Sangamo Const. Co. v. Pollution Control Bd.

• Decision Date: 01 May 1975
• Docket Number: No. 12094,12094
• Citation: 27 Ill.App.3d 949,328 N.E.2d 571
• Parties: SANGAMO CONSTRUCTION COMPANY, Petitioner, v. The POLLUTION CONTROL BOARD et al., Respondents.
• Court: United States Appellate Court of Illinois

Page 571

328 N.E.2d 571

27 Ill.App.3d 949

SANGAMO CONSTRUCTION COMPANY, Petitioner, v. The POLLUTION CONTROL BOARD et al., Respondents.

No. 12094.

Appellate Court of Illinois, Fourth District.

May 1, 1975.

James T. Mohan, Mohan Law Offices, Springfield, for petitioner.

William J. Scott, Atty. Gen., Springfield, for respondents; Larry R. Eaton and Thomas A. Cengel, Asst. Attys. Gen., of counsel.

SIMKINS, Presiding Justice:

This is an appeal by Sangamo Construction Company (Sangamo) for review of an order of the Illinois Pollution Control Board (Board). The Board found that Sangamo had caused air pollution in violation of section 9(a) of the Environmental Protection Act. (Ill.Rev.Stat.1971, ch. 111 1/2, 1009(a).) The Board further found Sangamo had violated section 3--2.110 of the Rules and Regulations of the Air Pollution Control Board by failing to secure a permit for its concrete plant. Also, the Board found Sangamo had operated its asphalt plant without a permit. A $5000 fine was imposed for these three violations. Sangamo appeals to this court pursuant to the provisions of the Environmental Protection Act and the Administrative Review Act. Ill.Rev.Stat.1971, ch. 111 1/2, 1041; Ill.Rev.Stat.1971, ch. 110, 264 et seq.

Three issues are raised for review: (1) Whether Sangamo operated its asphalt plant without a permit; (2) whether the finding that Sangamo had caused air pollution is against the manifest weight of the evidence; and (3) whether the fine imposed is arbitrary and excessive.

In 1969, Sangamo applied for an installation and operation permit for its asphalt plant near Springfield, Illinois. Such a permit was required by the Rules and Regulations of the Air Pollution Control Board, predecessor agency to the Pollution Control Board, and to the Environmental Protection Agency. The permit was issued by the Air Pollution Control Board early in 1969.

On May 10, 1972, the Environmental Protection Agency filed a complaint with the Board, charging, among other things, that Sangamo had been operating its asphalt plant in violation of its permit. The Board subsequently held that because of Sangamo's actions, the company was operating without an applicable permit.

In the application for a permit, various information was requested in order to determine the environmental impact of the plant. One of the items requested was the process weight rate of the proposed equipment. The process weight rate is the total amount of materials used in the operation over a given period of time. The amount of allowable emissions is calculated as a proportion of this rate.

Sangamo indicated a rate of 200 tons per hour on this form. The application form does not indicate whether the figure to be supplied was to be an average or maximum figure, whether it was to be measured or estimated. After the application form was received, Sangamo was issued a permit.

During the period covered by the complaint, from July 1970, through May 1972, the actual process weight rate at which the plant was operated ranged from a low of 115 tons per hour to a high of 327. The average operating rate was 247 tons per hour.

The Board's opinion states that this was as if two plants had been built by Sangamo instead of one. They found that the permit did not authorize such rates and therefore Sangamo was operating without a permit.

We cannot agree with the Board's decision. First, the application form, supplied to Sangamo by the Air Pollution Control Board, gave the applicant no indication that an estimated average rate was not acceptable. Sangamo contends that the figure supplied was a reasonable anticipated average rate for this new plant. The Environmental Protection Agency does not dispute that, but argued that an actual maximum rate was required to be given. For the Board to retroactively interpret this ambiguous form to find a violation is clearly unfair to Sangamo. In other parts of the form, estimated figures were permissible. If estimated average figures of the process weight rate were not acceptable, it would have been extremely simple to indicate this on the form.

Even more importantly, the permit does not specifically incorporate the application. The permit which was granted allowed Sangamo to install and operate a certain model asphalt plant with specifically described pollution control equipment. The permit contains no limitations on the rate of material that could be processed by this equipment.

Sangamo had a permit and it contained no restrictions as to the rate. Therefore, we cannot agree with the Board's findings that the company was operating without a permit for its asphalt plant.

The Board also found that Sangamo had violated section 9(a) of the Environmental Protection Act. (Ill.Rev.Stat.1971, ch 111 1/2, 1009(a).) Section 9(a) reads in part:

'No person shall: (a) Cause or threaten or allow the discharge or emission of any contaminant into the environment * * * so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources,'

Section 3(b) of the Act defines 'air pollution':

'(b) '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, 1003(b).)

Sangamo contends that the finding by the Board of a 9(a) violation is against the manifest weight of the evidence. This court may overturn the decision of an administrative agency on review only if we find that the decision was against the manifest weight of the evidence. (City of Monmouth v. Pollution Control Board, 57 Ill.2d 482, 313 N.E.2d 161; Incinerator, Inc. v. Pollution Control Board, 59 Ill.2d 290, 319 N.E.2d 794.) The findings of the Pollution Control Board are deemed to be prima facie true and 'there need only be some competent evidence in the record sufficient to support the agency finding.' Cobin v. Pollution Control Board, 16 Ill.App.3d 958, 969, 307 N.E.2d 191, 199.

The Environmental Protection Agency introduced the testimony of several businessmen who worked near Sangamo's plant. This testimony concerned both the odor and dust problem alleged in the agency's complaint to be a 9(a) violation. We will summarize that evidence.

One businessman testified that, because of the odor produced by Sangamo's operations, he permitted office girls to go home on several occasions. He said that he himself was sometimes close to nausea. Another businessman testified that because of the odor he was forced to close the overhead doors of his plant which faced in Sangamo's direction. This led to employee complaints about lack of ventilation. The attribution by the witnesses of these odors to Sangamo was clear. One witness said that he could distinguish the asphalt odors produced by Sangamo from an occasional odor produced by oil spills from a nearby oil storage tank. All of the witnesses agreed that there was no odor when Sangamo was not in operation and that the smell was most objectionable when the wind was blowing from Sangamo's direction.

There was also specific testimony about the dust problem. The owner of a nearby furniture moving and storage company stated that, because of the dust, he was forced to clean furniture before redelivering it. Another businessman testified that the dust made office maintenance and repair difficult, especially when repainting equipment. Again, the attribution by the witnesses of this dust to Sangamo was clear. A direct connection was noted between wind direction and the dust. In addition, the witnesses observed specific operations at Sangamo which seemed to create the most dust.

The legislature has defined two types of 'air pollution' in section 3(b) of the Act. One is the presence of contaminants in the atmosphere in sufficient amounts, characteristics and duration as to unreasonably interfere with the enjoyment of life or property. In Incinerator, Inc., the Illinois Supreme Court has specifically said that, before the Board can determine that a 9(a) violation exists because of this type of air pollution, the Board must consider certain criteria established in section 33(c) of the Act. Ill.Rev.Stat.1971, ch. 111 1/2, par. 1033(c).

Another type of 'air pollution' defined in 3(b) is the presence of contaminants injurious to human, plant or animal life, to health or property. We believe that section 33(c) factors must also be considered before a violation of this type can be found. The reasoning of the supreme court in Incinerator, Inc. is fully applicable to both types of air pollution. The purpose of section 33(c) is to provide protection against arbitrariness by the Board and to present the Board with guidelines in determining what is a violation. (City of Waukegan v. Pollution Control Board, 57 Ill.2d 170, 311 N.E.2d 146.) The language of 33(c) makes no distinction between these two types of air pollution but directs:

'(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...