Mystik Tape, Division of Borden, Inc. v. Pollution Control Bd.

Decision Date24 March 1975
Docket NumberNo. 46543,46543
Citation60 Ill.2d 330,328 N.E.2d 5
PartiesMYSTIK TAPE, DIVISION OF BORDEN, INC., Appellee, v. The POLLUTION CONTROL BOARD et al. Appeal of ENVIRONMENTAL PROTECTION AGENCY.
CourtIllinois Supreme Court

William J. Scott, Atty. Gen., Chicago (Michael A. Benedetto, Jr., James I. Rubin, and Richard W. Cosby, Asst. Attys. Gen., of counsel), for petitioner.

James W. Kissel, Theodore N. Miller, Thomas M. McMahon, and Philip E. Wenrich, Chicago (Sidley & Austin, Chicago, of counsel), for respondent.

DAVIS, Justice:

The Environmental Protection Agency (EPA) filed a complaint against Mystik Tape (Mystik), a division of Borden, Inc., charging that Mystik had violated section 9(a) of the Environmental Protection Act (Ill.Rev.Stat.1971, ch. 111 1/2, par. 1009(a)) in causing air pollution. The complaint also charged that Mystik had violated section 9(b) of the Act (Ill.Rev.Stat.1971, ch. 111 1/2, par. 1009(b)), and Rule 3--2.110 of the rules and regulations in installing certain equipment without first obtaining a permit.

The Pollution Control Board (Board) found that Mystik had violated both of the sections of the Act and Rule 3--2.110, and ordered Mystik to submit an odor-abatement program which would result in the abatement of the odor no later than June 1, 1973. The Board further assessed a fine of $3,500, apparently solely for installing certain equipment without first obtaining a permit.

On appeal to the appellate court by Mystik, the order of the Board was set aside. The appellate court reversed the Board, holding, Inter alia, (1) that the Board could not find a violation of section 9(a) of the Act until the Board first had adopted standards, in addition to those contained in the Act, and thereafter allowed a reasonable amount of time to comply with those standards, (2) that the Board misconstrued the elements necessary to a finding of a violation of section 9(a) of the Act, (3) that the finding of a violation of section 9(a) was against the manifest weight of the evidence, and (4) that Mystik had not violated section 9(b) of the Act in failing to obtain certain installation permits. (Mystik Tape v. Pollution Control Board (1973), 16 Ill.App.3d 778, 306 N.E.2d 574.) We allowed the petition of the EPA for leave to appeal.

Four issues are raised in this appeal: (1) Do sections 9(a), 3(b), 3(d) and 33(c) of the Act set forth sufficient standards to permit a finding of a violation of the Act without the Board first announcing additional standards and allowing a reasonable time to comply therewith; (2) Must the Board, in making its determinations and orders, consider each and every one of the factors listed in section 33(c) of the Act; (3) Did the appellate court err in holding that there was no burden upon Mystik to obtain a permit to install certain odorcounteractant and other equipment; and (4) Were the findings of the Board with regard to the violation of section 9(a) of the Act contrary to the manifest weight of the evidence?

Certain sections of the Act must be quoted for an understanding of the parties' contentions and their resolution.

Section 9(a) of the Act 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.' Ill.Rev.Stat.1971, ch. 111 1/2, par. 1009(a).

Section 3(b) of the Act defines air pollution 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.' Ill.Rev.Stat.1971, ch. 111 1/2, par. 1003(b).

Section 5 of the Act describes the Board, its composition, functions, duties and powers. Section 5(b) thereof states:

'The Board shall determine, define and implement the environmental control standards applicable in the State of Illinois and may adopt rules and regulations in accordance with Title VII of this Act.' Ill.Rev.Stat.1971, ch 111 1/2, par. 1005(b).

Section 33 of the Act refers to the orders and determinations of the Board, requiring a written opinion reciting the facts and reasons leading to a decision and suggesting the broad scope permitted in any order. Section 33(c) states:

'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)(i), (ii), (iii), (iv).

Section 3(b) of the Act sets forth two categories of 'air pollution.' The first is the creation of contaminants sufficient to injure human, plant or animal life, health or property. The second is the dispersal of contaminants sufficient to unreasonably interfere with the enjoyment of life or property. (Incinerator, Inc. v. Pollution Control Board (1974), 59 Ill.2d 290, 295, 319 N.E.2d 794.) We are here concerned with the second category. Mystik contends that section 5(b) of the Act requires that the Board determine specific environmental control standards and that only a violation of such standards will result in a violation of the Act. Mystik argues that only in this manner can one be sufficiently apprised of what is an 'unreasonable' interference with the enjoyment of life or property. We do not agree.

Section 9(a) of the Act specifies some of the conduct prohibited. It bars one from discharging any contaminant into the environment 'so as to cause or tend to cause air pollution * * * Or so as to violate regulations or standards adopted by the Board * * *.' This section clearly contemplates that one may be in violation of the Act Either if he causes air pollution Or if he violates a regulation or standard. The Act does not require that a specific standard adopted by the Board be found to have been violated for there to be a determination either of air pollution or of prohibited conduct.

In City of Monmouth v. Pollution Control Board (1974), 57 Ill.2d 482, 313 N.E.2d 161, we recognized that a complaint under section 9(a) could be based either on a violation of an express statutory provision or on a violation of a regulation or standard adopted by the Board. (57 Ill.2d 482, 486, 313 N.E.2d 161.) We further held that there were sufficient standards to describe a violation of the statutory provision by reading section 9(a) in conjunction with sections 3(b), 3(d) and 33(c). 57 Ill.2d 482, 487, 313 N.E.2d 161.

In Incinerator, Inc. v. Pollution Control Board (1974), 59 Ill.2d 290, 319 N.E.2d 794, we expanded upon Monmouth by stating that it is essential to a finding of the second category of air pollution--that is, the unreasonable interference with the enjoyment of life or property--that the Board consider, at least, those four factors set forth in section 33(c). 59 Ill.2d 290, 296, 319 N.E.2d 794.

Section 33(c) thus provides meaningful safeguards in outlining considerations that must be included in reaching a decision by the Board. The requirement of section 33(a) that the opinion must set forth the facts and reasons for the decision serves to insure that the necessary considerations were given, and enables the court to fully and completely review the determinations made by the Board, and provides those affected by the Act with certain additional guidelines for their conduct. See Maywood Park Trotting Association, Inc. v. Illinois Harness Racing Com. (1959), 15 Ill.2d 559, 563, 155 N.E.2d 626; Allied Metal Co. v. Pollution Control Board (1st Dist. 1974), 22 Ill.App.3d 823, 318 N.E.2d 257.

Thus, we find the specific standards referred to in section 5(b) are not necessary prerequisites to finding a violation of the statutory provisions of the Act. We agree with Mystik and the appellate court as to the desirability of the adoption of specific administrative standards. We do not, however, agree that such standards are necessary to a charge, or finding, of a violation of the Act.

The appellate court additionally noted the Board did not appear to require that the emission of contaminants must Unreasonably interfere with the enjoyment of life or property for there to be a violation of section 9(a). (16 Ill.App.3d 778, 795, 796, 797--804, 306 N.E.2d 574.) We concur with the conclusion of the appellate court in this regard, and we agree that this failure on the part of the Board constitutes error.

The Board reviewed the testimony of various witnesses insofar as they described the nature of the odor and concluded: 'The odor did not appear to cause any property damage or to force people to seek medical treatment. However, there is no question that the odors interfered with the comfort and enjoyment of life of the nearby residents, and constituted a nuisance and violated Section 9(a) of the act prohibiting the causing of air pollution.'

The opinion of the Board does not indicate that it took into consideration the various factors, bearing upon 'reasonableness,' as set forth in section 33(c). Rather, it appears that the Board viewed the question of reasonableness in light of its interpretation in Moody v. Flintkote Co., (1971), 2...

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