Processing & Books, Inc. v. Pollution Control Bd.

Decision Date28 June 1976
Docket NumberNo. 47682,47682
Citation351 N.E.2d 865,64 Ill.2d 68
PartiesPROCESSING AND BOOKS, INC., et al, Appellees, v. The POLLUTION CONTROL BOARD et al., Appellants.
CourtIllinois Supreme Court

William J. Scott, Atty. Gen., Chicago (Russell R. Eggert, Fredric J. Entin, and Jeffrey S. Herden, Asst. Attys. Gen., of counsel), for appellants.

Lewis D. Clarke and Clayton P. Voegtle, Waukegan (Snyder, Clarke, Dalziel, Holmquist & Johnson, Waukegan, of counsel), for appellees.

SCHAEFER, Justice:

A complaint filed by the Illinois Environmental Protection Agency with the Illinois Pollution Control Board on April 7, 1972, charged that the respondents, Processing and Books, Inc., an Illinois corporation, and National Mellody Farm Fresh Egg Company, its wholly owned subsidiary, had caused air pollution consisting of odors from chicken manure and incinerators used to dispose of dead chickens, in violation of section 9(a) of the Environmental Protection Act (Ill.Rev.Stat.1971, ch. 111 1/2, par. 1009(a)). The Board fined the respondents $3,000 and entered a cease and desist order.

The respondents appealed, raising issues concerning the adequacy of the record to support the Board's findings, the specificity of those findings, the burden of introducing evidence, and the propriety of the relief ordered. The appellant court reversed on the ground that the Board's order does not specifically indicate that it took into consideration four factors set out in the Act as bearing on the reasonableness of the pollution. The court declined to remand, apparently not because the record is devoid of evidence to support the order, but because the evidence that supports the order was not introduced by the Agency. (28 Ill.App.3d 115, 328 N.E.2d 338 (2d Dist. 1975).) We granted leave to appeal.

The offense charged is set out in section 9(a) of the Environmental Protection Act:

'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).

'Air pollution' is defined in section 3(b) 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.' Ill.Rev.Stat.1971, ch. 111 1/2, par. 1003(b).

Section 33 provides:

'(a) 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. The Board shall immediately notify the respondent of such order in writing by registered mail.

(c) 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 or reducing or eliminating the emissions, discharges or deposits resulting from such pollution source.' Ill.Rev.Stat.1971, ch. 111 1/2, par. 1033.

Before we consider the formal deficiencies which the appellate court found in the Board's order, it is necessary to review the stipulated facts as well as the evidence received during the five public hearings, as reflected in the order of the Board.

The property involved is a portion of the large Hawthorne-Mellody farm, which is owned by Processing and Books, Inc., and leased to National Mellody Farm Fresh Egg Company, which conducts an egg-producing operation. This operation is located southeast of the Village of Mundelein and south of the village of Libertyville in an area zoned for agricultural uses. In 1965, the cattle and dairy operations to which the farm had been primarily devoted were terminated, and since that time the poultry operation has been greatly expanded. Before a new building program was undertaken in 1965, the chicken population was between 15,000 and 18,000. In 1965 the two existing chicken houses were 'phased out,' and two new ones were built. Two more new houses were built in 1966, and 12 more were stated in 1969 and completed in 1970. Each new house has a capacity of more than 21,350 chickens. The total chicken population ranges between 296,000 and 330,000, and the farm produces between 160,000 and 170,000 grade 'AA' eggs per day, 95 percent of which are sold to the National Tea Company.

The Board found that '(s)ome of Respondent's neighbors had lived in the area for almost 20 years. Some of them had their own farm animals and therefore had to dispose of manure. Although they tolerated the past odors emanating from a much smaller operation they found they could no longer enjoy their homes and property because of the chicken manure odor and the even more permeating odor of burning chickens and feathers.'

The Agency has not disputed that the operation has substantial social and economic value. Initially it had contended that the operation was commercial rather than argicultural, but the Board found against the Agency on that issue and the finding is not challenged. The Board's order summarizes the evidence that showed that the odors emanating from the egg farm had interfered with the public's enjoyment of life and property in an area extending more than a mile beyond the boundaries of the farm. Expert and lay testimony was presented as to the sources of the odors: chicken manure spread on the farm's fields; holding tanks in each of 16 chicken houses where the manure, which accumulates at the rate of 75,000 pounds per day, was allowed to remain for three or four weeks before being taken away; a dryer used to convert some of the manure into marketable fertilizer; and two incinerators used to burn about 175 chickens which die every day. There was extensive evidence that residents of the area were prevented from holding cook-outs and relaxing out of doors, became nauseated while driving past the farm, and occasionally were even awakened at night by what one witness termed 'a foul odor.'

Complaints had been brought to the respondents' attention by private citizens, the county health department and the sheriff's office, but the odors persisted. The evidence showed that the odors might be substantially diminished if the manure in the holding tanks was disposed of within a week of its expulsion from the chickens since it takes approximately that long for bacterial decay to produce hydrogen sulfide, sulfur dioxide and other obnoxious gases. There was also evidence that incinerators of multichamber design would produce less air pollution than the single-chamber incinerators used by the farm.

The Board's order found from the testimony of the manager of the operation that, contrary to established procedure, employees sometimes put dead chickens in the incinerator and then started the burners. The order also pointed out that after the Agency's complaint had been filed, the respondents had installed a stack which provided 'increased retention time for burning of gases at a high temperature (which) should reduce odor potential. That installation,' the Board's order continued, 'along with improved operator procedure, should result in substantial nuisance abatement.' As the appellate court's opinion recognized, the respondents had presented evidence as to the financial investment in the operation, and the financial feasibility of installing other forms of drying systems than those it employed. 28 Ill.App.3d 115, 116, 328 N.E.2d 338.

One of the grounds upon which the appellate court reversed the Board's order appears to have been the fact that it does not contain specific findings on each of the four factors which section 33(c) directs the Board to consider. This aspect of the court's opinion is based upon the observation of this court in Incinerator, Inc. v. Pollution Control Board (1974), 59 Ill.2d 290, 299, 319 N.E.2d 794, 798:

'We are inclined to agree with appellant that the Board was not as specific as it might have been in...

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    ...is on the petitioners, not upon the agency (Illinois Revised Statutes, 1975, ch. 111 1/2, par. 31; Processing and Books, Inc. v. Pollution Control Board (1976), Ill., 351 N.E.2d 865, and the Board, in order to make a valid determination that a violation has been committed, is not required t......
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