Southern Illinois Asphalt Co., Inc. v. Environmental Protection Agency, 71--163

• Decision Date: 10 October 1973
• Docket Number: No. 71--163,71--163
• Citation: 15 Ill.App.3d 66,303 N.E.2d 606
• Parties: , 5 ERC 1929, 3 Envtl. L. Rep. 20,905 SOUTHERN ILLINOIS ASPHALT COMPANY, INC., Petitioner-Appellant, v. ENVIRONMENTAL PROTECTION AGENCY et al., Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 606

303 N.E.2d 606

15 Ill.App.3d 66, 5 ERC 1929, 3

Envtl. L. Rep. 20,905

SOUTHERN ILLINOIS ASPHALT COMPANY, INC., Petitioner-Appellant, v. ENVIRONMENTAL PROTECTION AGENCY et al., Respondents-Appellees.

No. 71--163.

Appellate Court of Illinois, Fifth District.

Oct. 10, 1973.

Craig & Craig, Mount Vernon, for appellant; Howard W. Campbell and Terry R. Black, Mount Vernon, of counsel.

William J. Scott, Atty. Gen., for appellee; Larry R. Eaton, Asst. Atty. Gen., Springfield, of counsel.

CREBS, Justice.

Southern Illinois Asphalt Company, Inc., appeals from an order by the Illinois Pollution Control Board which found it guilty of violating the Environmental Protection Act (Ill.Rev.Stat., ch. 111 1/2, par. 1001) and certain rules established by the Board under such Act, ordered it to cease and desist operations of its newly constructed asphalt plant at McLeansboro, Illinois, and fined it $5000 for its failure to obtain a permit for the construction of the plant and the installation of pollution control equipment.

Appellant contends that the ruling of the Board is contrary to the manifest weight of evidence; that the Act itself is unconstitutionally vague and violative of the equal protection and due process clauses of the United States Constitution; that the legislative granting of power to the Board to impose monetary penalties constitutes an unlawful delegation of judicial powers to an administrative agency; that the cease and desist order was issued without authority even under the Board's own rules and regulations; and that the procedures established by the Board for hearing enforcement matters are violative of the constitutional right to due process.

The basic facts are undisputed. In the summer of 1970, with the cooperation and encouragement of the City Council, appellant constructed an asphalt plant in McLeansboro. It began operation in late summer and employed about fifty men with a weekly payroll of approximately $16,000. Admittedly, it did not obtain an installation permit prior to construction of its plant, as required by the Act, but such failure was not wilful. It had previously built an asphalt plant in Mt. Vernon and in that instance the company that furnished the pollution control equipment applied for and obtained the permit. At McLeansboro each company mistakenly assumed that the other had made the appropriate application. As a result the plant was completed and it began operating and continued to do so throughout the fall without anyone being aware of the absence of an installation permit. Subsequently a number of neighbors began to complain, particularly about the noise and disruptive effect of the company trucks using a city street which was the only access to the plant. Again with the cooperation of the City, additional land was purchased and a new access was constructed directly to the plant from the highway. It was at this time that the company itself discovered that no one had applied for an installation permit so it then proceeded to do so.

On February 26, 1971, the Environmental Protection Agency denied appellant's application, and two days later filed a complaint charging it with failure to obtain an installation permit, and also, with operating an asphalt plant without an operating permit. At the hearing held on April 28, 1971, before a hearing officer, the Agency presented only two witnesses neither of whom testified as to whether an installation permit had ever been issued. However, Mr. Paul Schmierbach, an enforcement officer for the Agency, did testify that he had visited the plant twice while it was operating and that in his opinion the plant met all technological standards required by law or regulation for pollution control. The Agency's other witness, Mr. Clyde Bassett, testified that he too had visited the plant on two occasions and that it was one of the cleanest plants he had ever seen, and that he did not see any particulate matter emitted from the smoke stack. Testifying for appellant, Mr. James Morton, an employee of the pollution control equipment manufacturer, stated that under the Board's new regulations the permissible particulate emission per hour for an asphalt plant of the same capacity would be approximately 56 lbs.; that under the worst possible conditions the equipment installed in appellant's plant would not permit in excess of 41 lbs. of particulate emission per hour, and that in similar plants in similar conditions the emission did not exceed 11 lbs. and could be controlled to 5 lbs.

On June 10, 1971 the Board issued its order as follows: 'We find Respondent guilty of violating Section 9(b) of the Act and Rule 3--2.110 of the Rules and Regulations governing the control of air pollution. We order Respondent to cease and desist all operation of its plant at its present location without a permit. We impose a find of $5000 on Respondent for its unexcused failure to obtain a permit. We find Respondent not guilty of the charge of operating an asphalt plant without a permit because no regulations had been adopted requiring an operation permit as distinguished from an installation permit.'

The Environmental Protection Act was adopted by the legislature and became effective July 1, 1970. Section 5 of the Act created the Pollution Control Board and empowered it to determine, define and implement the environmental control standards applicable in the State of Illinois, to adopt rules and regulations in accordance with Title VII of the Act, and to conduct hearings upon complaints charging violations. Section 9 of the Act requires that 'no person shall * * * (b) construct, install, or operate any equipment, facility * * * capable of causing or contributing to air pollution or designed to prevent air pollution, of any type designated by Board regulation, without a permit granted by the (Environmental Protection) Agency.' Section 3(b) of the Act defines air pollution as 'the presence in the atmosphere of one or more contaminates 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.' Subsection (d) defines contaminate as 'any solid, liquid, or gaseous matter, any odor, or any form of energy, from whatever source.'

Rule 3--2.110 of the Board's Rules and Regulations provides that 'A permit shall be required * * * for installation or construction of new equipment capable of emitting air contaminates to the atmosphere and any new equipment intended for eliminating, reducing or controlling emission of air contaminates.'

We shall first consider appellant's contention that Sections 3(b) and 9(b) of the Act are unconstitutional because they make a wrongful delegation of legislative authority to an administrative board, and because their meaning is vague and undefined relative to the definition of air pollution. It is argued that when the law leaves to the discretion of an administrative office the definition of what the law shall be and to whom it shall apply, it is invalid as an unwarranted and void delegation of legislative power to an administrative officer. (Vallat v. Radium Dial Co., 360 Ill. 407, 196 N.E. 485.) Further it is contended that to fulfill the constitutional requirements of due process and separation of powers a statute must be complete, definite and certain when it leaves the legislature and must inform persons to be governed by it of its meaning and application. (People ex rel. Duffy v. Hurley, 402 Ill. 562, 85 N.E.2d 26.) Appellee concedes that a legislative body cannot delegate its own inherent function to declare the law but argues that it may delegate to others certain powers which it might properly, but cannot advantageously, do itself. (Brotherhood of Railroad Trainmen v. Elgin, Joliet and Eastern Ry., 382 Ill. 55, 46 N.E.2d 932.) It also argues that the Act provides sufficient standards and that the word 'pollution' is generally understood and is definite and certain. Metropolitan Sanitary District v. United States Steel Corporation, 41 Ill.2d 440, 243 N.E.2d 249.

The constitutionality of these sections has not previously been determined in Illinois, but an extensive review of similar questions arising in analogous cases leads us to the conclusion that they are sufficient to sustain such an attack.

In Brotherhood of Railroad Trainmen v. Elgin, Joliet and Eastern Ry., 382 Ill. 55, 46 N.E.2d 932, the railroad challenged an order to the Illinois Commerce Commission requiring it to install certain equipment and supplies. Section 32 of the statute (Ill.Rev.Stat.1941, ch. 111 2/3) provided that 'Every public utility shall furnish, provide and maintain such service instrumentalities, equipment and facilities as shall promote the safety, health, comfort and convenience of its patrons, employees, and public and as shall be in all respects adequate, efficient, just and reasonable.' Section 49 authorized the commission, if it found that equipment, appliances, facilities or service of any public utility were insufficient, improper or inadequate to determine 'the just, reasonable, safe, proper, adequate or sufficient rules, regulations, practices, equipment, appliances, facilities, service or methods to be observed, furnished, constructed, enforced or employed and it shall fix the same by its order, decision, rule or regulation.' Section 57 granted the commission the power 'to require every public utility to maintain and operate its plant, equipment or other property in such manner as to promote and safeguard the health and safety of its employees, passengers, customers, and the public * * * and to require the performance of any other act which the health or safety of its employees, passengers, customers or the public may demand.' The court rejected the railroads' contention that the powers so granted to the commission were 'so indefinite as to be void for uncertainty.', and cited three...