(b) (). Contaminant is defined in section 3(d). Section 33(c) sets forth facts and circumstances bearing upon the reasonableness of the emissions or discharge. Section 33(c) provides, 'In making its orders and determinations, the Board Shall (emphasis added) 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 ability and economic reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from such pollution source. * * *'
The argument has been made that the factors in section 33(c) are relevant only as matters of defense yet in City of Monmouth v. The Pollution Control Board, filed 1974, Ill., 313 N.E.2d 161, the Supreme Court in responding to respondent's contention 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 declared, 'We hold that Section 9(a), when read in conjunction with sections 3(b), 3(d) and 33(c), contains sufficient standards.' Accordingly, to determine the existence of air pollution it is necessary to examine the factors listed in section 33(c). The reasonableness described in section 33(c) refers both to the cause and effect of the emissions.
Section 31(c) provides that the burden shall be on the Agency or other complainant to show either that the respondent has caused or threatened to cause air or water pollution. According to the Monmouth case a necessary prerequisite to determining the existence of air pollution is to examine the factors in section 33(c). Therefore, such examination becomes part of complainant's burden under section 31(c). Although section...
To continue reading
Request your trial