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Gromer Supermarket v. Pollution Control Bd.

JULY 31, 1972.

GROMER SUPERMARKET, INC. ET AL., PLAINTIFFS-APPELLEES,

v.

THE POLLUTION CONTROL BOARD ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding. MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Pollution Control Board, an agency of the State of Illinois, its chairman and all of its members (Board) have taken this interlocutory appeal from an order for issuance of a temporary injunction entered by the Circuit Court of Cook County on motion of Gromer Supermarket Inc. and 13 other plaintiffs. The injunctional order restrained the Board, until further order of court, "* * * from holding or conducting, scheduling or rescheduling any public hearings on the question of the adoption of a certain proposed regulation officially designated * * *" as the "Proposed Beverage Container Regulation". The trial court also denied the amended motion of the Board to dismiss the complaint.

• 1 The pertinent facts appear from the properly pleaded allegations of plaintiffs' complaint which are admitted by the motion to dismiss as amended. (Acorn Auto Driving School, Inc. v. Board of Education, 27 Ill.2d 93, 96, 187 N.E.2d 722; Follett's Illinois Book & Supply Store, Inc. v. Isaacs, 27 Ill.2d 600, 603, 190 N.E.2d 324.) Plaintiffs' complaint first described the various plaintiffs. The 14 plaintiffs may be classified into three categories. Six of them are dealers in beer or carbonated beverages, or both, in cans and bottles including one association composed of retailers of this type. Six of them are labor unions whose members are employed in the manufacture of glass containers or in the processing and packaging of malt beverages. The remaining two are consumers of such beverages and taxpayers who reside within the City of Chicago.

The complaint alleged that taxes paid by some of the plaintiffs enter into the general revenue of Illinois and are used to fund the activities of state agencies including the Board. The Board is properly described as the Pollution Control Board organized under Ill. Rev. Stat. 1971, ch. 111 1/2, pars. 1005 and following, commonly referred to as the "Environmental Protection Act." The complaint referred to the authority of the Board to conduct hearings upon complaints charging violations of the statute and also to adopt rules and regulations as specifically set forth in the Act. See Ill. Rev. Stat. 1971, ch. 111 1/2, pars. 1005(b), 1005(d) and 1027.

The complaint also alleged that the statute establishes the Illinois Institute For Environmental Quality under the supervision and control of a Director. (Ch. 111 1/2, par. 1006.) The Director is required to establish a Solid Waste Management Task Force which is directed to make surveys and recommendations regarding development of regional systems of solid waste collection; to coordinate municipal and industrial solid waste disposal programs and also "* * * to make periodic reports and recommendations for submission to the Board by the Institute at such intervals as to assure compliance with the purposes of this Act and paragraph." (Ch. 111 1/2, par. 1006.) The complaint alleged that this same section of the statute provides that the Board shall make rules and regulations on these subjects based upon recommendations of the Task Force.

The complaint further alleged that the Institute did establish a Task Force which made a recommendation that a regulation be enacted by the Board "* * * requiring that all soft drink and malt beverage containers be redeemable by the consumer for a minimum of 5 cents per container at the retail level of trade." In implementation of said recommendation by the Task Force, a lengthy proposed regulation was transmitted by the Institute to the Board. On December 5, 1971, the Board announced that it had authority to adopt the proposed regulation. Hearings were scheduled therein in Chicago during January, 1972, and in Springfield, Alton and Champaign during February, 1972. A complete copy of the proposed regulation is appended to the complaint. It need not be summarized here because no point is raised concerning specific provisions thereof.

The complaint further alleged that the legislation creating the Board was introduced into the House of Representatives of the Illinois General Assembly on April 17, 1970. In its original form, Section 22 of this proposed legislation (now Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1022) gave the Board power to adopt regulations pertaining to the "Standards, conditions and prohibitions regarding the sale, offer for sale, or use of any container, bottle, or other article that the Board may determine to create an unreasonable burden of disposal, and charges upon the sale, offer or use of such article." Such charges were to be "* * * based upon the damage done by disposal of such articles, or upon the cost of their disposal." It was further alleged that this grant of power was deleted from the proposed legislation by the General Assembly which thus manifested a clear intent to withhold from the Board the power to regulate standards, conditions and prohibitions regarding the sale, offer for sale or use of containers and bottles. It was further alleged that section 27 of the Act in its present form provides that (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 27):

"No charge shall be established or assessed by the Board or Agency against any person for emission of air contaminants from any source, * * * for the sale, offer or use of any article or for disposal of any refuse."

The complaint also alleged that the Board was illegally exceeding its jurisdiction by holding hearings on the proposed regulation since it would not have power or authority to adopt a regulation on this subject in any form. It alleged that assumption of authority by the Board to adopt such a regulation would constitute an invalid delegation of authority by the Legislature to the Board and that such action by the Board would be an exercise of discretionary power in an area wherein guidelines and standards for exercise of such power had not been properly defined. Plaintiffs also allege that holding hearings on a subject matter involving an illegally assumed delegation of authority would itself be invalid.

A number of other legal matters were alleged in the complaint including a reference to Section 6 of the Act (establishing the Institute and the Task Force, ch. 111 1/2, par. 1006), which plaintiffs alleged did not include the power to make a recommendation to the Board concerning minimum beverage container deposits or to impose any other condition on the sale or use of containers. In this regard, the complaint alleged that if the Act were to be interpreted to vest authority in the Task Force to make such recommendations, and thus to empower the Board to adopt such a regulation, this would create an unconstitutional delegation of legislative power to the Task Force.

The complaint, therefore, alleged that a justiciable controversy exists between the parties concerning proper interpretation of the Act. An opinion of the Board issued on March 3, 1971 is appended to the complaint. The Board there stated that it did not possess authority to adopt regulations on the subject of beverage containers without a recommendation by the Task Force. However, it was further alleged that, in a so-called newsletter, the Board stated that it had authority to adopt the proposed regulation under Section 6 or under Section 22 of the Act. Plaintiffs asserted that the Board has no power or authority to pass any regulation on the subject matter of containers and that it is acting outside of its jurisdiction in holding hearings on the subject of the proposed regulation. The complaint alleged that the scheduled hearings would entail expenditure of substantial time and money by the Board and by plaintiffs and that postponement of the hearings would not cause damage or inconvenience. The complaint prayed that the court declare the rights of the parties under the pertinent Act in accordance with the contention of plaintiffs and that plaintiffs be granted temporary and permanent injunctional relief.

The Board filed a motion to dismiss the complaint as substantially insufficient in law. The motion set forth that plaintiffs have an adequate remedy at law under the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, pars. 264 and following), and also under the Environmental Protection Act. (Ill. Rev. Stat. 1971, ch. 111 1/2, pars. 1029 and 1041.) The motion also set forth that the complaint failed to allege facts showing an actuality or threat of irreparable harm as necessary to warrant use of the injunctive powers of the court. The Board also filed an amended motion to dismiss which stated in addition that the complaint fails to state a cause of action in that the proposed regulation was constitutionally and statutorily valid and within power of the Board to adopt. The motion to dismiss was denied by the court on the same date that the injunctional order appealed from was entered.

In this court, the Board contends that the temporary injunction was improvidently issued because: (1) there is no present justiciable controversy between these parties; (2) plaintiffs have an adequate remedy at law; (3) no showing of special injury has been made by plaintiffs and plaintiffs have failed to satisfy the applicable tests or requirements for issuance of a temporary injunction. In opposition to these matters, the plaintiffs urge: (1) that the sole test regarding the issuance of the injunction is whether the trial court abused his discretion; (2) that there is a justiciable controversy ripe for decision now; (3) that plaintiffs have no adequate remedy at law and that plaintiffs are not required to show threatened destruction of their business to be entitled to injunctive relief. Plaintiffs also urge that they have satisfied all of the legal criteria for issuance of the injunction; the Board lacks statutory power to regulate within the field of beverage containers; that the complaint shows irreparable harm to plaintiffs without the injunction; that the preliminary injunction has harmed neither defendants nor the People of Illinois and that issuance of the injunction has served the public interest.

Under the view which we take of the case, we find it necessary to answer only one question:

Is the difference of opinion and dispute between these parties "ripe for adjudication" or was ...


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