People ex rel. Scott v. Continental Can Co., Inc.

• Decision Date: 14 May 1975
• Docket Number: No. 60990,60990
• Citation: 329 N.E.2d 362,28 Ill.App.3d 1004
• Parties: PEOPLE of the State of Illinois ex rel. William J. SCOTT, Attorney General of the State of Illinois, Plaintiff-Appellant, v. CONTINENTAL CAN COMPANY, INC., etc., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 362

329 N.E.2d 362

28 Ill.App.3d 1004

PEOPLE of the State of Illinois ex rel. William J. SCOTT, Attorney General of the State of Illinois, Plaintiff-Appellant, v. CONTINENTAL CAN COMPANY, INC., etc., Defendant-Appellee.

No. 60990.

Appellate Court of Illinois, First District, Fourth Division.

May 14, 1975.

William J. Scott, Atty., Gen., Chicago (Richard W. Cosby, Fredric J. Entin, Chicago, of counsel), for plaintiff-appellant.

Hackbert, Rooks, Pitts, Rullager & Poust, Chicago (Joseph S. Wright, Jr., Laurence A. McHugh, Chicago, of counsel), for defendant-appellee.

JOHNSON, Justice.

This action was brought by William J. Scott, the Attorney General of the State of Illinois (hereinafter plaintiff) to enjoin Continental Can Company (hereinafter defendant) from polluting the air and creating a public nuisance by emitting malodorous fumes into the atmosphere. A civil penalty for the alleged violation of the Environmental Protection Act was sought. The trial court granted the defendant's motion to dismiss, and the plaintiff appeals from the order dismissing the action.

The plaintiff raises the following issues for review: 1) Whether the trial court erred in finding that once regulations are adopted that apply to the subject air emissions, the applicable regulations become the sole standard against which the emissions are measured, thereby precluding an action for violations of the basic statutory prohibition; 2) whether the trial court erred in finding that the existence of an operating permit constituted a defense to this action; and 3) whether the trial court erred in requiring a Pollution Control Board regulation to be the emission standard applicable in actions brought under separate statutory authority and the common law.

Plaintiff filed a three-count complaint for injunctive relief and penalties against Continental Can Company, Inc. In Count I plaintiff, pursuant to section 42 of the Environmental Protection Act (Ill.Rev.Stat.1971, ch. 111 1/2, § 1042), alleged that the defendant's manufacturing plant emitted malodorous fumes into the atmosphere thereby unreasonably interfering with the enjoyment of life and property in violation of section 9(a) of the Environmental Protection Act (Ill.Rev.Stat.1971, ch. 111 1/2, § 1009(a)). Plaintiff in count II asserts his authority as Attorney General at common law to abate public nuisances and alleged that the emissions from defendant's manufacturing facility constituted such a nuisance. Finally, in count III plaintiff asserted the authority of the Attorney General pursuant to 'An Act in relation to the prevention and abatement of air, land and water pollution,' Ill.Rev.Stat.1971, ch. 14, §§ 11, 12.

The defendant filed a motion to dismiss and plaintiff responded to the motion. Thereafter, defendant filed a supplemental motion pursuant to sections 45, 48, and 57 of the Civil Practice Act (Ill.Rev.Stat.1971, ch. 110 §§ 45, 48, and 57), praying that judgment be entered on the motion, and attaching a memorandum brief in support of his supplemental motion to dismiss. In addition, the defendant submitted the deposition of Keith J. Conklin, Manager of the Permit Section, Division of Air Pollution Control, of the Environmental Protection Agency. Mr. Conklin stated that a permit was issued to Continental Can Company on February 7, 1974, after it was determined that the defendant was in compliance with the emission limitations imposed by the Pollution Control Board, as well as with all provisions of the Environmental Protection Act. A copy of the permit, which expires August 28, 1975, was attached to the deposition. Then, the plaintiff submitted a memorandum brief in opposition to defendant's motion to dismiss. Finally, on October 4, 1974, a final order was issued dismissing this action.

The threshold question to be considered in this appeal is whether the trial court properly entered the order granting the defendant's motion to dismiss. To dispose of this question, we must examine the pleadings, depositions, and affidavits that were before the trial judge to determine if a genuine issue of material fact was presented. In this case a discovery deposition was attached to the defendant's supplemental motion to dismiss. In Illinois a motion for summary judgment may be supported by a deposition (Breault v. Feigenholtz (1973), 54 Ill.2d 173, 184, 296 N.E.2d 3), and a discovery deposition may be used 'for any purpose for which an affidavit may be used.' (Ill.Rev.Stat.1971, ch....